Filed 6/17/13 In re Felix I. CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re FELIX I., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

 Plaintiff and Respondent,

v.

FELIX I.,

 Defendant and Appellant.

 G047357

 (Super. Ct. No. DL042527)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Deborah 

Servino, Judge. Affirmed.

Sheila Quinlan, under appointment by the Court of Appeal, for Defendant 

and Appellant.
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Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and 

Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Felix I. appeals from the judgment finding true the allegations of a 

delinquency petition filed under Welfare and Institutions Code section 602. He contends 

incriminating statements he made to a police officer were obtained in violation of 

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We agree Felix was in custody for 

Miranda purposes when questioned by the officer in the field, and therefore his 

unMirandized statements should have been excluded. However, his statements made 

after his arrest, and after he was given and waived his Miranda rights, were not the 

product of a deliberate two-step interrogation in violation of Missouri v. Seibert (2004) 

542 U.S. 600, 612 (Seibert), and were properly admitted. Accordingly, we affirm the 

judgment. 

FACTS & PROCEDURE

Early one spring evening, 12-year-old Felix and three other boys went to an 

elementary school in Anaheim, climbed up on the roof of a portable classroom, and 

decided to break into it. Felix went home to get tools and came back with a pair of pliers, 

which the boys used to pry open the door. The boys found four walkie-talkies inside the 

classroom, so two of the boys decided to act as lookouts outside the classroom. Felix

remained inside the classroom with another boy, and they put a Nintendo Wii and some 

accessories, games, and chargers into a bag. When one of the lookouts radioed telling 

them to get out, Felix and the other boy ran from the classroom, and the four boys ran off. 

A witness who saw a group of boys running from the classroom called the police.

Felix and the three other boys were soon stopped on the street in front of 

the school by Anaheim Police Officer Brett Heitmann. When Heitmann asked the boys 

what they were doing, Felix volunteered they were “stealing stuff” from the school. 
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Heitmann separated Felix from the other boys, questioned him further, and Felix told him 

the details of the break in. Felix was arrested and taken to the police station. He was 

given his Miranda warning, agreed to speak to Heitmann again, and repeated his 

statements about the break in. 

The petition alleged one count of second degree commercial burglary 

(Pen. Code, §§ 459, 460, subd. (b)), and one count of possession of burglary tools 

(Pen. Code, § 466). At the jurisdiction hearing, Felix moved to exclude evidence of the 

incriminating statements he made to Heitmann on the grounds the statements were 

obtained in violation of Miranda. The juvenile court denied the motion and found the 

allegations of the petition true. The juvenile court declared Felix a non-ward of (Welf. & 

Inst. Code, § 725, subd. (a)), and placed him on probation. 

DISCUSSION

Felix contends his pre- and post-arrest incriminating statements to 

Heitmann should have been excluded. Felix argues he was in custody for Miranda

purposes during the pre-arrest questioning and the post-arrest questioning was part of a 

deliberate, two-step interrogation procedure designed to undermine Miranda. We agree 

with Felix‟s first contention, but reject the latter. 

Heitmann was the only witness at the Evidence Code section 402 hearing 

on Felix‟s suppression motion. He testified that at about 6:40 p.m., while responding to a 

911 call, he saw Felix and the other boys running down the street just outside the 

elementary school. Heitmann, who was alone, got out of his patrol car and told the boys 

to stop and sit on the curb. They complied. When asked if he was “arresting” all the 

boys, Heitmann said, “Yes.” 

When Heitmann asked the boys what they were doing, Felix responded 

they were “stealing stuff” from the school. Felix was nervous but cooperative. 

Other police officers, four or five of them, soon arrived and Heitmann 

separated Felix from the other boys, seating him on the curb about 20 feet away. Felix 
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was not in handcuffs. In response to Heitmann‟s questions, Felix explained he and his 

friends were at the school climbing on the roof, Felix went home to get tools, including a 

pair of pliers, to use to break in to the school. When he returned, the boys used the pliers 

to force open the door to the portable classroom. The boys went in the classroom, took 

electronic devices, and ran away.

Heitmann questioned Felix for about 10 to 15 minutes. He did not use any 

physical force on Felix or touch him, other than to do a pat-down search. He was 

wearing his uniform, which included his service weapon, but it was not drawn. Heitmann 

did not threaten Felix, make any promises of leniency, or tell him he had to speak to him. 

However, Heitmann did not tell Felix he was free to go, did not consider him free to go, 

and when defense counsel ask Heitmann if Felix had run off would Heitmann have 

chased him, Heitmann replied, “possible.”

After interviewing Felix, Heitmann placed him under arrest, put him in 

handcuffs, and drove him to the police station. At the police station, Heitmann read Felix 

his Miranda rights. Felix indicated he understood his rights and was willing to talk to 

Heitmann. Felix repeated what he had told Heitmann at the school. The interview at the 

police station lasted about 10 to 15 minutes. Felix was in handcuffs during the station 

house interview, and no one else was in the room with them. Felix was calm and was not 

crying. Heitmann testified Felix appeared scared, but it was more like he was 

disappointed in himself. 

