Filed 6/17/13 In re Felix I. CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re FELIX I., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,
                                                                       G047357
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL042527)
         v.
                                                                       OPINION
FELIX I.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Deborah
Servino, Judge. Affirmed.
                   Sheila Quinlan, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
                                 *           *          *
              Felix I. appeals from the judgment finding true the allegations of a
delinquency petition filed under Welfare and Institutions Code section 602. He contends
incriminating statements he made to a police officer were obtained in violation of
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We agree Felix was in custody for
Miranda purposes when questioned by the officer in the field, and therefore his
unMirandized statements should have been excluded. However, his statements made
after his arrest, and after he was given and waived his Miranda rights, were not the
product of a deliberate two-step interrogation in violation of Missouri v. Seibert (2004)
542 U.S. 600, 612 (Seibert), and were properly admitted. Accordingly, we affirm the
judgment.
                                FACTS & PROCEDURE
              Early one spring evening, 12-year-old Felix and three other boys went to an
elementary school in Anaheim, climbed up on the roof of a portable classroom, and
decided to break into it. Felix went home to get tools and came back with a pair of pliers,
which the boys used to pry open the door. The boys found four walkie-talkies inside the
classroom, so two of the boys decided to act as lookouts outside the classroom. Felix
remained inside the classroom with another boy, and they put a Nintendo Wii and some
accessories, games, and chargers into a bag. When one of the lookouts radioed telling
them to get out, Felix and the other boy ran from the classroom, and the four boys ran off.
A witness who saw a group of boys running from the classroom called the police.
              Felix and the three other boys were soon stopped on the street in front of
the school by Anaheim Police Officer Brett Heitmann. When Heitmann asked the boys
what they were doing, Felix volunteered they were “stealing stuff” from the school.

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Heitmann separated Felix from the other boys, questioned him further, and Felix told him
the details of the break in. Felix was arrested and taken to the police station. He was
given his Miranda warning, agreed to speak to Heitmann again, and repeated his
statements about the break in.
               The petition alleged one count of second degree commercial burglary
(Pen. Code, §§ 459, 460, subd. (b)), and one count of possession of burglary tools
(Pen. Code, § 466). At the jurisdiction hearing, Felix moved to exclude evidence of the
incriminating statements he made to Heitmann on the grounds the statements were
obtained in violation of Miranda. The juvenile court denied the motion and found the
allegations of the petition true. The juvenile court declared Felix a non-ward of (Welf. &
Inst. Code, § 725, subd. (a)), and placed him on probation.
                                         DISCUSSION
               Felix contends his pre- and post-arrest incriminating statements to
Heitmann should have been excluded. Felix argues he was in custody for Miranda
purposes during the pre-arrest questioning and the post-arrest questioning was part of a
deliberate, two-step interrogation procedure designed to undermine Miranda. We agree
with Felix‟s first contention, but reject the latter.
               Heitmann was the only witness at the Evidence Code section 402 hearing
on Felix‟s suppression motion. He testified that at about 6:40 p.m., while responding to a
911 call, he saw Felix and the other boys running down the street just outside the
elementary school. Heitmann, who was alone, got out of his patrol car and told the boys
to stop and sit on the curb. They complied. When asked if he was “arresting” all the
boys, Heitmann said, “Yes.”
               When Heitmann asked the boys what they were doing, Felix responded
they were “stealing stuff” from the school. Felix was nervous but cooperative.
               Other police officers, four or five of them, soon arrived and Heitmann
separated Felix from the other boys, seating him on the curb about 20 feet away. Felix

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was not in handcuffs. In response to Heitmann‟s questions, Felix explained he and his
friends were at the school climbing on the roof, Felix went home to get tools, including a
pair of pliers, to use to break in to the school. When he returned, the boys used the pliers
to force open the door to the portable classroom. The boys went in the classroom, took
electronic devices, and ran away.
              Heitmann questioned Felix for about 10 to 15 minutes. He did not use any
physical force on Felix or touch him, other than to do a pat-down search. He was
wearing his uniform, which included his service weapon, but it was not drawn. Heitmann
did not threaten Felix, make any promises of leniency, or tell him he had to speak to him.
However, Heitmann did not tell Felix he was free to go, did not consider him free to go,
and when defense counsel ask Heitmann if Felix had run off would Heitmann have
chased him, Heitmann replied, “possible.”
              After interviewing Felix, Heitmann placed him under arrest, put him in
handcuffs, and drove him to the police station. At the police station, Heitmann read Felix
his Miranda rights. Felix indicated he understood his rights and was willing to talk to
Heitmann. Felix repeated what he had told Heitmann at the school. The interview at the
police station lasted about 10 to 15 minutes. Felix was in handcuffs during the station
house interview, and no one else was in the room with them. Felix was calm and was not
crying. Heitmann testified Felix appeared scared, but it was more like he was
disappointed in himself.
              After hearing argument from counsel, the court denied Felix‟s motion to
exclude his statements to Heitmann. The court stated it specifically considered Felix‟s
age of 12 years. The court observed an officer is not required to give Miranda warnings
just because someone is considered a suspect, particularly when in this context “he was
asking questions to dissipate any concerns or suspicions at the time.” And although
Heitmann agreed he never told Felix he was free to go, Felix was not free to go, and had
Felix taken off running he would have chased him down, “that‟s not the same as custody

