Shawn D., In re

• Decision Date: 19 November 1993
• Docket Number: No. H010395,H010395
• Citation: 24 Cal.Rptr.2d 395,20 Cal.App.4th 200
• Court: California Court of Appeals Court of Appeals
• Parties: In re SHAWN D., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. SHAWN D., Defendant and Appellant.

Page 395

24 Cal.Rptr.2d 395

20 Cal.App.4th 200

In re SHAWN D., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. SHAWN D., Defendant and Appellant.

No. H010395.

Court of Appeal, Sixth District, California.

Nov. 19, 1993.

Marylou Hillberg, Santa Rosa (Under appointment by the Court of Appeal), for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman and Michael E. Banister, Deputy Attys. Gen., for plaintiff and respondent.

ELIA, Associate Justice.

Shawn D. was found to have committed burglary. (Pen.Code, §§ 459-460.1.) He was remanded to the California Youth Authority (CYA) for a maximum period of six years. On appeal, he argues that his confession should have been suppressed because it was involuntary. For reasons we shall explain, we agree. The judgment is reversed.

Facts and Procedural Background

Henry Han lived at 680 Ann Place in Milpitas. On August 3, 1992, Han heard knocking at his front door. He went upstairs instead of answering the knock. When he walked back downstairs, he saw a shadow. Han yelled, "What are you doing here?" The intruder went out the kitchen window. When Han checked the window, he saw that the screen had been knocked out and was lying in the backyard. The intruder knocked down the fence while escaping from the backyard.

Han did not get a good look at the intruder's face. In court, Han was unable to identify appellant as the suspect. Nothing was taken from Han's house.

Detective Ron Gordon of the Milpitas Police Department was the investigating officer. On August 5, 1992, Gordon interviewed appellant about the burglary of Han's residence. Appellant's friend, Joshua, had already been arrested for the burglary.

At the time of the interrogation, appellant was 16 years old. Approximately three hours of the interview was videotaped. The final part of the interrogation was recorded on audiotape. The videotape and audiotape are summarized below.

After obtaining background information from appellant, and learning that appellant's girlfriend was pregnant, Gordon read appellant the Miranda warnings. Gordon told appellant that Joshua had confessed. Gordon said Joshua had stated that appellant and Joshua had been together on the day of the burglary.

Gordon asked appellant to tell the truth. Gordon stated that if appellant told the truth, his honesty would be noted in the police report. Gordon said that if appellant did not tell the truth, that if it turned out appellant had lied, then that fact would also be included in the police report.

Gordon said he had had a long talk with Joshua. Gordon stated that he had also talked with other people. Gordon said that he knew what had happened. "I'm being straight with you." Gordon told appellant. "Now is the time to be truthful."

Appellant denied any wrongdoing.

Gordon left the room. When he returned, he asked about appellant's girlfriend. Gordon said he did not want to see appellant's girlfriend get in trouble. Gordon claimed appellant was putting his girlfriend in a precarious situation. Gordon said he knew appellant was lying. "Everything points toward Shawn." Gordon stated, "Shawn's lying to me. I was told you were going to lie, ... deny ... blame other people."

Gordon stated that he just wanted the stolen property returned to the burglary victims. Gordon said his job was to help get the property back. Gordon claimed that he already knew what had happened based upon statements provided by Joshua and other witnesses. Gordon asked how appellant would feel if his house was burglarized. Gordon said he just wanted appellant to apologize to the victims.

Appellant continued to deny involvement. Gordon continued to accuse appellant of lying. Gordon said that lying was like digging a hole deeper and deeper. Gordon stated that appellant would feel better if he said he was sorry. Gordon said that appellant was young and had a long life ahead of him. He said that appellant should admit his mistakes. He told appellant that it was "time to move on ... to start a new life." Gordon said appellant should apologize, and then pursue his plan to go to trade school and become a carpenter.

Gordon stated that a witness had seen Josh and appellant. He said, "We know you and Josh did the burglaries, that's not an issue with us anymore.... I want to help get some of the property back.... My police report will reflect if you're being cooperative with us."

Gordon reminded appellant that appellant's girlfriend was pregnant. He asked appellant, "What is better with a pregnant girlfriend, to be honest and get this squared away and get on with your life, or to play games?" Gordon said that if appellant continued lying he would go to the hall or to jail, and suggested that if appellant stopped lying he would be able to see his girlfriend and baby. Gordon stated, "There's a time to quit being a jerk. Face it."

