Opinion
KINGSLEY, Acting P. J.
The minor was found by the juvenile court to be a person coming under section 602 of the Welfare and Institutions [617]*617Code in that he had committed murder in violation of section 187 of the Penal Code. He was committed to the Youth Authority; he has appealed; we reverse.
The case for the People1 is that, angry at his father, a police officer, the minor had intentionally shot and killed him. Alerted by school authorities and other persons, deputy sheriffs arrested the minor and took him to the station for interrogation. Admittedly they gave him the formal Miranda rights and also asked if he desired to talk to the “parents.” Quite understandably, the minor declined to face his mother, whom he had just widowed, It is the contention of the minor here that, since his grandparents were available and had sought to speak to the minor, the deputies were under an obligation to ask him if he desired to talk to them and that the deputies had not done so.
This is the second time that this case has been before this court. On September 1, 1978, we held that the order of commitment must be reversed because of that failure. (In re Patrick W. (1978) 84 Cal.App.3d 520 [148 Cal.Rptr. 735].) On October 23, 1978, our Supreme Court denied hearing. The People then sought certiorari and, on June 25, 1979, the United States Supreme Court remanded the case to us “for further consideration in the light of Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560].”
In In re Michael C. (1978) 21 Cal.3d 471 [146 Cal.Rptr. 358, 579 P.2d 7], our Supreme Court had held that a confession obtained from a minor after his request to see his probation officer had been denied, was obtained in violation of the minor’s Miranda rights. It was that holding which the United States Supreme Court reversed, primarily on the ground that a probation officer, by virtue of his dual allegiance, was not the kind of person on whom á minor was entitled, within the purpose of Miranda, to rely.
It is clear that the United States Supreme Court’s decision in Michael C. rests on facts distinguishable from those before us on this appeal. The grandparents here did not have the official ambivalence that the Supreme Court saw in the Michael C. case. They fall more in the group of which our Supreme Court said, in People v. Burton (1971) 6 Cal.3d 375, at page 382 [99 Cal.Rptr. 1, 491 P.2d 793], “person to [618]*618whom he [a minor] normally looks” for help.2 Admittedly there is language in the Supreme Court opinion that might be interpreted as indicating that that court would take a similar view of a right to see grandparents. However, in its action in the case before us, the United States Supreme Court did not reverse our judgment on the authority of Michael C. but merely directed us to reconsider our opinion “in the light of’ that opinion. We have obeyed that direction.
It is now well settled that, although a California court must give to a defendant at least as full rights as the Constitution of the United States, as construed by the United States Supreme Court, requires, a California court may, in applying our own state constitutional requirements, afford to a defendant rights greater than those required by the federal Constitution. In the context of this case, a requirement of warnings similar to those required by Miranda, were earlier required by the Supreme Court of California. (People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].)
As we have pointed out below, the California Supreme Court has held that Miranda extends to a right to consult with parents; the decision in Michael C. does not hold that that interpretation of Miranda is federally incorrect.
In the present status of this case and of the California decisions, we conclude that it is our duty, as an intermediate appellate court, to follow and apply what we regarded, and still regard, as the applicable California law. If our Supreme Court decides, in light of the language in Michael C., either to overrule or to distinguish Burton, it will then face the issue, not here properly before us, of whether it should construe our own state Constitution as requiring, in a California prosecution, the right of consultation herein involved.
The People argue that the minor’s confession to the deputies was immaterial since he had, earlier, made a confession to a school official. However, there was a serious issue as to a defense of diminished capacity and the record makes it clear that the confession to the deputies was heavily relied on by the People to rebut that defense. Under those circumstances, as we said in our earlier opinion, the admission of the [619]*619confession to the deputies cannot be said, beyond a reasonable doubt, to be nonprejudicial.
The judgment is reversed.
JEFFERSON (Bernard), J.
I agree with the result and the reasoning set forth in the opinion of Justice Kingsley. However, I would add additional reasons for reaching the result that the minor’s confession was obtained by the police in violation of his constitutional rights.
In the case at bench we are dealing with a 13-year-old minor and he stands in a different light than that of an adult or of an older minor. I have had occasion to express my views of the law on this subject recently, but I feel impelled to reiterate these views in this case now before us.
