BILL ANALYSIS                                                                                                                                                                                                    



          
          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1052 (Lara) - Custodial interrogation:  juveniles
          
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          |Version: March 28, 2016         |Policy Vote: PUB. S. 5 - 1      |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: May 16, 2016      |Consultant: Jolie Onodera       |
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          This bill meets the criteria for referral to the Suspense File. 

          Bill  
          Summary:  SB 1052 would require a youth under 18 years of age to  
          consult with counsel prior to a custodial interrogation and  
          before the waiver of any Miranda rights, as specified. This bill  
          provides that the consultation may not be waived.


          Fiscal  
          Impact:  
            Local law enforcement agencies  :  Major non-reimbursable local  
            costs, potentially in the millions of dollars (Local Funds)  
            annually to provide legal counsel to minors prior to custodial  
            interrogations, to the extent local law enforcement agencies   
            (482 cities and 58 counties) incur additional costs to provide  
            counsel and/or incur operational delays. The DOJ Juvenile  
            Justice in California report indicates nearly 87,000 juvenile  
            arrests reported in 2014. A portion of these costs could  
            potentially be subject to Proposition 30 funding requirements  
            (General Fund*). 
            Department of Corrections and Rehabilitation (CDCR)  :  One-time  
            costs of up to $50,000 (General Fund) to revise regulations.  







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            Ongoing minor costs of $37,000 (General Fund) annually to the  
            Division of Juvenile Justice (DJJ) to have legal counsel  
            available for DJJ youth. The DJJ has indicated an average of  
            six DJJ youth subject to custodial interrogation per month.  
           California Highway Patrol  :  Minor, absorbable costs (Special  
            Fund**) to modify juvenile interrogation policy and training.
            Court instruction  :  Minor one-time cost (General Fund***) to  
            the Judicial Council to develop the court instruction, as  
            specified.
            Court workload  :  No significant impact estimated to ongoing  
            court workload (General Fund***) resulting from this measure.
            Proposition 30*  :  Exempts the State from mandate reimbursement  
            for realigned responsibilities for "public safety services"  
            including the provision of services for, and supervision of,  
            juvenile offenders. However, legislation enacted after  
            September 30, 2012, that has an overall effect of increasing  
            the costs already borne by a local agency for public safety  
            services applies to local agencies only to the extent that the  
            State provides annual funding for the cost increase. The  
            provisions of Proposition 30 have not been interpreted through  
            the formal court process to date, however, to the extent local  
            agency costs to county probation and sheriff departments  
            resulting from this measure are determined to be applicable  
            under the provisions of Proposition 30, could potentially  
            result in additional costs to the State.  

          **Motor Vehicle Account
          ***Trial Court Trust Fund


          Background:  Existing law authorizes a peace officer to take a minor into  
          temporary custody when that officer has reasonable cause to  
          believe that the minor has committed a crime or violated an  
          order of the juvenile court. (Welfare and Institutions Code  
          (WIC)  625.)
          Existing law provides that in any case where a minor is taken  
          into temporary custody on the ground that there is reasonable  
          cause for believing that such minor will be adjudged a ward of  
          the court or charged with a criminal action, or that he has  
          violated an order of the juvenile court or escaped from any  
          commitment ordered by the juvenile court, the officer shall  
          advise such minor that anything he says can be used against him  
          and shall advise him of his constitutional rights, including his  
          right to remain silent, his right to counsel present during any  








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          interrogation, and his right to have counsel appointed if he is  
          unable to afford counsel. (WIC  625 (c).) 

          Existing law provides that when a minor is taken into a place of  
          confinement, the minor shall be advised that he has the right to  
          make at least two telephone calls, one completed to a parent or  
          guardian, responsible adult or employer and one to an attorney.  
          (WIC  627.)

          In the case of In re Joseph H (2015) 237 Cal.App.4th 517, 535,  
          Justice Goodwin Liu protested the Court's vote against hearing a  
          case in which a 10-year-old was deemed capable of waiving his  
          right to remain silent. His dissenting statement reads, in part,  
          as follows:

          I write to explain why I believe this case merits our review.  
          Petitioner Joseph H., at age 10, shot and killed his sleeping  
          father and then confessed to a police detective during a  
          custodial interview. A video recording of the interview shows  
          Joseph sitting on a couch next to his stepmother, Krista McCary,  
          whose husband Joseph had just killed. Riverside Police Detective  
          Roberta Hopewell sat in an adjacent chair; she was courteous and  
          not overbearing. At the beginning of the interview, Detective  
          Hopewell informed Joseph of his Miranda rights, and he purported  
          to waive them. (Miranda v. Arizona (1966) 384 U.S. 436.) In a  
          published opinion, the Court of Appeal found that "Joseph's  
          responses indicated he understood" his Miranda rights and that  
          he validly waived his rights "despite his young age, his ADHD,  
          and low-average intelligence." 


