Filed 9/23/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B286844
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA103998)
v.
NGOUNSAY KEO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gary J. Ferrari, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
______________
Ngounsay Keo appeals from a judgment entered after a
jury convicted him of the second degree murder of his girlfriend,
Karina Duch, the mother of his two sons, 15-year-old S.L. and
eight-year-old S.K.1 The jury also found Keo guilty of making a
criminal threat on an earlier occasion, and found true the special
allegation he used a deadly or dangerous weapon, a knife, in the
commission of the murder. Keo contends the trial court erred in
admitting statements he made while in custody to a social worker
performing an investigation in a dependency proceeding filed
with respect to S.L. and S.K. He argues the admission of the
statements violated his Fifth and Sixth Amendment rights
because the social worker failed to provide a warning under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and
interviewed him without his attorney present. Keo also asserts
his statements were privileged under Welfare and Institutions
Code section 355.1, subdivision (f),2 as “testimony” in a
dependency proceeding. He urges us to find the statements were
privileged, even if they do not qualify as testimony, to protect his
due process rights because he was forced to choose between
protection of his parental interests in the dependency proceeding
and his right not to incriminate himself in the criminal case.
1 Because the sons have the same initials, we identify the
older boy by letters in his first name.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise noted. Section 355.1,
subdivision (f), provides that “testimony” by a parent, guardian,
or other person with care or custody of a minor subject to a
dependency proceeding is not admissible as evidence in a
separate action or proceeding.
2
We are troubled by the admission of statements Keo made
to the social worker without an attorney present while he was in
custody. But neither section 355.1, subdivision (f), nor the
United States and California Constitutions bar use of the
statements in his criminal case. It is up to the Legislature to
address in the first instance whether section 355.1, subdivision
(f), should be expanded to protect out-of-court statements made
by a defendant to a social worker. Unless the Legislature decides
as a matter of policy that protection is warranted, it is up to the
defendant, with the advice of his or her attorney in either the
criminal case or dependency proceeding, to decide whether to
discuss the facts of the alleged crime with the social worker, or to
wait until the dependency hearing to testify, at which time the
statutory privilege would apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People’s Case
1. Events leading up to the homicide
Keo and Duch were in a relationship for more than 20
years, although they were never legally married. In early 2016
they lived in a one-bedroom apartment with S.L. and S.K. In
2016 the relationship soured, and Keo became more aggressive
toward Duch. Duch began communicating with other men on a
“messenger” phone application.
Sometime in February or March 2016 Keo slapped Duch on
the face. S.K. was in the room at the time. S.L. was in the living
room and heard Keo yelling at Duch in the bedroom, followed by
the sound of a slap. When S.L. entered the room to see what had
happened, he saw Duch crying and holding her cheek, which was
red. S.L. physically restrained Keo to prevent him from harming
3
Duch. Keo was drunk at the time. That same night S.L. was
present when Keo threatened Duch, S.L., and S.K., saying,
“You’re all worthless and I’ll kill you all and then myself.” S.L.
was scared. S.K. was not there, but Duch told him about the
threat later. On March 30 Duch went to the police station and
filed a criminal threats report.
On April 5, 2016, while Keo was at work, Duch took S.L.
and S.K. from their apartment, and they went to live in Duch’s
family home. That afternoon Keo came to the family home. He
was angry and acted in a threatening manner; he demanded to
take the family back to the apartment. Duch and the boys
refused, and Keo left. The next day Duch obtained a temporary
restraining order against Keo. On April 7 a sheriff’s deputy
personally served Keo with the restraining order.
2. The homicide
Despite the restraining order, in August 2016 Duch and
S.K. visited Keo, and they went together to watch the Cambodian
New Year’s day parade. Keo and Duch watched as S.K. danced in
the parade. A few days later, on the morning of August 13, Duch
and S.K. went to their former apartment to pick up a note from
S.K.’s doctor. Keo was there when they arrived. Keo told S.K. to
go play at his friend’s apartment next door, and S.K. left.
While S.K. was in the neighbors’ apartment, he heard a
loud scream from Duch and heard her yell “stop.” S.K. asked his
friend’s mother, Mariela Melgar, to call 911. Melgar did not call
because she did not hear anything. But she took S.K. and her
two children to Keo’s apartment on their way to the store. Keo
opened the door a little and S.K. asked about his mother. Keo
said she was sleeping. Keo went back into the apartment, and
Melgar and the children left. When they returned, they again
4
stopped by Keo’s apartment. Keo cracked the door open and said
Duch was still sleeping. S.K. and the children returned to
Melgar’s apartment to play.
At some point, S.K. returned to Keo’s apartment. He
knocked six times, but there was no answer. The door was
unlocked, and S.K. entered. He saw Keo lying on the floor in the
living room, with his internal organs hanging out of his stomach
and blood flowing from his stomach. There was a butcher’s knife
by Keo’s side. S.K. was scared and ran back to Melgar’s
apartment. Melgar went into Keo’s apartment, saw him with his
stomach “sliced open,” and called 911.
Long Beach Police Officer Benjamin Cobb arrived at the
scene with his partner and saw Keo lying on the floor in a pool of
blood with a large kitchen knife in his right hand. Keo was
conscious and started swinging the knife. When asked, Keo said
Duch was “in the bedroom sleeping.” Officer Cobb entered the
bedroom and saw Duch with multiple lacerations to her chest and
upper torso. She had a large laceration on her stomach and her
organs were exposed. Duch was pronounced dead at the scene.
An autopsy showed multiple stab wounds to the abdomen, upper
chest and lungs, arms, and right hip. The deputy medical
examiner opined the wounds were made by an object with a
sharp blade, were not self-inflicted, and could have been caused
by the knife held by Keo.
Keo was transported to the hospital, where he underwent
surgery for his injuries.
