Filed 12/4/15 In re E.G. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re E.G., a Person Coming Under the Juvenile
Court Law.

THE PEOPLE,                                                                                F070335

         Plaintiff and Respondent,                                       (Super. Ct. No. 12CEJ600188-2A)

                   v.
                                                                                         OPINION
E.G.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Kimberly
Nystrom-Geist, Judge.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Rachelle A. Newcomb and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
        The court adjudged appellant E.G. a ward of the court after it sustained allegations
charging him with arson of property. (Pen. Code, § 451, subd. (d).)1 On October 10,
2014, the court set appellant’s maximum term of confinement at three years and
committed him to a preadolescent program for 63 days.
        On appeal, appellant contends the juvenile court prejudicially erred when it denied
his motion to exclude his statements to fire investigators. We affirm.
                                           FACTS
        On October 26, 2013, appellant, who was then 11 years old, was cited for setting
fire to an abandoned mattress in an alley.
        On September 4, 2014, the district attorney filed a petition charging appellant with
arson of a structure. (§ 451, subd. (c).) On September 8, 2014, the district attorney
amended the petition to charge appellant with arson of property.
        At a jurisdictional hearing on September 26, 2014, appellant’s mother testified that
she taught appellant the difference between right and wrong and that appellant knew it
was wrong to set other people’s property on fire. She also testified that in 2012 appellant
attended a class in fire safety and that he received a certificate from that class.
        Fresno Fire Captain Joella Garcia testified that on October 26, 2013, at 1:00 p.m.,
she responded to an alley behind an apartment complex on a report of a possible fire and
found an abandoned mattress with a charred area that was approximately two feet by
three feet. Based on her investigation, she concluded that the mattress had been set on
fire.
        Fresno Police Officer Seng Yang testified that he also responded to the alley
where the burnt mattress was located. Officer Yang spoke to a juvenile who told him the
mattress had been burned by a juvenile whom he knew as “Ogre” and he provided the
officer with an address. Officer Yang went to the address and spoke to appellant, who

1       All further statutory references are to the Penal Code.


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acknowledged that he was “Ogre.” Appellant told Officer Yang that he was playing with
matches, lit a match as a joke, and then “got the mattress on fire.” Appellant got scared
and walked away.
       Fresno Fire Department Investigator Floyd Wilding testified that during a follow-
up investigation, he and Investigator Dansby went to appellant’s address and found him
sitting with other juveniles on the street curb in front of appellant’s apartment. Wilding
recognized appellant from a school photo he had obtained and asked him if he was E.G.
Appellant hesitated and looked at his friends before looking back at Wilding and saying,
“No.” However, appellant’s brother pointed at appellant and identified him.
       According to Wilding, he asked appellant if he could talk to him and appellant
agreed. Investigator Wilding further testified that he and appellant then walked 20 to 25
feet away “out of earshot” of the other juveniles, into a parking lot where he continued
talking with appellant with Investigator Dansby at Wilding’s side. Wilding testified he
did not tell appellant he had to go with him, that he was under arrest, or that he was not
free to leave. Wilding also testified that neither he nor Dansby did anything to prevent
appellant from leaving.
       At that point, the prosecutor sought to play a digital audio recording that
Investigator Wilding made of his encounter with appellant. After defense counsel
objected on Miranda2 grounds, the court granted his request to voir dire the investigator.
During voir dire, Investigator Wilding testified, in pertinent part, that he and Investigator
Dansby were in uniform when he spoke to appellant. Wilding further testified that he
told appellant he was there to talk about the fire, and that appellant had been told that a
fire investigator might come speak with him. Investigator Wilding also acknowledged
that he knew appellant was 11 years old and that Investigator Dansby stood next to
Wilding as Wilding faced appellant while speaking with him.

2      Miranda v. Arizona (1966) 384 U.S. 436.


                                              3.
       After the court overruled defense counsel’s Miranda objection, the prosecutor
played a portion of the recording of Investigator Wilding’s encounter with appellant,
which began as Wilding approached appellant as he sat with the other juveniles on the
curb. Contrary to Investigator Wilding’s testimony, the recording did not indicate that he
asked appellant if he was willing to speak with him or that appellant expressly agreed to.
Nor does it indicate that Wilding asked appellant to accompany him into the parking lot.
Instead, the recording indicates that after telling appellant to remember the police officer
from the other day, and that that was what he was there to talk to him about, Wilding told
appellant to “come over here.” They apparently then walked into the parking lot where
Investigator Wilding asked appellant some preliminary questions and others that were
unrelated to the burning of the mattress. Prior to asking appellant about the fire,
Investigator Wilding told appellant that he had read the police report and he asked
appellant if the officer had told him that an investigator was going to talk with him,
which appellant acknowledged. Investigator Wilding then began asking appellant about
the fire. Appellant told Wilding that he found the matches he used to light the fire on the
ground in the alley. Appellant was “curious to do a fire” so he lit the mattress on fire.
Appellant put the matches and a piece of paper on the mattress and lit the paper, which
ignited the matches. Appellant took off and one of his brothers put the fire out.
       After the above portion of the recording was played, the court admitted the
recording into evidence. The prosecutor also submitted into evidence a certificate that
indicated appellant had completed a fire safety class.
                                      DISCUSSION
       Appellant contends that a consideration of the relevant factors clearly supports a
conclusion that the questioning of appellant by Investigator Wilding amounted to a
custodial interrogation. Thus according to appellant, the court erred when it denied his
motion to suppress his statements to Wilding. Appellant further contends that reversal of
the judgment is required because it cannot be determined beyond a reasonable doubt that

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the introduction of these statements did not contribute to the court’s finding that appellant
committed arson. We need not determine whether the questioning of appellant by
Investigator Wilding was a custodial interrogation because we conclude that any error in
allowing the prosecutor to introduce these statements was harmless.

