In re Anthony W. CA4/1

Filed 12/20/13 In re Anthony W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ANTHONY W., a Person Coming
Under the Juvenile Court Law.
D063379
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. JCM232543)

v.

ANTHONY W.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Carolyn M.

Caietti, Judge. Affirmed.

Cynthia A. Grimm, 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, Peter Quon, Jr. and Randall D.

Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

The court found true the allegations in the People's petition that Anthony W.

committed robbery (Pen. Code,1 § 211; count 1); commercial burglary (§ 459; count 2);

grand theft (§ 487, subd. (c); count 3); and simple battery (§ 242; count 4).

On appeal, Anthony contends the court erred when, over his objection, it admitted

statements he contends were coerced in violation of Miranda v. Arizona (1966) 384 U.S.

436 (Miranda). Specifically, he contends police deliberately undermined his Miranda

rights with a two-step interrogation tactic in violation of Missouri v. Seibert (2004) 542

U.S. 600 (Seibert) when police arrested him and ordered him to retrieve incriminating

evidence without first giving him a Miranda warning and when police later interrogated

him at the police station after he received and waived his Miranda rights. Anthony thus

seeks to suppress the incriminating statements he made at the police station.

Anthony also contends the probation condition requiring him to take psychotropic

medication if prescribed infringes upon his constitutional right to privacy and protected

liberty interest under the due process clause.

As we explain, we reject Anthony's contentions and affirm the order of the court.

1 All further statutory references are to the Penal Code unless otherwise indicated.
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 FACTUAL AND PROCEDURAL BACKGROUND

In December 2012, Donna Ollic was working the night shift at a convenience store

when two black males entered the store. One was dressed in a black hoodie sweatshirt

and the other in a long-sleeved striped hoodie. The two males stayed inside the store for

about 10 minutes before making a purchase. When Ollic opened the register to make

change, they attempted to take money from the register. A struggle ensued, and the two

males fled the scene with $42.

Officer James Joyce responded to a radio call that two black males had stolen a

large amount of $1's and $5's from the register of a convenience store. As Joyce was

driving to the location of the robbery, he noticed a car with three black males traveling in

the opposite direction. As a result of the timing of the radio call and the location of the

car to the crime scene, Joyce conducted a traffic stop of the car. Joyce explained to the

occupants that a robbery had just occurred and that they matched the description of the

assailants. Joyce asked if any of the occupants had any money on them. One of the

occupants responded he had a "wad of ones" and showed the money to the officer.

As Joyce ordered the occupants out of the car, he received a call from another

officer who informed Joyce he had made contact with two black males near the location

of the robbery and needed code cover.2 Joyce took down the license plate number of the

car and told the three males they were "free to leave."

2 The record shows one of the subjects began fighting with the officer, and he
requested all available units respond to his location immediately.
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 While on his way to provide assistance to the other officer, Joyce received a call

and learned the two black males stopped by the other officer were not suspects in the

robbery. Joyce testified his "heart dropped" when he heard this information because he

"figured [he] had the three [responsible] individuals sitting on the curb and . . . [had] just

let them go."

Joyce next proceeded to the scene of the robbery and watched the store's

surveillance video. Joyce identified the subjects in the video as two of the occupants of

the car he had just stopped. Joyce testified that one of the black males in the video was

wearing a long-sleeved striped hoodie, which was the same or similar hoodie worn by

one of the occupants in the car pulled over by Joyce. This individual was later identified

as Anthony.

Joyce ran the license number of the car and found it belonged to Rene Littlefield.

Joyce drove to the Littlefield residence, found the three occupants of the car inside the

residence and placed them under arrest. After handcuffing Anthony and before reading

the minor his Miranda rights, Joyce told Anthony to get the "clothing he was wearing"

during the robbery as well as "any money he possibly had from the robbery."

Once at the police station, Joyce for the first time read Anthony his Miranda

rights. Anthony waived those rights and told Joyce that he and his friend were "joking

about doing a robbery at a [convenience store]. They parked about two blocks away.

[Anthony] and [another minor] . . . were going to purchase a bag of donuts, and they

pushed the clerk away and took ones and fives."

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 After denying Anthony's motion to exclude evidence (discussed post), the court at

the adjudication hearing made true findings as to all counts but stayed sentence on counts

3 and 4 under section 654. The court ordered, among other things, that Anthony comply

with several probation conditions including to "participate in psychiatric/psychological

counseling and if prescribed, take psychotropic medication as directed."

