Johnny v., In re

• Decision Date: 27 September 1978
• Docket Number: 31837,Cr. 31836
• Citation: 85 Cal.App.3d 120,149 Cal.Rptr. 180
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of JOHNNY V., a person coming under the Juvenile Court Law, Appellant, v. The PEOPLE of the State of California, Petitioner and Respondent. In the Matter of JIMMY A., a person coming under the Juvenile Court Law, Appellant, v. The PEOPLE of the State of California, Petitioner and Respondent.

Page 180

149 Cal.Rptr. 180

85 Cal.App.3d 120

In the Matter of JOHNNY V., a person coming under the Juvenile Court Law, Appellant, v. The PEOPLE of the State of California, Petitioner and Respondent.

In the Matter of JIMMY A., a person coming under the Juvenile Court Law, Appellant, v. The PEOPLE of the State of California, Petitioner and Respondent.

Cr. 31836, 31837.

Court of Appeal, Second District, Division 4, California.

Sept. 27, 1978.

Hearing Denied Dec. 13, 1978.

William J. Cox, Los Angeles, under appointment by the Court of Appeal, for appellant Johnny William V.

Quin Denvir, State Public Defender, and Paul Halvonik, Jr., State Public Defender, Gary S. Goodpaster, Acting State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Martin Stein and Allison B. Stein, Deputy State Public Defenders, under appointment by the Court of Appeal, for appellant Jimmy A.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Cecilia H. Johnson, Deputy Attys. Gen., for petitioner and respondent.

JEFFERSON, Associate Justice.

I The Procedural History

On August 1, 1977, petitions were filed in the Juvenile Court of Los Angeles County alleging that on June 11, 1977, Jimmy A., a minor 15 years of age, and Johnny V., a minor 17 years of age, committed the felony offense of murder in violation of Penal Code section 187. The victim alleged to have been murdered was Charles Mulcahy. Both minors denied the allegations of the petitions. On August 9, 1977, the juvenile court conducted hearings on the minors' motions to suppress evidence, made pursuant to Penal Code section 1538.5, and on Johnny V.'s additional motion to exclude his inculpatory statements. The motions were denied the following day. Thereafter, the parties stipulated that all evidence presented at the Penal Code section 1538.5 and Evidence Code section 402 hearings would be considered by the court as part of the evidence presented at the adjudication hearing, with the exception of that evidence which was received at the 1538.5 hearing for the limited purpose of establishing probable cause and that evidence of Johnny V.'s statements would not be admissible against Jimmy A.

At the adjudication hearing at the close of the prosecution's case, both minors made motions for a judgment of acquittal pursuant to Penal Code section 1118. These motions were denied. Both minors then rested without presenting any evidence in their defense. The court sustained the petitions to the extent of finding that each minor had committed the offense of an assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a), a lesser and necessarily included offense within the murder charge. Each minor was declared to be a person described by section 602 of the Welfare and Institutions Code.

At a subsequent disposition hearing on August 25, 1977, each minor's motion for a general verdict of acquittal was denied. The court also made a finding that the offense committed in violation of section 245 of the Penal Code was a felony and each minor was committed to the California Youth Authority. Each minor has appealed from the orders of the juvenile court the orders which sustained the petitions of August 1 and the disposition orders of August 25, which committed the minors to the California Youth Authority.

II The Factual Background

On June 11, 1977, at approximately 1:40 a. m., officers of the Los Angeles Police Department observed a group of about six to eight young Latin males congregated in the vicinity of Q Street and Frigate in Wilmington. It appeared that a fight was in progress. There was one person down in the street and the surrounding group of males were kicking him and hitting him with their fists. As the officers approached, the group dispersed, leaving the victim covered with blood on the pavement. The officers proceeded in their vehicle in pursuit of those who had run from the scene. The officers finally stopped a speeding vehicle which appeared to come out of Q Street and make a sudden right hand turn on Wilmington Boulevard without stopping at the stop sign.

The stopped vehicle contained three males and two females. Blood was observed on the hands of the driver, Arvizo, and a knife was recovered from the vehicle a knife that had fresh blood stains on it. In addition, there were beer bottles in the automobile. Johnny V. was in the back seat but Jimmy A. was not one of the males in this vehicle. Johnny V. was placed under arrest.