               “ … [A]n officer’s obligation to administer Miranda warnings
       attaches only where there has been such a restriction of freedom of
       movement as to render the suspect ‘in custody.’ [Citation.] This
       determination is based on the objective circumstances of the interrogation.
       [Citation.] Two inquiries are essential to this determination: first, what are
       the circumstances surrounding the interrogation; and second, given those
       circumstances, would a reasonable person have felt he or she was not at
       liberty to terminate the interrogation and leave. [Citation.]” (In re Joseph
       H. (2015) 237 Cal.App.4th 517, 530-531 (Joseph H).) “For Miranda
       purposes, custodial status arises if a person has been ‘taken into custody or
       otherwise deprived of his freedom of action in any significant way.’
       [Citation.]” (People v. Elizalde (2015) 61 Cal.4th 523, 531 (Elizalde).)

              “ … The objective circumstances of the interrogation are examined,
       not the ‘“subjective views harbored by either the interrogating officers or
       the person being questioned.”’ [Citation.]” (People v. Kopatz (2015) 61
       Cal.4th 62, 80.) ‘“Nor is the requirement of warnings to be imposed simply
       because ... the questioned person is one whom the police suspect.…’
       [Citation.]” (Stansbury v. California (1994) 511 U.S. 318, 324.)

               “ … 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.) “[S]o long as the child’s age was known to
       the officer at the time of police questioning, or would have been objectively
       apparent to a reasonable officer, its inclusion in the custody analysis is


                                             5.
       consistent with the objective nature of that test.” (J.D.B. v. North Carolina
       (2011) 131 S.Ct. 2394, 2406, fn. omitted.)
       In reviewing the juvenile court’s decision on a Miranda issue, we accept that
court’s determination of disputed facts if supported by substantial evidence, but we
independently decide whether the statements at issue were obtained in violation of
Miranda. (Joseph H., supra, 237 Cal.App.4th at p. 530.) We also accept the juvenile
court’s evaluations of witness credibility. (Elizalde, supra, 61 Cal.4th at p. 530.) We
may not set aside the juvenile court’s ruling on the Miranda issue unless it is “palpably
erroneous.” (People v. Duren (1973) 9 Cal.3d 218, 238.)
       The following circumstances support a finding that appellant was not in custody:
appellant was not formally arrested, the investigators did not physically prevent appellant
from leaving, the interrogation was relatively brief, lasting approximately 10 minutes,
and, as argued by the prosecutor, it was not aggressive. However, there were numerous
circumstances that support a finding that appellant was in custody. Appellant was only
11 years old. He was approached by two uniformed fire department investigators and
questioned by one with the other one present. Investigator Wilding rejected appellant’s
attempt to avoid being questioned about the fire which appellant manifested by denying
he was the person Wilding was looking for. Wilding invoked the authority of the police
by reminding appellant that a police officer had told appellant an investigator would be
contacting him and that that was why Wilding was there to talk to appellant about the
fire. Wilding did not seek appellant’s consent to question him about the fire, nor did
appellant expressly consent to being questioned. Investigator Wilding did not obtain
appellant’s consent to move to the parking lot to be questioned, he directed him to go
there. By moving appellant to the parking lot, Wilding isolated appellant from his
friends. Further, Investigator Wilding let appellant know that he was considered the
perpetrator of the fire based on his prior statements to Officer Yang. Although we are
strongly inclined to conclude from these circumstances that appellant was in custody, we



                                            6.
need not resolve this issue because the failure to give appellant Miranda warnings was
harmless.
       “We must reverse a conviction that rests on evidence from an interrogation
conducted in violation of Miranda unless admission of the evidence was harmless beyond
a reasonable doubt.” (People v. Bradford (2008) 169 Cal.App.4th 843, 854.) Prior to
being contacted by the fire department investigators appellant had already admitted to
Officer Yang that he set the mattress on fire with matches, claiming that he did it as a
joke. Although appellant’s statements to Investigator Wilding added more detail to how
appellant set fire to the mattress, the gist of his statement to Officer Yang was that he was
the perpetrator. Further, although due to appellant’s age the prosecutor had to prove
appellant appreciated the wrongfulness of his conduct (People v. Cottone (2013) 57
Cal.4th 269, 280), appellant’s mother testified that she taught appellant right from wrong
and that he knew that it was wrong to burn other people’s property. Additionally, the
prosecutor presented evidence that appellant successfully completed a fire safety class.
Thus, any error in admitting appellant’s statements to Investigator Wilding was harmless
beyond a reasonable doubt.
                                      DISPOSITION
       The judgment is affirmed.




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