Filed 7/31/14 In re Edgar Z. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re EDGAR Z., a Person Coming Under
the Juvenile Court Law.
                                                                 D063582
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J230986)

         v.

EDGAR Z.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Richard R. Monroy, Judge. Affirmed.

         Gary V. Crooks, 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, Steven T. Oetting and Michael T.

Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
       The juvenile court found true allegations that Edgar Z., a minor, burglarized a

home and stole video games and equipment from that home. The court ordered that

Edgar be continued as a ward of the court. On appeal, he contends the juvenile court

erred in denying his motion to suppress his incriminating statements to police because

(1) he made his initial statements to police during a custodial interrogation without first

receiving Miranda warnings, in violation of Miranda v. Arizona (1966) 384 U.S. 436

(Miranda), (2) his statements after the police administered Miranda warnings were

inadmissible because the police employed an improper question first and warn later

tactic, and (3) his Miranda waiver was not knowing, intelligent and voluntary. We agree

that Edgar's initial statements to police were improperly obtained during a custodial

interrogation. However, the admission of that evidence was harmless because his

subsequent statements were made after proper Miranda warnings. Thus, we affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

Edgar's Police Interview

       In October 2012, someone broke into Noe Rodriguez's apartment and took two

video game consoles and video games. (All further date references are to the year 2012.)

San Diego Police Officer Monika Horvat investigated the incident. She received

information that Edgar, who was 13 years old at the time, was involved in the burglary.

       In November, Officer Horvat went to Edgar's middle school and spoke to the

assistant principal. The assistant principal informed Officer Horvat that Edgar was in an

adjacent office being questioned on an unrelated issue. Edgar was eventually brought

into the assistant principal's office. The office had a desk with a chair where the assistant

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principal sat and a window behind that chair. There were two chairs in front of the desk

and another chair elsewhere in the room. Officer Horvat sat in the chair closest to the

door and Edgar sat in a chair located between the officer and the assistant principal's

chair. The office door was closed but not locked.

       Officer Horvat, dressed in a suit, introduced herself to Edgar as "Detective

Horvat" and then proceeded to ask Edgar if he could tell her anything about a stolen

Playstation. Edgar looked down at the ground and did not respond. Officer Horvat then

told Edgar that someone mentioned his name in relation to a residential burglary and

again asked if he knew anything about it. Edgar responded, " 'No.' "

       Officer Horvat continued by asking Edgar if he knew right from wrong. Edgar

stated that he did and when asked who taught him the difference, Edgar said his parents

did. In response to questions, Edgar stated an example of something wrong was stealing

and an example of something right was to " 'return all the stuff.' "

       Officer Horvat next asked whether Edgar had entered a residence and taken any

property without permission. Edgar paused and then stated that he had climbed through

an open window, opened the front door to let two friends inside and then removed boxes

of video games and Playstation and PSP game consoles. From the time Officer Horvat

introduced herself to the time Edgar admitted participating in the burglary, five to ten

minutes had elapsed. Officer Horvat described her demeanor as friendly and calm

throughout the conversation.

       While Edgar remained in the office, Officer Horvat left the room to speak with his

mother who had arrived to pick him up. Officer Horvat then returned to the assistant

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principal's office where she was joined by another officer and advised Edgar of his

Miranda rights. Specifically, she informed Edgar that he had the right to remain silent,

anything he said could be used against him in court, and he had the right to have an

attorney present during or before questioning. Edgar stated that he understood all three

warnings and was willing to talk to Officer Horvat.

       Thereafter, Edgar told Officer Horvat that in the apartment complex where he

lived, he checked for open doors. When he came to Rodriguez's apartment, he

remembered that he had previously played with Rodriguez's son on a Playstation in the

apartment. The front door to Rodriguez's apartment was closed, but Edgar discovered an

open window. Edgar entered through the window, opened the door for his friends, and

then searched for the Playstation and PSP. Edgar removed those items along with a

controller and video games for both consoles.

       Officer Horvat accompanied Edgar and his mother to their apartment where Edgar

gave Officer Horvat several items of property that he had taken from Rodriguez's

apartment.

Motion to Suppress and Hearing

       Edgar moved to suppress the incriminating statements he had made to police on

grounds that he made his initial statements during a custodial interrogation without

required Miranda warnings, the police employed an improper question first tactic to

obtain his subsequent incriminating statements, and his Miranda waiver was not

knowing, intelligent and voluntary.



