SONENSHINE, J., Concurring and Dissenting. I concur with the majority’s decision regarding the sufficiency of the evidence to support the finding Joseph R. unlawfully drove a vehicle. However, I dissent from the majority’s conclusion Joseph was not in custody for Miranda purposes. (See Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974].)
First the facts. Joseph, age 14, was visiting Michael H., age 13, when uniformed Police Officer James Tavenner and his partner arrived to investigate a recent rock-throwing incident. After speaking with Michael’s mother, Tavenner had the minors come out on the porch, telling them he had received information they were involved in a crime. He searched the boys but told them they did not have to answer questions. Michael declined to talk, but Joseph was willing to speak with the officer.
On the sidewalk in front of Michael’s house, Tavenner told Joseph that witnesses had seen him throwing rocks at a bus. As Joseph put it, Tavenner “just kept saying, trying to say that it was me [because] there is a witness[.]” When Joseph denied the allegation, Tavenner “got mad,” handcuffed Joseph and placed him in the back of his police car.
Five minutes passed before Tavenner told Joseph to get out of the car. At that point, Tavenner removed Joseph’s cuffs, but he did not tell him he was free to leave. Instead, Tavenner resumed his interrogation until Joseph finally confessed to throwing the rocks. Tavenner never Mirandized Joseph during the encounter.
In Miranda v. Arizona, supra, 384 U.S. 436, the United States Supreme Court established procedural safeguards to protect a suspect’s Fifth Amendment rights during custodial interrogation.1 These safeguards, commonly known as Miranda warnings, were created to offset the inherently coercive effects of police questioning “after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” (Id. at p. 444 [86 S.Ct. at p. 1612], fn. omitted.)
In deciding whether a person was in custody for Miranda purposes, we must examine all of the circumstances, including the scene of the interview, the age and experience of the person questioned, the length and manner of questioning, and, to the extent it is conveyed, to the person under questioning, the officer’s subjective belief the person is a suspect. (See Stansbury v. [963]California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293]; United States v. Rorex (8th Cir. 1984) 737 F.2d 753, 755-756; People v. Morris (1991) 53 Cal.3d 152, 197 [279 Cal.Rptr. 720, 807 P.2d 949]; State v. Doe (1997) 130 Idaho 811 [948 P.2d 166].) After considering these criteria, we must then determine whether there was “ ‘ “a formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” (Stansbury v. California, supra, 511 U.S. at p. 322 [114 S.Ct. at p. 1529].)
There can be little doubt Joseph was subjected to the functional equivalent of a formal arrest. Although the encounter transpired at his friend’s house, Joseph was isolated by Tavenner and interrogated on the sidewalk, near two police vehicles. For several minutes, Tavenner asked Joseph pointed questions about the rock-throwing incident, telling Joseph witnesses had implicated him and directly accusing him of the crime. Such intense questioning likely communicated to Joseph he was not free to leave. (See People v. Bellomo (1992) 10 Cal.App.4th 195, 199 [10 Cal.Rptr.2d 782].) But even if that was insufficient to trigger Miranda, surely, as the majority shyly concedes in a footnote (maj. opn., ante, at p. 958, fn. 5), Joseph was in custody when Tavenner slapped on the cuffs and whisked him into the police car. Indeed, such intimidating treatment would be considered coercive for the average adult, let alone a 14-year-old. (See generally, 1 LaFave, Criminal Procedure (1984) Interrogations and Confessions, § 6.6(f), p. 498 [courts are likely to find custody for Miranda purposes if the suspect is handcuffed or put into a police vehicle].)
Nonetheless, the majority finds no Miranda violation because Joseph did not confess until after he was released from the police car and his handcuffs were removed. The majority views Tavenner’s hardball tactics in cuffing and detaining Joseph as merely attempts to “maintain control of the minor while he carried on another portion of his investigation.” (Maj. opn., ante, at p. 958.) This assumption, however, finds no support in the record.
What the record does indicate is Tavenner became increasingly irritated with Joseph’s denials and decided to turn up the heat by giving Joseph a taste of physical custody. After letting Joseph ponder his predicament for several minutes, Tavenner unshackled the minor and unabashedly resumed his interrogation. By this time, some 30 minutes into the encounter by the minor’s estimate, Joseph had enough and went along with Tavenner’s allegations.
Under these circumstances, I fail to see how Joseph’s status was miraculously changed from “custodial” to “noncustodial” when Tavenner removed [964]his handcuffs and released him from the police car. In fact, courts have been skeptical any such transformation can so readily occur.
For example, in United States v. Guarino (D.Conn. 1986) 629 F.Supp. 320, the defendant was handcuffed for about 12 minutes while FBI agents raided his home as part of a narcotics investigation. After removing the cuffs, the agents stayed in the house, ultimately asking defendant what was inside a black bag. Defendant replied the bag contained cocaine.
Although defendant’s handcuffs were removed 20 minutes before he made the incriminating statement, the court found the statement was obtained in violation of his Miranda rights: “Clearly, a reasonable person in defendant’s situation, handcuffed with his hands behind his back and surrounded by armed agents, would have understood he was ‘in custody.’ The restraint on defendant’s freedom of movement or his otherwise custodial situation, however, did not end when his handcuffs were later removed.” (United States v. Guarino, supra, 629 F.Supp. at p. 324, italics added.)
Likewise here, Joseph’s custodial situation did not end when his handcuffs were removed, because Tavenner continued to press him until he made an incriminating statement. In other words, “Miranda was violated because the People failed to carry their burden of showing that the considerable force used initially to detain [Joseph] was attenuated . . . before he was questioned.” (People v. Taylor (1986) 178 Cal.App.3d 217, 230 [223 Cal.Rptr. 638].) Therefore, I would reverse the judgment with respect to the counts arising out of the rock-throwing incident.2
Petitions for a rehearing were denied August 27, 1998, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied November 18, 1998. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
Particularly, the police are required to inform a suspect “he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has a right to the presence of an attorney, either retained or appointed.” (Miranda v. Arizona, supra, 384 U.S. at p. 444 [86 S.Ct. at p. 1612].)
Although Joseph does not so claim, Tavenner also arguably violated Joseph’s due process rights by securing a confession through the use of psychological coercion. (See generally, People v. Benson (1990) 52 Cal.3d 754, 778 [276 Cal.Rptr. 827, 802 P.2d 330] [a confession is involuntary and thus violative of the state and federal guaranties of due process when it is “ “ ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence’ ” ’ ”].)