Filed 2/11/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ART T.,

a Person Coming Under the Juvenile

Court Law.

 B251083

 (Los Angeles County

 Super. Ct. No. FJ50686)

THE PEOPLE,

Plaintiff and Respondent,

v.

ART T.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Benjamin J. 

Campos, Juvenile Court Referee. Reversed with directions.

Center for Juvenile Law and Policy, Christopher Hawthorne and Patricia Soung 

for Defendant and Appellant.

Bluhm Legal Clinic, Joshua A. Tepfer, Steven A. Drizin, Laura H. Nirider; Law 

Offices of Cyn Yamashiro and Cyn Yamashiro for Center on Wrongful Convictions of 

Youth as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney 

General, William H. Shin and Corey J. Robins, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

_______________________

INTRODUCTION

In this juvenile delinquency proceeding, we hold that a 13-year-old boy’s 

statement—“Could I have an attorney? Because that’s not me”—made during the course 

of a custodial interrogation after watching a video of a shooting was an unequivocal and 

unambiguous invocation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 

S.Ct. 1602, 16 L.Ed.2d 694] (Miranda) and its progeny. In reaching this conclusion, we 

apply a standard of whether a reasonable officer in light of the circumstances known to 

the officer or that would have been objectively apparent to a reasonable officer, including 

the juvenile’s age, would understand the statement by the juvenile to be a request for an 

attorney. We conclude that a reasonable officer would have understood the juvenile’s

statement in this case to be a request for an attorney.

The juvenile court should have granted the motion to suppress the statements 

subsequently elicited by police. Because the Miranda error was not harmless beyond a 

reasonable doubt under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 

L.Ed.2d 705] (Chapman), we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Shooting

On August 18, 2012, at about 12:40 a.m., there was a shooting on the 1400 block 

of Alvarado Terrace in Los Angeles. Alex Castaneda, Saul Barragan and Leonardo 

Villanueva were shot. Castaneda died; Barragan and Villanueva survived. Two

surveillance cameras recorded the shooting.

B. Defendant Art T.’s Interrogation
3

As part of their investigation into the shooting, the police directed their attention to 

defendant Art T. (Art), who was then 13 years old. On August 20, 2012, police brought 

Art to the police station where Los Angeles Police Detectives Julian Pere, Jeff Cortina 

and Michael Arteaga interrogated him.1 Art’s interrogation was videotaped and 

subsequently transcribed. At the outset of the interrogation, Detective Pere conducted a 

Gladys R. inquiry for the purpose of determining whether Art knew right from wrong.2

It was not until page 21 of the transcript of the interrogation3that Detective 

Cortina advised Art of his Miranda rights:

“DETECTIVE CORTINA: All right, Art, I’m going to ask you some questions 

and if you don’t understand let me know and I will explain them, okay?

“[ART]: Okay.

“DETECTIVE CORTINA: You have the right to remain silent. Do you 

understand?

“[ART]: Yes.

 

1

It is not disputed that Art was in custody at the time of the interrogation.

2

In In re Gladys R. (1970) 1 Cal.3d 855, our Supreme Court concluded “that the 

juvenile court should consider whether a child appreciates the wrongfulness of her 

conduct in determining whether the child should be declared a ward under [Welfare and 

Institutions Code] section 602.” (Id. at p. 858, fn. omitted; see Pen. Code, § 26 [children 

under the age of 14 are incapable of committing a crime “in the absence of clear proof 

that at the time of committing the act charged against them, they knew its 

wrongfulness”].)

3 Because the juvenile court only had a transcript of the interrogation before it when 

it ruled on Art’s motion to suppress, we limit our review to the transcript. At oral 

argument, Art’s counsel argued that the parties had stipulated to allow the juvenile court 

to watch the videotape outside of the courtroom. According to the record, however, this 

stipulation was only reached with respect to the adjudicatory hearing, after the juvenile 

court had ruled on the motion to suppress. Throughout the hearing on the motion to 

suppress, the juvenile court consistently referred to its consideration of a “cold 

transcript.” At no time during the hearing did the juvenile court reference the videotape 

of the confession.
4

“DETECTIVE CORTINA: Anything you say may be used against you in court. 

Do you understand?

“[ART]: Yes.

“DETECTIVE CORTINA: You have the right to the presence of an attorney 

before and during any questioning. Do you understand?

“[ART]: Yes.

“DETECTIVE CORTINA: And if you cannot afford an attorney one will be 

appointed for you free of charge before any questioning if you want. Do you understand?

“[ART]: Yes, sir.”

Detective Cortina made no attempt to secure an express waiver of rights from Art. 

After giving the Miranda warnings, he continued to talk to Art and to question him about 

the shooting. He informed Art that his partner was going to show him something. 

Detective Cortina said, “[w]e’ve talked to a lot of people and there’s a lot we know. And 

so all we’re looking for is just the truth.”

After talking to Art about “survival of the fittest,” including turning on someone to 

save yourself, Detective Pere told Art that his “day just went from bad to worse because 

the reason that we’re actually speaking to you is because” someone “did you the same 

way.” The detective then showed Art the video taken of the shooting and said, “That, my 

friend, would be you.” Art denied that was him in the video and stated, “I’ve never killed 

nobody before.” After Art also denied any familiarity with the location, Detective Pere 

said, “Oh, okay. Well, I’m here to tell you, man, that’s the video of you being captured 

on the 18th after midnight.” Art said he was at home at midnight and told the detective to 

ask his mother.

Art continued to deny any complicity in the shootings. He said the clothes the 

person in the video was wearing were not his. He denied being on Alvarado Terrace and 

said he was with a friend in Arcadia. He denied even knowing where Alvarado Terrace 

was. At this juncture, starting on page 30 of the transcript, the following transpired:

“DETECTIVE PERE: Huh-uh. You weren’t in Arcadia. You were right there on 

Alvarado Terrace blasting on people.
5

“[ART]: That’s not me. I don’t know how else to tell you. That’s not me.