After hearing argument from counsel, the court denied Felix‟s motion to 

exclude his statements to Heitmann. The court stated it specifically considered Felix‟s 

age of 12 years. The court observed an officer is not required to give Miranda warnings 

just because someone is considered a suspect, particularly when in this context “he was 

asking questions to dissipate any concerns or suspicions at the time.” And although 

Heitmann agreed he never told Felix he was free to go, Felix was not free to go, and had 

Felix taken off running he would have chased him down, “that‟s not the same as custody 
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requiring Miranda.” The court also found Felix was given his Miranda warning after he 

was placed under formal arrest and he voluntarily waived his Miranda rights and spoke 

with Heitmann at the police station. 

Heitmann then testified in the prosecution‟s case in chief largely repeating 

his testimony from the Evidence Code section 402 hearing. He added the 911 call he was 

responding to was about a possible burglary at the elementary school. The caller had 

described the suspects as four juvenile males and at least two were carrying bags. When 

Heitmann stopped the four boys running away from the school, Felix was carrying a 

black bag. Heitmann searched the bag, and found the electronics and tools inside. Felix 

renewed his motion to suppress his statements made to Heitmann during the pre-arrest 

interrogation. The court denied the motion. 

Felix contends statements he made to Heitmann in the field, before his 

formal arrest, should have been excluded from evidence because they were taken in 

violation of Miranda. The Attorney General asserts no Miranda warning was required 

because Felix was not in custody.

A person interrogated by law enforcement officers after being taken into 

custody must first be warned that he has a right to remain silent, that any statement he 

does make may be used as evidence against him, and that he has a right to the presence of 

an attorney, either retained or appointed. (Miranda, supra, 384 U.S. 436.) Statements 

taken in violation of this rule are generally inadmissible. (Stansbury v. California (1994) 

511 U.S. 318, 322.) Miranda is premised on the perception that interrogation of a 

suspect in police custody is inherently coercive. (Miranda, supra, 384 U.S. at 

pp. 445-458.) To insure that any statement the suspect makes in that setting is a product 

of his free will, the United States Supreme Court held the interrogation must be preceded 

by the essential procedural safeguards in the form of the warnings.

“Whether a defendant was in custody for Miranda purposes is a mixed 

question of law and fact. [Citation.] When reviewing a trial court‟s determination that a 
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defendant did not undergo custodial interrogation, an appellate court must „apply a 

deferential substantial evidence standard‟ [citation] to the trial court‟s factual findings 

regarding the circumstances surrounding the interrogation, and it must independently 

decide whether, given those circumstances, „a reasonable person in [the] defendant‟s 

position would have felt free to end the questioning and leave‟ [citation].” (People v. 

Leonard (2007) 40 Cal.4th 1370, 1400; see also Thompson v. Keohane (1995) 516 U.S. 

99, 112.) 

“The totality of the circumstances surrounding an incident must be 

considered as a whole. [Citations.] Although no one factor is controlling, the following 

circumstances should be considered: „(1) [W]hether the suspect has been formally 

arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio 

of officers to suspects; and (5) the demeanor of the officer, including the nature of the 

questioning.‟ [Citation.] Additional factors are whether the suspect agreed to the 

interview and was informed he or she could terminate the questioning, whether police 

informed the person he or she was considered a witness or suspect, whether there were 

restrictions on the suspect‟s freedom of movement during the interview, and whether 

police officers dominated and controlled the interrogation or were „aggressive, 

confrontational, and/or accusatory,‟ whether they pressured the suspect, and whether the 

suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster

(2006) 138 Cal.App.4th 1395, 1403-1404.) The United States Supreme Court has held a 

minor‟s age is also relevant in the custody analysis. (J.D.B. v. North Carolina (2011) ___ 

U.S. ____ [131 S.Ct. 2394, 2406].)

Here, Heitmann responded to a 911 call about four juvenile boys possibly 

burglarizing an elementary school and who fled the campus carrying a bag. He 

immediately encountered 12-year-old Felix, who was carrying a bag, and his three 

cohorts running away from the school. Heitmann stopped the boys, directed them to sit 

on the curb, and asked the boys what they were doing. Felix immediately volunteered 
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they were “stealing stuff” from the school. At that point, several other officers arrived, 

and Felix was separated from the other boys. Heitmann pat searched Felix, searched 

Felix‟s bag finding the electronics inside, and proceeded to ask him “a bunch of questions 

about what happened.” Heitmann did not tell Felix he did not have to talk to him or that 

he was free to leave—in fact he testified Felix was not free to leave and if had attempted 

to, he would likely have chased him down. After questioning Felix alone for 15 minutes 

and getting the details of the crime, Heitmann formally arrested him. The record does not 

support the juvenile court‟s characterization of the circumstances as being that Heitmann 

was merely “asking questions to dissipate any concerns or suspicions” about Felix. Prior 

to Heitmann‟s separate questioning of him, Felix had just confessed he and his friends 

were “stealing stuff” from the school and Felix was carrying the bag loaded with the 

stolen items. 

