People v. Nelson

Filed 1/12/12



      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S181611
           v.                        )
                                     )                      Ct.App. 4/3 G040151
SAMUEL MOSES NELSON,                 )
                                     )                        Orange County
           Defendant and Appellant.  )                    Super. Ct. No. 04ZF0072
____________________________________)


        The 15-year-old defendant in this case was tried as an adult and convicted
of the murder of 72-year-old Jane Thompson, and of five first degree burglaries
relating to the residences of Thompson and two other women. The evidence
featured defendant’s confessional statements to sheriff’s investigators during a
custodial interrogation. The investigators had apprised defendant of his right to
remain silent and right to have the assistance of counsel pursuant to Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda),1 and it is undisputed that defendant made
a knowing, intelligent, and voluntary waiver of those rights at the outset of the
interrogation. The question is whether defendant made a postwaiver invocation of

1      The right to counsel for purposes of custodial interrogation implicates the
Fifth Amendment privilege against self-incrimination, and must be distinguished
from the Sixth Amendment right to counsel, which attaches upon the initiation of
formal criminal proceedings. (U.S. Const., 5th & 6th Amends.; see People v.
Gonzalez (2005) 34 Cal.4th 1111, 1123 (Gonzalez) [discussing McNeil v.
Wisconsin (1991) 501 U.S. 171, 177-178].)



                                          1
his Miranda rights by asking several times to speak to his mother or by making
certain other statements while being questioned. If he did, then the investigators’
failure to stop the interrogation compelled suppression of the statements he made
after the invocation.
       In Davis v. United States (1994) 512 U.S. 452 (Davis), the United States
Supreme Court held that once a suspect has waived his Miranda rights, any
subsequent assertion of the right to counsel must be articulated “sufficiently
clearly that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.” (Davis, at p. 459.) This standard
likewise applies to assertions of the right to remain silent. (Berghuis v. Thompkins
(2010) 560 U.S. __, __ [130 S.Ct. 2250, 2260].)
       We hold that juveniles claiming a postwaiver invocation of their Miranda
rights are properly subject to the Davis standard. Applying that standard, we
conclude the trial court did not err in finding that defendant’s requests to speak to
his mother and other statements were not sufficiently clear to require cessation of
the interrogation. Accordingly, defendant’s confessional statements were properly
admitted at trial, and the contrary judgment of the Court of Appeal must be
reversed.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Defendant Samuel Moses Nelson turned 15 years old in April 2004. Later
that month, he burglarized Katherine Parks’s home and took two purses. In May
2004, he burglarized Sheryl Adler’s home and took two wallets and a checkbook.
On June 18, 2004, defendant burglarized the home of his 72-year-old neighbor,
Jane Thompson, taking a credit card. On June 26, 2004, Thompson was found
dead in her home. The cause of death was massive blunt-force head trauma, with
multiple skull fractures and brain hemorrhaging.


                                          2
       On June 28, 2004, investigators Daniel Salcedo and Brian Sutton of the
Orange County Sheriff’s Department spoke with defendant outside his home.
Defendant claimed he had no idea who might have killed Thompson, and said he
was willing to take a lie detector test.
       After further investigation, Salcedo and Sutton returned to defendant’s
home on June 29, 2004. Defendant agreed to discuss the case with them, and was
driven to the sheriff’s office in Santa Ana. In a videotaped interview, the
investigators asked some preliminary questions and then advised defendant of his
right to counsel and right to remain silent under Miranda, supra, 384 U.S. 436.
Defendant affirmed that he understood his rights and expressed a willingness to
speak with the investigators.
       During the interview, defendant admitted entering Thompson’s house and
taking some jewelry, her credit card, and her purse. Despite these admissions, he
denied responsibility for Thompson’s murder. About three and a half hours into
the session, the investigators asked defendant if he wanted to take a polygraph test,
and defendant asked to call his mother. When the investigators asked the reason
for the call, he said he wanted to “let her know what’s happening” and also to
“talk to her about it” and “see what I should do.” The investigators continued with
their questions, which defendant answered. As the interrogation progressed and
defendant became aware of the evidence against him, he changed his story several
times and ultimately confessed to the burglaries of the Parks and Adler residences.
He also made additional requests to call his mother and was permitted several
times to try to reach her. Although he was unable to contact his mother, he did
call and speak to his grandmother and brother. At one point defendant indicated
he wanted the investigators to leave him alone because, in his words, they were
“getting on me for something I didn’t do.” At other points defendant declined to
take a polygraph test, because his relatives had told him in a telephone call that
                                           3
they did not want him to “take the test” or “do anything” until a lawyer or his
mother got there.
       Finally, toward the end of the interview, defendant asked to have “a few
minutes to myself” and answered affirmatively when investigators offered him a
pencil and paper to write down his feelings. The investigators left the room after
telling defendant this was his chance to explain what happened and to “[d]o the
right thing.” On their way out, they again allowed defendant to telephone his
mother and brother. When the investigators returned, defendant said he had not
written anything and asked, “Do you think I could be alone until my family gets
here? They should be here in like 10 minutes?” The investigators told defendant
they were “real tired” of his playing games, reiterated he should take this
opportunity to say what happened in his own words, and left once more.
Defendant then wrote out a statement and later explained that he entered
Thompson’s house in the middle of the night as she dozed on her living room sofa,
and that he used his hammer to strike her head repeatedly when she suddenly
stirred.2