“DETECTIVE PERE: Okay. Well, I — you know what? We’re here to speak to 

you to get your statement. Now, if your statement is that that’s not you, don’t worry. 

We’re going to write it down just the way you said. That’s not —

“[ART]: Could I have an attorney? Because that’s not me.”

“DETECTIVE PERE: But — okay. No, don’t worry. You’ll have the 

opportunity.”

Despite Art’s request for an attorney, the interrogation continued with Detective 

Arteaga taking the lead. Detective Arteaga repeatedly encouraged Art to tell the truth so 

that he would not appear to be a “cold blooded killer.” He told Art that his mother was 

crying and had identified him in the video, when in fact she had not. When Art continued 

to deny his involvement in the shooting, Detective Arteaga said, “I’m about to leave. I’m 

trying to give you an opportunity to tell us the truth because right now it looks like you’re 

a cold blooded gang murderer. That is serious.”

In the 32 pages of transcript memorializing the interrogation between the time Art

asked for an attorney and the time he confessed, Art continued to deny any involvement 

in the shooting. He also made multiple requests to speak with his mother and his 

girlfriend, but these requests were denied. On page 35 of the transcript, Art stated, “I’d 

like to talk to my mom.” Then, on page 44 he pleads, “Could I just talk to my mom, 

please.” On page 50, Art states, “Look, I just [want] to call my homeys, call my girl, get 

this shit over with. Let me do what I got to do. That’s all. Got nothing else to say.” On 

the next page he adds: “I’m not answering anything, dude, because everything I tell you 

guys is a lie to you guys.” On page 52 he again asks to speak with his mother: “Well, if 

you guy[s] think I killed him go for it. Think what you got to think but I just want to 

make my phone calls. That’s it. That’s the most important thing right now is to talk to 

my mom too.”

C. Art’s Confession
6

Over the next 10 pages of the transcript, Art continues to deny his involvement in 

the shooting. The detectives do not allow him to talk to his mother or to make a phone 

call. Art makes his first incriminating statement on page 63 of the transcript:

“DETECTIVE ARTEAGA: . . . But I’m telling you this, [the judge is] going to 

look at you a lot more — with a lot more compassion if you told the truth what happened. 

You didn’t mean to kill him, did you? I mean, if you meant to go kill him because you 

were down for the hood, is that — is that what you wanted?

“[ART]: No.

“DETECTIVE ARTEAGA: You didn’t want that, right?

“[ART]: No.

“DETECTIVE ARTEAGA: What did you think was going to happen?

“[ART]: I don’t know. It just happened so fast.”

Art denied being drunk or on drugs but stated, “[j]ust feeling the power. You feel

. . . like the shit when you have a gun in your fucking hand.” Art admitted that he shot at 

the group of individuals because he thought they were from the 18th Street gang. Art

denied shooting in retaliation for the death of his “homey” two months earlier. Art

admitted that “the thing that happened on Alvarado Terrace, that’s like the only one I’ve 

been involved in.”

Further questioning revealed Art and a second shooter each had a gun, but Art did 

not know the type of guns they used. Art admitted that they shot at the men because they 

thought they were from “Faketeen,” a derogatory reference to the 18th Street gang.

D. The Welfare and Institutions Code Section 602 Petition

On August 22, 2012, the People filed a Welfare and Institutions Code section 602 

petition alleging that Art committed one count of murder (Pen. Code, § 187, subd. (a)) 

and two counts of attempted willful, deliberate, and premeditated murder (id., §§ 187, 

subd. (a), 664). The People further alleged as to each count that Art personally and 

intentionally discharged a firearm, causing great bodily injury or death (id., § 12022.53, 
7

subds. (c) & (d)) and committed the crime for the benefit of, at the direction of, or in 

association with a criminal street gang (id., § 186.22, subd. (b)(4)).

E. Art’s Motion To Suppress

In the juvenile court, Art filed a motion to suppress all statements that were 

obtained in violation of his Miranda and due process rights. Art argued that his 

confession resulted from the detectives’ badgering and lies and thus was involuntary in 

violation of his due process rights. Art further argued that his Miranda rights were 

violated when the detectives failed to provide him with an attorney after he asked for one 

during the course of the interrogation.4

Neither party presented any testimonial evidence at the hearing on Art’s motion to 

suppress. As we have noted, although the police videotaped Art’s interrogation, the 

juvenile court only had the written transcript before it in ruling on Art’s motion. When 

the juvenile court asked Art’s trial counsel to “frame the issues,” counsel argued that 

Art’s statement, “Could I have an attorney? Because that’s not me,” invoked his right to 

counsel and that the detectives improperly continued to question him.

The juvenile court stated: “I’m reading a cold transcript. . . . So the court has to 

use the objective standard, and so, to me, some of the things that are not issues: clearly, 

he’s in custody. Clearly, he’s the focus of the investigation, and, in the court’s mind, 

based on the transcript, clearly he’s been advised of his Miranda rights. Clearly, he 

meets the Gladys R. threshold. So the issue then is, one, as to whether you have any 

evidence — whether you’re going to put on evidence. Were you going to call the minor? 

 

4 Art also sought to exclude statements he made during telephone calls the police 

allowed him to make after the interrogation ended, including a telephone call to his 

girlfriend. There is no indication in the record, however, that Art provided the juvenile 

court with the recording of his telephone conversations or a transcript of the recording in 

connection with his motion to suppress. While the recording and transcript were 

admitted into evidence during the subsequent adjudication hearing, neither party has 

transmitted those exhibits to this court.
8

I’m not sure. That’s why I was probing in that fashion. Again, not to — if you think it’s 

just a matter of a legal issue and you want me to listen to your arguments and make a 

ruling based thereon, I’m certainly prepared to do that.”

