People v. Lessie


47 Cal. 4th 1152, 223 P.3d 3, 104 Cal. Rptr. 3d 131

Filed 1/28/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S163453
v.
Ct.App. 4/1 D050019
TONY LESSIE,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCN200740

We granted review to reexamine People v. Burton (1971) 6 Cal.3d 375
(Burton), in which this court fashioned a special rule to govern the application of
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to minors. Miranda requires
courts in criminal cases to exclude, at least from the prosecution?s case-in-chief,
self-incriminatory statements made by the accused during custodial interrogation
unless the accused has knowingly and voluntarily waived the Fifth Amendment
privilege against self-incrimination, which in this context includes the rights to
silence and the assistance of counsel. (Miranda, at p. 479; Harris v. New York
(1971) 401 U.S. 222, 224-226; see U.S. Const., 5th Amend.) Applying Miranda,
this court held in Burton that a minor?s request to see a parent before or during
custodial interrogation ?must, in the absence of evidence demanding a contrary
conclusion, be construed to indicate that the minor suspect desires to invoke [the]
Fifth Amendment privilege.? (Burton, at pp. 383-384.)
1


We conclude Burton, supra, 6 Cal.3d 375, is no longer good law. The
Burton court based its holding on the United States Constitution, but Burton?s
special rule for minors is inconsistent with the high court?s subsequent decision in
Fare v. Michael C. (1979) 442 U.S. 707 (Fare), which requires courts to
determine whether a defendant?minor or adult?has waived the Fifth
Amendment privilege by inquiring into the totality of the circumstances
surrounding the interrogation. (Fare, at pp. 724-725.)
I. BACKGROUND
Defendant Tony Lessie, then 16 years old, was tried as an adult and
convicted of second degree murder. (Pen. Code, ? 187, subd. (a).) Defendant
challenges his conviction, claiming the trial court prejudicially erred under Burton,
supra, 6 Cal.3d 375, by admitting into evidence confessions he made during two
custodial interrogations. Because defendant does not otherwise challenge the
evidence underlying his conviction, we summarize the facts of the crime only
briefly and focus on the circumstances of the interrogations.
The evidence at trial showed that Rusty Seau died in a street confrontation on
June 9, 2005, in Oceanside. Police, acting on information identifying defendant as
the shooter, arrested him at 6:40 a.m. on September 20, 2005, at the home of his
aunt and uncle in Hemet as he attempted to escape through the rear window.
Although defendant formally resided with his father in Vista, his father had
reported him missing some months earlier. Defendant was, in his own words, ?on
the run from probation.? Defendant admitted his role in the shooting during a
custodial interrogation at a police station in Oceanside and again during a
subsequent interrogation at juvenile hall. Defendant?s confessions were generally
consistent with the other evidence admitted at trial, including his own testimony.
Defendant claimed he had been forced to shoot by James Turner, with whom
he had been living. Turner, who used the gang moniker ?Black Jack? and claimed
2


membership in gangs affiliated with the Crips, forced a confrontation with Seau
and another man over an offense given earlier in the day. Defendant, who used
the moniker ?Blue Devil,? denied belonging to a gang but admitted wanting to
join. On the way to the confrontation, riding in a car with defendant and two
others, Turner gave defendant a pistol and told him he ?better shoot. You got to
shoot somebody.? Defendant described the shooting as ?like an initiation thing?
and believed he would be beaten or killed as ?discipline? if he did not do as he
was told. Upon arriving at the scene of the confrontation, defendant, Turner and
the others found that Seau and his companion did not want to fight. Turner
nevertheless ?banged? on Seau by announcing his gang affiliation, which Seau in
turn mocked, and Turner and a companion then attacked Seau. At this point,
Turner shouted at defendant to shoot. As Seau attempted to run away, defendant
shot him fatally in the back.
The issue before us, as mentioned, is whether the court erred in admitting
defendant?s confessions into evidence. Before trial, defendant moved to exclude
both confessions from evidence, and the People moved to admit them. The
evidence at the hearing on the motions consisted of the testimony of Detective
Kelly Deveney, who participated in defendant?s interrogation, and the transcripts,
recordings and videotapes of the interrogations.
Detective Deveney testified she spoke with defendant about half an hour after
he was taken into custody. She identified herself, told defendant that he was under
arrest on a juvenile detention order and that he could, upon arrival in Oceanside,
?make as many phone calls as he wanted to whomever he wanted.? ?And then I
told him,? Deveney continued, ?I understand your aunt and uncle know that you?re
in custody; is there anyone else we need to notify? And he said yes, his father.?
Defendant did not, however, have his father?s phone number. The drive to
Oceanside took about an hour and a half. Upon arriving at the police station,
3