DISCUSSION

A. Miranda Violation

At the adjudication hearing, Anthony moved to exclude the statements he made at

the police station because he contends they allegedly were made in violation of his

Miranda rights. The court denied the motion, finding that even though Joyce should have

given Anthony a Miranda warning before instructing the minor to get the clothes he was

wearing during the robbery and any money from the robbery, there was no showing of

coercion by Joyce. As such, the court ruled to admit the statements.

1. Guiding Principles

Constitutional protections of the Fifth and Fourteenth Amendments require all

custodial interrogations be preceded by a warning of an individual's Miranda rights.

(Miranda, supra, 384 U.S. 436.) A two-step interrogation procedure occurs when an

officer questions a suspect and deliberately withholds Miranda warnings until the suspect

confesses, at which time the officer gives Miranda warnings, obtains a waiver and elicits

a confession repetitive of the first unwarned confession. (Seibert, supra, 542 U.S. at

pp. 604, 609-611 (plur. opn. of Souter, J.).) This sort of question-first interrogation is

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used essentially "to get a confession the suspect would not make if he understood his

rights at the outset." (Id. at p. 613.)

In Seibert, the court found the two-step procedure was deliberately used to

undermine a suspect's Miranda rights. There, the defendant was questioned at the police

station for about 30-40 minutes while an officer squeezed the defendant's arm until she

finally admitted to killing a young man in a fire. She was then given a 20-minute break

before officers "turned on a tape recorder, gave Seibert Miranda warnings, and obtained a

signed waiver of rights from her." (Seibert, supra, 542 U.S. at p. 605.)

In determining that the two-step procedure was deliberately used, the court looked

at how, where and to what extent the interrogation took place. The court concluded

"[t]he unwarned interrogation was conducted in the station house, and the questioning

was systematic, exhaustive, and managed with psychological skill. When police were

finished there was little, if anything, of incriminating potential left unsaid. The warned

phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place

as the unwarned segment." (Seibert, supra, 542 U.S. at p. 616.) Thus, the court

concluded police deliberately used the two-step procedure "to undermine the Miranda

warnings." (Ibid.)

The "[f]ailure to administer Miranda warnings creates a presumption of

compulsion . . . [and] unwarned statements that are otherwise voluntary . . . must

nevertheless be excluded from evidence under Miranda." (Oregon v. Elstad (1985) 470

U.S. 298, 307 (Elstad).) Although "Miranda requires . . . unwarned admission[s] must be

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suppressed, the admissibility of any subsequent statement should turn . . . on whether it is

knowingly and voluntarily made." (Id. at p. 309.) Thus, "absent deliberately coercive or

improper tactics in obtaining the initial statement, . . . 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." (Id. at p. 314.)

In Elstad, the court concluded the two-step interrogation procedure was not

deliberately used to undermine Miranda and therefore the defendant's statements were

admissible. There, the police went to the young suspect's house to take him into custody

on a charge of burglary and, before the arrest, one of the officers had a brief encounter

with the suspect. (Elstad, supra, 470 U.S. at p. 315.) The court characterized the

officer's omission of Miranda warnings in Elstad as "unaccompanied by any actual

coercion or other circumstances calculated to undermine the suspect's ability to exercise

his free will." (Id. at p. 309.)

In sum, the rule we apply is the following: if police deliberately use a two-step

interrogation procedure, then Seibert applies and the postwarned statements of a

defendant must be excluded. However, if the two-step procedure was not deliberately

used, then Elstad applies and the postwarned statements may still be admissible so long

as they were voluntarily given.

To determine deliberateness, the court first determines whether there is "objective

evidence and any available subjective evidence, such as an officer's testimony, [to]

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support an inference that the two-step procedure was used to undermine the Miranda

warning." (United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158, fn. omitted.)

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 postwarn[ed] statements." (Ibid.)

In reviewing a challenge to evidence based on Miranda, we first review the factual

basis for the trial court's decision under the substantial evidence standard of review.

(People v. Glaser (1995) 11 Cal.4th 354, 362.) Once the facts have been determined, we

review the decision to admit the statements under the de novo review standard. Under

that standard, we independently determine whether the statements were lawfully admitted

into evidence. (People v. Weaver (2001) 26 Cal.4th 876, 918.)