Art’s counsel stated that she did not intend to call Art to testify and that she was 

seeking “a legal ruling.” The prosecutor argued that Art’s statement, “Could I have an 

attorney? Because that’s not me,” was a conditional rather than an unequivocal 

invocation of his Miranda rights, and thus the officers did not have to stop their 

questioning.

Art’s counsel urged the juvenile court to consider Art’s youth in assessing whether 

he invoked his right to an attorney. The court appeared to acknowledge that Art’s 

developmental level was significant, stating: “That’s what I was trying to get to, counsel. 

And, forgive me, but I cannot assume facts not in evidence. I cannot imagine myself in 

the situation. The court has to have a picture — a word picture — painted for it. I know 

some 13 year olds that are quite sophisticated, quite able to manipulate the system. In 

fact, they manipulate me every day. Anyone who thinks somebody who is 12 or 13 can’t 

do that is just fooling themselves. On the other hand, we have some kids in here who are 

quite naïve at 15 and 16, and there’s a developmental phase to children. . . . Clearly, 

there is sleight of hand and some deception going on, but none of my research indicates 

that that, by itself, constitutes a violation of the law. . . . What basically I have is a 

statement in passing. Well, if that’s not me — ‘That’s not me. I want a lawyer,’ whether 

that constitutes a revocation of his waiver to speak to the police. I mean, if you want a 

tentative based on what I have now, I just don’t think that’s sufficient.”

Art’s counsel then argued that Art’s confession was coerced. The court stated, 

“But I think, again, based on my reading of the entire transcript, my review of the law, I 

think there is insufficient factual basis for the court to grant your motion, and, therefore, 

your motion is respectfully denied.” The court did not address Art’s motion to suppress 

the statements he made to his girlfriend given its denial of the motion to suppress his 

confession to police.
9

F. The Adjudication Hearing

Art’s adjudication hearing was held on May 7, 9 and 10, 2013.

1. The People’s Case

The prosecution called three eyewitnesses to the shooting, including Saul 

Barragan, Leonardo Villanueva, and Ricky Mora, who were part of a group of seven or 

eight people gathered outside on August 18, 2012, when the shooting occurred. At

around 12:40 a.m., Barragan, Villanueva, Mora, Alex Castaneda, and others in the group 

were on the 1400 block of Alvarado Terrace in Los Angeles when gunshots rang out. 

Castaneda was shot, and died from a gunshot wound to his torso. Barragan and 

Villanueva were also shot, but survived gunshot wounds to their legs. Mora was not 

injured.

Mora saw “sparks” in two different locations and therefore believed there were 

two shooters. One shooter was on the sidewalk in front of a nearby apartment complex; 

the other was across the street from the group. After the shooting stopped,

5

the shooter 

across the street said, “Fuck 18th Street” and “La Mara,” a commonly used name for the 

criminal street gang Mara Salvatrucha or M.S. Like Barragan and Villanueva, Mora was 

unable to identify either shooter.6

According to Roger Negroe, the dean at Berendo Middle School, on August 18, 

2012, Art was a student at the school. He started attending Berendo the year before, after 

transferring from another school. Negroe described Art as “very quiet” for the most part 

but noted that on a couple of occasions he was “disruptive” in class.

 

5 Mora heard a total of about 14 gunshots.

6 During the adjudication hearing, counsel stipulated that the juvenile court could 

review the videotape of the interrogation, marked as Exhibit 6, outside of the courtroom 

so that it did not need to be played in open court. While the tape is incorrectly referenced 

as an “audio,” it is clear from the hearing transcript that counsel intended to stipulate as 

to the videotape marked as Exhibit 6, which was later admitted into evidence.
10

Los Angeles School Police Officer Daniel East, who was assigned to Berendo 

Middle School, stopped Art in May or June 2012 for being truant. Art told Officer East 

that he wanted to be a member of a gang or tagging crew, but he did not know which 

gang. Art stated that whatever gang he joined, he would be “loyal to that gang.” Officer 

East searched Art’s backpack and found some paperwork with “gang-style or graffiti 

writing.” On August 20, 2012, Officer East encountered Art at school and noticed that he 

had cut his hair “pretty close to shaved.”

Los Angeles Police Officer Marshall Cooley, whom the prosecution called as a 

gang expert, testified that he first met Art’s mother on August 17, 2012, when she came 

into the police station and asked to speak to an officer about the M.S. gang. She told 

Officer Cooley she believed Art was affiliated with M.S. and that she was concerned for 

his well-being. She said that she had heard about a shooting on Leeward and did not 

know if her son was involved.

Officer Cooley then investigated Art using the Los Angeles Police Department 

databases and learned that he previously had been stopped with other gang members and 

“self-admitted the moniker of Casper from M.S. 13 Tiny Winos.” Officer Cooley also 

viewed Art’s Facebook page where he saw numerous ties to M.S. Specifically, there was 

a picture of two M.S. gang members who had been shot and killed with the caption, “rest 

in peace.” He also observed a photograph of spray painting of “18th Street,” a rival of 

the M.S. gang, crossed out on either the ground or a wall. Officer Cooley also identified 

Art in photographs making M.S. gang signs. In one photograph, Art was making gang 

signs in front of a wall with “M.S.” written at the top and “Westside M.S. 13” with the 

moniker “Casper” to the left of Art. Officer Cooley opined based on a hypothetical that 

the crimes were committed for the benefit of, at the direction of, and in association with

the M.S. criminal street gang.