2       The investigators asked defendant to sign and date his written statement,
which he did. Then defendant read his statement aloud as follows. “I went into
her house to take some stuff for, I really needed money for Colorado. I, I walked
by her and she woke up. I freaked out and I hit her in her in the head several
times. I didn’t think she was dead though but she was on the ground snoring after
I hit her. I didn’t know what to do so I ran out of the house and went home. I
didn’t go back after that. I feel so bad about what I did it’s indescribable. The
hardest part was keeping it, keeping it a secret and, uh, trying to act normal. I’m
very sorry to everyone for what I’ve done and I don’t expect forgiveness from
anyone, at least not for a while, a long time. I think there’s something wrong with
me and I would like some help. That’s it.” After reading this statement aloud,
defendant made a more detailed confession in a second interview.


                                          4
       Defendant was charged with two counts of first degree burglary relating to
the Parks and Adler residences, another three counts of first degree burglary
relating to Thompson’s residence, and one count of murder. It was also alleged
that he personally used a dangerous and deadly weapon and that his crimes against
Thompson involved a vulnerable victim.
       Defendant filed a motion in limine to exclude his custodial confessions
from trial. Specifically, he contended that investigators Salcedo and Sutton
violated his Fifth Amendment rights by continuing to interrogate him despite his
various requests to speak with his mother and requests to be alone. After the trial
court denied this motion, defendant waived his right to a jury and submitted to a
bench trial. The court found him guilty as charged.
       The Court of Appeal affirmed in part but reversed the convictions relating
to the murder and the Parks and Adler burglaries. Based on defendant’s age,
experience, maturity, sophistication, and the length, intensity, and content of the
interrogation, a majority of the court concluded that defendant’s purpose in
making his first request to speak with his mother was to secure her assistance in
protecting his Fifth Amendment rights. Accordingly, it held, any and all
statements made after that request were obtained in violation of Miranda, supra,
384 U.S. 436, and inadmissible. Conversely, the dissenting justice would have
upheld the admissibility of the confessional statements, because from the
perspective of a reasonable officer, defendant did not unambiguously and
unequivocally assert his Miranda rights. We granted the People’s petition for
review.
                                    DISCUSSION
       Under California law, issues relating to the suppression of statements made
during a custodial interrogation must be reviewed under federal constitutional
standards. (People v. Lessie (2010) 47 Cal.4th 1152, 1163-1164 (Lessie).) Before
                                          5
addressing whether defendant invoked his Miranda rights by asking to speak with
his mother, we explain why the investigators’ questioning of defendant up to that
point satisfied those standards.
       “Under the Fifth Amendment to the federal Constitution, as applied to the
states through the Fourteenth Amendment, ‘[n]o person . . . shall be compelled in
any criminal case to be a witness against himself . . . .’ (U.S. Const., 5th Amend.)
‘In order to combat [the] pressures [of custodial interrogation] and to permit a full
opportunity to exercise the privilege against self-incrimination, the accused must
be adequately and effectively apprised of his rights’ to remain silent and to have
the assistance of counsel. (Miranda, at p. 467.) ‘[I]f the accused indicates in any
manner that he wishes to remain silent or to consult an attorney, interrogation must
cease, and any statement obtained from him during interrogation thereafter may
not be admitted against him at his trial’ [citation], at least during the prosecution’s
case-in-chief [citations].” (Lessie, supra, 47 Cal.4th at p. 1162.) “Critically,
however, a suspect can waive these rights.” (Maryland v. Shatzer (2010) 559 U.S.
__, __ [130 S.Ct. 1213, 1219].) To establish a valid waiver of Miranda rights, the
prosecution must show by a preponderance of the evidence that the waiver was
knowing, intelligent, and voluntary. (People v. Williams (2010) 49 Cal.4th 405,
425 (Williams); see Lessie, at p. 1169.)
       Determining the validity of a Miranda rights waiver requires “an evaluation
of the defendant’s state of mind” (Williams, supra, 49 Cal.4th at p. 428) and
“inquiry into all the circumstances surrounding the interrogation” (Fare v.
Michael C. (1979) 442 U.S. 707, 725 (Fare)). 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.” (Ibid. [juvenile’s request
                                           6
for his probation officer was not a per se invocation of his Miranda rights, and
totality of the circumstances supported finding of a voluntary and knowing
waiver]; Lessie, supra, 47 Cal.4th at pp. 1169-1170 [no connection between
criminally experienced 16-year-old suspect’s decision to waive rights and his
request to speak with his father before answering questions].)
       Here, the trial court determined that defendant made a knowing, intelligent,
and voluntary waiver of his Miranda rights. The Court of Appeal agreed, noting
the following circumstances: “At the time of his interview, Nelson was 15 years
old. He had two prior arrests, the most recent resulting in a several month stay in
juvenile hall. Before Nelson was questioned, the detective advised him they
needed to go through the ‘formality’ of a Miranda right advisement. Nelson
agreed he had heard the warning before and specifically told the detective he
understood he had the right to remain silent. Nelson said he understood he could
stop the detective at any time if he did not understand what rights he was waiving.
His voluntary responses to the deputies’ subsequent questions indicate he
understood his Miranda rights and waived them.”
       The record fully supports this determination, and defendant concedes the
validity of his waiver. Although he “did not expressly waive his Miranda rights,
he did so implicitly by willingly answering questions after acknowledging that he
understood those rights.” (Lessie, supra, 47 Cal.4th at p. 1169.) Moreover, the
investigators’ failure to seek additional consent from a parent did not invalidate
defendant’s waiver. (People v. Lara (1967) 67 Cal.2d 365, 378-379; In re
Bonnie H. (1997) 56 Cal.App.4th 563, 577.) Accordingly, there is no dispute that
defendant was properly questioned during the first part of the interview.
       We now turn to the issue at hand: Were the investigators required to halt
their questioning when, three and a half hours into the session, defendant first
asked to speak to his mother, and thereafter repeated that request several times and
                                          7
made references to a lawyer and to being left alone? As we shall explain, we find
the analysis in Davis, supra, 512 U.S. 452, controlling.