defendant waited 10 minutes alone and was then given breakfast. After another 10
minutes, Detective Deveney entered with another officer, Detective Gordon
Govier. After some small talk about food and the weather, the following exchange
occurred:
?DEVENEY: Okay, we?re getting that warrant confirmed now. I got the
information, your dad?s phone number. Do you want to make a call to him? Or
did you want us to?
?LESSIE: I?d like to call him.
?DEVENEY: You would?
?LESSIE: M-hm.
?DEVENEY: Okay. So in the meantime, we?ve just got to fill out these
papers. You go by Tony Lessie, right??
A series of routine booking questions followed, after which Deveney read
defendant his rights under Miranda, supra, 384 U.S. 436:
?DEVENEY: Okay. Tony because you?re under age, you?re only sixteen,
and because you?re in our facility, I have to read you your rights. Alright. So it?s
no big deal but I have to by law. You have the right to remain silent. Do you
understand that? Can you say yes?
?LESSIE: Yeah.
?DEVENEY: Any statements you make may be used as evidence against
you. Do you understand that?
?LESSIE: Yeah.
?DEVENEY: Okay. You have the right to the presence of an attorney,
either retained or appointed free of charge, before and during questioning. Do you
understand that?
?LESSIE: Yeah.
?DEVENEY: So you understand those rights?
4


?LESSIE: Yeah.?
After more booking questions, the detectives asked defendant about his
reasons for leaving his father?s house, his prior commitment to juvenile hall, his
relationship with Turner, Turner?s involvement in identity-theft crimes and gangs,
and defendant?s own knowledge of gangs. Eventually the detectives mentioned
the killing and told defendant that multiple witnesses and members of his own
family had identified him as the shooter. After briefly denying involvement,
defendant candidly confessed: ?Well to just scratch everything, to just come clean
with it: I was there, I was, I was there and I was the shooter. But the thing that
happened was that if I didn?t shoot, I was going to, you know what I?m saying, get
hurt by the other people.? A detailed confession followed.
After defendant had confessed, Detective Deveney asked defendant whether
he was ?alright? or ?need[ed] a little break.? Defendant replied, ?I would like to
talk to my dad.? The following exchange occurred:
?DEVENEY: Let me go talk to Gordon for a minute, you can compose
yourself. I?ll be right back. Knock on the door if you need anything.
?LESSIE: Can I make a phone call to my dad?
?DEVENEY: Yes, you can. I?m going to bring a cell phone in to you and
you can use it. In fact you can use it while we?re taking the break okay. Do you
have the number or do you want me to bring you the number Tony?
?LESSIE: No, I need it.
?GOVIER: Okay, we?ll be right back.
?(long pause)
?DEVENEY: I?m sorry did you need something?
?LESSIE: I need to use the bathroom.
?DEVENEY: Bathroom. Well, our sergeant is getting you a Nextell, a
phone, we?re charging it up so you can call your dad in privacy. Okay.
5


?GOVIER: We?re going to go out, straight out this door.
?(pause)
?DEVENEY: Well [sic] they?re getting that phone Tony, we?re just going to
ask you another couple of quick questions, alright. And then we?ll leave you alone
in here and you can have whatever conversation you want with him.?
The detectives then asked defendant additional questions about the persons
involved in the confrontation and their gang affiliations. Eventually a telephone
was brought to the interrogation room, the detectives left, and defendant
unsuccessfully attempted to call his father. Defendant left this message: ?Hey
man, what?s up? Dad is [sic] me, I?m in jail. So, see if you can, as soon as you
get this, call back at this number.?
Four months later, Detectives Deveney and Govier initiated a second
interview with defendant, who was then in custody in juvenile hall. Advised once
again of his rights under Miranda, supra, 384 U.S. 436, defendant agreed to
answer questions. Defendant repeated his confession and provided additional
details about the event and its participants.
At the hearing on whether to admit the confessions, defendant argued that
Burton, supra, 6 Cal.3d 375, compelled the trial court to treat his request during
the first interrogation to speak with his father as an invocation of his Fifth
Amendment privilege. Based on this premise, defendant also argued the police
had violated Edwards v. Arizona (1981) 451 U.S. 477, by reinitiating contact with
him in juvenile hall. (See id., at pp. 484-485 [police may not further interrogate
accused who invokes right to counsel unless accused reinitiates contact].) The
court denied defendant?s motion to exclude the confessions and granted the
People?s motion to admit them. Noting that Burton predated the state
Constitution?s Truth-in-Evidence provision (Cal. Const., art. I, ? 28, subd. (f)(2)),
the court described Fare, supra, 442 U.S. 707, and People v. Hector (2000) 83
6