                                            4
       After hearing Officer Horvat's testimony and arguments from counsel, the court

denied Edgar's suppression motion. In regard to Edgar's pre-Miranda warning

statements, the court identified factors it considered in determining whether the

interrogation was custodial, including that the interview took place in the assistant

principal's office with the door closed, Officer Horvat was not in uniform, and the

interview lasted five to ten minutes with approximately three questions posed to Edgar.

Based on the totality of the circumstances, the court found Edgar's statements were

voluntary and admissible.

       In considering Edgar's post-Miranda warning statements, the court reiterated that

Edgar was not in custody when he made his initial incriminating statements to police and

thus Miranda warnings were not required. The court rejected Edgar's argument that

police employed an improper question first tactic to circumvent Miranda requirements.

Accordingly, the court denied Edgar's request to have his statements suppressed.

                                      DISCUSSION

                       I. Edgar's Pre-Miranda Warning Admission

       Edgar argues his initial statements to police should have been suppressed because

he made them during a custodial interrogation before he received Miranda warnings.

Specifically, he contends in light of his age and the totality of circumstances surrounding

his interrogation, a reasonable person in his situation would not have felt free to terminate

the interrogation and leave. We agree.

       In Miranda, supra, 384 U.S. at p. 444, the United States Supreme Court declared

that a person questioned by law enforcement officers after being "taken into custody or

                                             5
otherwise deprived of his freedom of action in any significant way" 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." Statements elicited without complying with this rule are

inadmissible for certain purposes in a criminal trial. (See Stansbury v. California (1994)

511 U.S. 318, 322; People v. Nelson (2012) 53 Cal.4th 367, 374.)

       "An interrogation is custodial, for purposes of requiring advisements under

Miranda, when 'a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.' [Citation.] Custody consists of a formal arrest

or a restraint on freedom of movement of the degree associated with a formal arrest.

[Citations.] When there has been no formal arrest, the question is how a reasonable

person in the defendant's position would have understood his situation. [Citation.] All

the circumstances of the interrogation are relevant to this inquiry, including the location,

length and form of the interrogation, the degree to which the investigation was focused

on the defendant, and whether any indicia of arrest were present." (People v. Moore

(2011) 51 Cal.4th 386, 394-395; Yarborough v. Alvarado (2004) 541 U.S. 652, 663

[courts must examine " 'all of the circumstances surrounding the interrogation' " and

determine " 'how a reasonable person in the position of the individual being questioned

would gauge the breadth of his or her freedom of action' "].) " '[T]he initial determination

of custody depends on the objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers or the person being

questioned.' " (Yarborough v. Alvarado, at p. 663.)

                                              6
        In J.D.B. v. North Carolina (2011) 564 U.S. ___ [131 S.Ct. 2394], the Supreme

Court held that a child's age can be relevant to the custody determination for purposes of

Miranda warnings because "[i]n some circumstances, a child's age 'would have affected

how a reasonable person' in the suspect's position 'would perceive his or her freedom to

leave.' " (Id. at p. ___ [131 S.Ct. at pp. 2402-2403].) For example, "[a] student—whose

presence at school is compulsory and whose disobedience at school is cause for

disciplinary action—is in a far different position than, say, a parent volunteer on school

grounds to chaperone an event, or an adult from the community on school grounds to

attend a basketball game. Without asking whether the person 'questioned in school' is a

'minor,' [citation], the coercive effect of the schoolhouse setting is unknowable." (Id. at

p. ___ [131 S.Ct. at p. 2405].) Thus, the court held inclusion of age as a consideration

consistent with the objective nature of the custody analysis, "so 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 . . . ." (Id. at p. ___ [131 S.Ct. at p. 2406].)

        " '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 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." ' " (People v. Moore, supra, 51 Cal.4th at p.

395.)

                                               7
          Here, to support its ruling that Edgar's initial statements to Officer Horvat were

admissible, the trial court found that Edgar's interview took place in the assistant

principal's office with the door closed but not locked, Officer Horvat was not in uniform,

and the interview lasted only five to ten minutes with approximately three questions

posed to Edgar. The trial court referenced defense counsel's position that the court

should consider Edgar's age, but it is unclear what role, if any, Edgar's age played in the

court's analysis. While we agree with the court's considerations, we conclude that under

the totality of circumstances, including Edgar's age, his interrogation was custodial in

nature.

          Edgar was only 13 years old at the time of his police interview. Officer Horvat

was clearly aware of Edgar's young age as she interviewed him at his middle school.