          In 2011, Joseph was one of 613 children under the age of 12  
          arrested for a felony in California. This case raises an  
          important legal issue that likely affects hundreds of children  
          each year: whether and, if so, how the concept of a voluntary,  
          knowing, and intelligent Miranda waiver can be meaningfully  
          applied to a child as young as 10 years old. A Miranda waiver,  
          to be valid, must be "made voluntarily, knowingly and  
          intelligently." The waiver must be made "with a full awareness  
          of both the nature of the right being abandoned and the  
          consequences of the decision to abandon it." In assessing the  
          validity of a waiver, a reviewing court must "conduct an  
          independent review of the trial court's legal determination" of  
          "whether the Miranda waiver was voluntary, knowing, and  








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          intelligent under the totality of circumstances surrounding the  
          interrogation." 


          Juveniles, like adults, may waive their Miranda rights. Yet  
          Miranda waivers by juveniles present special concerns. The  
          United States Supreme Court has affirmed the "commonsense"  
          conclusion that "children 'generally are less mature and  
          responsible than adults'; that they 'often lack the experience,  
          perspective, and judgment to recognize and avoid choices that  
          could be detrimental to them'; that they 'are more vulnerable or  
          susceptible to . . . outside pressures' than adults. Addressing  
          the specific context of police interrogation, we have observed  
          that events that 'would leave a man cold and unimpressed can  
          overawe and overwhelm a lad in his early teens.' The "very real  
          differences between children and adults" must be factored into  
          any assessment of whether a child validly waived his Miranda  
          rights. "When a juvenile's waiver is at issue, consideration  
          must be given to factors such as 'the juvenile's age,  
          experience, education, background, and intelligence, and . . .  
          whether he has the capacity to understand the warnings given  
          him, the nature of his Fifth Amendment rights, and the  
          consequences of waiving those rights.' " 


          It is not uncommon for California courts to find valid Miranda  
          waivers by children 15 years old or older. There are also cases  
          finding valid Miranda waivers by 14-year-olds. In People v.  
          Lewis (2001) 26 Cal.4th 334, 384-385, this court found a valid  
          Miranda waiver by a 13-year-old. And I have found one published  
          case upholding a Miranda waiver by a 12-year-old. Apart from  
          this case, there does not appear to be any California decision  
          upholding a Miranda waiver by a child younger than 12. The one  
          published case to address a Miranda waiver for a child in this  
          age range, In re Michael B. (1983) 149 Cal.App.3d 1073,  
          1084-1086, concluded that the waiver by a nine-year-old was  
          invalid? 


          Here the petition for review and supporting letters contend that  
          as a matter of "social science and cognitive science" as well as  
          "what 'any parent knows'-indeed, what any person knows-about  
          children generally," it is doubtful that Joseph understood or  
          was capable of understanding the nature of Miranda rights and  








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          the consequences of waiving those rights? Having reviewed the  
          transcript and video of the interview, I believe the issue of  
          whether Joseph validly waived his Miranda rights subsumes  
          several questions worthy of our review: (1) whether there is an  
          age below which the concept of a voluntary, knowing, and  
          intelligent waiver has no meaningful application, (2) whether  
          and, if so, how the Miranda warnings and waiver decision can  
          realistically be made intelligible to very young children, and  
          (3) what role parents, guardians, or counsel should play in  
          aiding a valid waiver decision by such children, and under what  
          conditions a parent or guardian would be unable to play that  
          role? 


          In evaluating whether this case merits our review, I note that  
          other state high courts have addressed these issues by  
          formulating standards and procedures specific to young children.  
          [adopting a "bright-line rule" that "[w]hen the juvenile is  
          under the age of fourteen, the adult's absence will render the  
          young offender's statement inadmissible as a matter of  
          law-unless the adult is truly unavailable, in which case, the  
          voluntariness of the waiver should be determined by considering  
          the totality of circumstances"].  


