James M., In re

• Decision Date: 28 July 1977
• Docket Number: Cr. 29146
• Citation: 139 Cal.Rptr. 902,72 Cal.App.3d 133
• Court: California Court of Appeals Court of Appeals
• Parties: In re JAMES M., Jr., a person coming under the juvenile court law. Kenneth F. FARE, as Acting Chief Probation Officer, Plaintiff and Respondent, v. JAMES M. Jr., Defendant and Appellant.

Page 902

139 Cal.Rptr. 902

72 Cal.App.3d 133

In re JAMES M., Jr., a person coming under the juvenile court law.

Kenneth F. FARE, as Acting Chief Probation Officer, Plaintiff and Respondent, v. JAMES M. Jr., Defendant and Appellant.

Cr. 29146.

Court of Appeal, Second District, Division 5, California.

July 28, 1977.

Rehearing Denied Aug. 16, 1977.

Hearing Denied Sept. 22, 1977.

Cynthia K. Cohan, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

James Leonard, a minor, was alleged to come within the provisions of Welfare and Institutions Code section 602 based on his possession of 'nun-chakus,' that is karate sticks, in violation of Penal Code section 12020. After a hearing, the court sustained the petition, declared the minor to be a ward of the court and ordered that he be taken from his parents and suitably placed. The minor was placed at the American Boy's Ranch in June 1976.

Adjudication Hearing

On November 19, 1975, at about 8 p.m., Deputy Sheriff Falls saw the minor sitting in the passenger seat of a vehicle and another person in the driver's seat. The deputy saw a Coors beer can on the dashboard and approached the vehicle. Both the minor and the driver got out of the car. While Deputy Falls was detaining the minors near his car, Deputy Vernon, his partner, found two nun-chakus sticks on the floor of the vehicle on the driver's side. The nun-chakus sticks were 12 inches long, about one inch in circumference, wrapped with black tape and connected by a six-inch chain.

Deputy Vernon picked up the sticks, turned to Deputy Falls 'and the two subjects, and asked, whose sticks were these.' The statement was not directed at any particular person. The minor said 'that they were his,' and that 'he had found them.'

At the adjudication hearing and on appeal, the minor contends that his statement that the nun-chakus sticks belonged to him was inadmissible because obtained in violation of his Miranda rights. We agree.

We might state at the outset that the record is maddeningly sparse. Thus, it does not tell us (1) the precise location of the nun-chakus in the car; (2) whether the beer can had been opened and, if so, whether it still contained beer; and (3) whether the driver of the car was also a minor. Nevertheless, we think the trial court erred in admitting appellant's statement.

It may well be that the officers did not believe that they had effected an arrest, but that is immaterial. 'The 'custodial' element of the accusatory stage when the right to counsel attaches does not depend on the interrogator's subjective intent; 'custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived. '' (People v. White (1968) 69 Cal.2d 751, 760, 72 Cal.Rptr. 873, 877, 446 P.2d 993, 997, quoting from People v. Arnold (1967) 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515.) Further, under Miranda the vital question is custody, not whether the investigation has focused on the person interrogated (Miranda v. Arizona (1966) 384 U.S. 436, 444, fn. 4, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Herdan (1974) 42 Cal.App.3d 300, 307, fn. 10, 116 Cal.Rptr. 641; People v. Hubbard (1970) 9 Cal.App.3d 827, 834, 88 Cal.Rptr. 411), and it is immaterial that the questioning relates to a crime other than the one which triggered the custody and is investigatory as far as that offense is concerned. (Mathis v. United States (1968) 391 U.S. 1, 4--5, 88 S.Ct. 1503, 20 L.Ed.2d 381; People v. Woodberry (1968) 265 Cal.App.2d 351, 354--357, 71 Cal.Rptr. 165.) ¹

We recognize that a detention not amounting to an arrest does not trigger the need for Miranda warnings. (People v. Manis (1969) 268 Cal.App.2d 653, 663--669, 74 Cal.Rptr. 423.) Nevertheless, as Manis recognizes, a detention for investigation ripens into an arrest, requiring Miranda warnings, as soon as probable cause to arrest has been established. (Id. at p. 670, 74 Cal.Rptr. 423. See generally People v. Herdan, supra, 42 Cal.App.3d 300, 306, fn. 8, 116 Cal.Rptr. 641; People v. Wright (1969) 273 Cal.App.2d 325, 333, 78 Cal.Rptr. 75; People v. Ceccone (1968) 260 Cal.App.2d 886, 892--893, 67 Cal.Rptr. 499.