Edgar was taken to the assistant principal's office where the office door was closed and

Edgar sat in a chair between the assistant principal and Officer Horvat. Officer Horvat

introduced herself as a detective and then proceeded to question him. When Edgar failed

to respond to Officer Horvat's initial inquiry, she told him that someone mentioned he

was connected to a residential burglary and then asked again if he was involved. Edgar

denied involvement so Officer Horvat continued her questioning. At no point did Officer

Horvat or the assistant principal give Edgar an opportunity to call his mother, tell him he

was free to leave, or inform him that he was not obligated to speak to her. In our view, a

reasonable 13 year old in Edgar's position would not have felt free to leave the assistant

principal's office where the officer asked the door be closed and both the assistant

principal and officer were present. A child in Edgar's situation would reasonably believe

                                                8
that his disobedience would subject him to disciplinary action. Under these

circumstances, Edgar was in custody for Miranda purposes and thus the trial court erred

in failing to suppress the statements Edgar made before receiving Miranda warnings.

                      II. Edgar's Post-Miranda Warning Admission

       Edgar argues the trial court erred by failing to suppress the statements he made

after receiving Miranda warnings because Officer Horvat used an improper technique by

questioning him before administering Miranda warnings and thus even his post-Miranda

admissions were obtained unlawfully. We disagree.

       The United States Supreme Court addressed this issue in Oregon v. Elstad (1985)

470 U.S. 298 (Elstad). In Elstad, police officers went to the defendant's home and

questioned him about a burglary without first reading him the Miranda warnings.

(Elstad, at p. 301.) After he admitted being present at the burglary, the officers took him

to the police station. One hour later, the officers informed him of his Miranda rights. He

waived those rights and gave a full statement detailing his role in the crime. (Elstad, at

pp. 301-302.) The Court held that "[t]hough Miranda requires that the unwarned

admission must be suppressed, the admissibility of any subsequent statement should turn

in these circumstances solely on whether it is knowingly and voluntarily made." (Id. at p.

309.) "[A]bsent deliberately coercive or improper tactics in obtaining the initial

statement," the court found that "subsequent administration of Miranda warnings . . .

ordinarily should suffice to remove the conditions that precluded admission of the earlier

statement." (Id. at p. 314.) "The essence of voluntariness is whether the government



                                             9
obtained the statements by physical or psychological coercion such that the defendant's

will was overborne." (United States v. Rith (10th Cir. 1999) 164 F.3d 1323, 1333.)

       The Supreme Court revisited the issue in Missouri v. Seibert (2004) 542 U.S. 600

(Seibert). Unlike Elstad, where the officer's initial failure to warn was an oversight, in

Seibert, the police "used a two-step questioning technique based on a deliberate violation

of Miranda." (Id. at p. 620 (conc. opn. of Kennedy, J.).) The interview strategy was

based on "a police protocol for custodial interrogation that calls for giving no warnings of

the rights to silence and counsel until interrogation has produced a confession. Although

such a statement is generally inadmissible, since taken in violation of [Miranda], the

interrogating officer follows it with Miranda warnings and then leads the suspect to cover

the same ground a second time." (Id. at p. 604.)

       In Seibert, a plurality of the United States Supreme Court reasoned, "The

threshold question in this situation is whether it would be reasonable to find that the

warnings could function 'effectively' as Miranda requires. There is no doubt about the

answer. . . . When the warnings are inserted in the midst of coordinated and continuing

interrogation, they are likely to mislead and 'deprive a defendant of knowledge essential

to his ability to understand the nature of his rights and the consequences of abandoning

them.' [Citation.] And it would be unrealistic to treat two spates of integrated and

proximately conducted questioning as independent interrogations subject to independent

evaluation simply because Miranda warnings formally punctuate them in the middle."

(Seibert, supra, 542 U.S. p. 601.)



                                             10
       Justice Kennedy concurred, reasoning that if the interrogators deliberately employ

the two-step strategy, the trial court must suppress postwarning statements unless the

interrogators take curative measures to apprise the defendant of his rights. If the two-step

method is not deliberate, the postwarning statements are admissible if voluntarily made.

(Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.); see also United States v.

Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158 [concluding that Justice Kennedy's

concurrence in Seibert is the court's holding because it is narrowest grounds with which a

majority of the court would agree.].)

       Deliberateness may be found if "objective evidence and any available subjective

evidence, such as an officer's testimony, support an inference that the two-step

interrogation procedure was used to undermine the Miranda warning." (United States v.

Williams, supra, 435 F.3d at p. 1158.) Objective evidence includes "the timing, setting

and completeness of the prewarning interrogation, the continuity of police personnel and

the overlapping content of the pre- and postwarning statements." (Id. at p. 1159.)