2. Analysis

The record shows Officer Joyce placed Anthony under arrest and asked him to

retrieve his clothes and any money from the robbery. Joyce knew from the vehicle stop

as well as from watching the surveillance video from the convenience store that Anthony

had changed his clothes after the robbery. Joyce did not ask Anthony any questions

while at the Littlefield residence. Instead, the record shows Joyce questioned Anthony

for the first time at the police station after he read Anthony his Miranda rights.

We conclude the court's finding that Joyce did not coerce Anthony while at the

Littlefield residence is amply supported by the evidence in the record. Indeed, unlike the

defendant in Seibert, who was subject to interrogation for 30 or 40 minutes while an

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officer squeezed her arm, in the instant case Joyce merely told Anthony to retrieve certain

items of evidence after Anthony was placed under arrest. We thus independently

conclude Officer Joyce's request of Anthony is similar to the conduct of police in Elstad,

as it was "unaccompanied by any actual coercion . . . calculated to undermine the

suspect's ability to exercise his free will." (See Elstad, supra, 470 U.S. at p. 309.) As

such, we reject Anthony's contention he was subject to a deliberate, two-step

interrogation procedure designed by police to circumvent his Miranda rights.

But that does not end our inquiry. We next turn to the issue whether Anthony

voluntarily waived his Miranda rights when he spoke to Joyce at the police station.

"The essence of voluntariness is whether the government 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 standard of review for

voluntariness challenges is similar to the standard we employ for purposes of Miranda,

discussed ante: "We review independently a trial court's determinations as to whether

coercive police activity was present and whether the statement was voluntary. [Citation.]

We review the trial court's findings as to the circumstances surrounding the confession,

including the characteristics of the accused and the details of the interrogation, for

substantial evidence. [Citation.] '[T]o the extent the facts conflict, we accept the version

favorable to the People if supported by substantial evidence.' [Citation.]" (People v.

Guerra (2006) 37 Cal.4th 1067, 1093.)

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 Anthony contends the court erred when it found he voluntarily waived his

Miranda rights at the police station. We disagree. Rather, the record shows that Joyce

read Anthony his Miranda rights at the station; that Anthony indicated he understood

those rights; and that Anthony in response stated he was willing to speak with Joyce.

Anthony then provided statements regarding the details of the robbery. We thus conclude

substantial evidence supports the finding of waiver and independently conclude the

statements were lawfully admitted into evidence. (See People v. Weaver, supra, 26

Cal.4th at p. 918.)

B. Probation Condition

Anthony contends the probation requirement that he take all prescribed

psychotropic medication if prescribed is unconstitutional and should be stricken.

1. Additional Background

At the detention hearing, defense counsel stated Anthony was currently taking

medication and seeing a psychiatrist. Anthony's mother, however, stated her son was not

currently taking any medication but understood he should be taking certain medication.

According to the probation officer's report, Anthony's mother told probation she

had spoken with Anthony about the incident and "he explained to her that he was there

during the offense, but did not feel like he was really 'there.' He told his mother it felt

like an out of body experience." Anthony's mother also told probation about a time when

she "heard the minor talking to himself," and Anthony also told his mother "he hears

voices." Anthony's mother expressed a concern for Anthony's mental health due to the

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long history of schizophrenia in her family and Anthony's exposure to abuse while living

with his father.

Anthony was evaluated by a doctor, but the doctor did not prescribe any

medication at that time. According to the probation social study report, the doctor was

scheduled to meet with Anthony again two weeks later, but the record does not indicate

whether this occurred or whether any medication was prescribed.

During the disposition hearing, the court imposed a number of probation

conditions on Anthony. One condition it imposed was to order Anthony to "participate in

psychiatric/psychological counseling and if prescribed, take psychotropic medication as

directed." (Italics added.) The record shows defense counsel objected to the imposition

of other probation conditions but did not object to this particular condition.3

2. Guiding Principles and Analysis

Welfare and Institutions Code section 727, subdivision (a) provides: "If a minor is

adjudged a ward of the court on the ground that he or she is a person described by Section

601 or 602, the court may make any reasonable orders for the care, supervision, custody,

conduct, maintenance, and support of the minor, including medical treatment, subject to

further order of the court." (Italics added.)