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requiring Miranda.” The court also found Felix was given his Miranda warning after he
was placed under formal arrest and he voluntarily waived his Miranda rights and spoke
with Heitmann at the police station.
              Heitmann then testified in the prosecution‟s case in chief largely repeating
his testimony from the Evidence Code section 402 hearing. He added the 911 call he was
responding to was about a possible burglary at the elementary school. The caller had
described the suspects as four juvenile males and at least two were carrying bags. When
Heitmann stopped the four boys running away from the school, Felix was carrying a
black bag. Heitmann searched the bag, and found the electronics and tools inside. Felix
renewed his motion to suppress his statements made to Heitmann during the pre-arrest
interrogation. The court denied the motion.
              Felix contends statements he made to Heitmann in the field, before his
formal arrest, should have been excluded from evidence because they were taken in
violation of Miranda. The Attorney General asserts no Miranda warning was required
because Felix was not in custody.
              A person interrogated by law enforcement officers after being taken into
custody must first be warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed. (Miranda, supra, 384 U.S. 436.) Statements
taken in violation of this rule are generally inadmissible. (Stansbury v. California (1994)
511 U.S. 318, 322.) Miranda is premised on the perception that interrogation of a
suspect in police custody is inherently coercive. (Miranda, supra, 384 U.S. at
pp. 445-458.) To insure that any statement the suspect makes in that setting is a product
of his free will, the United States Supreme Court held the interrogation must be preceded
by the essential procedural safeguards in the form of the warnings.
              “Whether a defendant was in custody for Miranda purposes is a mixed
question of law and fact. [Citation.] When reviewing a trial court‟s determination that a

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defendant did not undergo custodial interrogation, an appellate court must „apply a
deferential substantial evidence standard‟ [citation] to the trial court‟s factual findings
regarding the circumstances surrounding the interrogation, and it must independently
decide whether, given those circumstances, „a reasonable person in [the] defendant‟s
position would have felt free to end the questioning and leave‟ [citation].” (People v.
Leonard (2007) 40 Cal.4th 1370, 1400; see also Thompson v. Keohane (1995) 516 U.S.
99, 112.)
              “The totality of the circumstances surrounding an incident must be
considered as a whole. [Citations.] Although no one factor is controlling, the following
circumstances should be considered: „(1) [W]hether the suspect has been formally
arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio
of officers to suspects; and (5) the demeanor of the officer, including the nature of the
questioning.‟ [Citation.] Additional factors are whether the suspect agreed to the
interview and was informed he or she could terminate the questioning, whether police
informed the person he or she was considered a witness or suspect, whether there were
restrictions on the suspect‟s freedom of movement during the interview, and whether
police officers dominated and controlled the interrogation or were „aggressive,
confrontational, and/or accusatory,‟ whether they pressured the suspect, and whether the
suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster
(2006) 138 Cal.App.4th 1395, 1403-1404.) The United States Supreme Court has held a
minor‟s age is also relevant in the custody analysis. (J.D.B. v. North Carolina (2011) ___
U.S. ____ [131 S.Ct. 2394, 2406].)
              Here, Heitmann responded to a 911 call about four juvenile boys possibly
burglarizing an elementary school and who fled the campus carrying a bag. He
immediately encountered 12-year-old Felix, who was carrying a bag, and his three
cohorts running away from the school. Heitmann stopped the boys, directed them to sit
on the curb, and asked the boys what they were doing. Felix immediately volunteered