2. The Defense

The defense called two witnesses, Art’s mother Helen C., and a video expert, 

Michael Jones. Helen C. testified that on August 17, 2012, Art walked home from 
11

school, returning around 4:30 p.m. Art stayed home while Helen C. ran errands. When 

Helen C. returned home around 6:20 p.m., Art was not home.

Around 9:00 p.m., Helen C. had not yet heard from Art and decided to go to the 

police station to make a missing person’s report. As she was getting into her car, she 

heard a commotion down the street. Worried about her son, Helen C. drove in the 

direction of the commotion. She spoke to a police officer who stated that someone had 

been shot and killed. Helen C. inquired as to the age of the victim, but the officer said 

that he did not yet have that information. Helen C. then drove to the police station and 

filed a missing person’s report for Art with an officer,

7 and she returned home.

At about 11:26 p.m., Helen C. received a telephone call from Art’s friend Joshua, 

who lived in Arcadia.8 Joshua said that Art was with him and apologized for not 

reminding Art to call home. Joshua’s mother told Helen C. she would drop off Art within 

the next hour. Helen C. also spoke to Art to confirm he was there. According to Helen 

C., Art arrived home at 12:42 a.m. Helen C. testified that she remembered the time 

because she was upset with Art and showed him the time on her phone. Art was wearing 

a black T-shirt with little “Scooby” characters and jeans.

On August 20, 2012, Helen C. received a telephone call from the police 

department, asking her to come to the station to close out the missing person’s report. 

She arrived at the station sometime after 4:00 p.m. and answered some questions. The 

officer then told Helen C. that Art was being detained for a crime. 

The officer showed Helen C. a still shot on a computer and told her, “This is your 

son.” Helen C. told the officer she did not think the person was Art because the person in 

the picture was “taller” and “thicker” than Art, the picture did not show Art’s bald birth 

mark on the left side of his forehead, and the person was wearing different clothes from 

 

7 Helen C. identified the officer phonetically as Officer “Conner,” but it appears 

from the earlier testimony of Officer Cooley that she had spoken with Officer Cooley.

8 Helen C. was able to recall the time of the call by obtaining a copy of her cell 

phone bill from her carrier.
12

what Art had. Helen C. repeatedly told the officer that the person in the picture was not 

her son.

Helen C. testified she knew that Art was known as Casper and that Casper is a 

gang name, but she denied knowing that Art was connected to the M.S. gang. The People 

impeached Helen C. with a video from August 20, in which she stated to Detective 

Arteaga, “I know my son to be affiliated somehow with M.S. in the past.” When asked 

how she knew, Helen C. stated that Art told her he was affiliated with M.S. and he 

“posted . . . all this stupid stuff on Facebook.”

Michael Jones, an expert in audio and video enhancement, testified that the two 

outdoor security cameras that recorded the shooting were mounted 16 feet and 161⁄2 feet, 

respectively, from the ground. He opined that camera angles affect how objects and 

people appear and that the video taken in the case from its elevated position would distort 

how the subject walking across the screen would appear.

3. The Juvenile Court’s Ruling

During closing argument, the juvenile court addressed the prosecutor: “the video 

identification and the quality of the video . . . have the court concerned with establishing 

an I.D. off of that information, off of that evidence. To be quite frank with you. I just —

I cannot tell.” The prosecutor responded that “[i]f that’s all we had, we’d be in a 

completely different situation,” and he acknowledged that no witness identified Art from 

the video. The prosecutor urged the court to consider the “totality of the circumstances,” 

including the video, Art’s confession, and Art’s statement to his girlfriend.

Before adjudicating the matter, the juvenile court stated, “I carefully reviewed the 

pictures, the photographs that were admitted by the defense, and with regard to the video 

evidence, that standing alone would not be sufficient for the court to sustain a 

petition. . . . And we know, even from when there is a video, it may be impossible to tell. 

However, when the court applies the reasonable interpretation to the state of the 

evidence, the court is hard-pressed to come to a different conclusion than that which I’m 

about to announce.” The juvenile court found that the People had proven all three counts 
13

beyond a reasonable doubt, sustained one count of first-degree murder and two counts of 

attempted murder, and found the firearm and gang allegations to be true.

G. The Disposition Hearing

At the disposition hearing held on August 22, 2013, the juvenile court noted that 

the murder charge carried a statutory minimum of 25 years with a maximum of life but 

that it could not impose a life sentence on a minor. It therefore stated it would “set the 

timeframe at 25” years and “just sentence him on one of the counts.” Neither side 

objected. The juvenile court committed Art to the Department of Juvenile Justice.

DISCUSSION

On appeal, Art challenges the juvenile court’s denial of his motion to suppress the 

statements he made to the officers while in custody as violating his Fifth Amendment 

right against self-incrimination9 and his due process rights under the Fourteenth 

Amendment. In his motion to suppress, Art invoked both grounds for suppression of his 

confession. Art contends that the juvenile court should have excluded the statements 

because they were made after he requested an attorney and on the basis that the 

statements were involuntary. We conclude that Art unequivocally requested an attorney 

prior to his confession and that once he made this request, all questioning should have 

stopped.

A. Standard of Review

“‘On review of a trial court’s decision on a Miranda issue, we accept the trial 

court’s determination of disputed facts if supported by substantial evidence, but we 

independently decide whether the challenged statements were obtained in violation of 

 

9 A defendant’s Sixth Amendment right to counsel only attaches upon the initiation 

of an adversarial criminal proceeding (Davis v. United States (1994) 512 U.S. 452, 456 

[114 S.Ct. 2350, 129 L.Ed.2d 362] (Davis)) and thus does not apply here.
14

Miranda.’ [Citation.]” (People v. Hensley (2014) 59 Cal.4th 788, 809; accord, People v. 

