In re E.B.
Filed 6/24/13 In re E.B. CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
In re E.B., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
E.B.,
Defendant and Appellant.
E055706
(Super.Ct.No. RIJ1101448)
OPINION
APPEAL from
the Superior Court
of
County. Samuel Diaz,
Jr., and Harry A. Staley,
name="_ftnref1" title="">[1] Judges.
Affirmed.
Susan L.
Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, James D. Dutton, and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
While
trick-or-treating with his younger brother on Halloween night in 2011, E.B.,
the minor, approached Tomas R., asked if Tomas had some marijuana, and when
Tomas turned around, punched Tomas several times in the face, causing a
fractured nose, an orbital fracture, and two facial lacerations. The minor was charged by way of a delinquency
petition with one paragraph alleging aggravated
assault (Pen. Code, § 245, subd. (a)(1)), with an enhancement allegation
relating to the infliction of great bodily injury (Pen. Code, § 12022.7, subd.
(a)), and a second paragraph alleging battery with serious bodily injury. (Pen. Code, § 243, subd. (d).) The petition was sustained following a court
trial and the minor was placed on probation.
The minor appealed.
On appeal,
the minor claims the court erred (a) in permitting the victim to invoke his
right to remain silent on cross-examination;
(b) in not ordering count 2, the battery count, stayed pursuant to Penal Code
section 654; and (c) in making true findings on both the aggravated assault and
battery counts based on the same acts.
We affirm.
BACKGROUND
On the
night of October 31, 2011,
16-year-old Tomas walked up Whitney Street
in Jurupa Valley
after leaving a Halloween block party.
Tomas had been drinking alcohol and smoking marijuana. Another youth who was trick or treating at
the same time, observed as E.B., the minor, who was walking along with his
14-year-old brother, Christian, behind Tomas, called Tomas’s name. The minor asked Tomas to smoke a bowl of weed
with him and asked Tomas if he had any marijuana. Tomas said okay and reached into his front
pockets. Tomas had a knife in his back
left pocket.
The minor
promptly struck Tomas in the face with his fist three or four times, causing
Tomas to fall to the ground.
name="_ftnref2" title="">[2] The minor struck Tomas a few more times after
Tomas was on the ground. On the ground
near Tomas was a folding knife, observed by the minor’s brother and an
knife.
Tomas was
taken to an emergency room where he was treated for a nasal bone fracture, an
orbital fracture, and two lacerations.
Sheriff’s deputy Garciavilla interviewed Tomas in the hospital after
viewing the scene of the fight and interviewing witnesses. Then Deputy Garciavilla along with Deputy
Segura went to the minor’s residence.
The deputies found the minor and his brother asleep, one in an upstairs
bedroom, and the other on the living room couch.
Deputy
Garciavilla interviewed the minor while Deputy Segura interviewed Christian
separately. Christian told Deputy Segura
that Tomas displayed the knife by opening his pocket prior to the minor
striking him. Christian gave the deputy the knife that he had picked up at the
scene.
The minor
was arrested and taken to the sheriff’s station. Deputy Garciavilla interviewed the
minor. The minor reported that he
thought Tomas was going to pull out a knife and reacted to seeing the knife by
striking Tomas. A delinquency petition
was filed (Welf. & Inst. Code, § 602) containing two paragraphs alleging
acts which would be a crime if committed by an adult. Paragraph 1 alleged assault by means likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), with an
allegation that the minor personally inflicted great bodily injury. (Pen. Code, §§ 12022.7, subd. (a), 1192.7,
subd. (c)(8).) Paragraph 2 alleged
battery with serious bodily injury.
(Pen. Code, § 243, subd. (d).)
Following a
contested adjudication hearing, the juvenile court sustained both counts of the
petition. The minor was adjudged a ward
of the court, placed under the care, custody and control of the probation
officer, committed to juvenile hall for 42 days with credit for 42 days served,
and continued in the home of his mother under conditions of probation. The minor appealed.
DISCUSSION
1. The Court Properly Denied the Motion to
Strike Where Any Violation of the Minor’s Right to Confrontation Was Harmless.
a.
