People v. Gilbert E.

Opinion

YEGAN, J.

Gilbert E. appeals from the order of wardship (Welf. & Inst. Code, § 602) based upon the juvenile court’s finding that he committed four counts of misdemeanor vandalism (Pen. Code, § 594, subd. (b)(4)), and four counts of affixing graffiti (Pen. Code, § 640.6). He contends that his inculpatory statements to the police were inadmissible because the officer deliberately continued to interrogate him after he invoked his

Miranda

rights.

(Miranda

v.

Arizona

(1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) We agree and reverse.

At 1:30 a.m. on August 17, 1993, Oxnard police officers detained appellant, who was nearly 15 years of age, with 4 other minors in an alley. After field interview cards had been filled out and the minors had been released, the police discovered that several nearby properties had just been painted with graffiti. One of the officers noted that the word “Turtle,” which appellant had previously acknowledged to be his gang nickname, was included in the graffiti.

Appellant was arrested and transported to an interview room at the Oxnard Police Department. Detective James O’Brien activated a tape recorder in plain sight and attempted to interview appellant. Although the record does not show appellant’s precise words, O’Brien testified that appellant “unequivocally” refused to waive his

Miranda

rights. Notwithstanding the invocation of his constitutional rights, O’Brien asked questions “outside of Miranda,” i.e., “[i]f he was responsible for the graffiti in the alley.” Appellant denied having committed the offenses.

A few minutes after appellant had refused to waive his

Miranda

rights, Detective O’Brien, who was still attempting to elicit incriminating statements, noticed that appellant was looking at the tape recorder. O’Brien asked appellant if he would feel more comfortable if the tape recorder was turned off. Appellant said, “yes.” When asked, “[a]nd after you turned the tape recorder off, what happened next?” O’Brien responded: “He stated now that he wished to speak with me.” O’Brien reminded appellant that he had previously refused to waive his rights. Appellant said “he didn’t care” and wanted to talk. He thereafter admitted responsibility for the graffiti.