I
Any Interrogation of a 13-year-old Minor in the Absence of Counsel Is Invalid Irrespective of Miranda Warnings and an Asserted Waiver Thereof
I am unable to accept the assumption indorsed by the dissent in the instant case that a 13-year-old minor stands in the position of an adult insofar as the principle of law is concerned that a suspect may waive his constitutional right to remain silent and to have an attorney pursuant to the requirements of Miranda. Such a principle of law should have no application to a 13-year-old minor. Irrespective of what the Supreme Court of the United States might hold with respect to the rights of minors under the federal Constitution, I am of the opinion that the California Constitution should be interpreted to preclude the application of a Miranda waiver to any minor who is not more than 13 years of age. It is an erroneous assumption to couch a principle of law in terms that such a minor is capable of understanding the constitutional rights involved in the Miranda warnings and in holding that he has the capacity to intelligently and knowingly waive such rights.
It is my view that such a waiver of constitutional rights should be held to be impermissible with respect to such a minor. I would interpret the California Constitution to provide that no interrogation by the po[620]*620lice should be permitted of a minor 13 years of age or younger in the absence of counsel.
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Opinion
KINGSLEY, Acting P. J.
The minor was found by the juvenile court to be a person coming under section 602 of the Welfare and Institutions [617]*617Code in that he had committed murder in violation of section 187 of the Penal Code. He was committed to the Youth Authority; he has appealed; we reverse.
The case for the People1 is that, angry at his father, a police officer, the minor had intentionally shot and killed him. Alerted by school authorities and other persons, deputy sheriffs arrested the minor and took him to the station for interrogation. Admittedly they gave him the formal Miranda rights and also asked if he desired to talk to the “parents.” Quite understandably, the minor declined to face his mother, whom he had just widowed, It is the contention of the minor here that, since his grandparents were available and had sought to speak to the minor, the deputies were under an obligation to ask him if he desired to talk to them and that the deputies had not done so.
This is the second time that this case has been before this court. On September 1, 1978, we held that the order of commitment must be reversed because of that failure. (In re Patrick W. (1978) 84 Cal.App.3d 520 [148 Cal.Rptr. 735].) On October 23, 1978, our Supreme Court denied hearing. The People then sought certiorari and, on June 25, 1979, the United States Supreme Court remanded the case to us “for further consideration in the light of Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560].”
In In re Michael C. (1978) 21 Cal.3d 471 [146 Cal.Rptr. 358, 579 P.2d 7], our Supreme Court had held that a confession obtained from a minor after his request to see his probation officer had been denied, was obtained in violation of the minor’s Miranda rights. It was that holding which the United States Supreme Court reversed, primarily on the ground that a probation officer, by virtue of his dual allegiance, was not the kind of person on whom á minor was entitled, within the purpose of Miranda, to rely.
It is clear that the United States Supreme Court’s decision in Michael C. rests on facts distinguishable from those before us on this appeal. The grandparents here did not have the official ambivalence that the Supreme Court saw in the Michael C. case. They fall more in the group of which our Supreme Court said, in People v. Burton (1971) 6 Cal.3d 375, at page 382 [99 Cal.Rptr. 1, 491 P.2d 793], “person to [618]*618whom he [a minor] normally looks” for help.2 Admittedly there is language in the Supreme Court opinion that might be interpreted as indicating that that court would take a similar view of a right to see grandparents. However, in its action in the case before us, the United States Supreme Court did not reverse our judgment on the authority of Michael C. but merely directed us to reconsider our opinion “in the light of’ that opinion. We have obeyed that direction.
It is now well settled that, although a California court must give to a defendant at least as full rights as the Constitution of the United States, as construed by the United States Supreme Court, requires, a California court may, in applying our own state constitutional requirements, afford to a defendant rights greater than those required by the federal Constitution. In the context of this case, a requirement of warnings similar to those required by Miranda, were earlier required by the Supreme Court of California. (People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].)
As we have pointed out below, the California Supreme Court has held that Miranda extends to a right to consult with parents; the decision in Michael C. does not hold that that interpretation of Miranda is federally incorrect.
In the present status of this case and of the California decisions, we conclude that it is our duty, as an intermediate appellate court, to follow and apply what we regarded, and still regard, as the applicable California law. If our Supreme Court decides, in light of the language in Michael C., either to overrule or to distinguish Burton, it will then face the issue, not here properly before us, of whether it should construe our own state Constitution as requiring, in a California prosecution, the right of consultation herein involved.
The People argue that the minor’s confession to the deputies was immaterial since he had, earlier, made a confession to a school official. However, there was a serious issue as to a defense of diminished capacity and the record makes it clear that the confession to the deputies was heavily relied on by the People to rebut that defense. Under those circumstances, as we said in our earlier opinion, the admission of the [619]*619confession to the deputies cannot be said, beyond a reasonable doubt, to be nonprejudicial.