Applying these rules to the facts of this case, the result, though close, seems clear. First, there is the forgotten contraband--the can of beer. Section 23123.5 of the Vehicle Code forbids minors to possess, transport or have alcoholic beverages under their control while in a motor vehicle. Although the statute presumably does not apply to empty beer cans, it would be most unusual for an 'empty' to be displayed on the dashboard of a car. Even on the admittedly imperfect record, it seems clear that probable cause to arrest the minor for the Vehicle Code violation has arisen.

More to the point, there was probable cause to arrest both occupants for possession of the nun-chakus. The rule is well established that access to or possession of contraband provides adequate grounds to arrest and, in the case of an adult, to hold that person to answer. (E.g., Williams v. Superior Court (1969) 71 Cal.2d 1144, 1149--1150, 1150, 80 Cal.Rptr. 747, 458 P.2d 987; Rideout v. Superior Court (1967) 67 Cal.2d 471, 475, 62 Cal.Rptr. 581, 432 P.2d 197; People v. Jackson (1970) 14 Cal.App.3d 57, 63, 92 Cal.Rptr. 91; Frazzini v. Superior Court (1970) 7 Cal.App.3d 1005, 1017, 87 Cal.Rptr. 32.) Indeed, often not much more is necessary for a conviction. (E.g., People v. White (1969) 71 Cal.2d 80, 83, 75 Cal.Rptr. 208, 450 P.2d 600 (possession of marijuana); People v. McKinney (1935) 9 Cal.App.2d 523, 524--525, 50 P.2d 827 (possession of a 'sap'); see also Frazzini v. Superior Court, supra, 7 Cal.App.3d at p. 1017, 87 Cal.Rptr. 32.) In short, the deputies would have been entitled to arrest both the driver and the passenger, and, absent an adequate explanation by one or both persons would, based on the authorities cited above, have been derelict in their duty had they failed to do so. Although the Attorney General points out that the nun-chakus sticks were on the driver's side of the vehicle, suggesting that the officers had no reason to arrest the minor, this case does not involve traces of marijuana or a weapon secreted on the driver's floorboard. This case involves two 12-inch sticks connected by a 6-inch chain (See People v. Vermouth (1971) 20 Cal.App.3d 746, 755--756, 98 Cal.Rptr. 65.)

The minor was effectively under arrest for possession of a dangerous weapon and should have been given his Miranda warnings before any questions concerning that possession were asked.

Since the Attorney General appears to concede that, absent the confession, the evidence is insufficient to sustain the petition, the order of the juvenile court declaring the minor to be a person under Welfare and Institutions Code section 602 must be reversed.

Disposition Hearing

The minor contends that the court abused its discretion by ordering that he be taken from his parents and suitably placed. In the event that the matter arises in any subsequent proceedings, we note that an order of commitment by a juvenile court which removes a minor from the custody of his parents is proper when the parents are unable to exercise proper care and control. (In re Randy B. (1976) 62 Cal.App.3d 89, 97--98, 132 Cal.Rptr. 720.) There was evidence that the minor, age 15 at the time of these proceedings, had first come to the attention of the court when he was 12 years of age in September 1973, and had thereafter had difficulties. Although his mother testified that she had no trouble controlling him during the few months he had been home--the minor having been detained from January 30 to March 15, 1976--it appeared that previously the mother had not been able to control the minor. The minor had lived with his father for a period of only about three months, and although his father was willing to have the minor live with him, he worked from 6 p.m. to 2:30 a.m. Although, as appellate counsel properly points out, the minor's difficulties in school were related in part to the school's inability to protect the minor from gang attacks, the juvenile court was entitled to give great weight to the opinion of the probation officer that the minor would benefit from a less hostile environment.

The order is reversed.

STEPHENS, J., concurs.

ASHBY, Associate Justice, dissenting.

I respectfully dissent.

The facts are very simple. Deputy Sheriff Falls saw two males seated in a parked car. There was a beer can on the dashboard. The minor, who was 15, was in the passenger's seat and his companion was the driver. As Deputy Falls approached, both the driver and the minor got out of the car. While Falls talked to them, Deputy Vernon looked into the car and found two nun-chakus sticks on the floor of the driver's side of the vehicle. He picked them up and asked whose sticks they were. The question was not directed specifically at the minor, who said 'that they were his,' and that 'he had found them.'

At the time the question was asked, appellant was not under arrest nor was he in custody within the meaning of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. He was subject only to temporary detention for purposes of investigation, which is not the type of significant restraint to which the Miranda rules apply. (People v. Manis, 268 Cal.App.2d 653, 663--669, 74 Cal.Rptr. 423; People v. Hubbard, 9 Cal.App.3d 827, 833, 88 Cal.Rptr. 411.) The majority's conclusion that the minor was effectively in custody because there was probable cause to arrest him is not supported by the record.

As to Vehicle Code section 23123.5, there is no evidence in the record that the beer can...