No Miranda warning was required where defendant made incriminating statements to a social worker who was conducting a dependency investigation because social workers are not law enforcement officers. Defendant was convicted of criminal threats and the second degree murder of his girlfriend, with whom he had two children. On appeal he claimed violations of his Fifth and Sixth Amendment rights because the trial court admitted un-Mirandized custodial statements he made to a social worker who was performing a dependency investigation and who questioned him without an attorney present. Held: Affirmed. The Fifth Amendment provides that no person shall be compelled to be a witness against himself. Thus, Miranda warnings are required prior to a custodial interrogation. However, Miranda’s requirements are limited to law enforcement officials, their agents, and agents of the court while the suspect is in custody. While Penal Code section 830.3, subdivision (h) includes in its definition of peace officers investigators for the State Department of Social Services, it does not include dependency investigators employed by a local agency like the Los Angeles County Department of Children and Family Services. Further, the dependency investigator here was not acting as a law enforcement agent when she talked to appellant about his children. No Miranda warning was required.

Admission of defendant’s statements to the social worker did not violate his Sixth Amendment right to counsel. Defendant argued his right to counsel was abridged when a social worker deliberately elicited incriminating statements from him in the absence of his attorney. Usually, when a criminal proceeding has commenced and the right to counsel attaches, any statement the government elicits from the accused in the absence of counsel is inadmissible at trial against defendant. But the defendant must show the statement was obtained by someone acting as a government agent with the expectation of some resulting benefit and who deliberately elicited the incriminating statements. Defendant did not make this showing because the social worker was not a law enforcement officer and did not act under the direction of the government with the expectation of some benefit.

Defendant’s incriminating statements to the social worker were not protected “testimony” within the meaning of Welfare and Institutions Code section 355.1. Defendant argued his incriminating statements to the social worker were protected under section 355.1, which provides that testimony of a parent in a dependent proceeding shall not be admissible as evidence in any other proceeding. “Testimony” is oral statements by a person under oath in a court proceeding. Defendant’s admissions to the social worker were made in a jail interview and were therefore not testimony.

The trial court’s admission of defendant’s incriminating statements to the social worker did not deny him due process of law. Defendant urged the court to expand the immunity provided in Welfare and Institutions Code section 355.1 to out-of-court statements made to a dependency investigator. Though the use of defendant’s statements to the social worker in his criminal trial is troubling, there is no statutory or constitutional basis to expand immunity to cover this situation. This is an issue that is best directed to the Legislature. Further, there was no denial of due process because defendant was not required to choose between remaining silent and submitting to an interview in an effort to protect his parental rights. He could have spoken with the social worker about aspects of his parenting while remaining silent on the pending criminal charges. Then, at the dependency hearing he could have explained the incident, while protected by the statutory privilege in section 355.1, subdivision (f).

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B286844.PDF