Background
The direct
examination testimony of the victim, Tomas, was interrupted by the court when
the prosecutor asked Tomas questions about smoking marijuana. Because the witness had not been admonished
of the risks of self-incrimination, the court appointed an attorney to advise
the witness of his Fifth Amendment rights under the United States
Constitution. After conferring with
appointed counsel, Tomas continued to testify, but refused to answer certain questions
regarding his use, possession, or ingestion of drugs or alcohol, or his
possession of a weapon. Nevertheless,
Tomas admitted possessing a knife which he carried in a pocket at the time of
the incident, admitted consuming alcohol, and admitted possessing marijuana.
Minor’s counsel made a
to the prosecution’s failure to provide discovery about Tomas’s possession of a
knife and marijuana, which was denied.
And although the minor was restricted from cross-examining Tomas on the
specific areas to which he declined to answer on Fifth Amendment grounds, the
minor was permitted to cross-examine Tomas about his prior inconsistent
statements to investigating officers.
On appeal, the minor claims that
Tomas’s invocation of his Fifth Amendment rights deprived the minor of his
right to confront and cross-examine his accuser, and that reversal is required
because the juvenile court failed to strike the testimony or dismiss. We disagree.
b.
Analysis
The Fifth
Amendment provides, in part, that no person shall be compelled in any criminal
case to be a witness against himself.
(U.S. Const., 5th Amend.) The
Fifth Amendment privilege is a fundamental right of criminal defendants. (Maldonado
v. Superior Court (2012) 53 Cal.4th 1112, 1128.) There are two privileges: (a) the defendant’s (or accused’s) privilege,
and (b) the witness’s privilege. (2
Witkin, Cal. Evid. (5th ed. 2012) Witnesses,
§ 372, p. 740.) Under the
defendant’s privilege, a defendant in a criminal case has a privilege not to be
called as a witness and not to testify.
(Evid. Code, § 930.) Under the
witness’s privilege, any person has a privilege to refuse to disclose any
matter that may tend to incriminate him.
(Evid. Code, § 940.)
A criminal
defendant has a constitutionally guaranteed right to confront and cross-examine
witnesses against him or her. (U.S.
Const., 6th & 14th Amends.; Pointer
v. Texas (1965) 380 U.S. 400, 403-405 [85 S.Ct. 1065, 13 L.Ed.2d 923];
1172.) The federal constitution
guarantees an opportunity for effective cross-examination, though not a
cross-examination as effective as a defendant might prefer. (People
v. Homick (2012) 55 Cal.4th 816, 861 [witness who feigned forgetfulness and
later refused to answer questions was not unavailable].)
It is also
fundamental that witnesses may not be compelled to incriminate themselves. (People
v. Williams (2008) 43 Cal.4th 584, 613-614.) The privilege is properly invoked whenever
the witness’s answers would furnish a link in the chain of evidence needed to
prosecute the witness for a criminal offense.
(People v. Cudjo (1993) 6
Cal.4th 585, 617.) Thus, a defendant’s
Sixth Amendment rights must yield to a witness’s legitimate claim that his or
her testimony might lead to self-incrimination.
(People v. Hill (1992) 3
Cal.4th 959, 993 [overruled on a different point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13].)
The rule
allowing a witness to assert the privilege prior to testifying, and to refuse
to testify unless granted immunity, protects the “core†Fifth Amendment
privilege simply by asserting that the witness has not forfeited the right
against self-incriminating use of his or her testimony in later criminal
proceedings. (Maldonado v. Superior Court, supra, 53 Cal.4th at p.
1128-1129.) The Fifth Amendment
privilege may be asserted in any proceeding, civil or criminal, administrative
or judicial, investigatory or adjudicatory, and protects against any
disclosures that the witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so used. (Kastigar
v. United States (1972) 406 U.S. 441, 444 [92 S.Ct. 1653, 32 L.Ed.2d
212].)
The United
States Supreme Court has created prophylactic rules designed to safeguard the
core constitutional right, which protect witnesses who invoke their Fifth
Amendment rights from being forced to give incriminating testimony, even in
noncriminal cases, unless that testimony has been immunized from use and
derivative use in a future criminal
proceeding before it is compelled. (
770-771 [123 S.Ct. 1994, 155 L.Ed.2d 984].)
A nonparty
witness may elect to waive his or her privilege against self-incrimination,
and, in some instances, a waiver may be implied when a witness has made a
partial disclosure of incriminating facts.
(People v. Williams, supra, 43
Cal.4th at p. 615, citing Mitchell v.