3. The dependency investigator’s interview with Keo
On May 11 or 12, 2016, while Keo was in custody
recovering in the medical unit of the jail, he was interviewed by
Julia Han, a social worker who served as a dependency
5
investigator with the Los Angeles County Department of
Children and Family Services (Department).3 Han spoke to Keo
using a telephone in an interview room with a glass partition
between them. At the time Han spoke with Keo, Han was aware
a criminal case was pending and a dependency petition had been
filed. Keo had counsel appointed in this case, but not the
dependency proceeding.4 Keo was alone, and it is undisputed
Han did not provide a Miranda warning. Han testified her role
as a dependency investigator was to investigate a petition filed in
dependency court by interviewing all the parties to “gather
evidence” and prepare a report to the dependency court. As part
of that role, Han assessed the risk to the children and made a
recommendation as to whether the parent should retain custody
and parental rights over the children. Prior to interviewing Keo,
Han called the prosecutor to learn the criminal charges against
3 Because Han was a social worker employed as a
dependency investigator by the Department, we use the terms
“social worker” and “dependency investigator” interchangeably to
refer to Han’s position.
4 In response to Keo’s request to take judicial notice, we
augment the record to include the April 18, 19, 20, 21, 25, 26, and
27 and May 5 and 26, 2016 minute orders in this case, attached
as exhibit A to Keo’s August 23, 2018 request for judicial notice.
(Cal. Rules of Court, rule 8.155(a)(1)(A).) The records reflect the
public defender’s office was appointed as counsel for Keo in this
case on April 27, 2016. We also take judicial notice of the
April 18, May 5, and May 17, 2016 minute orders in the
dependency proceeding, Los Angeles Superior Court case
No. DK16546, attached as exhibit B to the request for judicial
notice. (Evid. Code, §§ 452, subd. (d), 459.) The records reflect
dependency counsel was appointed on May 17, 2016 to represent
Keo, who was in court on that date.
6
Keo and the next court date. Han and the prosecutor did not
discuss the details of the criminal case, and Han did not tell the
prosecutor she was planning to interview Keo.
Although English was not Keo’s native language, Han
spoke to him in English, and he responded in English. Keo
appeared to understand Han’s questions. At the outset of the
meeting, Han read Keo the allegations in the dependency
petition, including that he had murdered Duch and endangered
S.K., who saw Keo with his injuries. Han then “asked him about
the incident.” Keo told Han he killed his wife, then tried to kill
himself. Keo repeated that S.K. “was not there.” He added as to
S.K. being present that he would “never do [a] stupid thing like
that.” According to Han, Keo “said he killed his wife because the
wife tried to take his two sons away from him and that his sons
are his whole life and his soul and he cannot live without his
sons.” Keo said he placed a knife on Duch’s “belly” two times.
Duch screamed and told Keo, “Don’t do that.” Keo told Han he
attempted to kill himself, but the police arrived first.
Keo admitted he previously threatened Duch that if she
took S.L. and S.K. away from him, “something bad would
happen.” Keo added, “If she takes away my sons, then we all
die.” He added, “I told her, I told her, but she did not listen.”
Han testified Keo was not remorseful, but rather, “He sounded as
if that was the rightful thing that he did [be]cause he already
warned her or told her not to take his sons away from him.”
However, when asked what he wanted to say to his children, he
“apologized for the incident.” Keo also admitted he had hit Duch
on one prior occasion with his sons present after he learned Duch
had a boyfriend. Keo said he “pushed [his] wife’s face and
slapped her on her forehead.”
7
After interviewing Keo, Han obtained a copy of the police
report, which she reviewed before preparing her report to the
dependency court. Han did not inform the prosecutor or the
police about what Keo said, or that she interviewed him.
However, an attorney representing the Department, after
learning at a dependency hearing of Keo’s statements to Han,
contacted the prosecutor to inform her of the statements. A year
later, in response to a subpoena, the prosecutor obtained a copy of
the jurisdiction and disposition report filed in the dependency
proceeding, which contained Keo’s statements. Han testified to
the statements at trial.
B. The Defense Case
Keo testified in his own defense. In March 2016 S.L.
showed Keo text messages between Duch and two men. Keo
begged Duch to stop communicating with the men. Keo became
depressed, drank half a bottle of whiskey, and got “very drunk.”
He and Duch argued about the texts, she took the bottle away
from him, and he moved his arm in a manner such that the back
of his hand hit Duch on the cheek. Both boys were in the living
room where this happened. Keo and Duch went into the
bedroom, and S.L. came in, grabbed Keo, and dragged him out of
the room. Keo and Duch argued, and he told her he would kill all
of them because he was concerned he would lose Duch and his
sons.
The day of the murder, Keo returned from work at 10:00 in
the morning. After S.K. went to Melgar’s apartment, Keo
implored Duch to take him back, but she said 23 years was
“enough,” and she was taking the children. Keo “lost all [his]
memory, [and] went to grab the knife without knowing it.” He
retrieved the knife from the kitchen, returned, and stabbed Duch.
8
Duch was initially sitting on the couch, but when Keo returned
with the knife, she stood up and raised her hands to protect
herself. He “lost [his] mind . . . .” Duch screamed and told him to
stop, then she fell to the floor. Keo dragged Duch into the
bedroom so S.K. would not see what had happened. By this time,
Keo believed Duch was dead. Keo closed the bedroom door and
wrote a suicide note for his children. Then he cut himself and fell
to the floor.
Keo underwent surgery, as part of which he received 32
staples. At the time of Han’s interview, Keo was not feeling well,
his stab wounds were fresh, and he was in a wheelchair. He was
still in “a padded suicide gown.”
C. Keo’s Motion in Limine To Exclude Han’s Statements and
Closing Arguments
Prior to trial, Keo filed a motion in limine to suppress
Han’s testimony, arguing the failure of Han to give a warning
before questioning him in custody without a lawyer violated
Miranda and Massiah v. United States (1964) 377 U.S. 201, 206-
207 (Massiah).5 The prosecutor responded that Han’s role was to
assess the risk to the children, not to enforce the law or
investigate the crime. Further, Han was not acting at the
direction of law enforcement and did not tell the prosecutor or
police she planned to interview Keo. The prosecutor only
received Han’s report a year later when she subpoenaed the
jurisdiction and disposition report from the Department. The
prosecutor emphasized Keo had an attorney in the dependency
5 Keo also sought to exclude statements made by Duch in her
declaration seeking a temporary restraining order. The trial
court granted the motion to suppress as to these statements.