         A. The Davis Standard Governing Postwaiver Invocations of Rights
            Under Miranda
         In Davis, supra, 512 U.S. 452, the United States Supreme Court
meticulously addressed the principles applicable to an adult suspect’s postwaiver
invocation of Miranda rights during a custodial interrogation. Although law
enforcement officers are free to question a suspect who knowingly, intelligently,
and voluntarily waives his rights under Miranda, “if a suspect requests counsel at
any time during the interview, he is not subject to further questioning until a
lawyer has been made available or the suspect himself reinitiates conversation.”
(Davis, at p. 458 [relying on Edwards v. Arizona (1981) 451 U.S. 477, 484-485].)
The prohibition against further questioning in these circumstances is not a
constitutional requirement, but rather a prophylactic rule “ ‘designed to prevent
police from badgering a defendant into waiving his previously asserted Miranda
rights.’ ” (Davis, at p. 458 [quoting Michigan v. Harvey (1990) 494 U.S. 344,
350].)
         Whereas the question whether a waiver is knowing, intelligent, and
voluntary calls for an evaluation of the suspect’s state of mind, the same cannot be
said for determining whether a suspect’s postwaiver statement requires the
immediate cessation of police questioning. (Williams, supra, 49 Cal.4th at p. 428.)
Davis could not make this more plain: “To avoid difficulties of proof and to
provide guidance to officers conducting interrogations, this is an objective inquiry.
[Citation.] Invocation of the Miranda right to counsel ‘requires, at a minimum,
some statement that can reasonably be construed to be an expression of a desire
for the assistance of an attorney.’ [Citation.]” (Davis, supra, 512 U.S. at pp. 458-
459.)