Bradford (1997) 14 Cal.4th 1005, 1032-1033; People v. Thomas (2012) 211 Cal.App.4th 

987, 1006.) Further, “[w]e apply federal standards in reviewing defendant’s claim that 

the challenged statements were elicited from him in violation of Miranda. [Citations.]” 

(Bradford, supra, at p.1033.)

Because the only evidence submitted in support of Art’s motion to suppress was 

the transcript of the interrogation, there is no dispute about the statement Art made at 

issue here. Accordingly, we will “engage in a de novo review of the legal question of 

whether the statement at issue was ambiguous or equivocal.” (People v. Bacon (2010) 50 

Cal.4th 1082, 1105.)

B. Application of Miranda and Its Progeny

Before the police can perform a custodial interrogation, the suspect must first be 

advised of his or her right to remain silent, to the presence of an attorney, and to 

appointed counsel if indigent. (Miranda, supra, 384 U.S. at p. 479; Edwards v. Arizona

(1981) 451 U.S. 477, 481-482 [101 S.Ct. 1880, 68 L.Ed.2d 378] (Edwards).)

Once a suspect is advised of his or her rights, the suspect can be found to have 

waived those rights by continuing to answer questions. (Berghuis v. Thompkins (2010) 

560 U.S. 370, 384 [130 S.Ct. 2250, 176 L.Ed.2d 1098] [defendant waived Miranda rights 

where he received and understood Miranda warnings, did not invoke his rights, and made 

voluntary statement to the police]; North Carolina v. Butler (1979) 441 U.S. 369, 373 [99 

S.Ct. 1755, 60 L.Ed.2d 286] [waiver of Miranda rights in some cases can be “inferred 

from the actions and words of the person interrogated,” without an explicit waiver].)

However, even where an accused waives his or her Miranda rights, once the 

accused asserts his or her right to counsel, “the interrogation must cease until an attorney 

is present.” (Miranda, supra, 384 U.S. at p. 474; see also Davis, supra, 512 U.S. at 

p. 458; Edwards, supra, 451 U.S. at pp. 484-485.) Subsequent statements are presumed 

involuntary and inadmissible if made without a lawyer. (Edwards, supra, at p. 482.) 
15

Questioning can only continue where the accused initiates further communication. (Id. at 

p. 485.)

In Edwards, the court held that the defendant’s confession violated his Fifth and 

Fourteenth Amendment rights because, after requesting an attorney, the next day he was 

told that “‘he had’” to meet with detectives, and only after the detectives initiated further 

conversation did the defendant implicate himself in the crime. (Edwards, supra, 451 U.S. 

at p. 479.) The court held that “when an accused has invoked his right to have counsel 

present during custodial interrogation, a valid waiver of that right cannot be established 

by showing only that he responded to further police-initiated custodial interrogation even 

if he has been advised of his rights. . . . [An accused] is not subject to further 

interrogation by the authorities until counsel has been made available to him, unless the 

accused himself initiates further communication, exchanges, or conversations with the 

police.” (Id. at pp. 484-485, fn. omitted.)

However, questioning does not need to cease where the request for counsel is 

“ambiguous or equivocal.” (Davis, supra, 512 U.S. at p. 459; accord, Berghuis v. 

Thompkins, supra, 560 U.S. at p. 381.) The Supreme Court in Davis held, “if a suspect 

makes a reference to an attorney that is ambiguous or equivocal in that a reasonable 

officer in light of the circumstances would have understood only that the suspect might be 

invoking the right to counsel, our precedents do not require the cessation of questioning.” 

(Davis, supra, at p. 459.) The court declined to adopt a rule that would require officers to 

ask clarifying questions where the request for a lawyer was ambiguous or equivocal, 

instead holding that officers have no obligation to stop questioning. (Id. at pp. 459-460.)

Under this standard, the court in Davis held that the statement, “‘[m]aybe I should 

talk to a lawyer,’” was not a request for counsel, and therefore the officers were not 

required to stop their questioning. (Davis, supra, 512 U.S. at p. 462.) Other courts have 

construed similar statements to be equivocal, thus not invoking an accused’s right to 

counsel. (See, e.g., Clark v. Murphy (9th Cir. 2003) 331 F.3d 1062, 1069, 1071 [“I think 

I would like to talk to a lawyer” held not to be unambiguous and unequivocal]; People v. 

Sauceda-Contreras (2012) 55 Cal.4th 203, 219 [“‘[i]f you can bring me a lawyer, . . . that 
16

way I can tell you everything that I know” held to be “conditional, ambiguous, and 

equivocal” in light of totality of circumstances]; People v. Bacon, supra, 50 Cal.4th at pp.

1104, 1105 [“I think it’d probably be a good idea for me to get an attorney” held to be 

ambiguous or equivocal].)

Other courts have found statements using words similar to “can I have a lawyer” 

to be sufficiently clear to invoke the accused’s right to counsel. (See, e.g., Alvarez v. 

Gomez (9th Cir. 1999) 185 F.3d 995, 998 [questions by defendant found to be 

unequivocal request for an attorney, including “‘Can I get an attorney right now, man?’” 

“‘You can have attorney right now?’” “‘Well, like right now you got one?’”]; United 

States v. De La Jara (9th Cir. 1992) 973 F.2d 746, 750 [“Can I call my attorney?” or “I 

should call my lawyer” invoked right to counsel]; Smith v. Endell (9th Cir. 1988) 860 

F.2d 1528, 1529, 1531 [“Can I talk to a lawyer?” and “I think maybe you’re looking at 

me as a suspect, and I should talk to a lawyer” not ambiguous or equivocal].)

Art urges us, in considering a juvenile’s invocation of his or her right to an 

attorney, to consider the age and lack of sophistication of the juvenile at the time of the 

interrogation. We now turn to the question of the proper standard to be applied in the 

case of a juvenile.

