Eric J., In re

Decision Date22 October 1979
Citation25 Cal.3d 522,159 Cal.Rptr. 317,601 P.2d 549
CourtCalifornia Supreme Court
Parties, 601 P.2d 549 In re ERIC J., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ERIC J., Defendant and Appellant. L.A. 31076.

Appellate Defenders, Inc., under appointment by the Court of Appeal, and Handy Horiye, San Diego, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Lillian Lim Quon, Deputy Attys. Gen., for plaintiff and respondent.

CLARK, Justice.

Eric J., a minor, appeals from an order continuing his juvenile court wardship and committing him to the Youth Authority (Welf. & Inst.Code, §§ 602, 731) after findings he committed burglary (Pen.Code, § 459) and was in contempt of court for violating conditions of an earlier order granting probation (Pen.Code, § 166, subd. 4). The maximum term for which he might be confined was determined to be three and one-half years three years for the burglary and six months for the misdemeanor contempt. The commitment order must be modified to recite that appellant's maximum term is three years, two months, and that he is to receive forty-six days credit for time in custody prior to commitment. As modified, the judgment will be affirmed.

Facts

A month after 10 pairs of roller skates were taken in a burglary of the Sweetwater Roller Rink, Midge Rhoda, a professional skating instructor, informed the owner that appellant was at the Palisades Gardens Skating Rink attempting to sell roller skates which might be the ones stolen. In response to a call from the owner, Officer Merrell Davis went to the Sweetwater rink and was advised by the manager, Buddy Morris, of appellant's identity and his employment at the rink. Officer Davis had a copy of the burglary report.

The uniformed officer drove Morris to the Palisades Gardens where they met Rhoda. She suggested they talk to appellant in her office and summoned him. During questioning by Morris for 45 minutes to an hour, appellant confessed to the burglary, implicated his brother as his accomplice, and stated that he had sold some of the skates to individuals still at the Palisades Gardens, and that the remaining skates were at his house. On two occasions during the conversation appellant left the office and returned with individuals to whom he had sold skates. Officer Davis then drove Morris and appellant to the latter's house where he remained outside while Morris and appellant went in and retrieved the other skates.

Both Morris and Officer Davis testified that Morris questioned appellant on his own initiative, that the officer did not suggest or arrange he do so, and that the officer, while present during the conversation between Morris and appellant, did not participate in it. Appellant testified to the contrary, claiming that Officer Davis joined Morris in questioning him.

Admissibility of the Confession

Appellant contends his confession and resulting evidence should have been suppressed because he was not advised prior to being questioned of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The procedural safeguards set forth in Miranda "come into play only where 'custodial interrogation' is involved, and by 'custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' " (People v. Fioritto (1968) 68 Cal.2d 714, 718, 68 Cal.Rptr. 817, 819, 441 P.2d 625, 627.) "A private citizen is not required to advise another individual of his rights before questioning him. Absent evidence of complicity on the part of law enforcement officials, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees." (People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1049, 102 Cal.Rptr. 449, 454, citations omitted; see People v. Price (1965) 63 Cal.2d 370, 379, 46 Cal.Rptr. 775, 406 P.2d 55.) The question thus presented is whether Officer Davis participated in the questioning of appellant either directly or through the agency of Mr. Morris.

"(T)he trial court's ruling on a Miranda issue may not be set aside by us unless it is 'palpably erroneous.' A ruling palpably erroneous is one lacking support of substantial evidence. (People v. Duren (1973) 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 507 P.2d 1365.) And of course '(w)hen two or more inferences can reasonably be deduced from the facts,' either deduction will be supported by substantial evidence, and 'a reviewing court is without power to substitute its deductions for those of the trial court.' (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785, 59 Cal.Rptr. 141, 143, 427 P.2d 805, 807.)" (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 670, 145 Cal.Rptr. 795, 797-798.)

The trial court expressly found Officer Davis did not directly participate in questioning appellant, and, in ruling a Miranda warning was unnecessary, impliedly found lack of complicity between Davis and Morris. As the findings were supported by substantial evidence, we must uphold them.

Appellant's reliance on Stapleton v. Superior Court (1968) 70 Cal.2d 97, 73 Cal.Rptr. 575, 447 P.2d 967 is misplaced. There we held that in appropriate circumstances a private citizen may be deemed to act as an agent of the police when the latter merely "stand idly by," i. e., when they knowingly permit the citizen to conduct an illegal search for their benefit and make no effort to protect the rights of the person being searched. (Id. at pp. 102-103, 73 Cal.Rptr. 575, 447 P.2d 967.) However, a "prerequisite to invoking the Stapleton-Moody (Moody v. United States, D.C.Mun.App., 163 A.2d 337) rule is, manifestly, that the search permitted by the police be illegal." (People v. McKinnon (1972) 7 Cal.3d 899, 913, 103 Cal.Rptr. 897, 906, 500 P.2d 1097, 1106.) In Stapleton, the private citizen searched the locked trunk of the defendant's car, committing both a misdemeanor and a civil trespass. (70 Cal.2d at p. 103, 73 Cal.Rptr. 575, 447 P.2d 967.) Stapleton was held inapposite in McKinnon where the private party, a common carrier, had legitimate grounds for carrying out the challenged search. (7 Cal.3d at p. 913, 103 Cal.Rptr. 897, 500 P.2d 1097.) For the same reason it is inapposite here. It was perfectly appropriate of Mr. Morris to question appellant in order to secure the return of the stolen skates.

Equal Protection

Relying on People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, appellant contends Welfare and Institutions Code section 726 denies him equal protection of the laws by providing that the maximum term of confinement for a juvenile is the longest term imposable upon an adult for the same offense, without the necessity of finding circumstances in aggravation of the crime justifying imposition of the upper term as is required in adult criminal procedure by Penal Code section 1170, subdivision (b).

Section 726, subdivision (c), of the Welfare and Institutions Code provides in relevant part: "In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. (P) As used in this section and in Section 731, 'maximum term of imprisonment' means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled."

Section 1170, subdivision (b), of the Penal Code provides: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment either party may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution or the defendant, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term . . . ."

Appellant was found to have committed burglary. (Pen.Code, § 459.) Because the court failed to find the degree of the offense, it is deemed to be of the second degree. (Pen.Code, § 1157.) Second degree burglary is punishable "by imprisonment in the county jail not exceeding one year or in the state prison." (Pen.Code, § 461, subd. 2.) Where it is not otherwise specified, the term for an offense punishable by imprisonment in a state prison is "16 months, or two or three years." (Pen.Code, § 18.) Pursuant to Welfare and Institutions Code section 726, subdivision (c), the maximum term for which appellant might be confined for the burglary was determined to be three years. He contends that, in the absence of any finding of aggravation, it is a...

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