9
proceeding, who could have requested Keo not be interviewed,
but the attorney did not make that request.6 Keo’s attorney
responded that the Department was a prosecuting agency
because its actions could lead to removal of the children. The
court ruled, “I don’t think there is a [Sixth] Amendment violation.
I don’t think any privilege has been violated under the
circumstances of this case. . . . I’m going to permit the
statement.”
In her closing argument, the prosecutor relied on the
statements Keo made to Han to support her argument Keo
committed first degree murder by acting with express malice.
She argued, “In this case let’s talk about the words and the
actions that the defendant had that make this express malice.
First the words. He made a threat, ‘You’re worthless, I will kill
all of you and then myself if you take—’ [A]nd then the second
two are the words he used with the social worker, he had warned
[Duch] that, ‘If you take the kids, we both die. If you take away
my sons, we all die.’ So in this case, it’s clear from his words
what he was intending on doing.” Keo’s attorney argued Keo
committed voluntary manslaughter because he acted in the heat
of passion after Duch told him not only that she was not
returning to him, but that she was taking the children.
D. The Jury Verdict and Sentencing
The jury convicted Keo of second degree murder (Pen. Code,
§ 187, subd. (a)), and found true the special allegation Keo
personally used a deadly or dangerous weapon (a knife) in the
6 As noted, this statement was not accurate because Keo was
not appointed counsel in the dependency case until May 17, 2016,
after the Han interview.
10
commission of the crime (Pen. Code, § 12022, subd. (b)(1)). The
jury also found Keo guilty of making a criminal threat (Pen.
Code, § 422, subd. (a)). The trial court sentenced Keo to 15 years
to life for the second degree murder, plus one year for the deadly
weapon enhancement, plus the upper term of three years for
making a criminal threat, for an aggregate sentence of 19 years
to life. Keo timely appealed.
DISCUSSION
Keo contends his statements to Han should have been
suppressed, and they were used by the prosecution to prejudice
his heat of passion defense. He asserts the admission of his
statements violated his Fifth Amendment right not to
incriminate himself, his Sixth Amendment right to counsel, the
statutory protection in section 355.1, subdivision (f), and his due
process rights.
A. The Dependency Investigator Was Not Required To Provide
a Miranda Warning Before Interviewing Keo
1. Standard of review
“When reviewing a ruling admitting a confession, we accept
the trial court’s resolution of any factual dispute to the extent the
record supports it, but otherwise we determine independently
whether the confession was taken in violation of the rules of
Miranda . . . , or was involuntary.” (People v. Sanchez (2019)
7 Cal.5th 14, 48; accord, People v. Case (2018) 5 Cal.5th 1, 20 [In
reviewing a trial court’s determination of whether admission of a
defendant’s statements violated Miranda, “‘[w]e independently
determine from the undisputed facts and the facts properly found
by the trial court whether the challenged statement was illegally
11
obtained.’”]; People v. Gamache (2010) 48 Cal.4th 347, 385
[same].) “To the extent mixed questions of fact and law are
present, they are reviewed de novo if predominantly legal and for
substantial evidence if predominantly factual.” (Gamache, at
p. 385.) Because the facts are not in dispute, we independently
review whether Han was required to provide a Miranda warning
prior to interviewing Keo.
2. The dependency investigator was not a law
enforcement officer or an agent of law enforcement
“The Fifth Amendment provides that ‘[n]o person . . . shall
be compelled in any criminal case to be a witness against
himself.’ [Citations.] To safeguard a suspect’s Fifth Amendment
privilege against self-incrimination from the ‘inherently
compelling pressures’ of custodial interrogation [citation], the
high court adopted a set of prophylactic measures requiring law
enforcement officers to advise an accused of his right to remain
silent and to have counsel present prior to any custodial
interrogation [citation]. . . . [¶] A statement obtained in violation
of a suspect’s Miranda rights may not be admitted to establish
guilt in a criminal case.” (People v. Jackson (2016) 1 Cal.5th 269,
338-339; accord, People v. Sauceda-Contreras (2012) 55 Cal.4th
203, 217 [“‘Miranda makes clear that in order for defendant’s
statements to be admissible against him, he must have
knowingly and intelligently waived his rights to remain silent,
and to the presence and assistance of counsel.’”].) “Under
California law, issues relating to the suppression of statements
made during a custodial interrogation must be reviewed under
federal constitutional standards.” (People v. Nelson (2012)
53 Cal.4th 367, 374; accord, Jackson, at p. 339.)
12
“California courts have limited [Miranda’s]
requirements . . . to ‘law enforcement officials,’ their agents, and
agents of the court, while the suspect is in official custody.” (In re
Deborah C. (1981) 30 Cal.3d 125, 130, 134, citations omitted
[private store detective was not required to give Miranda
warning before questioning juvenile after citizen’s arrest for
shoplifting]; accord, People v. Thornton (2007) 41 Cal.4th 391, 432
[“Interrogation thus refers to questioning initiated by the police
or its functional equivalent . . . .”]; see Estelle v. Smith (1981)
451 U.S. 454, 467 (Estelle) [psychiatrist performing court-ordered
pretrial psychiatric examination of defendant in custody was
required to provide Miranda warning as an “agent of the State”].)
Keo contends a dependency investigator is a “peace officer”
within the meaning of Penal Code section 830.3, subdivision (h),
and therefore is a law enforcement officer subject to the
requirements of Miranda. Penal Code section 830.3 provides,
“The following persons are peace officers whose authority extends
to any place in the state for the purpose of performing their
primary duty . . . . [¶] . . . [¶] (h) All investigators of the State
Department[] of . . . Social Services, . . . provided that the
primary duty of these peace officers shall be the enforcement of
the law relating to the duties of his or her department or office.”
Notably, this definition of peace officers only includes
investigators for the State Department of Social Services, not
dependency investigators employed by a local agency such as the
Department. However, this does not end our inquiry because a
dependency investigator would be required to provide a Miranda
warning if he or she acts as an agent of law enforcement. (In re
Deborah C., supra, 30 Cal.3d at p. 130.)