C. Whether a Juvenile Has Waived Miranda Rights and Whether a Juvenile Has 

Requested an Attorney Must Take Into Account His or Her Age

We start our analysis by looking at the standard the courts have applied in 

considering whether a juvenile accused of a crime has waived his or her Miranda rights 

after being advised of those rights.

1. Whether a juvenile has knowingly and voluntarily waived his or her Miranda

rights requires consideration of the totality of circumstances, including the

juvenile’s age.

The United States Supreme Court has held that in determining whether a juvenile

has knowingly and voluntarily waived his or her rights under Miranda, the court should 
17

consider the totality of the circumstances surrounding the confession, including the 

juvenile’s age. (See Fare v. Michael C. (1979) 442 U.S. 707, 720-723 [99 S.Ct. 2560, 61 

L.Ed.2d 197] (Fare) [finding 16 year old’s request to speak with his probation officer 

was not invocation of right to remain silent, reviewing totality of the circumstances of 

interrogation]; People v. Lessie (2010) 47 Cal.4th 1152, 1169-1170 [applying totality of 

circumstances test to find that 16 year old had not invoked Fifth Amendment rights when 

he asked to speak with his father during interrogation].)

The court in Fare held, “the determination whether statements obtained during 

custodial interrogation are admissible against the accused is to be made upon an inquiry 

into the totality of the circumstances surrounding the interrogation, to ascertain whether 

the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent 

and to have the assistance of counsel.” (Fare, supra, 442 U.S. at pp. 724-725.) As to the 

unique nature of juveniles, the court held further: “The totality approach permits—

indeed, it mandates—inquiry into all the circumstances surrounding the interrogation. 

This includes evaluation of the juvenile’s age, experience, education, background, and 

intelligence, and into 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. 

[Citation.]” (Id. at p. 725.)

The Supreme Court in Fare specifically addressed the “special concerns” that 

must be considered with juveniles, holding that the juvenile court has the expertise 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. Where the 

age and experience of a juvenile indicate that his request for his probation officer or his 

parents is, in fact, an invocation of his right to remain silent, the totality approach will 

allow the court the necessary flexibility to take this into account in making a waiver 

determination. At the same time, that approach refrains from imposing rigid restraints on 

police and courts in dealing with an experienced older juvenile with an extensive prior 

record who knowingly and intelligently waives his Fifth Amendment rights and 

voluntarily consents to interrogation.” (Fare, supra, 442 U.S. at pp. 725-726.)
18

The court in Fare found that the juvenile had voluntarily and knowingly waived 

his Fifth Amendment rights, after consideration of the fact that he was 161⁄2 years old at 

the time of the confession, had several prior arrests, spent time in youth camp, was on 

full-time probation at the time of the interrogation, had his rights explained to him 

multiple times, there was no indication that he did not understand what the officers told 

him, and he clearly expressed his willingness to waive his rights and continue the 

interrogation. (Fare, supra, 442 U.S. at p. 726.)10

We turn next to the question of what standard applies in determining whether a 

juvenile, after voluntarily waiving his or her rights under Miranda, makes a statement 

that is sufficiently unequivocal to invoke the juvenile’s right to an attorney.

2. Whether a juvenile has made an unequivocal request for an attorney requires

consideration of the juvenile’s age.

While the determination of whether an accused has knowingly and voluntarily 

waived his or her Miranda rights requires consideration of the totality of the 

circumstances to determine the accused’s subjective state of mind (see Fare, supra, 442 

U.S. at pp. 724-725), evaluation of whether an accused after a waiver has unequivocally 

requested an attorney requires an objective inquiry. (See Davis, supra, 512 U.S. at 

pp. 458-459 [“[t]o avoid difficulties of proof and to provide guidance to officers 

conducting interrogations, this is an objective inquiry”]; People v. Nelson (2012) 53 

Cal.4th 367, 376, 378 (Nelson) [applying Davis’s objective inquiry standard to find that 

15-year old had not asserted right to counsel before making confession.])

Our Supreme Court in Nelson held that the appellate court was in error in applying 

a subjective “totality of the circumstances” test in order to determine whether the juvenile 

 

10 For the first time on appeal, Art contends that the Miranda warnings he received 

were inadequate to convey their meaning to a 13-year-old and that he did not knowingly 

and voluntarily waive his Miranda rights. We need not reach this issue because we 

conclude that Art invoked his right to counsel and all questioning should have ceased.
19

suspect, after waiving his Miranda rights, intended to invoke his right to counsel. 

(Nelson, supra, 53 Cal.4th at p. 384.) First, the court noted that both Fare and Lessie, 

requiring consideration of a suspect’s youth as part of the totality of the circumstances 

analysis, “are inapposite because those decisions addressed whether the juveniles 

involved made valid waivers of their Miranda rights.” (Ibid.) The court held: “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.” (Id. at p. 385.) However, the court 

went on to find, “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.” (Ibid.)

Moreover, while the Nelson case was pending, the United States Supreme Court 

decided J. D. B. v. North Carolina (2011) 564 U.S. ___, ___ [131 S.Ct. 2394, 2398, 180 

L.Ed.2d 310, 318] (J. D. B.), in which it considered “whether the age of a child subjected 

to police questioning is relevant to the custody analysis of Miranda . . . .” The court in 

J. D. B. considered whether a 13-year-old seventh grader who was questioned by two 

police officers with two school administrators present in a closed school conference room 

was in custody for the purpose of application of Miranda. (J. D. B., supra, at pp. 2398-

2399.) The court held that, while the question of whether a suspect is in police custody 

for purposes of application of Miranda is an objective inquiry, “so long as the child’s age 

was known to the officer at the time of police questioning, or would have been 

objectively apparent to a reasonable officer, its inclusion in the custody analysis is 

consistent with the objective nature of that test. This is not to say that a child’s age will 

be a determinative, or even a significant, factor in every case. . . . It is, however, a reality 

that courts cannot simply ignore.” (J. D. B., supra, at p. 2406, fn. omitted.)