A court's discretion in ordering a condition of probation upon a minor must be

reasonable and must serve justice and the rehabilitation and reform of the minor. (See In

3 We need not decide whether Anthony forfeited this claim, as the People contend,
because, as discussed post, we conclude this issue is not ripe for decision on the basis of
the limited record before us.
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re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; see also In re Daniel R. (2006) 144

Cal.App.4th 1, 6.) A probation condition is considered invalid when "it '(1) has no

relationship to the crime of which the offender was convicted, (2) relates to conduct

which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably

related to future criminality . . . .'" (People v. Lent (1975) 15 Cal.3d 481, 486.)

Here, the court ordered Anthony to undergo a psychological evaluation and if

ordered to do so, take any prescribed psychotropic drugs. Significantly, the record is

silent regarding whether Anthony was placed on any medications. Given the mental

health issues and concerns raised at the hearing, including by his own mother, we

conclude the court properly exercised its discretion when it ordered Anthony to undergo

psychiatric/psychological counseling. (See In re Luis F. (2009) 177 Cal.App.4th 176,

192 [noting probation condition requiring the minor to take prescribed medication was

not unlawful and noting the minor could petition the court for modification of the terms

of probation requiring this condition if the minor in the future "decide[s] that 'the side

effects outweigh the benefits of his prescribed [medication]'"].)

However, because the record is silent regarding whether Anthony was in fact

prescribed any medication(s) as a result of the counseling, we further conclude his

challenge to this probation condition is not ripe. (See Hunt v. Superior Court (1999) 21

Cal.4th 984, 998 [noting the "ripeness requirement prevents courts from issuing purely

advisory opinions, or considering a hypothetical state of facts in order to give general

guidance rather than to resolve a specific legal dispute"]; see also People v. Johnson

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(2006) 142 Cal.App.4th 776, 789, fn. 4 [noting the ripeness doctrine "'is rooted in the

fundamental concept that the proper role of the judiciary does not extend to the resolution

of abstract differences of legal opinion'"].)

In reaching this conclusion, we note that if medications are subsequently

prescribed by Anthony's doctor and Anthony opposes taking such medications as a

condition of his probation, Anthony can then challenge this condition in the trial court,

where a full and complete record—including the necessary medical information—can be

developed on this issue.4

4 In reaching our decision, we are not unaware of Anthony's contention that he has a
constitutionally-protected privacy and liberty interest in avoiding the coerced
administration of psychotropic drugs, citing United States v. Williams (9th Cir. 2004) 356
F.3d 1045, 1053-1055 (Williams) among other cases. We agree with the reasoning of the
court in In re Luis F., which, under facts somewhat similar to those before us, rejected the
procedural requirements imposed by the Ninth Circuit Court of Appeal in Williams in
connection with various federal statutes it interpreted regarding the supervised release of
a defendant who had been voluntarily taking "'antipsychotic' or 'neuroleptic' drugs"
(Williams, supra, 356 F.3d at p. 1047, fn. 2) that were causing the defendant to suffer
significant and unwanted side effects: "[There are] significant differences between this
case [i.e., In re Luis F.] and Williams that lead us to decline to adopt, in the context of
this case, a blanket requirement of 'necessity' for a medication condition of probation,
explicit consideration of less restrictive alternatives, or 'on-the-record, medically-
grounded findings' as a matter of federal constitutional imperative. First, we are dealing
with a juvenile offender, not an adult. Second, Williams reached its conclusion about the
required procedures under the federal statutes pertaining to supervised release, which of
course do not govern our determination. Third, to the extent Williams called for
independent medical evaluation, and to the extent such input is statutorily required in
other contexts [citation], that input was supplied in this case . . . . Fourth, and as noted
above, there is no evidence in the record before us that the medications subject to [the
minor's] condition of probation cause serious side effects comparable to those discussed
in Williams, nor do they implicate the invasion of bodily privacy and sexual function . . . .
Finally, because [the minor] was already taking psychotropic medications for depression
and social anxiety disorder—and apparently had no objection to continuing to do so
[citation]—the aspect of involuntary administration of unwanted mind-altering drugs
does not come into play here." (In re Luis F., supra, 177 Cal.App.4th at pp. 187-188.)
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 DISPOSITION

The order is affirmed.

BENKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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