                                          8
       Under the Davis standard, it is not enough that a suspect makes a reference
to an attorney “that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel.” (Davis,
supra, 512 U.S. at p. 459; see McNeil v. Wisconsin, supra, 501 U.S. at p. 178 [“the
likelihood that a suspect would wish counsel to be present is not the test . . . ”].)
Rather, the suspect “must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney.” (Davis, at p. 459; see Williams, supra,
49 Cal.4th at p. 432; Gonzalez, supra, 34 Cal.4th at p. 1126 [“question is not what
defendant understood himself to be saying, but what a reasonable officer in the
circumstances would have understood defendant to be saying”].)
       Thus, because a postwaiver invocation determination contemplates
reference to a reasonable officer’s understanding of a suspect’s statements in light
of known or objectively apparent circumstances, the suspect’s subjective desire for
counsel is not relevant. As Davis explained, while “requiring a clear assertion of
the right to counsel might disadvantage some suspects who — because of fear,
intimidation, lack of linguistic skills, or a variety of other reasons — will not
clearly articulate their right to counsel although they actually want to have a
lawyer present,” it is the Miranda warnings themselves, which — when given to
the suspect and waived prior to questioning — are “ ‘sufficient to dispel whatever
coercion is inherent in the interrogation process.’ ” (Davis, supra, 512 U.S. at
p. 460.) Even though officers may ask questions to clarify whether the right to
counsel is being invoked, they are not obligated to do so. (Id. at p. 461.)
       The requirement of an unambiguous and unequivocal assertion likewise
applies to a suspect’s invocation of the right to silence. (Berghuis v. Thompkins,
supra, 560 U.S. at p. __ [130 S.Ct. at p. 2260]; accord, People v. Martinez (2010)
47 Cal.4th 911, 947-949 [officers need not clarify whether defendant is invoking
                                           9
right to silence].) Not only is there “no principled reason to adopt different
standards for determining when an accused has invoked the Miranda right to
remain silent and the Miranda right to counsel” (Berghuis, at p. 2260), but
applying different rules “would be difficult for law enforcement officials to
implement in the interrogation setting, especially where the suspect’s ambiguous
statements may relate to both the right to counsel and the right to remain silent”
(People v. Martinez, at p. 949).
       The rationale for requiring clarity is to protect lawful investigative activity,
an obviously vital component of effective law enforcement. The Supreme Court
has repeatedly emphasized that voluntary confessions are “ ‘a proper element in
law enforcement’ ” and “ ‘ “essential to society’s compelling interest in finding,
convicting, and punishing those who violate the law.” ’ ” (Maryland v. Shatzer,
supra, 559 U.S. at p. __ [130 S.Ct. at p. 1222].) Hence, after a suspect makes a
valid waiver of the Miranda rights, the need for effective law enforcement weighs
in favor of a bright-line rule that allows officers to continue questioning unless the
suspect clearly invokes the right to counsel or right to silence.
       There are important practical and policy reasons supporting this rule.
When the interrogating officers “reasonably do not know whether or not the
suspect wants a lawyer, a rule requiring the immediate cessation of questioning
‘would transform the Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity,’ . . . because it would needlessly prevent
the police from questioning a suspect in the absence of counsel even if the suspect
did not wish to have a lawyer present.” (Davis, supra, 512 U.S. at p. 460, citation
omitted.) Likewise, in the right to silence context, “[i]f an ambiguous act,
omission, or statement could require police to end the interrogation, police would
be required to make difficult decisions about an accused’s unclear intent and face
the consequence of suppression ‘if they guess wrong.’ ” (Berghuis v. Thompkins,
                                          10
supra, 560 U.S. at p. __ [130 S.Ct. at p. 2260].) In such circumstances,
suppression of a voluntary confession “would place a significant burden on
society’s interest in prosecuting criminal activity.” (Ibid.)
       Applying the reasonable-officer approach, Davis agreed with the lower
courts that the petitioner’s remark to investigators — “ ‘Maybe I should talk to a
lawyer’ ” — was not a clear and unambiguous assertion of the Miranda right to
counsel. (Davis, supra, 512 U.S. at p. 462.) Similarly, in Berghuis v. Thompkins,
the high court determined that a suspect’s silence for nearly three hours during a
custodial interrogation did not reflect an unambiguous assertion of the Miranda
right to silence. (Berghuis v. Thompkins, supra, 560 U.S. at p. __ [130 S.Ct. at
pp. 2259-2260].)
       Although the Supreme Court has not spoken on the matter, there appears no
persuasive basis for exempting juveniles from Davis’s reasonable-officer standard.
The interest in protecting lawful investigative activity is equally weighty in the
adult and juvenile contexts. (See Davis, supra, 512 U.S. at p. 461.) At the same
time, juveniles subject to custodial interrogation are adequately protected by the
following safeguards.
       First, any custodial confession by a juvenile generally is not admissible if
the juvenile did not receive proper advisement of the right to counsel and right to
remain silent, or if the juvenile did not knowingly, intelligently, and voluntarily
waive such rights. As the Supreme Court has emphasized, “the primary protection
afforded suspects subject to custodial interrogation is the Miranda warnings
themselves. ‘[F]ull comprehension of the rights to remain silent and request an
attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation
process.’ ” (Davis, supra, 512 U.S. at p. 460.)
       Second, as in the case of an adult’s Miranda waiver, determining the
validity of a juvenile’s waiver necessitates inquiry into all the circumstances
                                          11
surrounding a challenged interrogation, including “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.” (Fare, supra, 442 U.S. at p. 725.)
Thus, for purposes of waiver determinations, courts must consider a juvenile’s
state of mind, as well as all other circumstances, including a request for a parent,
in order to ascertain whether the juvenile “in fact knowingly and voluntarily
decided to forgo” his or her Miranda rights. (Fare, at p. 725.) This approach
allows the necessary flexibility for courts “to take into account those special
concerns that are present when young persons, often with limited experience and
education and with immature judgment, are involved.” (Ibid.)
       Finally, courts must use “ ‘special care in scrutinizing the record’ ” to
evaluate a claim that a juvenile’s custodial confession was not voluntarily given.
(Lessie, supra, 47 Cal.4th at pp. 1166-1167 [quoting Haley v. Ohio (1948) 332
U.S. 596, 599].) “If counsel was not present for some permissible reason when [a
juvenile’s] admission was obtained, the greatest care must be taken to assure that
the admission was voluntary, in the sense not only that it was not coerced or
suggested, but also that it was not the product of ignorance of rights or of
adolescent fantasy, fright or despair.” (In re Gault (1967) 387 U.S. 1, 55.)
Consequently, even when a juvenile has made a valid waiver of the Miranda
rights, a court may consider whether the juvenile gave a confession after being
“ ‘exposed to any form of coercion, threats, or promises of any kind, [or] trickery
or intimidation . . . .’ ” (People v. Lewis (2001) 26 Cal.4th 334, 383.)3 The

3      Defendant does not contest the trial court’s finding that no physical or
psychological coercion impeded the voluntariness of his statements. At the
hearing on the in limine motion, defendant had acknowledged that the
                                                           (footnote continued on next page)