Cal.App.4th 228, as controlling authority against defendant?s position. The court
also found as a factual matter that defendant?s purpose in asking to speak with his
father had not been to assert his right to remain silent or to obtain the assistance of
counsel. Because the court thus rejected defendant?s argument that he had
invoked his Fifth Amendment privilege, defendant?s additional argument that the
second interrogation violated Edwards necessarily failed.
Defendant also moved unsuccessfully to exclude his confession on the
alternative ground the police had violated their statutory duty to advise him of his
right under Welfare and Institutions Code section 627, subdivision (b),1 to
complete telephone calls to a designated adult and to an attorney within an hour
after being taken into custody. The court concluded the police had committed at
least a technical violation of the statute but found no authority for excluding
defendant?s statements as a remedy.2

1
The statute provides: ?Immediately after being taken to a place of
confinement pursuant to this article and, except where physically impossible, no
later than one hour after he has been taken into custody, the minor shall be advised
and has the right to make at least two telephone calls from the place where he is
being held, one call completed to his parent or guardian, a responsible relative, or
his employer, and another call completed to an attorney. The calls shall be at
public expense, if the calls are completed to telephone numbers within the local
calling area, and in the presence of a public officer or employee. Any public
officer or employee who willfully deprives a minor taken into custody of his right
to make such telephone calls is guilty of a misdemeanor.? (Welf. & Inst. Code,
? 627, subd. (b).)
2
Defendant no longer maintains that Welfare and Institutions Code section
627, subdivision (b), requires the exclusion of his statements to the police. Indeed,
the only relevant authority rejects exclusion as a remedy. (People v. Castille
(2003) 108 Cal.App.4th 469, 489-490, vacated on other grounds and remanded for
further consideration in light of Crawford v. Washington (2004) 541 U.S. 36, sub
nom.
Shields v. California (2004) 541 U.S. 930.) No other conclusion seems
possible in light of the state Constitution?s Truth-in-Evidence provision (Cal.
Const., art. I, ? 28, subd. (f)(2)), which generally precludes California courts from

(footnote continued on next page)
7


The jury convicted defendant of second degree murder (Pen. Code, ? 187,
subd. (a)) and found true the allegations that he had personally used and
discharged a firearm, causing death (id., ?? 12022.5, subd. (a), 12022.53, subd.
(d)). The jury did not reach a verdict, and the court declared a mistrial, on the
additional allegation that defendant had committed the murder for the benefit of a
street gang. (Id., ? 186.22, subd. (b)(1).)
The Court of Appeal affirmed, and we granted defendant?s petition for
review.
II. DISCUSSION
Defendant contends the trial court should have excluded his confessions from
evidence and that the judgment must therefore be reversed. In support of his
position, defendant argues that Burton, supra, 6 Cal.3d 375, is a valid statement of
federal law and requires exclusion. In the alternative, defendant contends
exclusion is required because an inquiry into the totality of the circumstances
surrounding his interrogation does not show that he knowingly and voluntarily
waived his Fifth Amendment privilege. (See Fare, supra, 442 U.S. 707, 724-725.)
Neither argument has merit.
A. The Rule of Burton.
In Burton, supra, 6 Cal.3d 375, this court presented its holding as an
interpretation of the United States Constitution and the high court?s decision in
Miranda, supra, 384 U.S. 436. (See Burton, at pp. 381-384.) We reexamine
Burton on that basis.

(footnote continued from previous page)

creating new exclusionary rules based on the state Constitution. (See People v.
May
(1988) 44 Cal.3d 309, 318-319.)
8