While the United States Supreme Court has not addressed the type of objective 

inquiry a court should make when considering whether a juvenile, after waiving Miranda

rights, has invoked his or her right to an attorney, the same considerations that informed 

the J. D. B. decision apply to this inquiry. Indeed, the court in Nelson, while finding that 
20

the juvenile there had not invoked his right to an attorney by his conditional statement 

that he would not take a polygraph test unless his mother or a lawyer was present, 

addressed the holding in J. D. B., noting: “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.” (Nelson, supra, 53 Cal.4th at p. 383, fn. 7.)11

We find that, as in the custody context addressed in J. D. B., a court should 

consider a juvenile’s age for purposes of analyzing whether the juvenile has 

unambiguously invoked his or her right to counsel. As the court in J. D. B. held: “Even 

for an adult, the physical and psychological isolation of custodial interrogation can 

‘undermine the individual’s will to resist and . . . compel him to speak where he would 

not otherwise do so freely.’ [Citation.] Indeed, the pressure of custodial interrogation is 

so immense that it ‘can induce a frighteningly high percentage of people to confess to 

crimes they never committed.’ [Citations.] That risk is all the more troubling—and 

recent studies suggest, all the more acute—when the subject of custodial interrogation is 

a juvenile. [Citation.]” (J. D. B., supra, 131 S.Ct. at p. 2401.)

In reaching its holding, the court in J. D. B. reviewed the other contexts in which 

the Supreme Court has “observed that children ‘generally are less mature and responsible 

than adults,’ [citation]; that they ‘often lack the experience, perspective, and judgment to 

recognize and avoid choices that could be detrimental to them,’ [citation]; that they ‘are 

more vulnerable or susceptible to . . . outside pressures’ than adults [citations]; and so 

 

11 The court in Nelson also acknowledged the significance of the circumstances 

surrounding a particular statement as to whether it was an unambiguous request for 

counsel. “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.” (Nelson, supra, 

53 Cal.4th at p. 385.)
21

on.” (J. D. B., supra, 131 S.Ct. at p. 2403.) In particular, the Supreme Court has 

considered the maturity level of juveniles in barring capital punishment for juveniles 

(Roper v. Simmons (2005) 543 U.S. 551, 568 [125 S.Ct. 1183, 161 L.Ed.2d 1]); barring a 

sentence of life without parole for juveniles convicted of nonhomicide offenses (Graham 

v. Florida (2010) 560 U.S. 48, 67 [130 S.Ct. 2011, 176 L.Ed.2d 825]); and requiring 

consideration of a juvenile’s “diminished culpability and heightened capacity for change” 

before imposing a sentence of life without parole for homicide offenses (Miller v. 

Alabama (2012) ___ U.S. ___, ___ [132 S.Ct. 2455, 2469, 2475, 183 L.Ed.2d 407]).

The court in J. D. B. concluded that “including age as part of the custody analysis 

requires officers neither to consider circumstances ‘unknowable’ to them, [citation] nor to 

‘anticipat[e] the frailties or idiosyncrasies’ of the particular suspect whom they question 

[citation]. The same ‘wide basis of community experience’ that makes it possible, as an 

objective matter, ‘to determine what is to be expected’ of children in other contexts 

[citations] likewise makes it possible to know what to expect of children subjected to 

police questioning.” (J. D. B., supra, 131 S.Ct. at p. 2404.) The court reversed and 

remanded the case for the state court to take into account “all of the relevant 

circumstances of the interrogation, including J. D. B.’s age at the time.” (Id. at p. 2408.)

Applying the same standard to the context of a post-waiver invocation of a 

juvenile’s right to counsel, we find that this analysis requires consideration of whether a 

reasonable officer in light of the circumstances known to the officer, or that would have 

been objectively apparent to a reasonable officer, including the juvenile’s age, would 

understand the statement by the juvenile to be a request for an attorney.

We next turn to the facts of this case.
22

3. Art made an unequivocal request for an attorney.

In this case, the detectives knew at the time of the interrogation that Art was 13

and an eighth grade student in middle school.

12

 While neither the juvenile court nor this 

court has had the benefit of viewing the videotape for the purpose of considering the 

circumstances of Art’s statements to the officers in considering the motion to suppress, 

we find that Art’s age of 13 and middle school level of education, combined with his 

repeated requests for his mother, would have made his lack of maturity and sophistication 

objectively apparent to a reasonable officer.13 In this context, Art’s statement after 

viewing the video of the shooting, “Could I have an attorney? Because that’s not me,” 

was an unequivocal request for an attorney.14

We do not find the People’s argument credible that a reasonable detective would 

have believed that 13-year-old Art, in stating, “Could I have an attorney? Because that’s 

not me” was merely inquiring whether he could have a lawyer in court to prove his 

 

12 Art provided this information to the detectives at the beginning of the 

interrogation.

13 While Art T. uses profanity extensively during his interrogation, his repeated 

requests for his mother in the face of the detectives’ accusations show his lack of 

maturity and sophistication.

