Michael B., In re

• Decision Date: 19 December 1983
• Citation: Michael B., In re, 197 Cal.Rptr. 379, 149 Cal.App.3d 1073 (Cal. App. 1983)
• Court: California Court of Appeals
• Parties: In re MICHAEL B., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. MICHAEL B., Defendant and Appellant. Civ. 7423 (F1522).

Page 379

197 Cal.Rptr. 379

149 Cal.App.3d 1073

In re MICHAEL B., A Person Coming Under the Juvenile Court LawThe PEOPLE, Plaintiff and Respondent, v.MICHAEL B., Defendant and Appellant.

Civ. 7423 (F1522).

Court of Appeal, Fifth District, California.

Dec. 19, 1983.

[149 Cal.App.3d 1076] Hugh B. Fielder, Visalia, under appointment by the Court of Appeal, and Mary L. Fielder, Visalia, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, L. Eileen Ceranowski and Maureen A. Daly, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

Appellant, a nine-year-old boy, was declared to be a ward of the juvenile court under Welfare and Institutions Code section 602 after a finding that he committed involuntary manslaughter by shooting another boy in violation of Penal Code section 192, subdivision (2).¹The juvenile court found appellant had no intent to kill but "there was an intent to commit a reckless and dangerous act."Appellant was placed on four years probation less two days served in juvenile hall subject to certain conditions.

The trial court's adjudicatory holding was based in part on appellant's trial testimony and six pretrial statements given by appellant during police interrogation.The prosecution argued the inconsistency in the testimony and the statements was evidence of consciousness of guilt.

We reach the following conclusions: (1) The record does not support a finding that appellant's waiver of his Miranda ² rights before giving the first five statements was knowing, intelligent and voluntary beyond a reasonable doubt.Because the five statements prejudiced appellant, the judgment of wardship must be reversed.(Chapman v. California(1967)386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)(2) The other evidence against appellant does not constitute "clear proof" that at the time of the shooting appellant understood the wrongfulness of the act charged against him, as required by Penal Code section 26, subdivision one.³(3) Nor does the evidence that appellant committed involuntary manslaughter meet the constitutional standard of proof beyond a reasonable doubt required at the adjudicatory stage in juvenile proceedings.(In re Winship(1970)397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, Richard M. v. Superior Court(1971)4 Cal.3d 370, 378, 93 Cal.Rptr. 752, 482 P.2d 664.)Accordingly, appellant cannot be retried under the double jeopardy clause of the United States Constitution, Fifth Amendment.(In re Johnny G.(1979)25 Cal.3d 543, 548-549, 159 Cal.Rptr. 180, 601 P.2d 196;People v. Pierce(1979)24 Cal.3d 199, 209-210, 155 Cal.Rptr. 657, 595 P.2d 91.)

THE FACTS

Appellant, nine years old, and the victim John Castro, fourteen years old, were playing together during the afternoon of February 18, 1982.While riding their bikes appellant and the victim went to Marty D.'s home where Marty was shooting a BB gun.Appellant was permitted to shoot the BB gun but when he pointed it at the victim, he was told by Marty not to do so.Appellant and the victim then proceeded to shoot the BB gun at a can.

After leaving Marty's house, appellant and the victim ended up at appellant's house where the death of the victim occurred at approximately 4:30 p.m.

Appellant's father kept a .22 caliber rifle in the entryway closet of the family home to "scare off dogs."The rifle was in a loaded condition with the safety probably off.Although appellant had once shot the rifle, he had never been taught how to use the gun nor had he received any instruction on the gun's safety mechanism or on safety rules for handling guns.Nevertheless, appellant's father had "mentioned" to appellant that it was unsafe to point a gun at anyone.He had warned appellant to stay away from the gun.Appellant also had been told by his parents not to have playmates in the house when they were absent.

The victim was 18 to 24 inches from the muzzle of the gun when it was fired by appellant.The bullet struck the victim in the center of the chest, piercing the heart.