       Here, our threshold inquiry is whether Officer Horvat deliberately employed a

two-step interrogation tactic to circumvent Miranda requirements. If that was the case,

the Seibert rule applies and Edgar's post-Miranda warning statements must be excluded;

however, if the two-step procedure was not deliberately used, Elstad applies and the

postwarned statements were admissible so long as they were voluntarily given.

       We agree with the trial court's conclusion that this was not "a Seibert-type

situation where it was designed to get around Miranda." "Unlike Seibert, there is no

evidence here that [Officer Horvat] w[as] 'following a policy of disregarding the teaching

                                            11
of Miranda.' " (People v. Scott (2011) 52 Cal.4th 452, 478.) To the contrary, the

prewarning portion of Edgar's interview lasted only five to ten minutes. Officer Horvat's

demeanor was calm and friendly during that time and she only asked Edgar

approximately three questions. We find nothing in the record indicating that Officer

Horvat was deliberately physically or psychologically coercive during the pre-Miranda

warning portion of Edgar's interview. Accordingly, Edgar's postwarning statements were

admissible so long as they were voluntary.

                           III. Voluntariness of Edgar's Statements

       Edgar argues he did not knowingly, intelligently and voluntarily waive his

Miranda rights. Specifically, he contends that because of his limited English

comprehension and extreme immaturity, he had "no concept of his right not to

incriminate himself." In making this argument, Edgar relies heavily on two

psychological evaluations, which were conducted to determine if he was competent to

stand trial. We reject Edgar's argument.

       The prosecution must prove by a preponderance of the evidence that a Miranda

waiver was voluntary. (People v. Rundle (2008) 43 Cal.4th 76, 114.) "[A Miranda

waiver] is involuntary if it is 'not " 'the product of a rational intellect and a free will.' " '

[Citation.] The court in making a voluntariness determination 'examines "whether a

defendant's will was overborne" by the circumstances surrounding the giving of [the

Miranda waiver].' [Citation.] Coercive police tactics by themselves do not render a

defendant's [Miranda waiver] involuntary if the defendant's free will was not in fact

overborne by the coercion and his decision to speak instead was based upon some other

                                                 12
consideration. [Citations.] The determination whether the authorities improperly coerced

a defendant's [Miranda waiver] involves an evaluation of the totality of the

circumstances, including the nature of the interrogation and the circumstances relating to

the particular defendant." (Ibid.)

       Here, the two psychological evaluations that Edgar relies upon were conducted to

determine if Edgar was competent to participate in his own defense. The first evaluator

reported that Spanish was Edgar's first language and that he did not understand many

English words, such as "date," "emotions," "seasons" and "attorney" unless those words

were simplified. The evaluator concluded that Edgar was "not competent to understand

and participate in legal proceedings in a rational manner." The second evaluator found

that Edgar had an "immature disposition," but was able to understand court procedures

and the role of different parties.

       Defense counsel did not present the psychological evaluations as evidence in

support of Edgar's motion to suppress. Edgar was required to present that evidence with

his motion if he wanted the trial court to consider it. (Evid. Code, § 550, subd. (a) ["The

burden of producing evidence as to a particular fact is on the party against whom a

finding on that fact would be required in the absence of further evidence."].)

Nevertheless, we conclude Edgar's Miranda waiver and postwarning statements were

knowing, intelligent and voluntary.

       Although Edgar may have been immature and had somewhat limited English

comprehension, the record indicates he effectively communicated with Officer Horvat.

Further, when Officer Horvat advised Edgar of his Miranda rights, she broke the

                                            13
warnings down into three questions and after each question asked Edgar if he understood

her questions. Edgar stated that he understood all three questions. Thereafter, Edgar

provided a statement to Officer Horvat revealing the details of how he participated in the

burglary. As we previously discussed, there was no evidence of police coercion to obtain

Edgar's Miranda waiver or his incriminating statements. (Ante, part II.) Thus, we

conclude Edgar's Miranda waiver and statements thereafter were voluntarily given and

the trial court properly admitted that evidence.

       Edgar's post-Miranda warning statements were substantially identical to his

prewarning incriminating statements. Although we found Edgar's pre-Miranda warning

statements should have been suppressed because they were obtained during a custodial

interrogation (ante, part I), the admission of that evidence was harmless because his

subsequent statements were voluntarily made after a proper Miranda warning.

                                      DISPOSITION

       The judgment is affirmed.



                                                                      MCINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.




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