14 We also note that the statement, “Could I have an attorney?” is closer to the 

question “Can I get an attorney right now” and “Can I call my attorney?” found to be 

unequivocal in Alvarez v. Gomez, supra, 185 F.3d at p. 998 and United States v. De La 

Jara, supra, 973 F.2d at p. 750, than the statements, “[m]aybe I should talk to a lawyer” 

and “I think I would like to talk to a lawyer” found to be equivocal in Davis, supra, 512 

U.S. at p. 462 and Clark v. Murphy, supra, 331 F.3d at pp. 1069, 1071. Therefore, even 

if this request had been made by an adult, we believe it would have been an unequivocal 

request for counsel. In this case, the request was particularly clear given the 

circumstances applicable to a juvenile. We reach the question of the standard applicable 

to a juvenile because the determination of whether the statement made by Art was an 

unequivocal request for an attorney must be considered in light of all the circumstances 

known to the officer or reasonably apparent to a reasonable officer, including Art’s age 

and lack of sophistication.
23

innocence.15 The People’s further argument that Art waived his right to an attorney by 

continuing to answer questions must also be rejected as contrary to the law. (See 

Edwards, supra, 451 U.S. at pp. 484-485.)

Accordingly, once Art made a request for an attorney, all questioning should have 

ceased. (See Davis, supra, 512 U.S. at 458; Edwards, supra, 451 U.S. at pp. 484-485.) 

All statements made by Art to the officers after he requested an attorney are presumed 

involuntary and inadmissible, and should have been suppressed. (See Edwards, supra, 

451 U.S. at p. 482; Miranda, supra, 384 U.S. at p. 479.)16

D. The Error Was Not Harmless Beyond a Reasonable Doubt

When statements are obtained in violation of Miranda, as they were in this case, 

the error is reviewed under the federal “harmless beyond a reasonable doubt” standard set 

forth in Chapman. (Arizona v. Fulminante (1991) 499 U.S. 279, 297, 302 [111 S.Ct. 

1246, 113 L.Ed.2d 302] (Arizona) [use of coerced confession not harmless error]; People 

v. Cahill (1993) 5 Cal.4th 478, 510 (Cahill) [federal harmless error standard applicable to 

inadmissible confession admitted in a California trial]; accord, People v. Thomas (2011) 

51 Cal.4th 449, 498 [admission of defendant’s confession harmless error where

 

15 At oral argument, the People did not focus on whether the statement “Could I have 

an attorney” was unequivocal, but instead argued that the addition of the statement

“[b]ecause that’s not me” somehow turned this request into an equivocal request because 

it showed that Art was only inquiring as to whether he would have an attorney at trial. 

As noted above, an objective officer hearing this request from a 13-year-old would not 

believe that the phrase “because that’s not me” somehow converted Art’s request into one 

that was equivocal. To the contrary, it appears more reasonable that it was precisely 

because the detectives were telling this 13-year-old that they knew that he was the killer 

in the video that he was requesting an attorney to be present as he was being interrogated.

16 Because we find that Art’s Fifth Amendment right against self-incrimination was 

violated by the officers continuing to question him after he requested an attorney, we do 

not reach the question whether his request for his mother was an invocation of his right to 

counsel or whether his confession was involuntary. We also do not reach the question of 

whether the statements subsequently made by Art to his girlfriend should have been 

suppressed.
24

cumulative to stronger evidence]; In re Z.A. (2012) 207 Cal.App.4th 1401, 1422-1423)

[highly inculpatory statements admitted in violation of Miranda not harmless beyond 

reasonable doubt].

The People bear the burden of proving that the error was harmless beyond a 

reasonable doubt. (See Arizona, supra, 499 U.S. at 297; accord, Brecht v. Abrahamson

(1993) 507 U.S. 619, 629-630 [113 S.Ct. 1710, 123 L.Ed.2d 353].) In applying this 

standard, “‘[t]he question is whether there is a reasonable possibility that the evidence 

complained of might have contributed to the conviction.’” (Chapman, supra, 386 U.S. at 

p. 23, quoting Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [84 S.Ct. 229, 11 L.Ed.2d 

171].) As the court held in Arizona, in finding the state failed to meet its burden of 

proving that use of a coerced confession was harmless error beyond a reasonable doubt,

“[a] confession is like no other evidence. Indeed, ‘the defendant’s own confession is 

probably the most probative and damaging evidence that can be admitted against 

him. . . .’ [Citation.]” (Arizona, supra, at p. 296; accord, Cahill, supra, 5 Cal.4th at 

p. 497 [“‘the confession operates as a kind of evidentiary bombshell which shatters the 

defense’”].)

In this case, when the juvenile court stated that it could not tell if Art was the 

shooter from the video, the prosecutor urged the court to consider the “totality of the 

circumstances,” including the video, Art’s confession, and his statements to his girlfriend.

In reaching its ruling, the juvenile court expressed its view that the “video evidence . . .

standing alone would not be sufficient for the court to sustain a petition.” The court 

ruled, however, that based on “the totality of the evidence,” it is “hard-pressed to come to 

a different conclusion than that which [it was] about to announce.” The court then 

sustained all three counts of the petition and found the enhancement allegations to be 

true.

Because the juvenile court relied on the confession to sustain the petition in light 

of the weakness of the video evidence, we find that the confession was an essential factor 

in the juvenile court’s ruling sustaining the petition, and that the People have not proven 
25

that the error in admitting Art’s statements was harmless beyond a reasonable doubt 

within the meaning of Chapman.

17

DISPOSITION

The juvenile court’s jurisdictional findings and dispositional order are reversed. 

The matter is remanded for a new adjudication hearing consistent with the views 

expressed herein.

FEUER, J.*

We concur:

WOODS, Acting P. J.

ZELON, J.

 

17 The People argue that even without Art’s confession, the court had sufficient 

evidence of guilt based on the incriminating statements Art made to his girlfriend during 

a telephone call made following the interrogation. However, as noted above, we do not 

have the recording or transcript of the statements made by Art to his girlfriend in the 

record on appeal. On the record before us, it is clear that Art’s confession was central to 

the juvenile court’s ruling. We also note that on remand, Art may renew his objection to 

the admissibility of his telephone conversation with his girlfriend, which issue the 

juvenile court never reached.

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.