The basic rule of Miranda, supra, 384 U.S. 436, and its progeny, is familiar:
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? (Fare, supra, 442 U.S. 707, 709, citing
Miranda, at pp. 444-445, 473-474), at least during the prosecution?s case-in-chief
(Fare, supra, at p. 718; Harris v. New York, supra, 401 U.S. 222, 224).
The defendant in Burton, supra, 6 Cal.3d 375, a 16-year-old minor, was
convicted of murder based on his confession while in police custody. The
defendant asked the police for permission to speak with his father but was refused.
The police also refused the father?s request to speak with his son. Defendant
subsequently confessed after hearing and purporting to waive his rights under
Miranda, supra, 384 U.S. 436. (Burton, at pp. 379.) We reversed the conviction,
concluding the defendant had adequately invoked his Fifth Amendment privilege
by asking to speak with his father. (Burton, at pp. 381-384.)
This court began its analysis with the proposition that a suspect may invoke
the Fifth Amendment privilege through ?[a]ny words or conduct which
?reasonably appear[] inconsistent with a present willingness on the part of the
suspect to discuss his case freely and completely with police at that time . . . .? ?
(Burton, supra, 6 Cal.3d 375, 382, quoting People v. Randall (1970) 1 Cal.3d 948,
956.) ?It appears to us,? Burton continued, ?most likely and most normal that a
9


minor who wants help on how to conduct himself with the police and wishes to
indicate that he does not want to proceed without such help would express such
desire by requesting to see his parents. For adults, removed from the protective
ambit of parental guidance, the desire for help naturally manifests in a request for
an attorney. For minors, it would seem that the desire for help naturally manifests
in a request for parents. . . . It is fatuous to assume that a minor in custody will be
in a position to call an attorney for assistance and it is unrealistic to attribute no
significance to his call for help from the only person to whom he normally looks?
a parent or guardian. It is common knowledge that this is the normal reaction of a
youthful suspect who finds himself in trouble with the law.? (Burton, at p. 382.)
Based on this reasoning, the court in Burton, supra, 6 Cal.3d 375, articulated
the following rule: ?[W]hen . . . a minor is taken into custody and is subjected to
interrogation, without the presence of an attorney, his request to see one of his
parents, made at any time prior to or during questioning, must, in the absence of
evidence demanding a contrary conclusion, be construed to indicate that the minor
desires to invoke his Fifth Amendment privilege.? (Burton, at pp. 383-384.)
This court decided Burton, supra, 6 Cal.3d 375, in 1971. Eleven years later,
the voters amended the state Constitution to limit the courts? power to exclude
relevant evidence from criminal proceedings. The 1982 Truth-in-Evidence
provision (Cal. Const., art. I, ? 28, subd. (f)(2)) provides that ?relevant evidence
shall not be excluded in any criminal proceeding, including pretrial and post
conviction motions and hearings, or in any trial or hearing of a juvenile for a
criminal offense, whether heard in juvenile or adult court.?3 In People v. May,

3
In full, the provision declares: ?Except as provided by statute hereafter
enacted by a two-thirds vote of the membership in each house of the Legislature,
relevant evidence shall not be excluded in any criminal proceeding, including

(footnote continued on next page)
10


supra, 44 Cal.3d 309, 318 (May), we construed this provision as forbidding courts
to exclude, on the authority of the state Constitution, self-incriminatory statements
made during custodial interrogation. More specifically, we overruled a state
constitutional rule (i.e., People v. Disbrow (1976) 16 Cal.3d 101, 113) barring the
use for impeachment of statements taken in violation of Miranda. The defendant
in May had argued the rule of Disbrow survived the Truth-in-Evidence provision
because that provision expressly preserved ?existing statutory rule[s] of evidence
relating to privilege? (Cal. Const., art. I, ? 28, subd. (f)(2)), and because Evidence
Code section 9404 incorporated Disbrow?s holding by reference. (May, at
pp. 315-316.) We rejected the argument, observing that, ?[g]iven the probable aim
of the voters in adopting [the Truth-in-Evidence provision], namely, to dispense
with exclusionary rules derived solely from the state Constitution, it is not
reasonably likely that the California voters intended to preserve, in the form of a
?statutory? privilege, a judicially created exclusionary rule expressly rejected by
the United States Supreme Court under the federal Constitution.? (May, at
p. 318.)
Of course, the high court?s decisions excluding self-incriminatory statements
under the authority of the federal Constitution, such as Miranda, supra, 384 U.S.

