Richard T., In re

• Decision Date: 04 April 1978
• Citation: 144 Cal.Rptr. 856,79 Cal.App.3d 382
• Court: California Court of Appeals Court of Appeals
• Parties: In re RICHARD T., a Person Coming Under the Juvenile Court Law. RICHARD T., Defendant and Appellant. v. The PEOPLE, Plaintiff and Respondent, Crim. 31547.

Page 856

144 Cal.Rptr. 856 79 Cal.App.3d 382 In re RICHARD T., a Person Coming Under the Juvenile Court Law. RICHARD T., Defendant and Appellant.
v.
The PEOPLE, Plaintiff and Respondent, Crim. 31547. Court of Appeal, Second District, Division 1, California. April 4, 1978.

[79 Cal.App.3d 385]

Page 857

Thomas J. Wiley, Marina Del Rey, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Donald J. Oeser and Marc E. Turchin, Deputy Attys. Gen., for plaintiff and respondent.

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LILLIE, Associate Justice.

Petition charging the minor with receiving stolen property (Luger pistol) in violation of section 496, Penal Code, was sustained. He appeals from order of commitment, and raises two issues (1) insufficiency of the evidence to support findings that he had possession of the gun and that he knew the same to be stolen and (2) admissibility of statements made to his parole officer in the absence of a Miranda warning.

On May 6 the Espalin residence on Caminar Street near Kranz Junior High School was broken into and guns, among them a .22 caliber Luger pistol, were stolen.

[79 Cal.App.3d 386] On May 12 the minor was actively on parole from the Youth Authority; a condition of his parole was that he possess or own no firearms, weapons or explosive devices. Mr. Collingsworth, the minor's parole agent, received information that there was a gun in the minor's house hidden under a couch cushion and that he had been involved with a gun along with several friends, thus on May 12 he went to the minor's home where he found a gun on top of the living room couch. Collingsworth had no information concerning the minor's involvement in any crime but felt that most likely he had committed a parole violation; to investigate further he contacted the minor at a boys' club; the minor willingly accompanied him to the parole office to investigate a "possible parole violation"; Collingsworth had no knowledge that the gun was stolen and was unaware of any crime the minor may have committed.

While driving to the parole office Collingsworth had a conversation with the minor the purpose of which was "(t)o investigate primarily whether or not . . . (h)e had been involved with the gun; if he was possibly in violation of his parole at that point"; he was only investigating and the minor was not then in custody; had he placed him in custody he would have told him so and handcuffed him; it did not occur to him the minor might be in violation of any law concerning possession of a gun. He told the minor he had information that he had been involved with a gun in shooting at a bird, and the minor denied it; asked if he had been involved in a burglary of a South El Monte Community Center, the minor said he had not.

Upon arrival at the office, Collingsworth continued his investigation concerning a possible parole violation; the minor denied any involvement with a gun; he then produced the gun he had recovered from the minor's home to which the minor responded, "That's Raccoon's (Michael Guardo) gun"; the minor continued to deny any involvement with the gun and said Guardo must have brought it over the night before (May 11) to work on it, then admitted he had seen the gun and fired it at a bird, and accidentally fired the gun into a wall while inside his home, claiming he did not know it was loaded. At this point Collingsworth felt that he should have the police make a check to determine if the gun was stolen; they went to the station and it was determined that in fact it was the Espalin gun.

Officer Fentress placed the minor under arrest and took him to an interrogation room where he explained his constitutional rights, and the [79 Cal.App.3d 387] minor waived the same; he then asked the minor where he had gotten the gun, and he responded he had gotten it from Raccoon (Mike Guardo), he had come over to his house on May 11 and given it to him and Guardo told him he had gotten it from several "home boys," members of a gang; he believed Guardo knew who the two boys were who committed a burglary and where they had received the gun and some other guns, and Guardo told him they had broken into a house by Kranz Junior High School; he denied being involved in the burglary.

The minor testified that on May 11 Raccoon brought the gun then in 2 to 4 pieces to his home to fix it; he left to go to the store and upon his return asked Raccoon where the gun was, and he said it was at Junior's house because Junior was supposed to fix it; he thought Raccoon took the gun and did not see it again until Collingsworth showed it to him at the parole office; he...