Gordon told appellant a parable. He said, "You are on the toilet, you just got done taking a crap. You reach back to wipe yourself and you have this ring on, the one your girlfriend gave you.... She gives you a nice big wedding ring.... You go back to wipe yourself and the ring falls off in the toilet. Now what? ... It's full of shit and the ring's at the bottom. Just flush the shit and ring down the drain? ... Here's a chance to reach in the toilet, pick up your ring or you can keep on lying.... Flush the toilet and you're flushing away your future.... Flush the toilet and keep lying or be a man and reach in, and clean yourself off."

Gordon further stated, "Let me explain some things about the law and how it works." Gordon told appellant, "If you drive to a bank (you're the getaway driver), and your partner says 'I'm going to rob the bank, wait and I'll be out in a second,' and your partner goes in and robs the bank.... You know about it. He comes out and then you take off. Did you rob the bank?"

Appellant said, "Not really." Gordon said, "Let me explain something. You're in trouble for robbing a bank. Now, when you explain it, that that's what you did, it may make a difference but until its explained, exactly what you did, you're going to be assumed to be the one that went in, just as guilty as the guy that went in." According to Gordon, both persons would get arrested although only one went into the bank but "it doesn't matter and you didn't tell us the truth."

Gordon later left the room. The videotape reveals that appellant was agitated. He mumbles to himself and then says "They think I'm crazy ... going crazy ... talking to myself."

When Gordon returned to the room, he told appellant that he had shown his picture to a witness. Gordon said the witness had seen appellant get into Josh's car and drive away. Gordon said, "That's just one more person.... That toilet's full of shit right now. You've taken two craps." Gordon told appellant to "Be a man about it. Reach down and clean it off."

Appellant then admitted dropping Josh off on the morning of the burglary. Appellant continued to deny knowing about the burglary. Gordon again left the room. Alone in the room, appellant states, "I don't need to get in trouble ... 2 years, 7 years ... San Quentin.... Like father, like son. I change my life and now see what happens."

Appellant then provided Gordon with a written statement. In the statement, appellant admits dropping Josh off. When Gordon returned to the room, he read the statement. Gordon said that appellant was lying.

Gordon told appellant he had obtained a statement from appellant's girlfriend. Gordon said appellant's girlfriend had implicated appellant in the crime. Appellant then admitted being outside the house that had been burglarized but denied knowing about the burglary. Appellant admitted burglarizing some automobiles.

Appellant's girlfriend was brought into the interview room. Gordon left the room. Appellant asked his girlfriend what she had told the police and why. She said Gordon had told her she would be locked up and taken to jail if she did not tell what she knew.

Gordon returned. Appellant admitted driving Josh to the house which was burglarized, and admitting seeing the "Chinaman" (the resident of the house). Appellant asked if he was going to be sent to the "Hall." Gordon confirmed that appellant would be sent there pending trial. Gordon also stated that appellant could be tried as an adult and sent to state prison.

Gordon stated that they had witnesses who had seen appellant in the house. Appellant denied being in the house. Appellant claimed he had given Josh a ride, had seen the "Chinaman," became scared and left. Gordon told appellant's girlfriend that it was time for her to leave. She left with Gordon.

While Gordon was gone, appellant appeared agitated. He kicked his chair, picked it up and set it down again. A few moments later, Gordon returned to the room. He handcuffed appellant. As Gordon again left the room, he reminded appellant that he could be tried as a juvenile or an adult. If he was tried as an adult, Gordon told appellant that he would be sent to state prison. Gordon told appellant he should do something about his predicament since he had a "nice lady" and a baby on the way.

At this point the videotape ends. The final 15-20 minutes of interrogation was recorded on audiotape. The audiotape reveals the following.

The tape begins with two detectives, including Gordon, interrogating appellant. The officers displayed pictures of the burglarized homes, and the vandalism that occurred there. Appellant blames Josh for the vandalism but admits being inside a home that was vandalized. Appellant insists he was not in the "Chinaman's" house. Gordon said they could prove appellant was guilty simply based upon his modus operandi. Appellant admitted burglarizing a car. The officers continued asking him about the residential burglaries.

Appellant expressed concern about being...