(footnote continued from previous page)

pretrial and post conviction motions and hearings, or in any trial or hearing of a
juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing
in this section shall affect any existing statutory rule of evidence relating to
privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this
section shall affect any existing statutory or constitutional right of the press.?
(Cal. Const., art. I, ? 28, subd. (f)(2).)
4
?To the extent that such privilege exists under the Constitution of the
United States or the State of California, a person has a privilege to refuse to
disclose any matter that may tend to incriminate him.? (Evid. Code, ? 940.)
11


436, and its progeny, continue to bind the state courts under the federal
Constitution?s supremacy clause (U.S. Const., art. VI, cl. 2) despite the Truth-in-
Evidence provision (Cal. Const., art. I, ? 28, subd. (f)(2)). Accordingly, whether
the holding in Burton, supra, 6 Cal.3d 375, remains valid depends on whether it is
compelled by federal constitutional law.
The Burton court did, as noted, base its decision on the Fifth Amendment to
the federal Constitution. (See Burton, at pp. 379, 381-384.) Defendant, noting the
high court has never expressly overruled Burton, argues the decision remains a
valid statement of federal law and, for that reason, unaffected by the Truth-in-
Evidence provision (Cal. Const., art. I, ? 28, subd. (f)(2)). Defendant?s position
cannot be sustained. Although the high court has not expressly overruled Burton,
the rule of that case does not withstand the reasoning and holding of Fare, supra,
442 U.S. 707.
In Fare, supra, 442 U.S. 707, the United States Supreme Court reversed a
decision of this court extending the rule of Burton, supra, 6 Cal.3d 375. This
court?s decision, In re Michael C. (1978) 21 Cal.3d 471 (revd. sub nom. Fare,
supra) involved a 16-year-old minor who had been committed to the Youth
Authority based on a finding that he had committed murder. The evidence against
the minor included a confession made while in police custody. Before confessing,
the minor had asked to speak with his probation officer but was refused
permission. (In re Michael C., supra, at p. 473-474.) This court excluded the
confession and reversed the judgment. Analogizing to Burton, the court held ?that
the minor?s request for his probation officer?essentially a ?call for help??
indicated that the minor intended to assert his Fifth Amendment privilege.? (In re
Michael C., supra, at p. 476.) Given ?the emphasis which the juvenile court
system places upon the close relationship between a minor and his probation
officer,? the court reasoned, a minor?s ? ?normal reaction? ? in case of trouble
12


would be to ?ask[] for his probation officer?a personal advisor who would
understand his problems and needs and on whose advice the minor could rely.?
(Ibid., fn. omitted.) The court described its holding as ?recogniz[ing] the role of
the probation officer as a trusted guardian figure who exercises the authority of the
state as parens patriae and whose duty it is to implement the protective and
rehabilitative powers of the juvenile court.? (Ibid.)
The high court in Fare, supra, 442 U.S. 707, reversed. The court held that In
re Michael C., supra, 21 Cal.3d 471, had unjustifiably extended Miranda, supra,
384 U.S. 436, by treating a suspect?s request to speak with someone other than an
attorney as an invocation of the Fifth Amendment privilege. (Fare, at pp. 722-
723.) Underlying Miranda, the high court explained, is the recognition that ? ?the
attorney plays a vital role in the administration of criminal justice under our
Constitution? ? (Fare, at p. 722, italics added); ?[i]t is this pivotal role of legal
counsel that justifies the per se rule established in Miranda, and that distinguishes
the request for counsel from the request for a probation officer, a clergyman, or a
close friend? (ibid.). Unlike an attorney, a probation officer cannot serve as an
?effective protector of the rights of a juvenile suspected of a crime? (ibid.) because
he is ?a peace officer? of ?the State [that] seeks to prosecute the alleged offender,?
and is required in most cases to report wrongdoing and even to prosecute minors
under his supervision. (Id., at p. 720.) Accordingly, the high court concluded, to
treat a minor?s request to speak with a probation officer as an invocation of the
Fifth Amendment ?would impose the burdens associated with the rule of Miranda
on the juvenile justice system and the police without serving the interests that rule
was designed simultaneously to protect. If it were otherwise, a juvenile?s request
for almost anyone he considered trustworthy enough to give him reliable advice
would trigger the rigid rule of Miranda.? (Fare, at p. 723.)
13


Defendant in the case before us argues that Burton, supra, 6 Cal.3d 375,
survives the high court?s decision in Fare, supra, 442 U.S. 707, because Fare
addresses probation officers rather than parents and does not expressly overrule
Burton. Fare cannot be read so narrowly. After rejecting the argument that
probation officers should be treated like attorneys for purposes of Miranda, supra,
384 U.S. 436, the high court in Fare painstakingly reiterated the rule that only a
request for an attorney constitutes a per se invocation of a suspect?s Fifth
Amendment privilege. When no such request is made, the court 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, at pp. 724-725.) ?This totality-of-the-
circumstances approach,? the court continued, ?is adequate to determine whether
there has been a waiver even where interrogation of juveniles is involved.? (Id., at
p. 725.) ?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 necessarily flexibility to take
this into account in making a waiver determination.? (Ibid., italics added.)
The last sentence quoted (from Fare, supra, 442 U.S. 707, 725), in which the
high court for purposes of Miranda, supra, 384 U.S. 436, equated a minor?s
request to see a parent with a request to see a probation officer, leaves the rule of
Burton, supra, 6 Cal.3d 375, 383-384 (concerning parents) with no more basis in
federal law than the rule of In re Michael C., supra, 21 Cal.3d 471, 476
(concerning probation officers), which the court in Fare expressly disapproved.
Various public defender organizations, appearing here as amici curiae,
suggest the rule of Burton, supra, 6 Cal.3d 375, ?is a necessary protection for the
14