Keo relies on Estelle, supra, 451 U.S. at page 468 and
Mathis v. United States (1968) 391 U.S. 1 (Mathis) to support his
13
argument a dependency investigator acts as an agent of law
enforcement when questioning a suspect in custody. Both are
distinguishable. In Estelle, in holding Miranda applied to
questioning by a doctor in a court-ordered psychiatric
examination, the United States Supreme Court explained, “A
criminal defendant, who neither initiates a psychiatric evaluation
nor attempts to introduce any psychiatric evidence, may not be
compelled to respond to a psychiatrist if his statements can be
used against him at a capital sentencing proceeding. Because
[defendant] did not voluntarily consent to the pretrial psychiatric
examination after being informed of his right to remain silent
and the possible use of his statements, the State could not rely on
what he said [in the evaluation] to establish his future
dangerousness.” (Estelle, at p. 468; accord, People v. Pokovich
(2006) 39 Cal.4th 1240, 1253 [Fifth Amendment privilege against
self-incrimination barred use at trial of statements made by
defendant in compelled mental competency examination].)
Unlike the defendants in Estelle and Pokovich, who were required
to submit to a court-ordered psychiatric examination, Keo was
not required to submit to an interview with Han or answer her
questions. While we recognize Keo had an interest in cooperating
with the dependency investigator to protect his parental interest
in custody of his children, as discussed below, he could have
testified fully at any dependency hearing pursuant to section
355.1, subdivision (f), without risking use of his statements in the
criminal case.7
7 We address below the separate question whether Keo’s due
process rights were violated by having to choose between
speaking with Han to protect his parental interest in keeping his
14
In Mathis, supra, 391 U.S. at page 4, the United States
Supreme Court held an Internal Revenue Service agent was
required to provide a Miranda warning before interviewing a
suspect who was in custody for a separate offense because “tax
investigations frequently lead to criminal prosecutions . . . .” The
court rejected the People’s argument the agent elicited the
incriminating statements during a “‘routine tax investigation.’”
(Ibid.) In contrast to a dependency investigation designed to
determine the best interests of a child, an Internal Revenue
Service investigator is required under the tax code to refer a case
for investigation by an agent who works on criminal matters as
soon as the investigator finds “‘definite indications of fraud or
criminal potential.’” (Id. at p. 6, fn. 2 (dis. opn. of White, J.).) In
this case Han did not reveal Keo’s statements to the police or
prosecution; instead, it was only after the prosecution
subpoenaed the Department’s records that the prosecutor
obtained Han’s report.
The fact the person conducting the questioning is a
government employee is not a sufficient basis to require Miranda
warnings. For example, in People v. Wright (1967)
249 Cal.App.2d 692, a parking lot security guard employed by a
county hospital detained the defendant, who had burglarized a
car in the parking lot, and questioned him without first giving a
Miranda warning. The Wright court held the defendant’s
statements to the security guard were admissible because “the
interrogator was not the agent of a governmental department,
the very function of which was to enforce the law.” (Id. at p. 694.)
Rather, the security guard was an employee of a governmental
children and his right not to incriminate himself in the criminal
case.
15
agency whose primary mission was “to make sick people well.”
(Ibid.) As the court explained, “It does not matter that a
particular employee’s duties may be confined to the protection of
persons and property on his employer’s premises or that his
employer may be the state, a political subdivision thereof or a
local entity. What does matter is whether he is employed by an
agency of government, federal, state or local, whose primary
mission is to enforce the law.” (Id. at pp. 694-695, fns. omitted.)
Neither does it affect our analysis that the interviewer is a
mandatory reporter. In People v. Salinas (1982) 131 Cal.App.3d
925, 938, the court concluded a doctor was not required to provide
the mother a Miranda warning before questioning her about
possible child abuse while they were in a small room in the
hospital with police officers present. The court explained, “It was
not [the doctor’s] intent to provide information to law
enforcement officers and the medical report was a standard part
of the business procedures at the hospital.” (Ibid.) That the
doctor was a mandated reporter of child abuse under the Penal
Code did not make him a police agent for purposes of Miranda
because the “purpose of the statute [was] to bring cases of
suspected child abuse to the attention of police authorities as
early as possible because of the potential danger to the child
when he remains with the abusing parent.” (Id. at pp. 941-942.)
Han’s function as a dependency investigator was to
determine the best interests of S.L. and S.K., and whether they
should be returned to Keo’s custody after his release. “Unlike
criminal trials, the primary purpose of dependency hearings is to
protect the child, not prosecute the parents.” (In re Corey A.
(1991) 227 Cal.App.3d 339, 346; accord, In re James F. (2008)
42 Cal.4th 901, 915 [“[T]he ultimate consideration in a
dependency proceeding is the welfare of the child . . . .”]; see
16
§ 202, subd. (a) [“The purpose of this chapter is to provide for the
protection and safety of the public and each minor under the
jurisdiction of the juvenile court and to preserve and strengthen
the minor’s family ties whenever possible, removing the minor
from the custody of his or her parents only when necessary for his
or her welfare or for the safety and protection of the public.”].)
As the Supreme Court has explained, “In a criminal
prosecution, the contested issues normally involve historical facts
(what precisely occurred, and where and when), whereas in a
dependency proceeding the issues normally involve evaluations of
the parents’ present willingness and ability to provide
appropriate care for the child and the existence and suitability of
alternative placements.” (In re James F., supra, 42 Cal.4th at
p. 915.) Further, the responsibility to perform the dependency
evaluation falls on the social worker. (§ 281 [social worker “shall
upon order of any court in any matter involving the custody,
status, or welfare of a minor or minors, make an investigation of
appropriate facts and circumstances and prepare and file with
the court written reports and written recommendations in
reference to such matters”];8 In re M.B. (2011) 201 Cal.App.4th
1057, 1071 [§ 281 directs social worker to investigate facts and
circumstances and file report with court, which report is
admissible (including hearsay) in any dependency proceeding].)
Although no published California cases have addressed
whether a social worker in a dependency investigation acts as a
law enforcement officer for Miranda purposes, courts in other
states have consistently concluded a social worker conducting a
8 Although section 281 places this obligation on a “probation
officer,” section 215 defines the term “probation officer” to include
“any social worker in a county welfare department.”