The judgment is reversed.
JEFFERSON (Bernard), J.
I agree with the result and the reasoning set forth in the opinion of Justice Kingsley. However, I would add additional reasons for reaching the result that the minor’s confession was obtained by the police in violation of his constitutional rights.
In the case at bench we are dealing with a 13-year-old minor and he stands in a different light than that of an adult or of an older minor. I have had occasion to express my views of the law on this subject recently, but I feel impelled to reiterate these views in this case now before us.
I
Any Interrogation of a 13-year-old Minor in the Absence of Counsel Is Invalid Irrespective of Miranda Warnings and an Asserted Waiver Thereof
I am unable to accept the assumption indorsed by the dissent in the instant case that a 13-year-old minor stands in the position of an adult insofar as the principle of law is concerned that a suspect may waive his constitutional right to remain silent and to have an attorney pursuant to the requirements of Miranda. Such a principle of law should have no application to a 13-year-old minor. Irrespective of what the Supreme Court of the United States might hold with respect to the rights of minors under the federal Constitution, I am of the opinion that the California Constitution should be interpreted to preclude the application of a Miranda waiver to any minor who is not more than 13 years of age. It is an erroneous assumption to couch a principle of law in terms that such a minor is capable of understanding the constitutional rights involved in the Miranda warnings and in holding that he has the capacity to intelligently and knowingly waive such rights.
It is my view that such a waiver of constitutional rights should be held to be impermissible with respect to such a minor. I would interpret the California Constitution to provide that no interrogation by the po[620]*620lice should be permitted of a minor 13 years of age or younger in the absence of counsel. It should be mandatory that an attorney be appointed for any such minor, and that no interrogation of such minor by a police officer be permitted unless there is a waiver by the minor upon advice of counsel appointed for such minor. It is my position that a mandatory appointment of counsel for a minor no more than 13 years of age should be a prerequisite under the California Constitution for the validity of any waiver of the right to remain silent.
I recognize that in some respects the doctrine of Miranda has been relaxed, rather than strengthened. Thus, if it is believed that a victim’s life hangs in the balance, a defendant may be interrogated about the victim’s whereabouts without giving the Miranda warnings. “While life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent.” (People v. Dean (1974) 39 Cal.App.3d 875, 882 [114 Cal.Rptr. 555]; see, also, People v. Modesto (1965) 62 Cal.2d 436, 446 [42 Cal.Rptr. 417, 398 P.2d 753]; People v. Riddle (1978) 83 Cal.App.3d 563, 572 [148 Cal.Rptr. 170].) But in the situation presented in the case at bench of a 13-year-old minor, the Miranda protection should be strengthened by a mandatory requirement of appointment of counsel before any attempt is made by police officers to secure statements from such a minor. Since no counsel was appointed for the minor in the case at bench, I would hold that the minor’s confession should be deemed inadmissible under the appropriate provisions of the California Constitution.
II
The Totality Approach Set Forth in Fare and Espoused by the Dissent Mandates a Holding That There Was No Waiver of Fifth Amendment Rights
The dissent’ sets forth portions of the record to sustain the view that the 13-year-old minor before us made an intelligent waiver of his Miranda rights. Even under the principle that a 13-year-old minor has the capacity to waive his Miranda rights, including the right of counsel—a rule of law to which I do not subscribe—the record before us does not support the conclusions reached by the dissent. I draw totally different inferences and conclusions from this same record.
[621]*621The record of the entire conversation between the minor and the officers, which lasted approximately 30 minutes, does not “reflects] an atmosphere free of intimidation and coercion.” On the contrary, this record convinces me that the minor’s confession was obtained by “intimidation and coercion.” I can see no basis for a holding that the trial judge could reasonably find that the minor made a knowing and voluntary waiver of his Miranda rights. In People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal.Rptr. 172, 580 P.2d 672], the high court established the burden-of-proof rule that when a defendant raises the issue that his confession was involuntary, the burden is upon the prosecution to prove beyond a reasonable doubt that the confession was voluntary as a preliminary fact to the admissibility of the confession.
It is my view that, in the case at bench, the record establishes, as a matter of law, that the evidence is insufficient to support a finding, beyond a reasonable doubt, of a Miranda waiver by the minor. The judgment below, therefore, must be reversed, even if Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560], were to be considered as controlling over People v. Burton (1971) 6 Cal.3d 375 [99 Cal.Rptr. 1, 491 P.2d 793], discussed in the lead opinion herein.
Assigned by the Chairperson of the Judicial Council.