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they were “stealing stuff” from the school. At that point, several other officers arrived,
and Felix was separated from the other boys. Heitmann pat searched Felix, searched
Felix‟s bag finding the electronics inside, and proceeded to ask him “a bunch of questions
about what happened.” Heitmann did not tell Felix he did not have to talk to him or that
he was free to leave—in fact he testified Felix was not free to leave and if had attempted
to, he would likely have chased him down. After questioning Felix alone for 15 minutes
and getting the details of the crime, Heitmann formally arrested him. The record does not
support the juvenile court‟s characterization of the circumstances as being that Heitmann
was merely “asking questions to dissipate any concerns or suspicions” about Felix. Prior
to Heitmann‟s separate questioning of him, Felix had just confessed he and his friends
were “stealing stuff” from the school and Felix was carrying the bag loaded with the
stolen items.
                We recognize there are some factors weighing against a finding Felix was
in custody—for example Heitmann questioned Felix alone, there is no evidence he
behaved in an aggressive manner towards Felix or coerced the statements, and the
questioning was not unduly prolonged. We nonetheless reject the Attorney General‟s
assertion that under the totality of the circumstances any reasonable 12-year-old boy
would have felt free to terminate the questioning and leave. The circumstances of In re
Joseph R. (1998) 65 Cal.App.4th 954, upon which the Attorney General relies, are not
comparable. In that case, police questioned a 14-year-old boy in front of his house about
a rock throwing incident. (Id. at p. 957.) The officer asked the boy for consent to
conduct a pat-down search, which the boy gave, and specifically told the boy he did not
have to answer the officer‟s questions, and the boy was not arrested for another six
weeks. (Id. at pp. 957, 961.) Although the officer had placed the boy in handcuffs in the
back of the patrol car for a few minutes, before removing the handcuffs and then asking
questions, another panel of this court concluded the boy was not in custody for Miranda
purposes. (Ibid.)

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              Here, Felix was not at his home; there is nothing in the record indicating
Heitmann asked for Felix‟s consent before the pat-down search or told him he did not
have to speak with the officer; Felix had just admitted he had been “stealing stuff” from
the school before being separated from his companions and questioned in more detail
about the crime; and Felix was arrested immediately. Under the totality of the
circumstances, no reasonable 12-year-old boy would have felt free to “end the
questioning and leave‟ [citation.]” (Leonard, supra, 40 Cal.4th at p. 1400.) Accordingly,
Felix was in custody and his incriminating statements made to Heitmann prior to his
formal arrest should have been excluded.
              That does not, however, end our analysis. Although the pre-arrest
statements should have been excluded, after his arrest, Felix was taken to the police
station, given a Miranda advisement, and he then voluntarily spoke with Heitmann
repeating the incriminating statements he made at the scene. In People v. San Nicolas
(2004) 34 Cal.4th 614, 639, our Supreme Court discussing United States Supreme Court
authority observed that subsequent incriminating statements are not excludable merely
because they followed otherwise voluntary statements given without Miranda warnings.
“„[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the
mere fact that a suspect has made an unwarned admission does not warrant a presumption
of compulsion. A subsequent administration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily should suffice to remove the
conditions that precluded admission of the earlier statement.‟ ([Oregon v.] Elstad
[(1985)] 470 U.S.[ 298, 314 (Elstad)]; accord, . . . Seibert[, supra,] 542 U.S. [at pp. 613-
614].)
              Felix argues the second interview was part of an impermissible deliberate
two-step questioning strategy that circumvented Miranda and was in violation of Seibert,
supra, 542 U.S. 600. We disagree. In Seibert, supra, 542 U.S. at pages 604-605, police
woke defendant at 3:00 a.m., arrested her for murder, took her to the police station,

                                             8
questioned her for 30 to 40 minutes until she confessed, gave her a Miranda advisement,
and then asked her the same questions until she confessed again. The interrogating
officer “testified that he made a „conscious decision‟ to withhold Miranda warnings, thus
resorting to an interrogation technique he had been taught: question first, then give the
warnings, and then repeat the question „until I get the answer that she‟s already provided
once.‟” (Id. at pp. 605-606.) The Supreme Court held the interrogation procedure did
not comply with Miranda and defendant‟s postwarning statements were inadmissible.
(Id. at p. 604.)
               Seibert’s holding does not extend to a simple failure to give a Miranda
warning, or to an “„oversight‟ that „may have been the result of [the officer‟s] confusion
as to whether the brief exchange qualified as “custodial interrogation.”‟” (Seibert, supra,
542 U.S. at p. 614, quoting Elstad, supra, 470 U.S. at pp. 315-316.) There is no evidence
Heitmann deliberately withheld Felix‟s Miranda warnings to undermine their
effectiveness or to obtain a confession. Unlike Seibert, there was nothing coercive about
the questioning prior to Felix‟s initial confession. Thus, the first unMirandized interview
did not taint the subsequent Mirandized statements, which the juvenile court found were
voluntarily made.
                                      DISPOSITION
               The judgment is affirmed.


                                                 O‟LEARY, P. J.
WE CONCUR:



IKOLA, J.



THOMPSON, J.


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