17
dependency investigation is not an agent of law enforcement for
purposes of Miranda unless he or she acts under the direction or
control of law enforcement. (See State v. Jackson (2018) 154 Ohio
St.3d 542, 551 [116 N.E.3d 1240, 1247-1248] [social worker was
not acting as agent of law enforcement in interviewing defendant
at jail in response to referral for sexual abuse of child]; State v.
Bernard (La. 2010) 31 So.3d 1025, 1035 [child protection officer
investigating suspected child abuse was not required to provide
Miranda warning to defendant before interviewing him in
custody where the purpose of her interview was to determine
whether defendant was a fit parent and police officers did not
direct or control interview]; Wilkerson v. State (Tex.Ct.App. 2005)
173 S.W.3d 521, 531 [social worker who interviewed defendant in
jail as part of dependency investigation was not agent of law
enforcement]; cf. State v. Aguilar (Tex.Ct.App. 2017) 535 S.W.3d
600, 609-610 [special investigator for child protective services
was required to provide Miranda warning where he had
“‘unfettered access’” to police investigative unit, discussed police
investigation with detectives before interview, interviewed
defendant in police station interrogation room, and detectives
advised investigator before interview that defendant had
confessed].)
As the Louisiana Supreme Court explained in State v.
Bernard, “The most important factors are . . . whether the
investigator discussed the case with police prior to the interview,
whether the interview was conducted at the police’s request, and
whether the primary purpose of the investigator’s visit was to
elicit a confession while in cahoots with law enforcement. In
short, police may not circumvent Miranda by using [child
protective services] investigators (or anyone else) as stand-ins to
conduct interrogations in their stead.” (State v. Bernard, supra,
18
31 So.3d at p. 1035, citation omitted; accord, State v. Jackson,
supra, 116 N.E.3d at pp. 1247-1248 [“[A] social worker’s statutory
duty to cooperate and share information with law enforcement
with respect to a child abuse investigation does not render the
social worker an agent of law enforcement for purposes of the
Fifth and Sixth Amendments to the United States Constitution
when the social worker interviews an alleged perpetrator unless
other evidence demonstrates that the social worker acted at the
direction or under the control of law enforcement.”].)9
Here, Han did not discuss the facts of the case with the
police or prosecutor prior to interviewing Keo. She only called
the prosecutor to find out the charge brought against Keo and the
status of the criminal case. Neither did Han inform the police or
the prosecutor that she intended to interview Keo. Although the
Department’s attorney later advised the prosecutor that Keo had
made statements to Han, the prosecutor did not obtain a copy of
Keo’s statements until a year after the interview, in response to
the prosecutor’s subpoena requesting Han’s report. Thus, Han
was not acting as law enforcement or an agent of law
9 State v. Brown (2008) 286 Kan. 170 [182 P.3d 1205], relied
on by Keo, is inapposite. Brown involved a confession to the
police after the defendant was given a Miranda warning, not a
statement to a social worker. (Id. at p. 1208.) The court
concluded the father’s confession was not voluntary because he
was told by the social worker his parental rights would be
terminated unless he explained how his baby sustained injuries.
(Id. at p. 1211.) The court concluded the father’s confession to
the police on the day of the hearing on termination of his
parental rights was not voluntary because he had “a ‘classic
penalty’ situation,” which required him to choose between giving
up his right against self-incrimination and losing his parental
rights. (Id. at p. 1212.)
19
enforcement for purposes of Miranda. (Estelle, supra, 451 U.S. at
p. 467; In re Deborah C., supra, 30 Cal.3d at p. 130.)
B. Admission of Keo’s Statements to the Dependency
Investigator Did Not Violate His Sixth Amendment Right to
Counsel
Keo contends his Sixth Amendment right to counsel was
violated when Han, as a “state agent” deliberately elicited
incriminating statements from him in the absence of his
attorney. We agree with the People a social worker who serves as
a dependency investigator is not a law enforcement officer, and,
on the facts here, Han was not acting on behalf of law
enforcement.
“[O]nce a judicial proceeding has been initiated against an
accused and the Sixth Amendment right to counsel has attached,
any statement the government deliberately elicits from the
accused in the absence of counsel is inadmissible at trial against
the defendant.” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 66-67; accord, Massiah, supra, 377 U.S. 201, 206-207; People v.
Almeda (2018) 19 Cal.App.5th 346, 358-359.) The United States
Supreme Court in Massiah held the statements of a codefendant
who elicited incriminating statements from the defendant, who
was unaware the codefendant was cooperating with the police in
recording the conversation, violated the defendant’s Sixth
Amendment right to counsel by eliciting incriminating
statements from him without his lawyer present. (Massiah, at
pp. 205-206.)
To prevail on a Massiah claim, the defendant has the
burden of showing the statement was obtained by someone who
“‘(1) was acting as a government agent, i.e., under the direction of
the government pursuant to a preexisting arrangement, with the
20
expectation of some resulting benefit or advantage, and (2)
deliberately elicited incriminating statements.’” (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 67; accord, People v.
Hartsch (2010) 49 Cal.4th 472, 491; see Estelle, supra, 451 U.S. at
p. 471 [admission of psychiatrist’s testimony relaying defendant’s
statements during court-ordered examination violated
defendant’s Sixth Amendment right to counsel].) “The
requirement of agency is not satisfied when law enforcement
officials ‘merely accept information elicited by the [individual] on
his or her own initiative, with no official promises,
encouragement, or guidance.’” (Coffman and Marlow, at p. 67;
accord, Hartsch, at p. 491.) “A trial court’s ruling on a motion to
suppress informant testimony is essentially a factual
determination, entitled to deferential review on appeal.”
(Coffman and Marlow, at p. 67; accord, Hartsch, at p. 491.)