We recognize there are some factors weighing against a finding Felix was 

in custody—for example Heitmann questioned Felix alone, there is no evidence he 

behaved in an aggressive manner towards Felix or coerced the statements, and the 

questioning was not unduly prolonged. We nonetheless reject the Attorney General‟s 

assertion that under the totality of the circumstances any reasonable 12-year-old boy 

would have felt free to terminate the questioning and leave. The circumstances of In re 

Joseph R. (1998) 65 Cal.App.4th 954, upon which the Attorney General relies, are not 

comparable. In that case, police questioned a 14-year-old boy in front of his house about 

a rock throwing incident. (Id. at p. 957.) The officer asked the boy for consent to 

conduct a pat-down search, which the boy gave, and specifically told the boy he did not 

have to answer the officer‟s questions, and the boy was not arrested for another six 

weeks. (Id. at pp. 957, 961.) Although the officer had placed the boy in handcuffs in the 

back of the patrol car for a few minutes, before removing the handcuffs and then asking 

questions, another panel of this court concluded the boy was not in custody for Miranda

purposes. (Ibid.) 
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Here, Felix was not at his home; there is nothing in the record indicating 

Heitmann asked for Felix‟s consent before the pat-down search or told him he did not 

have to speak with the officer; Felix had just admitted he had been “stealing stuff” from 

the school before being separated from his companions and questioned in more detail 

about the crime; and Felix was arrested immediately. Under the totality of the 

circumstances, no reasonable 12-year-old boy would have felt free to “end the 

questioning and leave‟ [citation.]” (Leonard, supra, 40 Cal.4th at p. 1400.) Accordingly, 

Felix was in custody and his incriminating statements made to Heitmann prior to his 

formal arrest should have been excluded.

That does not, however, end our analysis. Although the pre-arrest 

statements should have been excluded, after his arrest, Felix was taken to the police 

station, given a Miranda advisement, and he then voluntarily spoke with Heitmann 

repeating the incriminating statements he made at the scene. In People v. San Nicolas

(2004) 34 Cal.4th 614, 639, our Supreme Court discussing United States Supreme Court 

authority observed that subsequent incriminating statements are not excludable merely 

because they followed otherwise voluntary statements given without Miranda warnings. 

“„[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the 

mere fact that a suspect has made an unwarned admission does not warrant a presumption 

of compulsion. A subsequent administration of Miranda warnings to a suspect who has 

given a voluntary but unwarned statement ordinarily should suffice to remove the 

conditions that precluded admission of the earlier statement.‟ ([Oregon v.] Elstad

[(1985)] 470 U.S.[ 298, 314 (Elstad)]; accord, . . . Seibert[, supra,] 542 U.S. [at pp. 613-

614].) 

Felix argues the second interview was part of an impermissible deliberate 

two-step questioning strategy that circumvented Miranda and was in violation of Seibert, 

supra, 542 U.S. 600. We disagree. In Seibert, supra, 542 U.S. at pages 604-605, police 

woke defendant at 3:00 a.m., arrested her for murder, took her to the police station, 
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questioned her for 30 to 40 minutes until she confessed, gave her a Miranda advisement, 

and then asked her the same questions until she confessed again. The interrogating 

officer “testified that he made a „conscious decision‟ to withhold Miranda warnings, thus 

resorting to an interrogation technique he had been taught: question first, then give the 

warnings, and then repeat the question „until I get the answer that she‟s already provided 

once.‟” (Id. at pp. 605-606.) The Supreme Court held the interrogation procedure did 

not comply with Miranda and defendant‟s postwarning statements were inadmissible. 

(Id. at p. 604.) 

Seibert’s holding does not extend to a simple failure to give a Miranda

warning, or to an “„oversight‟ that „may have been the result of [the officer‟s] confusion 

as to whether the brief exchange qualified as “custodial interrogation.”‟” (Seibert, supra,

542 U.S. at p. 614, quoting Elstad, supra, 470 U.S. at pp. 315-316.) There is no evidence 

Heitmann deliberately withheld Felix‟s Miranda warnings to undermine their 

effectiveness or to obtain a confession. Unlike Seibert, there was nothing coercive about 

the questioning prior to Felix‟s initial confession. Thus, the first unMirandized interview 

did not taint the subsequent Mirandized statements, which the juvenile court found were 

voluntarily made. 

DISPOSITION

The judgment is affirmed.

O‟LEARY, P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.