United States (1999) 526 U.S. 314, 321 [119 S.Ct.1307, 143 L.Ed.2d
424].) However, a witness’s failure to
invoke the privilege during one hearing within a proceeding does not
necessarily constitute a waiver for the purpose of subsequent hearings. (Williams,
at p. 615.) Waiver of the privilege is not lightly inferred. (Ibid.)
In the
present case, the prosecutor elicited incriminating responses from Tomas, the
juvenile victim-witness, who had not been counseled prior to testifying. The court attempted to rectify the problem by
appointing counsel to advise the victim-witness.
under these circumstances. It was not
error to permit Tomas to invoke his privilege against self-incrimination on a
question-by-question basis.
The minor
argues that the court was obliged to strike the victim’s testimony based on the
witness’s refusal to submit to proper cross-examination, citing
Cal.App.4th 724, People v. Reynolds (1984)
152 Cal.App.3d 42, and People v. Hecker
(1990) 219 Cal.App.3d 1238. We
disagree.
First, striking a witness’s entire
testimony is a drastic solution when the witness has refused to answer one or
two questions on cross-examination on matters that are collateral, such as
credibility. (People v. Sanders (2010) 189 Cal.App.4th 543, 556.) Here, the victim only refused to answer
incriminating questions regarding whether he possessed marijuana on the night
of the fight, or possessed a knife.
While defense counsel attempted to ask the same questions repeatedly,
there were only two areas in which Tomas invoked his Fifth Amendment privilege,
and those questions were directed at the victim’s failure to disclose his
possession of controlled substances and a weapon to the investigating officers,
going to his credibility. Given the
minor’s ability to thoroughly cross-examine Tomas on other matters and Tomas’s
initial admissions, striking Tomas’s testimony would have been too drastic a
solution.
Second, the minor did not make a
motion to strike Tomas’s testimony due to the restriction on the minor’s
ability to cross-examine him, thus forfeiting any claim to such relief. (People
v. Williams, supra, 43 Cal.4th at p. 629 [invited error to withdraw request
to force witness to invoke privilege in jury’s presence]; see also
527, citing People v. Frank (1990) 51
Cal.3d 718, 733 [defendant’s failure to move to strike testimony constitutes
waiver/forfeiture].)
Counsel did
inform the court her client had a right to cross-examine Tomas and wished to
continue to do so. Counsel also made a
motion to dismiss the action, and for sanctions, based on the violation of
discovery statutes in the prosecutor’s failure to timely turn over critical
witness statements, the denial of which he does not challenge on appeal. The failure to make a motion to strike
Tomas’s testimony was a reasonable tactical decision, and not an oversight as
minor’s counsel indicated in oral argument.
Tomas admitted on direct that he had the knife in his back pocket and
that he had marijuana in his front pocket.
This aided the defense. Had
Tomas’s testimony been stricken, those admissions would not have been in
evidence.
The minor also argues that as an
alternative to striking Tomas’s testimony, Tomas should have been compelled to
testify. In support of this position,
the minor directs our attention to Fost
v. Superior Court, supra, 80 Cal.App.4th 724, a proceeding in prohibition
to restrain the trial court from enforcing a contempt order against a
journalist who invoked the newsperson’s shield law. (Cal. Const. art. I, § 2, subd. (b); Evid.
Code, § 1070.) In Fost, the reviewing court concluded that the People could compel
the defendant to either assert the right to the testimony and show that it
transcends that of the witness under the shield law, or forgo the benefit of
the witness’s testimony in his favor. (
The Fost case does not stand for the proposition that a witness who has
invoked a privilege may be compelled to testify. To the contrary, the holding requires a
defendant to make an affirmative showing that his right to the testimony to be
compelled transcends the witness’s claim of privilege. In any event, the minor in the present case
was permitted to cross-examine Tomas, and benefitted from the retention of
Tomas’s admissions made on direct examination.
Compelling further incriminating responses for impeachment would have
been cumulative.
More importantly, in this case the
minor did not make a motion to compel the witness to testify and did not make
an affirmative showing that his right to compel the witness’s testimony
transcended Tomas’s Fifth Amendment right.
Any claim for that form of relief is forfeit.
In any event, the court’s ruling
permitting Tomas to invoke his right to refuse to answer incriminating
questions did not deprive the minor of his defense because other witnesses were
able to impeach Tomas’s credibility about his failure to mention the marijuana
or the knife to the police, corroborated by the presence of the knife at the
scene. Thus, the procedure of allowing
the victim-witness to invoke his constitutional right to refuse to answer
certain questions was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) and did not deprive
the minor of a defense. In fact, if
Tomas’s testimony had been stricken, his admissions about the weapon and the
marijuana would have been lost. Striking
the testimony would not have been in the minor’s interest.