The cases following Massiah have focused on whether the
defendant can show “the deliberate elicitation by law
enforcement officers (and their agents) of statements pertaining
to the charge.” (Kansas v. Ventris (2009) 556 U.S. 586, 590;
accord, Kuhlmann v. Wilson (1986) 477 U.S. 436, 459 [“the
primary concern of the Massiah line of decisions is secret
interrogation by investigatory techniques that are the equivalent
of direct police interrogation”].)10 Therefore, our Fifth
10 Keo’s reliance on People v. Arauz (1970) 5 Cal.App.3d 523,
530, disapproved on other grounds in People v. Chi Ko Wong
(1976) 18 Cal.3d 698, 716, footnote 14, is misplaced. The court in
Arauz considered, but did not reach, whether the defendant’s
statements to a parole officer violated his Sixth Amendment right
to counsel under Massiah. Rather, the court based its conclusion
there was no Sixth Amendment violation on the fact the
21
Amendment analysis of whether Han in her role as a dependency
investigator was a law enforcement officer or agent of law
enforcement applies equally to our determination whether Han’s
interview of Keo violated Keo’s Sixth Amendment right to
counsel. As discussed, Han was neither law enforcement nor an
agent of law enforcement.
Although there are no California published cases
addressing whether a dependency investigator is an agent of law
enforcement under Massiah, courts in other states have
addressed this issue, applying the same analysis applicable to
consideration of a defendant’s Fifth Amendment rights under
Miranda. (See State v. Jackson, supra, 116 N.E.3d at pp. 1247-
1248 [defendant’s statements to social worker did not violate his
Sixth Amendment right to counsel because social worker was not
acting as agent of law enforcement in child abuse investigation];
cf. State v. Oliveira (R.I. 2008) 961 A.2d 299, 310 [admission of
defendant’s statements to child protective investigator violated
his Sixth Amendment right to counsel where state law provided
for investigator to work cooperatively with law enforcement,
investigator met and exchanged information with police a day
before interview, investigator was required to forward
information regarding alleged abuse to police, and one of
purposes in interviewing defendant was to “‘add to the
evidence’”]; Commonwealth v. Howard (2006) 446 Mass. 563, 567,
569 [845 N.E.2d 368, 371-373] [statements to social services
investigator while defendant was in jail violated his Sixth
Amendment right to counsel where investigator was working as a
team with the police and prosecutor’s office, asked questions only
defendant blurted out to the officer that he had killed the victim.
(Arauz, at p. 530.)
22
relating to defendant’s guilt, and forwarded her report describing
the interview to the prosecutor’s office].)
As discussed, Keo’s contention Han was a government
agent because a dependency investigator is a “peace officer”
within the meaning of Penal Code section 830.3, subdivision (h),
lacks merit. Keo’s contention Han was an agent of law
enforcement for purposes of Keo’s right to counsel likewise is not
persuasive. Han was not acting “‘under the direction of the
government pursuant to a preexisting arrangement, with the
expectation of some resulting benefit or advantage.’” (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 67.) Although it is
undisputed Keo’s Sixth Amendment right to counsel had attached
because counsel was appointed in the criminal case prior to Han’s
interview, as discussed, Han’s investigation was conducted for
the purpose of determining the best interests of the children, not
to develop evidence to assist law enforcement in the criminal
case. Han did not discuss the facts of the case with law
enforcement or the prosecutor before interviewing Keo, and she
did not provide her report to the prosecution until a year after the
interview, in response to a subpoena.
C. Neither Section 355.1, Subdivision (f), Nor Keo’s Right to
Due Process Bars Admission of Keo’s Out-of-court
Statements to the Dependency Investigator
1. Standard of review
“We review questions of statutory construction de novo.
Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.]
We consider first the words of a statute, as the most reliable
indicator of legislative intent. [Citation.]’ [Citation.] We
construe the statute’s words in context, harmonizing statutory
23
provisions to avoid absurd results. [Citation.] If the statutory
text is susceptible to more than one reasonable construction, we
may consider extrinsic aids such as legislative history to facilitate
our interpretative analysis.” (California Building Industry Assn.
v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041;
accord, United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.
(2018) 4 Cal.5th 1082, 1089.)
2. Keo has forfeited his argument section 355.1,
subdivision (f), provided statutory immunity for his
statements to the dependency investigator, and even if
forfeiture did not apply, the statements do not
constitute testimony
The People contend Keo forfeited his right to argue his
statements to Han were protected under section 355.1,
subdivision (f), because he raises the argument for the first time
on appeal. We agree. Evidence Code section 353 provides, “A
verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: [¶] (a) There appears of record an
objection to or a motion to exclude or to strike the evidence that
was timely made and so stated as to make clear the specific
ground of the objection or motion . . . .” In accordance with
section 353, “[r]eviewing courts will generally not consider a
challenge to the admissibility of evidence unless there was a
‘“‘specific and timely objection in the trial court on the [same
grounds] sought to be urged on appeal.’”’” (People v. Gomez (2018)
6 Cal.5th 243, 286, italics added; accord, People v. Partida (2005)
37 Cal.4th 428, 433.)
As the Partida court explained, “‘The reason for the
requirement is manifest: a specifically grounded objection to a
24
defined body of evidence serves to prevent error. It allows the
trial judge to consider excluding the evidence or limiting its
admission to avoid possible prejudice. It also allows the
proponent of the evidence to lay additional foundation, modify the
offer of proof, or take other steps designed to minimize the
prospect of reversal.’” (People v. Partida, supra, 37 Cal.4th at
p. 434.) However, the court added, “[T]o further these purposes,
the requirement must be interpreted reasonably, not
formalistically. ‘Evidence Code section 353 does not exalt form
over substance.’” (Ibid.)
Keo argued in the trial court that admission of his
statements to Han violated his Fifth Amendment right against
self-incrimination and his Sixth Amendment right to counsel, not
that the admission violated either section 355.1, subdivision (f),
or his due process rights. To the extent Keo argues for the first
time on appeal section 355.1, subdivision (f), applies to bar use of
his statements to Han, he has forfeited this issue on appeal.
(People v. Gomez, supra, 6 Cal.5th at p. 286; People v. Partida,
supra, 37 Cal.4th at p. 433.)11
Even if Keo had not forfeited his challenge to the
admissibility of his statements based on section 355.1,
subdivision (f), this argument fails because his out-of-court
11 However, Keo has not forfeited his argument that
admission of his statements violated his due process rights by
forcing him to choose between his interest in protecting his
parental rights and his right against self-incrimination because a
“defendant may argue an additional legal consequence of the
asserted error in overruling [his objection to admission of the
evidence] is a violation of due process.” (People v. Partida, supra,
37 Cal.4th at p. 438; accord, People v. Gomez, supra, 6 Cal.5th at
p. 287.)