          We have not extensively examined the issue of juvenile Miranda  
          waivers since our decision in Lara almost a half-century ago?  
          Lara also predates by several decades the growing body of  
          scientific research that the high court has repeatedly found  
          relevant in assessing differences in mental capabilities between  
          children and adults? Although we are barred from adopting an  
          exclusionary rule that is not required by the federal  
          Constitution, whether federal constitutional law requires the  
          type of safeguards that other courts have adopted for children  
          as young as Joseph is a question that neither the high court nor  
          this court has examined?The proper application of Miranda to  
          children in Joseph's age range likely affects hundreds of cases  
          each year, even though few such cases result in a trial and  
          appeal. For these reasons, I vote to grant review.


          Finally, it bears mention that consideration of special  
          safeguards for young children need not await judicial action.  
          Many states have found the issue worthy of legislative  








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          attention. Our Legislature may wish to take up this issue in  
          light of this court's decision not to do so here.


          This bill seeks to respond to Justice Liu's invitation to the  
          Legislature to address this issue.




          Proposed  
          Law:  This bill would require a youth under 18 years of age to  
          consult with counsel prior to a custodial interrogation and  
          before the waiver of any Miranda rights, as specified. This bill  
          provides that the consultation may not be waived. Additionally,  
          this bill:
                 Provides that if a custodial interrogation of a minor  
               under 18 years of age occurs prior to the youth consulting  
               with counsel, all of the following remedies shall be  
               granted as relief for noncompliance:


                 Requires the court to consider the effect of failure to  
               comply and the following factors when adjudicating the  
               admissibility of statements of a youth under 18 years of  
               age made during or after a custodial interrogation:


                  o         The youth's age, maturity, intellectual  
                    capacity, education level, and physical, mental, and  
                    emotional health.


                  o         The capacity of the youth to understand  
                    Miranda rights, including the nature of the privilege  
                    against self-incrimination under the United States and  
                    California Constitutions, the consequences of waiving  
                    those rights and privileges, whether the youth  
                    perceived the adversarial nature of the situation, and  
                    whether the youth was aware of how counsel could  
                    assist the youth during interrogation.


                  o         The manner in which the youth was advised of  








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                    his or her rights, and whether the rights specified in  
                    the Miranda rule were minimized by law enforcement.


                  o         The youth's reading and comprehension level  
                    and his or her understanding of the Miranda rights  
                    given by law enforcement.


                  o         Whether there was an express or implied waiver  
                    of Miranda rights.


                  o         Whether the youth asked to speak with a parent  
                    or other adult at any time while in law enforcement  
                    custody.


                  o         Whether law enforcement offered to allow the  
                    youth to consult with a parent or guardian prior to  
                    the interrogation, or whether law enforcement took  
                    steps to prevent a parent or guardian from speaking to  
                    the youth prior to interrogation.


                  o         Whether the youth had been interrogated  
                    previously by law enforcement and whether the youth  
                    invoked his or her Miranda rights previously.


                  o         Whether the youth requested to leave.


                  o         Whether law enforcement either by express or  
                    implied conduct intimated that the youth could leave  
                    after speaking, or if any other promises of leniency  
                    were made.


                  o         The manner in which the interrogation  
                    occurred, including length of time, method of  
                    interrogation, location, number of individuals  
                    present, the treatment of the youth by law  
                    enforcement, the tone and manner of questioning during  








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                    interrogation, whether law enforcement personnel were  
                    in uniform, if ruses were used, if express or implied  
                    threats were made, and if applicable, the failure to  
                    comply with WIC  627.


                  o         Whether the youth consulted with counsel prior  
                    to waiver, and any other relevant evidence.


                 Specifies that provided the evidence is otherwise  
               admissible, the failure to comply with the provisions of  
               this bill shall be admissible in support of claims that the  
               youth's statement was obtained in violation of his or her  
               Miranda rights, was involuntary, or is unreliable.


                 If the court finds that a youth under 18 years of age  
               was subject to a custodial interrogation in violation of  
               the bill's provisions, requires the court to provide the  
               jury, or if a bench trial, the trier of fact, with the  
               instruction developed pursuant to this bill.


                 Requires the Judicial Council to develop an instruction,  
               as specified, advising that statements made in a custodial  
               interrogation in violation of this bill's provisions shall  
               be viewed with caution.


                 Provides that for purposes of this section, "Miranda  
               rights" refers to the rights specified in WIC  625(c).


                 Specifies numerous uncodified legislative findings and  
               declarations.


          Recommended Amendments:  While not specifically referenced, the  
          author may wish to consider an amendment to add the word "legal"  
          to all references to counsel in the bill if the intent is to  
          provide juveniles with attorney representation in lieu of advice  
          from parents, guardians, or other adults. 









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