                                         12
constitutional safeguard of voluntariness ensures that any custodial admission
flows from the volition of the juvenile, and not the will of the interrogating
officers.4
        Because juveniles have these protections, and because the need for effective
law enforcement is the same in the adult and juvenile contexts, we are persuaded
that juvenile postwaiver invocations are properly evaluated under the Davis
standard. (Cf. Fare, supra, 442 U.S. at p. 725 [holding juveniles and adults
subject to same approach for Miranda waiver determinations].) Accordingly, once
a juvenile suspect has made a valid waiver of the Miranda rights, any subsequent
assertion of the right to counsel or right to silence during questioning must be
articulated sufficiently clearly that a reasonable police officer in the circumstances




(footnote continued from previous page)

investigators allowed him to use the bathroom during the interview and did not
withhold food or drink from him. He also admitted there were no threats, no
weapons, no handcuffs, and no promises made during the investigation.

4       Additionally, article 15 of division 2, part 1, chapter 2, of the Welfare and
Institutions Code provides statutory protections to certain juveniles. When an
officer takes a minor to a place of confinement pursuant to that article, the officer
“shall take immediate steps to notify the minor’s parent, guardian, or a responsible
relative that such minor is in custody and the place where he is being held.”
(Welf. & Inst. Code, § 627, subd. (a).) Within an hour after taking the minor into
custody, the officer shall also advise the minor of the right to completed telephone
calls to a designated adult and to an attorney. (Welf. & Inst. Code, § 627, subd.
(b).) Although it appears that the exclusionary rule does not require suppression
of a minor’s in-custody statements when this statute has been violated (see Lessie,
supra, 47 Cal.4th at p. 1161 & fn. 2), the threat of criminal sanctions provides a
powerful incentive for statutory compliance. (Welf. & Inst. Code, § 627, subd. (b)
[any officer who “willfully deprives” the minor of the “right to make such
telephone calls is guilty of a misdemeanor”].)


                                          13
would understand the statement to be an invocation of such rights. (Davis, supra,
512 U.S. at p. 459; see Berghuis, supra, 560 U.S. at p. __ [130 S.Ct. at p. 2260].)

         B. Application of the Davis Standard in the Instant Case
         Consistent with Davis, the standard of review — like the standard
applicable in the trial court — focuses on “whether, in light of the circumstances, a
reasonable officer would have understood a defendant’s reference to an attorney
[or other individual] to be an unequivocal and unambiguous request for counsel,
without regard to the defendant’s subjective ability or capacity to articulate his or
her desire for counsel, and with no further requirement imposed upon the officers
to ask clarifying questions of the defendant.” (Gonzalez, supra, 34 Cal.4th at
p. 1125; accord, Davis, supra, 512 U.S. at pp. 460-462; People v. Martinez, supra,
47 Cal.4th at pp. 947-949 [right to silence].) As a reviewing court, we “ ‘accept
the trial court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence.’ ” (Gonzalez, at p. 1125; see
Lessie, supra, 47 Cal.4th at p. 1169; People v. Martinez, at p. 949.) Although we
review the record and independently decide whether the challenged statements
were obtained in violation of Miranda, supra, 384 U.S. 436, we may “ ‘give great
weight to the considered conclusions’ ” of the trial court. (People v. Jennings
(1988) 46 Cal.3d 963, 979; see People v. Musselwhite (1998) 17 Cal.4th 1216,
1239.)
         Here, investigators Salcedo and Sutton questioned defendant for over five
hours, and the entire interrogation was both recorded and transcribed. At the
hearing on the motion in limine, the trial court stated it had reviewed the videotape
and considered what transpired at the interrogation. The court also received
testimony from Salcedo and Sutton, as well as from defendant himself. Defendant
acknowledged he had understood the Miranda rights that were read to him at the


                                          14
start of the interrogation, and admitted there were no threats, no weapons, no
handcuffs, and no promises from the investigators during the investigation.
Defendant said he knew what an attorney was, because he had been represented by
an attorney in juvenile court. Defendant had agreed to speak with the
investigators, because he felt it would “seem funny” if he did not do so. He
explained that, as the hours went on, he was “sort of being worn down” and
getting tired and stressed as the investigators got tougher in their questioning.
Defendant also admitted having lied to the investigators during the interrogation.
The recording of the interview showed that defendant was deceptive throughout
the five-hour session and admitted to wrongdoing only when confronted with
evidence or caught in a lie.
       In announcing its ruling, the trial court made an explicit finding that, based
on its reading of the transcripts, listening to testimony, and viewing the recorded
interview, defendant had “zero credibility.” Then, after determining that
defendant had made a knowing, intelligent, and voluntary waiver of his Miranda
rights at the outset of the interrogation, the court addressed the issue at the heart of
this matter. Summarizing the details of the interrogation and viewing defendant’s
statements in context, the court found that, whenever defendant requested to speak
to his mother, he did so because he wanted to tell his mother what was going on
and to ask her what he should do. The court further found that, even if defendant
subjectively desired attorney assistance, his statements were objectively
ambiguous because they were limited to the issue whether or not he should take
the polygraph test.5 That is, although defendant indicated reluctance to take the

5       For this conclusion, the court specifically referenced defendant’s statements
to the investigators that his grandmother and brother told him to refrain from
taking the test until he talked to his mother or an attorney.