25
statements do not constitute “testimony.”12 Under section 355.1,
subdivision (f), “[T]estimony by a parent, guardian, or other
person who has the care or custody of the minor made the subject
of a proceeding under Section 300 shall not be admissible as
evidence in any other action or proceeding.” “‘Testimony’ is
generally described in both statutory and decisional law as oral
statements made by a person under oath in a court proceeding.
The term ‘testify’ is referred to in identical language in the Penal
Code, the Code of Civil Procedure, and the Civil Code: ‘. . . every
mode of oral statement, under oath or affirmation, is embraced by
the term “testify,” . . .’ [Citations.] . . . [Citation.] ‘. . . Testimony
is limited to that sort of evidence which is given by witnesses
speaking under oath or affirmation [citation] . . . .’” (People v.
Belton (1979) 23 Cal.3d 516, 524, 526, fn. omitted [discussing
“literal construction” of “testimony,” but holding definition of
accomplice “testimony” under Pen. Code, § 1111 could include
specified out-of-court statements beyond literal definition to
further legislative intent]; accord, People v. Williams (1997)
16 Cal.4th 153, 245; see Pen. Code, § 7 [“every mode of oral
statement, under oath or affirmation, is embraced by the term
‘testify’”]; Code Civ. Proc., § 17, subd. (b)(5)(B) [“‘Testify’ includes
any mode of oral statement made under oath or affirmation.”];
Civ. Code, § 14, subd. (a) [“every mode of oral statement, under
oath or affirmation, is embraced by the term ‘testify’”]; see also
Evid. Code, § 710 [“Every witness before testifying shall take an
12 Because we conclude section 355.1, subdivision (f), does not
apply to Keo’s out-of-court statements, we do not reach his
argument his attorney’s failure to object to admission of his
statements on this basis constituted ineffective assistance of
counsel.
26
oath or make an affirmation or declaration in the form provided
by law . . . .”].)
As the Court of Appeal explained in In re Jessica B. (1989)
207 Cal.App.3d 504, 518 (Jessica B.), “[T]he immunity provided
by section 355.1 . . . is limited to statements of the parent in
court, i.e., ‘testimony’ in the strict sense of the word . . . .” The
court observed, “[E]ven though a more expanded definition of
testimony to include all statements, in or out of court, is more
consistent with the policy of the statute ‘that all relevant
evidence should be disclosed in proceedings of this nature in
order to protect the paramount interest of the safety and welfare
of the child’ [citation], it is clear this is not what was intended
when this provision was added.” (Jessica B., supra,
207 Cal.App.3d at p. 518.) Therefore, Keo’s conversation with
Han in the jail’s medical unit, not under oath, does not constitute
“testimony” under section 355.1, subdivision (f).
3. Admission of Keo’s statements to the dependency
investigator did not violate his due process rights
Keo urges us to expand the immunity provided for
testimony under section 355.1, subdivision (f), to out-of-court
statements made to a dependency investigator, relying on
Jessica B., supra, 207 Cal.App.3d at page 521, which expanded
immunity to cover statements made in court-ordered therapy,
People v. Coleman (1975) 13 Cal.3d 867 (Coleman), which
conferred immunity for an individual’s statements made in a
probation revocation hearing, and Ramona R. v. Superior Court
(1985) 37 Cal.3d 802 (Ramona R.), which provided immunity for
statements made by a minor in a juvenile fitness hearing.
Although we are troubled by use of Keo’s statements to the
dependency investigator in his criminal trial, there is no
27
constitutional or statutory basis to expand immunity to protect
all statements made by a parent to a social worker. Instead, this
is an issue that would need to be addressed by the Legislature in
the first instance.
In Jessica B., the Court of Appeal concluded a father’s due
process rights were violated where the juvenile court denied him
the right to reunify with his infant daughter based on the father’s
physical abuse of his daughter and his refusal to take
responsibility for the abuse in court-ordered therapy for fear he
would incriminate himself. (Jessica B., supra, 207 Cal.App.3d at
pp. 517-518.) The court noted the father could freely testify at
the dependency hearing, but the statements he made in therapy
would not be statutorily protected. (Ibid.) The court explained,
“The California Constitution requires that a person proceeding
simultaneously in the criminal courts for child abuse and the
juvenile court regarding a dependency of the abused minor
should not only be granted use immunity for his or her testimony
at dependency proceedings that constitutes an admission to the
acts at issue in the criminal case against him or her but also for
such statements made during court-ordered therapy.” (Id. at
p. 521.)
The Jessica B. court reasoned, “Without immunity [the
father] is forced to choose between incriminating himself or
having little chance of complete reunification with his daughter
Jessica. The consequences flowing from this are severe. The
dependency proceedings are not pursued for the purpose of
marshaling evidence of guilt but are designed to facilitate
reunification of the family and to assemble all relevant evidence
for the court to make an informed disposition. The burden of the
prosecution of proving the defendant guilty beyond a reasonable
doubt in the criminal proceedings will be substantially lightened
28
if allowed to take advantage of evidence from a dependency
proceeding. If [the father] continues to remain silent in the
dependency proceeding on the issue of his intentional abuse, he
not only loses his opportunity to present a convincing case for
reunification in the dependency proceeding, but also risks that
his position of silence on the issue is an indication that he is not
cooperating in the reunification process.” (Jessica B., supra,
207 Cal.App.3d at p. 520.)
Other Courts of Appeal have applied Jessica B.’s reasoning
to provide immunity for court-ordered treatment or evaluations
in dependency proceedings. (See In re D.C. (2015)
243 Cal.App.4th 41, 57 [immunity for statements made in court-
ordered therapy]; In re Joanna Y. (1992) 8 Cal.App.4th 433, 441
[immunity for statements made during court-ordered
psychological evaluation]; In re Lamonica H. (1990)
220 Cal.App.3d 634, 650 [immunity for statements made by
parent during court-ordered psychological treatment].)