Appellant was hospitalized after the shooting because he was hysterical, frightened and incoherent.He was hyperventilating.At the hospital, he was given a "shot," and valium was prescribed to calm him down.Appellant was then taken to the sheriff's office with his parents where he was interrogated by Officer Ralph Diaz beginning at 8:15 p.m.The officer described appellant as "a scared little boy."According to Officer Diaz, he gave appellant his Miranda rights, including the right to have his parents present before and during questioning.Appellant said he understood his rights.Appellant and his parents also signed a written waiver of appellant's rights.Appellant was readvised of his rights about one-half hour later before he gave a tape recorded statement.When appellant was readvised of his rights, he told the officer that he did not understand the right to an attorney.Officer Diaz later testified that he did not know whether appellant understood his rights the first time that they were explained but that appellant acknowledged he understood his rights after they were explained the second time.

The officer testified that during the interrogation appellant was "hyperventilating.He was crying.And he was nervous."According to the officer, this was when appellant was talking about the shooting, "not during the Mirandizing."Although the officer did not recall being told the type of medication appellant had taken, he acknowledged it was mentioned.

Appellant's mother Janet testified that she was present at appellant's interrogations.Both times appellant was advised of his Miranda rights at the first interrogation; she told him what to say by nodding her head.Janet also noted that appellant had never been in trouble before and had had no prior police contact.She did not believe her son understood his Miranda rights.He did not want to talk to anyone.She had told her son when they went down to the station to "be very, very honest ....The sooner you tell the truth, we'll get it over with, and don't leave anything out, that was my objective.I wanted everything to be told and over with.I wanted to cooperate.We all did."Janet was asked, "And every time that he answered that he understood these questions, you were prompting him, is that correct?""As far as if he wanted to say yes or no, yes I was,"she answered.

Janet never explained to appellant any of the rights related by Officer Diaz.

Janet also testified that she had been told by Sergeant Robert Byrd, a Tulare County Deputy Sheriff and a lifelong friend who was at the house after the shooting before the first interrogation, that she was "not to worry."Specifically, Sergeant Byrd "had told me at the house before Mike went to the station ... that they pretty much knew what happened, but Mike is so hysterical that they want him to calm down, and to not worry that they pretty well knew what happened."(Emphasis added.)Janet asked Sergeant Byrd what did happen and "[h]e says well, at this point I would rather not say.We will talk to him later down at the station when we finish up here."Janet had known Sergeant Byrd since she was a child.

The court ruled on the Miranda objection as follows:

"Well, unfortunately the Court, in assessing the voluntariness of a Miranda waiver with respect to minors, the Court has to weigh a number of factors.

"And the Court has to determine whether in fact the statements made by the minor were as a result of his free will, and also a rational intellect.But this has to of course, in my opinion, be viewed in light of the minor's even by this standard allowing for his sophistication in light of his sophistication and his age.

"And the Court can really find nothing on this record to indicate that it wasn't.There was no promise of leniency made here by the officer, not even the slightest hint of that.

"What the minor's decision in this matter may have been, may have been prompted by his mother, but it doesn't show that even her actions in that part, that she had in fact been made a police agent by a promise to her of any special treatment for her son, so that she in doing these things was doing it entirely on her own.

"And I fail to see how that had any effect of overbearing this minor's choice by the promise of any special treatment or any other improper matters.

"And with respect to his emotional state, it's undoubtedly true that the minor was highly emotional about all this, but this Court has heard no evidence that in fact it could sustain a conclusion that he was in fact, so emotionally overwrought that--at the time that the questioning was going on, that in fact he didn't possess a rational intellect.You may proceed."(Emphasis added.)

Appellant gave six different statements to the police.In the first statement appellant said he had shown his dad's gun to the decedent, and it went off as he put it away.

After Officer Diaz said he did not believe appellant's story, a second statement was given approximately 30 minutes later at 9:40 p.m. without the benefit of further Miranda warnings.Appellant said that he was holding the rifle with his right hand over the trigger housing while the victim was looking at an Atari set, "and that as he turned to turn away from the victim ... the rifle discharged."

The third statement was taken 10 minutes after the second statement, again without any further Miranda warnings.In this statement, appellant admitted that he was pointing the gun at the victim, showing it to him when the rifle discharged as he turned to put the rifle away.

A fourth statement without further Miranda warnings was taken late that evening at about 11:30 to 12:00 p.m. at appellant's home, but differed little in substance from the earlier statement.

A fifth statement was taken at the sheriff's office...