children and adolescents of California because it recognizes the practical reality
that juveniles in custody are much more likely to request a parent than specifically
to ask for counsel or to invoke their right to silence.? Amici curiae cite studies
concluding that juveniles are more vulnerable than adults to suggestion and
manipulation during custodial interrogation, and note that some other states
provide special statutory protections to juveniles facing custodial interrogation,
such as requiring a parent or attorney to be present during interrogation5 or to
participate in any waiver of the minor?s Fifth Amendment rights.6 Similar
concerns may have motivated the California Legislature?s decision to give minors
the right to complete telephone calls to a designated adult and an attorney within
an hour after being taken into custody and to punish as a misdemeanor willful
interference with that right. (Welf. & Inst. Code, ? 627, subd. (b); see ante, p. 7,
fn. 1.)
Certainly a court faces special problems in determining whether a minor who
purports to waive the Fifth Amendment rights to silence and the assistance of
counsel in the context of custodial interrogation does so knowingly and
voluntarily. The high court, in holding that these constitutional protections apply
to minors, ?emphasized that admissions and confessions of juveniles require
special caution? (In re Gault (1967) 387 U.S. 1, 45) and that courts must use
?special care in scrutinizing the record? to determine whether a minor?s custodial
confession is voluntary (Haley v. Ohio (1948) 332 U.S. 596, 599). These cautions
remain applicable today. Nevertheless, the Truth-in-Evidence provision (Cal.

5
E.g., Colorado (Colo. Rev. Stat. ? 19-2-511(1)); Connecticut (Conn. Gen.
Stat. ? 46b-137(a)); Maine (Me. Rev. Stat., tit. 15, ? 3203-A, subd. 2-A).
6
E.g., Indiana (Ind. Code ? 31-32-5-1); Iowa (Iowa Code ? 232.11, subds.
1.a. & 2); New York (N.Y. Fam. Ct. Act. ? 305.2, subd. 7).
15


Const., art. I, ? 28, subd. (f)(2)) leaves us with no power to exclude a minor?s self-
incriminatory statements except as federal law requires, and federal law requires
us to apply not the presumptive rule of Burton, supra, 6 Cal.3d 375, 383-384, but
the totality-of-the-circumstances rule of Fare, supra, 442 U.S. 707, 724-726.
This conclusion does not mean that courts must blind themselves to the
differences between minors and adults in this context. As the high court in Fare,
supra, 442 U.S. 707, emphasized, ?[t]he 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.? (Fare, at p. 725.) Furthermore, ?[t]here is no reason to
assume that [courts dealing with waiver issues] . . . will be unable to apply the
totality-of-the-circumstances analysis so as 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. . . . 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, at pp. 725-726.)
The lower courts, obliged to follow both the high court?s decisions (see U.S.
Const., art. VI, cl. 2 [supremacy clause])7 and our own (see Auto Equity Sales, Inc.

7
?This Constitution, and the laws of the United States which shall be made
in pursuance thereof . . . shall be the supreme law of the land; and the judges in
every state shall be bound thereby, any thing in the Constitution or laws of any
state to the contrary notwithstanding.? (U.S. Const., art. VI, cl. 2.)
16