In fashioning an exclusionary rule, Jessica B. relied on the
Supreme Court’s earlier holdings in Coleman and Ramona R. In
Coleman, the defendant was indicted for grand theft and faced a
probation revocation hearing based on the facts supporting the
criminal charge. The Supreme Court created a “judicial rule of
evidence” that made the testimony of the probationer at the
probation revocation hearing “inadmissible against the
probationer during subsequent proceedings on the related
criminal charges, save for purposes of impeachment or rebuttal”
in limited circumstances. (Coleman, supra, 13 Cal.3d at p. 889.)
The Supreme Court explained, “It is apparent that the policies
served by the due process guarantee of an opportunity for a
probationer to be heard at his probation revocation hearing are
impinged when he declines to avail himself of this chance for fear
29
of self-incrimination. Constitutional values are similarly
disserved when the probationer resolves the conflict in the
opposite way by risking self-incrimination so as to testify at such
a hearing.” (Id. at pp. 874-875.) Thus, “when an alleged
probation violation also constitutes a criminal offense for which
the probationer might subsequently be prosecuted, he may be
presented with the ‘cruel trilemma’ of self-accusation, perjury or
injurious silence.” (Id. at p. 878.)
The Supreme Court in Ramona R., supra, 37 Cal.3d at
pages 809 to 810, extended Coleman to a minor’s statements at a
fitness hearing to determine whether she should be tried as an
adult or was “‘amenable to the care, treatment, and training
program available through the facilities of the juvenile court’” (id.
at p. 805). Notably, the court included within the scope of its
protection statements made by the minor to her probation officer,
who was statutorily required “to file a report on the minor’s
‘behavioral patterns and social history.’” (Ibid.) The minor
declined to be interviewed by the probation officer or to testify at
the fitness hearing for fear her statements would be used in her
subsequent criminal trial for murder. (Ibid.) The probation
officer concluded the minor was not amenable to treatment in the
juvenile system, and the referee agreed. (Id. at p. 806.)
The Supreme Court, in holding the Coleman exclusionary
rule applied to the minor’s statements to the probation officer
and testimony at the hearing, observed, “The purpose of [the
probation officer’s] interview is not the marshalling of evidence
on the issue of guilt, but rather the assembling of all available
information relevant to an informed disposition of the case if guilt
is established [citations], or to assist in the evaluation of the
minor’s fitness for treatment as a juvenile [citation]. Such
decisions, courts have uniformly concluded, should be based on
30
the most complete knowledge of the defendant’s background that
is possible. . . .’ [Citation.] ‘The minor who is subject to the
possibility of a transfer order should not be put to the unfair
choice of being considered uncooperative by the juvenile
probation officer and juvenile court because of his [or her] refusal
to discuss his case with the probation officer, or of having his [or
her] statements to that officer used against him [or her] in
subsequent criminal proceedings.’” (Ramona R., supra, 37 Cal.3d
at p. 806.) The court emphasized the “‘trilemma’” faced by the
juvenile of having to choose among remaining silent and losing
an opportunity “to present a conceivably convincing case” against
treatment under the juvenile court laws; risking self-
incrimination by submitting to an interview and testifying; and
testifying falsely at the fitness hearing to avoid use of damaging
statements in the subsequent criminal trial. (Id. at p. 810.)
Keo did not confront the stark choice faced by the
defendants in Jessica B., Coleman, and Ramona R. He could
have spoken with Han about all aspects of his parenting of S.L.
and S.K., but declined to discuss the events leading to Duch’s
death. Then, at the dependency hearing he could have explained
the incident in full, protected by the statutory privilege under
section 355.1, subdivision (f). By contrast, the defendants in
Jessica B., Coleman, and Ramona R. had to choose between
incriminating themselves and failing to participate in court-
ordered therapy (Jessica B.), refusing to testify at a probation
revocation hearing (Coleman), or declining to speak with the
probation officer and testify at a fitness hearing (Ramona R.).13
13 Neither In re S.C. (2006) 138 Cal.App.4th 396 nor In re
Fred J. (1979) 89 Cal.App.3d 168 supports Keo’s argument his
rights in the dependency proceeding would be jeopardized by his
31
Although the Supreme Court in Ramona R. extended
immunity to statements by the minor to her probation officer, the
court relied on the probation officer’s role in evaluating the
minor’s potential for rehabilitation, which took into account the
minor’s “‘acknowledgment of guilt and demonstration of
remorse,’” and the fact the minor could not explain the
circumstances to the probation officer without incriminating
herself. (Ramona R., supra, 37 Cal.3d at p. 806.) Here, the
dependency investigator was required to investigate the
“appropriate facts and circumstances” and file a report with the
court containing her recommendations for how to protect S.L. and
S.K. (§ 281.) The dependency investigator’s role was not to
investigate the historical facts of how the crime was committed,
but to evaluate “the parents’ present willingness and ability to
provide appropriate care for the child and the existence and
suitability of alternative placements.” (In re James F., supra,
42 Cal.4th at p. 915.) Although the question whether either child
was present at the time of Duch’s murder was relevant to the
dependency investigator’s evaluation of whether Keo could
failure to speak to the dependency investigator. Keo asserts in In
re S.C. the mother’s refusal to speak to the social worker without
her counsel present led to the agency filing a dependency
petition. But the Department filed the petition not because of the
mother’s refusal to speak with the social worker, but because the
mother “had changed her mind and no longer agreed to informal
supervision in lieu of court intervention via a dependency
petition.” (In re S.C., at p. 408.) Similarly, in In re Fred J., the
court’s finding of substantial evidence of abuse was based on the
children’s behavioral and emotional problems the mother had not
addressed, not the mother’s refusal to speak with the
Department. (In re Fred J., at pp. 180-181.)
32
protect his children, Keo could testify to this fact at the
dependency hearing. This single fact was not as central to Han’s
evaluation as the probation officer’s consideration in Ramona R.
of the minor’s remorse about committing the crime, which was
critical for the probation officer’s evaluation of whether the minor
was capable of rehabilitation.
DISPOSITION
The judgment is affirmed.
FEUER, J.
WE CONCUR:
ZELON, Acting P. J.
SEGAL, J.
33