Paul T., In re

• Decision Date: 09 March 1971
• Citation: 15 Cal.App.3d 886,93 Cal.Rptr. 510
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of Paul T. and Peter T., Minors. Robert E. NINO, Chief Juvenile Probation Officer of Santa Clara County, Plaintiff and Respondent, v. Paul T. and Peter T., Defendants and Appellants. Civ. 26523.

Page 510

93 Cal.Rptr. 510

15 Cal.App.3d 886

In the Matter of Paul T. and Peter T., Minors.

Robert E. NINO, Chief Juvenile Probation Officer of Santa Clara County, Plaintiff and Respondent, v. Paul T. and Peter T., Defendants and Appellants.

Civ. 26523.

Court of Appeal, First District, Division 3, California.

March 9, 1971.

Joseph E. Silva, San Jose, Cal., for defendants and appellants.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Joyce F. Nedde, Deputy Attys. Gen., San Francisco, Cal., for respondent.

CALDECOTT, Associate Justice.

On October 24, 1968, a petition was filed in the Santa Clara County Superior Court, sitting as a juvenile court, alleging that appellants, Paul and Peter T., persons under 21 years of age, ¹ came within the provisions of section 602 of the Welfare and Institutions Code. ² The petition alleged appellants had participated in the entry of a building of Santa Clara Honda Sales, with intent to commit theft therein, in violation of Penal Code, section 459 (burglary).

A detention hearing was held on October 25, 1968, after notice to appellants and their mother, and after they had been informed of their right to be represented at every stage of the proceedings by counsel. The public defender was appointed to represent them.

The first session of the jurisdictional hearing on the petition was held on November 14. The hearing was continued to December 5, 1968, when appellants were represented by counsel, and accompanied by their parents. The allegations of the petition were denied. After hearing witnesses and taking evidence, the court found the allegations of the petition to be true as to each appellant, and that each appellant was a person described by section 602.

The disposition hearing was also held on December 5, when the probation officer's report was read and considered. The appellants were committed to the custody of the probation officer for relative or foster home placement.

On October 22, Thomas Ken Shigemasa, a San Jose police officer, was on patrol in a marked police vehicle with his partner. About 8:30 p.m., he observed a mini-bike travelling at about 25 miles an hour. There were no license plates or lights on the bike. The driver was appellant Paul T. The police vehicle turned on its red light and stopped the bike.

The police officer got out of his vehicle and immediately asked Paul who owned the bike. The question was asked preparatory to issuing a traffic citation for riding a motor bike without a license plate and front lights. Paul replied, 'I swiped it.' The officer immediately informed Paul that he was under arrest for possession of stolen property and auto theft, and he advised him of his constitutional rights. He and his partner took Paul into custody and drove towards the police station. As they were driving, Paul pointed out a shop, Santa Clara Honda, from which the bike could have been taken.

At trial, appellants' mother testified that on the Sunday previous to the arrest she had seen both Peter and Paul operating mini-bikes in their backyard. Since the bikes did not belong to the boys, she told them to take the bikes back where they came from. She did not ask how they had obtained the bikes, and the boys did not say anything about the owner.

Sam Woods, a shop foreman at the Santa Clara Honda Motorcycle Shop in San Jose, testified that on the Saturday preceding the arrest he observed that the back door was open to the interior courtyard between the shop and the parts and sales area. The courtyard was enclosed on three sides by Santa Clara Honda and on the fourth side by S & W Equipment. He found a brown corduroy jacket lying inside the courtyard. Although he did not take an itemized account at that time, he was aware that the shop had received ten Honda Mini-Trail bikes the day before, and he observed that there were no longer that many bikes present. It developed that two bikes were missing; they were later recovered. As far as Woods knew, neither of the appellants had ever been granted permission to enter the premises of the shop.

Appellants' mother further testified that both appellants and their brother had corduroy jackets similar to the one found at the Santa Clara shop. The mother could not state with certainty if any of the jackets were missing.