                                          15
test without speaking to his mother or a lawyer, he “continued to consent to
voluntarily talk” to the authorities on other topics. The court also observed that,
“even though in his own mind he thought his mother was [only] ten minutes
away,” defendant went ahead and signed a written confession without waiting for
her arrival. Relying on Davis, supra, 512 U.S. 452, the court found that defendant
did not invoke his Miranda rights, and that even if there was a request for an
attorney, it was ambiguous and did not require cessation of the interview. As we
shall explain, the trial court’s conclusions are both legally and factually supported.
       As a legal matter, we have already recognized in the waiver context that a
juvenile’s request to speak with a parent is neither a per se nor a presumptive
invocation of Fifth Amendment rights. (Lessie, supra, 47 Cal.4th at p. 1168.)6
There is an obvious reason for this: “the parental role does not equate with the
attorney’s role in an interrogation by police.” (People v. Maestas (1987) 194
Cal.App.3d 1499, 1510, fn. 9.) Where, as here, a juvenile has made a valid waiver
of his Miranda rights and has agreed to questioning, a postwaiver request for a
parent is insufficient to halt questioning unless the circumstances are such that a
reasonable officer would understand that the juvenile is actually invoking — as
opposed to might be invoking — the right to counsel or silence. (See Davis,
supra, 512 U.S. at pp. 458-459.)
       Our review of the transcribed and videotaped interview finds ample support
for the trial court’s resolution of the conflicting inferences that may be gleaned
from defendant’s various requests and statements. (Gonzalez, supra, 34 Cal.4th at


6       Lessie disapproved People v. Burton (1971) 6 Cal.3d 375, which held that,
in the absence of evidence demanding a contrary conclusion, a minor’s request to
see a parent must be construed to indicate an invocation of Fifth Amendment
rights. (Lessie, supra, 47 Cal.4th at pp. 1162-1168.)


                                         16
p. 1125.) After waiving his Miranda rights, defendant was open and responsive to
questioning on any topic. Defendant, who was 15 years old, appeared confident
and mature. About three and a half hours into the interview, the investigators
asked why defendant hurt Thompson and whether he was willing to take a
polygraph test. Defendant responded by asking to call his mother, and, when
asked the reason for the call, he offered no indication that he wanted an attorney or
that he did not want to talk further. Instead, he specifically stated he wanted to let
his mother “know what’s happening” and to ask her what he should do because he
was being accused of murder. On this record, the trial court properly concluded
that a reasonable officer in the circumstances would not have viewed defendant’s
request to call his mother as a clear and unequivocal invocation of the Miranda
rights. (See People v. Maestas, supra, 194 Cal.App.3d at p. 1509.)
       As the interrogation proceeded, defendant asked several more times to call
his mother when the investigators again asked about a polygraph test, or why he
hurt Thompson. The investigators generally did not inquire into the reasons for
the subsequent requests, but defendant clarified a second time that he wanted to let
his mother know “what’s going on right now” and where he was. Given the
circumstances surrounding each of defendant’s requests, a reasonable officer
would not have understood any of them as an unambiguous assertion of Miranda
rights. Although defendant became increasingly upset during the interview, and
quieter toward the end, the questioning properly continued because defendant
never communicated an intent to stop the interview altogether. (See Berghuis v.
Thompkins, supra, 560 U.S. at p. __ [130 S.Ct. at pp. 2262-2263].)
       Defendant also informed the investigators that his grandmother and brother
told him not to take a polygraph test “until my mom or a lawyer is here,” and that
those family members “don’t want me to do anything until a lawyer or my mom is
here.” Taken in context, these statements did not convey an unambiguous request
                                          17
to halt all questioning, or a clear unwillingness to continue the interview without a
lawyer. Rather, as the trial court observed, a reasonable officer could have
understood defendant’s statements as conveying a reluctance to take a polygraph
test without first speaking to an attorney or his mother. Where, as here, the
suspect makes a conditional invocation of counsel limited to the administration of
a polygraph test, officers need not terminate the entire interrogation. (People v.
Martinez, 47 Cal.4th at p. 952; see also Gonzalez, supra, 34 Cal.4th at pp. 1126-
1127 [defendant conditionally wanted a lawyer if he was going to be charged];
People v. Clark (1992) 3 Cal.4th 41, 122-123 [defendant would not talk about an
unrelated killing without an attorney present].) Furthermore, questioning need not
halt simply because a suspect refuses, either conditionally or outright, to take a
polygraph test. (E.g., People v. Martinez, supra, 47 Cal.4th at p. 952; People v.
Davis (1981) 29 Cal.3d 814, 824-825 [16-year-old suspect’s unwillingness to
speak to polygraph administrator was not a general assertion of his right to remain
silent].)
        Likewise, defendant did not unambiguously assert his right to silence when
he told the investigators at one point that he did not care who might be caught for
Thompson’s murder, “as long as you guys leave me alone.” A reasonable officer
in the circumstances could view that statement as an expression of frustration with
the investigators’ repeated refusal to accept his denial of guilt for the murder. (See
Williams, supra, 49 Cal.4th at p. 433 [mere “ ‘expressions of passing frustration or
animosity’ ” toward officers do not invoke the right to silence]; People v.
Jennings, supra, 46 Cal.3d at pp. 977, 978 [“ ‘I’m not going to talk,’ ” and
“ ‘That’s it. I shut up,’ ” reflected “only momentary frustration and animosity”
toward the questioning officer].)
        Nor did defendant make a clear invocation when, toward the end of the
interview, he asked the investigators for “a few minutes to myself” and for time to
                                         18
“be alone until my family gets here.” Notably, defendant clarified, when asked,
that he simply wanted time to “be alone” and to “think about stuff” before writing
out a statement about what happened to Thompson. In neither of these instances
did defendant indicate, clearly or otherwise, that he was asserting his right to
remain silent.
       On this record, we conclude the trial court did not err in denying
defendant’s in limine motion. A reasonable officer in the circumstances would not
have understood defendant’s requests to call his mother, or any of his other
statements, to be unambiguous and unequivocal invocations of his Miranda
rights.7 (Davis, supra, 512 U.S. at pp. 460-462; Berghuis v. Thompkins, supra,
560 U.S. at p. __ [130 S.Ct. at p. 2260].) Accordingly, investigators Salcedo and
Sutton were not required to stop their questioning, and defendant’s custodial
statements were properly admitted at trial.