On arriving at the police station, Johnny V. was placed in a "holding tank," I. e., a cell six-by-eight feet with a glass enclosure. At about 4:00 a. m., investigating officers Drouin and Pagenkopp removed Johnny V. from the holding tank and took him to an interrogation room. There, he was advised of his Miranda rights; he waived them, and indicated that he was willing to talk to the officers. He told them that he and his companions were on their way to a party when they were stopped by the police, and that he knew nothing about a murder. Following this interview, appellant was left in the interrogation room, where he remained, alone. At about 7 a. m., Police Officer Hernandez asked one of the officers at the station the identity of those in custody for the murder offense. Upon being told that there were "about three or four guys in there," Hernandez walked over to the interrogation room and saw Johnny V. inside. Hernandez was acquainted with Johnny V., having talked to him on the street several times in connection with gang activities. Hernandez testified at the pretrial hearing that, before discovering Johnny V. in the interrogation room, he was unaware that Johnny had made any statements to the police. Hernandez further testified that he did not enter the interrogation room to elicit statements from Johnny V.; that he entered the room merely to learn who had been arrested for the murder. When Hernandez entered the room, Johnny V.'s first words to him were: "I'll take the Fifth. I don't want to talk." Hernandez replied: "Well, they got you for this thing, too, huh? . . . Well, I could understand if they had gotten Haystack (the street name of Johnny's older brother) and not you." Johnny V. then made the following statement: As he and some others were riding in a car, they saw a drunk walking down the street; they stopped the car, got out, and jumped him; Johnny V. "was kicking him and doing his thing." Johnny added that he didn't see Al (Arvizo) stab the person, nor did he see "Badger" hit him with a bottle. When asked why he continued to talk to Johnny after the latter had asserted his Fifth Amendment privilege, Hernandez replied: "He began talking to me, and I listened to him." Hernandez further testified that he asked Johnny V. no questions, and that Johnny's statements were "spontaneous." Johnny V. testified at the pretrial hearing that he told Hernandez at the outset that he did not want to talk to him and, in fact, Johnny did not want to talk; he did so only because he was asked questions.

Following his conversation with Johnny V., Hernandez told a police sergeant what Johnny had said. The sergeant suggested that Hernandez readvise Johnny V. of his rights and see if he then would make a statement. Hernandez did so, but Johnny V. again stated that he did not wish to talk and that he was "taking the Fifth." Thereafter, Johnny V.'s earlier statements to Hernandez were reduced to writing. It was these statements which Johnny V. sought to suppress as a violation of his Miranda rights.

Between 3 a. m. and 4 a. m. of the morning of the incident in question, Officer Drouin talked with Ramona, one of the females in the vehicle stopped by the police, who informed him that she had seen "Badger" hit the victim with a bottle. An inspection of the police files revealed that "Badger" was the street name for Jimmy A. The police files also revealed that Jimmy A. lived at a Wilmington address. Officers Drouin and Pagenkopp then went to the Wilmington address, but were referred to an address on Highland in Carson. At approximately 8:45 a. m., the officers arrived at the Carson address. The officers identified themselves and the door was opened by a Paul Ramirez, the owner of the residence. The officers stated to Ramirez that they were looking for Jimmy A. and Ramirez indicated that he could be found in a bedroom. Ramirez gave the officers permission to go into the bedroom.

Upon arrival at the bedroom door, the officers found the door locked. The officers knocked and stated "open the door police." Ramirez then called his son's name, Robert, and requested Robert to open the door, that it was all right. The bedroom door was then unlocked and opened by the young man who turned out to be Robert. Jimmy A. was lying on the bed. He was placed under arrest and asked to get dressed.

As Jimmy A. started to put on his shoes, he took off the left shoe and pushed it under the bed. The officers recovered the shoes which appeared to have blood stains on them. Robert at first said the shoes were his, but when the officers stated that Robert would then have to come with them, Robert said that the shoes belonged to Jimmy A.

An autopsy was conducted on the body of Mulcahy, the victim in the instant case, and death was ascribed to a hemorrhage as a consequence of stab wounds to the chest. No other wounds or injuries were asserted to be any contributing causes to Mulcahy's death. The knife found in the automobile was established to belong to Arvizo, the driver of the vehicle stopped by the police.

The blood stains on the shoes taken from the bedroom in the Ramirez home were human blood stains of type A blood, which was the same blood type as that of the victim. Jimmy A.'s blood type was found to be type O.

III The Minors' Contentions on Appeal

The minors make the following contentions on appeal: (1) that the...