J. Clyde K., In re

• Decision Date: 12 June 1987
• Court: California Court of Appeals Court of Appeals
• Parties: In re J. CLYDE K. et al., Persons Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. J. CLYDE K. et al., Defendants and Appellants. A032098.

Page 550

237 Cal.Rptr. 550

192 Cal.App.3d 710

In re J. CLYDE K. et al., Persons Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. J. CLYDE K. et al., Defendants and Appellants.

A032098.

Court of Appeal, First District, Division 2, California.

June 12, 1987.

As Modified June 19, 1987.

Winslow & Schmidt, Benjamin R. Winslow, Paula Schmidt, San Francisco, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ronald E. Niver, Josanna Berkow, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ROUSE, Acting Presiding Justice.

This case is illustrative of an oft-heard proposition: Confession is not only good for the soul (an old Scottish proverb) but it often gets the wrongdoer "off the hook." Here, two minors complain that a confession which caused them to become wards of the juvenile court was involuntarily coerced. We conclude that existing statutory and case law support their position and accordingly reverse the orders of the juvenile court.

On March 8, 1985, petitions were filed in the superior court charging defendants J. Clyde K. (Clyde) and Tommy C. (Tommy) with burglary (Pen.Code, § 459), petty theft (Pen.Code § 488) and receiving stolen property (Pen.Code § 496, subd. 1). Defendants were alleged to be minors within the meaning of Welfare and Institutions Code section 602. Each defendant denied the allegations of the petition.

Defendants filed motions to suppress evidence which were heard on June 14 and 17, 1985, and denied on June 17, 1985. The allegations of count three, receiving stolen property, were found true and the allegations of counts one and two, burglary and petty theft, were found untrue.

Defendants were adjudged wards of the juvenile court on July 5, 1985, and placed on probation. They were ordered to attend school regularly when in session, perform community service and pay certain fines.

Notices of appeal were filed by both defendants. ¹

Statement of Facts

On March 5, 1985, the singer Prince gave a concert at the Cow Palace in San Francisco. The San Francisco Police Department's Patrol Bureau Task Force was assigned to the area around the concert. Their function was to patrol areas of anticipated trouble and abate robberies and burglaries. An average of four to five robberies and one to two auto burglaries are regularly committed in the Cow Palace area each night.

Bruce Marovich, an 18-year veteran of the San Francisco Police Department and an officer in the Patrol Bureau Task Force, observed three juveniles riding their bicycles in the Cow Palace area near Argonaut and Velasco Streets around 8 p.m. that evening. He observed the boys circling up and down the street and peering into unattended parked vehicles. One boy came to the corner, apparently to serve as a lookout while the other two looked inside the cars. Officer Marovich was able to observe the boys for a five-minute period. During this period he did not see the boys actually try to open a car. However, Officer Marovich suspected the boys of "auto boosting." He tried to keep them under surveillance, but lost sight of the boys when they rode their bicycles between some buildings.

Officer Marovich continued patrolling the area. Approximately an hour later he saw the same three boys crossing Velasco north of Schwerin, balancing large boxes (3 feet long by 10 inches wide) on the handlebars of their bicycles. Tommy had one box; Clyde and the third boy, Raymond, each carried two boxes. The boys rode through a park and headed northeast towards a housing complex. Officer Marovich could not determine what the boxes contained; however, he stopped the boys as they came out of the park on Kelloch. Officer Marovich looked at the boxes and saw a picture of a coatrack on each of them. He and his partner grabbed the juveniles by the wrists and asked them where they had gotten the boxes. Clyde replied that a man around the corner had given them the boxes. The others seemed to agree. The three boys were then handcuffed.

In an effort to determine the veracity of the boys' statement, Officer Marovich "separated them like witnesses." Clyde was advised of his Miranda rights. Then, in what must have been a momentary venting of his parental instinct, Officer Marovich told Clyde that if he told him the truth, the worst he would get would be a citation, but if he found out that Clyde had lied to him, he would be arrested if there was proof the boxes were stolen. Officer Marovich asked Clyde to show him where the man had allegedly given them the boxes. The other two boys remained with Marovich's partner, Sergeant Currie, and two other officers in a marked police vehicle. Clyde led Marovich 12 blocks away behind some apartments and showed him a garage by a very small park where he claimed the man had given them the boxes.