7      While this case was pending, the United States Supreme Court issued its
decision in J.D.B. v. North Carolina (2011) __ U.S. __ [131 S.Ct. 2394], which
addressed custody determinations for purposes of requiring Miranda warnings. In
that case, the high court held that a child suspect’s age, when known to the
interrogating officer or objectively apparent to a reasonable officer, is relevant to
the determination whether, considering all the objective circumstances of an
interrogation, a reasonable person in the suspect’s position would understand his
freedom to terminate police questioning and leave. (Id. at p. __ [131 S.Ct. at
p. 2406].) Contrary to defendant’s assertions, nothing in J.D.B. calls for
application of a subjective test to determine juvenile postwaiver invocations.
While J.D.B.’s analysis generally supports the view that a juvenile suspect’s
known or objectively apparent age is a factor to consider in an invocation
determination, knowledge of defendant’s age would not have altered a reasonable
officer’s understanding of defendant’s statements in the circumstances here. As
indicated, defendant, who was 15 years old, appeared confident and mature.


                                          19
       C. Inapplicability of the Miranda Waiver Test
       The Court of Appeal held that Davis’s objective approach was
inappropriate for juveniles and declined to assess defendant’s postwaiver
statements from the viewpoint of a reasonable officer. Instead, the court relied on
Fare, supra, 442 U.S. 707, and Lessie, supra, 47 Cal.4th 1152, to hold that the
postwaiver invocation determination required an examination of the totality of the
circumstances in order to ascertain whether a juvenile suspect intended to assert
the Miranda rights. Upon considering defendant’s age, experience, maturity, and
sophistication, as well as the length, intensity, and content of the entire
interrogation, the court found that defendant’s purpose when he first requested to
speak with his mother was to secure her assistance to protect his Fifth Amendment
rights.8




8      The Court of Appeal explained its conclusion as follows. “After
considering Nelson’s age, experience, maturity, sophistication, the length,
intensity, and content of the interrogation, we conclude Nelson’s purpose in
requesting to speak with his mother was to secure her assistance to protect his
Fifth Amendment rights. Further evidence of Nelson’s desire to invoke his
Miranda rights is evidenced by his various requests to end the conversation about
the murder. His words and conduct were inconsistent with ‘a present willingness
to discuss the case freely and completely. [Citation.]’ [Citation.] In short, the
record reflects a juvenile who persisted in his attempts to seek his mother’s
assistance in protecting his rights, who numerous times indicated he did not want
to continue speaking, and after over five hours of interrogation submitted to the
deputies[’] insistence that he write out a confession.” Although the Court of
Appeal acknowledged that defendant was “no stranger to the criminal justice
system” and was allowed “to make numerous unsuccessful attempts to contact his
mother,” it noted the additional circumstances that defendant was “ ‘really
hungry’ ” after four hours of questioning, that he was “repeatedly tearful,” and that
he was a year younger and subjected to much lengthier interrogation than the
juvenile suspects in Fare, supra, 442 U.S. 707, and Lessie, supra, 47 Cal.4th 1152.