Gilbert Millington, a deputy probation officer, interviewed each appellant on November 7, 1968. He informed each of the minors that he worked for the Juvenile Probation Department, and each minor was advised of his constitutional rights. The interviews took place in the living room of appellants' home in the presence of their mother, who participated in the conversations. Appellants' attorney was not present and had not been informed of the interviews. Appellants had already appeared at the detention hearing and were at home pending the jurisdictional hearing. Millington stated, '(T)he nature of the conversation (sic) was the discussion of the offense and also pertinent information regarding the total situation for the social study.' Later, at the jurisdictional hearing, Millington testified as to the statements of the appellants concerning the offense, which he had obtained at the interviews. Appellants' objection to the testimony was overruled and the motion to strike the testimony was denied.

Appellants contend that the corpus delicti of the burglary was not independently established, to permit the admission into evidence of the extrajudicial statements of the appellants. Unless the corpus delicti is established by independent evidence, extrajudicial admissions or confessions of a criminal accused are inadmissible. (People v. Quarez, 196 Cal. 404, 409, 238 P. 363; People v. Dick, 37 Cal. 277, 281.) The petition alleged that appellants had committed the crime of burglary. (Pen.Code, § 459.) In a case similar to the present one, People v. Biehler, 215 Cal.App.2d 400 at 403, 30 Cal.Rptr. 199 at 201, the court said: 'Initially, defendant * * * contends that the evidence is insufficient to establish the corpus delicti of burglary and that therefore his extrajudicial statements are inadmissible. This * * * evidence establishes that someone broke into and entered the shop and justifies the inference that it was with the intent to commit theft. In People v. Mehaffey, 32 Cal.2d 535, at page 545, 197 P.2d 12, at page 17, the court points out, that to authorize the reception in evidence of confessions and extrajudicial statements of a defendant '* * * the prosecution is not required to establish the corpus delicti by proof as clear and convincing as is necessary to establish the fact of guilt; rather slight or prima facie proof is sufficient for such purpose. (Citations.) It may be proved by circumstantial evidence and by inferences reasonably drawn therefrom. (Citations.) Direct or positive evidence is not essential (citations), nor is it necessary at this point to connect the defendant with the perpetration of the offense (citations).' Accord: People v. Nankervis, 183 Cal.App.2d 744, 749, 7 Cal.Rptr. 263.'

There was sufficient evidence in this case to permit inferences that (1) the courtyard had been entered by coming through a building (although there was evidence that access could also be had by coming over a building), and (2) two Honda mini-bikes were wrongfully missing. The evidence was sufficient to infer an entry had been made with an intent to commit larceny. There were other possible inferences that an employee other than Wodds had taken one of the mini-bikes home with him with permission, but it is unnecessary, under the principles previously noted, that all innocent inferences be excluded by the evidence. In addition, Paul was arrested with the stolen property in his possession. The evidence was sufficient to establish at least a prima facie case of burglary.

Appellants object to the admission of the testimony of Officer Shigemasa that (1) Paul said, 'I swiped it'; and, (2) Paul indicated the building from which the mini-bike could have been taken. There is no doubt that both actions of Paul, his speaking and nonverbal conduct, may constitute statements. (See Evid.Code, § 225.)

At trial, no objection was taken to the officer's testimony as to the nonverbal conduct of Paul. Appellants cannot now object to this evidence. (See Evid.Code, § 353.)

Unquestionably Paul was in custody of the police officers. Custody occurs if the accused 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. Arnold, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515.) At the time Paul said, 'I swiped it', he had simply been stopped for minor traffic violations and merely asked the name of the owner of the mini-bike. The arresting officer was unaware of the theft, and Paul was not a suspect. Paul's statement was voluntary, spontaneous and unsolicited. Voluntary statements are admissible into evidence. (Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694; see also People v. Dorado, 62 Cal.2d 338, 354, 42 Cal.Rptr. 169, 398 P.2d 361.)

Appellants contend that the court erred in admitting testimony of Deputy Probation Officer Millington at the jurisdictional hearing, concerning appellants' statements relative to the offense. Appellants and their mother were advised of their constitutional rights and stated that they understood them. The question is raised, however, as to whether there was an intelligent, knowing and voluntary waiver of these constitutional rights.

The accusatory stage of the proceedings had been reached, counsel had been appointed to represent the appellants, and the interview was instigated by the probation officer. In People v. Isby, 267 Cal.App.2d 484, 494--495, 73 Cal.Rptr. 294, 302, the court stated: 'It must be concluded from our reading of Massiah (v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246) and Miranda that the Supreme Court has distinguished two...