Before returning to the site of the stop, Officer Marovich decided on his own initiative to investigate whether any business in the area had been burglarized. With Clyde still in the car, the officer stopped at an electric company and showed a man there one of the boxes containing a coatrack. Marovich asked him whether it belonged to anyone at the electric company and the man told him it did not.

To check Clyde's story, Officer Marovich next took Tommy aside and advised him of his rights. Tommy also said that a man had given them the boxes. Marovich then took Tommy for a ride so that he could indicate where this occurred. Tommy directed the officer two blocks further and up a different street than Clyde had done earlier. He said that the man who had given him the boxes was parked in front of stairs that went up a hill. According to Officer Marovich, "at this time I knew there was a definite discrepancy and they were both lying."

Officer Marovich returned Tommy to the site of the stop and took the third boy, Raymond, aside. He advised Raymond of his rights and told him the other boys had lied about the boxes. Marovich told Raymond that if he told the truth he would get a citation, but if he lied he would be booked. Raymond went out with the officers and then returned to the site of the stop. All three boys, still handcuffed, were then placed in the back of the police car. Officer Marovich again repeated his statement that if the boys told the truth they would get a citation, but if they lied they would go to jail. Raymond waited about five seconds and then said, "Forget that. I can't go back to jail." He began pounding on the door of the police vehicle, and Officer Marovich came over to the car. Raymond was advised of his Miranda rights. Raymond then told Officer Marovich that the boxes were stolen and that the boys had taken them from a warehouse on Bayshore Boulevard. Raymond showed the police the loading dock from which they were taken. The officers spoke with Daniel Cheng, the general manager of the company which owned the warehouse. Mr. Cheng identified the boxes, indicating they had been stolen from his warehouse.

Officer Marovich kept his promise. Raymond was given a citation and then released. Officer Marovich asked Tommy and Clyde if Raymond could take their bicycles home for them. They became distraught and said they would tell him the truth if he would give them a citation and let them go home. Officer Marovich told them it was too late.

Tommy and Clyde were driven to the police station, fingerprinted, photographed and taken to Youth Guidance Center. At the police station, Tommy made an inculpatory statement. Both Tommy and Clyde made inculpatory statements to their parole officers the next day.

I.

Each minor contends that Raymond's confession was the product of coercion, resulting from the repeated statements by Officer Marovich that if he told the truth he would receive a citation, but if he lied he would be taken to jail. Each claims that under such circumstances the confession and fruits gathered as a result were inadmissible.

We conclude that the minors may seek exclusion of the confession and tainted fruits on the basis of an involuntary confession by another. Further, we find that Raymond's confession was not voluntarily made. Instead, it resulted from a police officer's threat to jail the boy if he did not talk and the officer's promise to release him if he did. The motion for suppression of evidence premised upon the involuntary nature of the confession should have been granted. Failure to do so requires that the judgment finding the minors wards of the court pursuant to Welfare and Institutions Code section 602 be reversed.

II. Standing to Challenge Voluntariness of Confession

On appeal, the minors contend that Raymond's confession was unlawfully obtained through improper police tactics, hence they seek to suppress Raymond's confession and the fruits thereof.

Tommy and Clyde rely upon California law which recognizes the right of a defendant to seek exclusion of a third party's confession obtained by coercive police tactics, as well as the right to suppress physical and other nonhearsay evidence acquired as a result of the confession. (People v. Varnum (1967) 66 Cal.2d 808, 813, 59 Cal.Rptr. 108, 427 P.2d 772; People v. Gordon (1978) 84 Cal.App.3d 913, 919, 149 Cal.Rptr. 91; accord People v. Enriquez (1982) 132 Cal.App.3d 784, 792-793, 183 Cal.Rptr. 447; In re Jessie L. (1982) 131 Cal.App.3d 202, 209, 182 Cal.Rptr. 396; People v. Jones (1980) 105 Cal.App.3d 572, 581, 164 Cal.Rptr. 605; People v. Felix (1977) 72 Cal.App.3d 879, 885, 139 Cal.Rptr. 366.)

However, the case law relied upon by defendants predates the adoption of article I, section 28, subdivision (d), of the California Constitution (hereafter section 28(d)). Added by Proposition 8 in 1982, section 28(d) provides in relevant part: "Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including ... any trial...