v. Superior Court (1962) 57 Cal.2d 450, 455),8 have generated confusion by
attempting to reconcile the rule of Burton, supra, 6 Cal.3d 375, which presumes
that a minor invokes the Fifth Amendment privilege by asking for a parent, with
the totality-of-the-circumstances approach adopted in Fare, supra, 442 U.S. 707.
The court in People v. Hector, supra, 83 Cal.App.4th 228 (Hector), for example,
wrote that ?Burton does not set forth a per se rule; it does not state that whenever a
juvenile asks to speak to his or her parent, interrogation must cease. Instead, a
juvenile?s request to speak to a parent must be construed as an invocation of his or
her Fifth Amendment privileges unless there is ?evidence demanding a contrary
conclusion.? ? (Hector, at p. 237, quoting Burton, at pp. 383-384.) The Court of
Appeal in the case before us followed Hector to the same conclusion.
We appreciate the difficulty that a long-standing, unresolved conflict
between binding precedents creates for the lower courts.9 In our view, however,
the special rule for minors announced in Burton, supra, 6 Cal.3d 375, cannot fairly
be rationalized, or correctly perpetuated, as nothing more than a restatement of the
federal totality-of-the-circumstances test. By its own terms, Burton requires courts
to give at least presumptive weight to a minor?s request to see a parent in
determining whether the minor has invoked the Fifth Amendment privilege. This

8
?The decisions of this court are binding upon and must be followed by all
the state courts of California.? (Auto Equity Sales, Inc. v. Superior Court, supra,
57 Cal.2d 450, 455.)
9
In People v. Lewis (2001) 26 Cal.4th 334, we noted the issue now before us
but found the factual record inadequate to determine whether the ?defendant?s
request to speak to his mother constituted an invocation of his Fifth Amendment
rights . . . .? (Id., at p. 386.) Unable to ?speculate? what facts might have given
rise to a claim under Burton, supra, 6 Cal.3d 375, we applied the totality-of-the-
circumstances test of Fare, supra, 442 U.S. 707, to conclude that the defendant
had validly waived his Fifth Amendment privilege. (People v. Lewis, supra, at
pp. 383-385.)
17


is more than federal law compels. As the court in Fare, supra, 442 U.S. 707, 725,
explained, ?[w]here the age and experience of a juvenile indicate that his request
for 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.? That Burton goes beyond the unadorned totality-
of-the-circumstances test in attributing weight to a minor?s request for a parent is
clear; precisely how much farther it goes is not. But however far beyond that test
Burton does go, it goes too far. The Truth-in-Evidence provision (Cal. Const., art.
I, ? 28, subd. (f)(2)) permits the courts of this state to exclude a defendant?s self-
incriminatory statements only under the compulsion of federal law (May, supra,
44 Cal.3d 309, 318).
For these reasons, we conclude the rule of Burton, supra, 6 Cal.3d 375, does
not represent a valid interpretation of federal law and thus cannot withstand the
preemptive effect of the Truth-in-Evidence provision (Cal. Const., art. I, ? 28,
subd. (f)(2)). We therefore disapprove Burton?s holding on this point.10
B. The Instant Case.
When a court?s decision to admit a confession is challenged on appeal, ?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 Miranda [supra, 384 U.S. 436].? (People v. Davis (2009)
46 Cal.4th 539, 586.) As Fare, supra, 442 U.S. 707, 725, requires, we inquire

10
For the same reason, we disapprove dictum in People v. Rivera (1985) 41
Cal.3d 388 to the effect that the rule of Burton, supra, 6 Cal.3d 375, survives the
high court?s holding in Fare, supra, 442 U.S. 707, as a ?component of the state
constitutional privilege against self-incrimination.? (Rivera, supra, at p. 395; see
Cal. Const., art. I, ? 15.) The court in Rivera did not mention the state
Constitution?s Truth-in-Evidence provision. (Cal. Const., art. I, ? 28, subd. (f)(2).)
18


?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.? Because defendant is a
minor, the required inquiry ?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.? The prosecution bears the burden of
demonstrating that the challenged waiver is valid by a preponderance of the
evidence. (People v. Dykes (2009) 46 Cal.4th 731, 751.)
Nothing in the record suggests defendant was unable to understand, or did
not understand, the meaning of the rights to remain silent and to have the
assistance of counsel, and the consequences of waiving those rights. Defendant
was, at the time of his interrogation, 16 years old and, while no longer in school,
had completed the 10th grade and held jobs in retail stores. While no evidence
was offered that defendant had, or had not, previously been advised of his rights
under Miranda, supra, 384 U.S. 436, he was no stranger to the justice system.
Defendant had been arrested twice before, once for burglary and making criminal
threats, and once for fleeing police after a traffic stop and possessing marijuana.
Both sets of charges led to proceedings in juvenile court, and the second resulted
in a commitment to juvenile hall. Nothing in this background, or in the transcript
of defendant?s interrogation, suggests his decision to waive his Miranda rights was
other than knowing and voluntary. Asked by detectives to confirm that he
understood each right as read to him, he answered affirmatively four times. While
defendant did not expressly waive his Miranda rights, he did so implicitly by
willingly answering questions after acknowledging that he understood those rights.
(People v. Cruz (2008) 44 Cal.4th 636, 667-668.)
19