                                          20
       The Court of Appeal’s analysis is flawed in two significant respects. First,
the court erred by focusing on what defendant may have subjectively wanted,
instead of considering how a reasonable officer would have understood
defendant’s statements in the circumstances presented. Fare and Lessie are
inapposite because those decisions addressed whether the juveniles involved made
valid waivers of their Miranda rights. (Fare, supra, 442 U.S. at pp. 726-727;
Lessie, supra, 47 Cal.4th at pp. 1169-1170.) Here there is no dispute that
defendant understood and voluntarily waived his rights, and the only question is
whether he subsequently invoked the right to have counsel present or the right to
silence. It has long been settled that “[i]nvocation and waiver are entirely distinct
inquiries, and the two must not be blurred by merging them together.” (Smith v.
Illinois (1984) 469 U.S. 91, 98; see People v. Martinez, supra, 47 Cal.4th at
p. 951.) Accordingly, Fare and Lessie do not support substitution of a subjective
test in place of Davis’s objective approach when evaluating whether a juvenile
suspect, having waived the Miranda rights, later asserted the right to counsel or
right to silence. (See People v. Martinez, at p. 951.)
       Second, it is correct that the objectively apparent circumstances in which a
suspect made a postwaiver statement are relevant to an officer’s understanding of
the statement as an assertion of Miranda rights. But contrary to the Court of
Appeal’s analysis, a finding of a sufficiently clear invocation cannot be predicated
upon unrelated discussions or events that occurred after the statement was made.
Officers may, of course, try to clarify ambiguous statements (Davis, supra, 512
U.S. at p. 461), but generally a statement either is, or is not, an assertion of the
right to counsel (Smith v. Illinois, supra, 469 U.S. at pp. 97-98). Thus, while the
length, intensity, and content of an entire interrogation are relevant in assessing
whether a suspect who waived the Miranda rights was subsequently coerced into
involuntarily confessing (Fare, supra, 442 U.S. at p. 727; People v. Richardson
                                           21
(2008) 43 Cal.4th 959, 992-993; cf. People v. Neal (2003) 31 Cal.4th 63, 80-85),
we do not consider such circumstances because that contention is not at issue here.
(See ante, fn. 3.)
                          CONCLUSION AND DISPOSITION
       Consistent with Davis, supra, 512 U.S. 452, we hold that, once a juvenile
suspect has made a valid waiver of his or her Miranda rights, any subsequent
assertion of the right to counsel or right to silence during questioning must be
articulated sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be an invocation of such rights. Because this
standard is an objective one, the invocation determination does not call for an
evaluation of the juvenile’s state of mind or subjective desire. We caution,
however, that a particular statement found insufficiently clear in the circumstances
of one case may nonetheless be deemed an unambiguous and unequivocal
invocation when considered in the context of another case.
       On this record, we find the trial court properly determined that a reasonable
officer would not have understood defendant to be clearly and unequivocally
asserting his Miranda rights when he asked to speak to his mother, or when he
indicated his relatives did not want him to take a polygraph test without first
speaking to his mother or a lawyer, or when he made references to being left
alone. Accordingly, the investigators were not required to halt the interrogation at
any point, and defendant’s incriminating statements were admissible at trial. We




                                          22
reverse the judgment of the Court of Appeal and remand the matter to that court
for further proceedings consistent with the views expressed herein.

                                                BAXTER, J.



WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




                                        23
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nelson
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 2/5/10 – 4th Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S181611
Date Filed: January 12, 2012
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Frank F. Fasel

__________________________________________________________________________________

Counsel:

Mary Woodward Wells, under appointment by the Supreme Court, for Defendant and Appellant.

Rourke F. Stacy, Public Defender (Los Angeles) and Ji Seon Song, Public Defender (Contra Costa) for
Pacific Juvenile Public Defender Center, Los Angeles County Public Defender, Contra Costa County
Public Defender, Los Angeles County Alternate Public Defender, Loyola Law School Center for Juvenile
Law and Policy and the Center for Wrongful Convictions of Youth as Amici Curiae on behalf of Defendant
and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Steven T. Oetting,
Elizabeth A. Hartwig and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mary Woodward Wells
Post Office Box 3069
Del Mar, CA 92014
(858) 481-5341

Rourke F. Stacy
Public Defender
210 W. Temple Street, 19th Floor
Los Angeles, CA 90012
(213) 974-3002

Donald W. Ostertag
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2278
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nelson
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 2/5/10 – 4th Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S181611
Date Filed: January 12, 2012
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Frank F. Fasel

__________________________________________________________________________________

Counsel:

Mary Woodward Wells, under appointment by the Supreme Court, for Defendant and Appellant.

Rourke F. Stacy, Public Defender (Los Angeles) and Ji Seon Song, Public Defender (Contra Costa) for
Pacific Juvenile Public Defender Center, Los Angeles County Public Defender, Contra Costa County
Public Defender, Los Angeles County Alternate Public Defender, Loyola Law School Center for Juvenile
Law and Policy and the Center for Wrongful Convictions of Youth as Amici Curiae on behalf of Defendant
and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Steven T. Oetting,
Elizabeth A. Hartwig and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mary Woodward Wells
Post Office Box 3069
Del Mar, CA 92014
(858) 481-5341

Rourke F. Stacy
Public Defender
210 W. Temple Street, 19th Floor
Los Angeles, CA 90012
(213) 974-3002

Donald W. Ostertag
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2278