The trial
court followed the proper procedure.
Where the trial court is aware of the potential for
witness, it has a duty to protect the witness by either informing that person
of his or her constitutional rights or by the appointment of counsel for that
purpose. (People v. Berry (1991) 230 Cal.App.3d 1449, 1453; see also
961, 972.) The trial court allowed
defense counsel to continue with cross-examination, preserving his right to
confrontation and cross-examination. The
defense was also able to cross-examine Tomas about his failure to inform the
investigating officers about whether the minor had asked him about marijuana
and whether he told the defense investigator that he had a knife. There was no error.
2.
Penal Code Section 654 In the Event the Minor Is Ordered into Placement.
The
defendant argues that the assault by means of force likely to produce great
bodily injury, alleged in Paragraph 1 of the petition, and the battery with
serious bodily injury, alleged in Paragraph 2, were part of an indivisible
course of conduct which is subject to the prohibition against multiple
punishment pursuant to Penal Code section 654.
The People agree. We agree also,
but only up to a point: the issue is
premature.
Penal Code section 654 prohibits
multiple punishment for an indivisible course of conduct even though it
violates more than one statute. (
119; In re Joseph G. (1995) 32
Cal.App.4th 1735, 1743-1744.) Whether a
course of conduct is indivisible depends on the intent and objective of the
actor. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one. (People v. Perez (1979) 23 Cal. 3d 545, 551.)
When a court orders a minor removed
from the physical custody of his parent or guardian, and commits the minor to
the Division of Juvenile Facilities, it is required to specify the maximum term
the minor can be held in physical confinement.
(Welf. & Inst. Code, § 731, subd. (c).) The maximum period of confinement for which a
ward may be committed may not exceed the maximum period of imprisonment that
could be imposed upon an adult convicted of the same offense. (Welf. & Inst. Code, § 731, subd.
(c).) Thus, when such a commitment is
ordered, the principles relating to multiple punishment under Penal Code
section 654 apply to wardships. (
556, fn. 3; In re Jesse F. (1982) 137
Cal.App.3d 164, 170.)
The Penal Code section 654 issue is
relevant only to the issue of whether the trial court’s order calculating the
minor’s maximum theoretical period of confinement must be corrected. However, the minor was ordered home on
probation in the home of his mother and was not ordered into an out-of-home
commitment. Because the minor was not
removed from his mother’s physical custody, there is no need to decide the
Penal Code section 654 issue or to correct the trial court’s order calculating
the minor’s maximum theoretical period of confinement. (In re
Danny H. (2002) 104 Cal.App.4th 92, 106; In re Joseph G., supra, 32 Cal.App.4th at pp. 1743-1744; Welf.
& Inst. Code, § 725, subd. (b).)
Thus, it is not necessary to remand
the case for a new disposition.
3.
Assault and Battery Counts Do Not Violate Double Jeopardy.
The minor argues that the true
findings on both assault with personal infliction of great bodily injury and
battery resulting in serious bodily injury violate the prohibition against
double jeopardy under the Federal Constitution.
The minor acknowledges that enhancements are not considered in
determining whether a defendant can be convicted of multiple charged crimes
based on necessarily included offenses.
(People v. Sloan (2007) 42
Cal.4th 110, 119-120.)
A person may be convicted of,
although not punished for, more than one crime arising out of the same act or
course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226.) However, where two crimes are based upon the
commission of the same act, and one is a lesser and necessarily included
offense of the other, the perpetrator may not be found guilty of both. (In re
Marcus T. (2001) 89 Cal.App.4th 468, 471 [applying the principle to
juvenile delinquency cases].)
Assault with force likely to
produce great bodily injury is not a lesser included offense of battery with
serious bodily injury. (
1090, 1095-1096.) Thus, the true
findings on both paragraphs of the petition do not violate double jeopardy.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
McKINSTER
J.
KING
J.
judge of the Kern Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Construction.
testified that the minor used brass knuckles in punching him in the face. However, he did not report this fact to
investigating deputies and other eyewitnesses testified that the minor used his
bare fist. Additionally, the minor’s
knuckles were red.