The only apparent reason to question the validity of defendant?s waiver is his
claim that, by asking to speak with his father, he intended to exercise his Fifth
Amendment rights and that the police induced him to waive his rights by
withholding a telephone until after he had confessed. To be sure, the police chose
to continue questioning defendant rather than allowing him to use the telephone.
The trial court noted this with evident frustration11 in concluding the police had
committed ?at least a technical violation? of Welfare and Institutions Code section
627, subdivision (b), by not advising defendant that he had the right to make
telephone calls within an hour after being taken into custody. The bare violation
of section 627, however, has very limited relevance in the present context. The
Legislature has not authorized exclusion as a remedy for such violations, and the
Truth-in-Evidence provision (Cal. Const., art. I, ? 28, subd. (f)(2)) bars courts
from creating such a remedy under the state Constitution. (May, supra, 44 Cal.3d
309, 318-319.) Defendant?s confession would be subject to exclusion under the
federal Constitution if the totality of the relevant circumstances demonstrated that
his purpose in asking to speak with his father was to invoke his Fifth Amendment
privilege. (See Fare, supra, 442 U.S. 707, 725.) The facts of the case, however,
do not support such a conclusion. The trial court specifically found there was no

11
The trial judge observed: ?Then they get to the Oceanside P.D., and
[defendant] gets there, by [Detective Deveney?s] testimony, around 8:30 to 8:45
he gets in the room. And he sits around there for about a half hour. And then
[Deveney] comes in and starts talking to him, and one of the first things that he
says is I want to talk to my dad. So I?if I?m being asked to find that that is not at
least a technical violation of Welfare and Institutions Code section 627(b), I can?t
find that. He asked for a phone. It?s hard for me to believe that there was not a
cell phone available anywhere at Oceanside P.D. at that time. [Deveney] chose to
keep talking to him for an appreciate period of time. And whether it was 45
minutes, or one hour, or one-and-a-half hours, I think it?s probably at a minimum a
technical violation of this Welfare and Institutions Code provision.?
20


connection between defendant?s request to speak with his father and his decision
to waive his Fifth Amendment rights.12 We see no reason to reject this finding.
Defendant did not say, for example, that he wanted to speak with his father before
answering questions or wanted his father to call an attorney on his behalf. Nor did
defendant hesitate at any point to answer the detectives? questions.
Under these circumstances, we see no basis for construing defendant?s
request to speak with his father as an invocation of his Fifth Amendment rights.
Accordingly, and for the additional reasons discussed above, the totality of the
relevant circumstances supports the trial court?s conclusion that defendant
knowingly and voluntarily waived his Fifth Amendment privilege. (Fare, supra,
442 U.S. 707, 725.) That his confessions were properly admitted into evidence
necessarily follows.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

12
The trial judge found: ?I don?t see any tie-in whatsoever between the
defendant?s statement that he wants to talk to his father and the Miranda rights.
He was given his Miranda rights. He said that he understood them. It appears that
[Detective Deveney] didn?t ask the follow-up question of ?are you agreeing to
speak with us,? but in the context of the conversation, he never says anything close
to, ?I?d like to remain silent;? ?I don?t want to talk;? ?I?m not gonna answer any of
those questions;? ?Can I get a lawyer??anything that would be an invocation of
his 5th or 6th Amendment rights.?
21


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

Name of Opinion People v. Lessie
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 161 Cal.App.4th 1085
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S163453
Date Filed: January 28, 2010
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Joan P. Weber

__________________________________________________________________________________

Attorneys for Appellant:

Elisa A. Brandes, under appointment by the Supreme Court, for Defendant and Appellant.

Rourke F. Stacy, Deputy Public Defender (Los Angeles); Sherry Gold, Alternate Public Defender (Los
Angeles); JiSeon Song; Michael McMahon; and Jonathan Laba for Los Angeles County Public Defender,
Los Angeles County Alternate Public Defender, National Juvenile Defender Center, California Public
Defenders Association and Pacific Juvenile Defender Center as Amici Curiae on behalf of Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Ronald Jakob, Steven T. Oetting and Jennifer A. Jadovitz, Deputy
Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Elisa A. Brandes
2650 Jamacha Road, #147
El Cajon, CA 92019
(619) 579-6266

Rourke F. Stacy
Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3025

Jennifer A. Jadovitz
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2204