In re T.L.

Filed 12/11/08 In re T.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Then 17-year-old Minor was found guilty of robbery (Pen. Code, 211). Minor was thereafter declared a ward of the court and placed on probation. On appeal, Minor contends (1) the juvenile court prejudicially erred in failing to consider that the victims fear was not caused by Minors actions, but instead by prior, unrelated events; and (2) the juvenile court erred in preventing defense counsel from cross-examining the detective about the occurrence of racial incidents at the high school the victim attended. We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2007, Fernando H. was walking home from Vista del Lago High School when Minor stopped him and said, Give me you wallet. Minor stood in front of Fernando, essentially blocking his path. Fernando did not know Minor and had never seen him before. Fernando responded, [N]o, and Minor demanded the wallet from Fernando several more times. Fernando continued to refuse.

Minor was . . . shuffling around in his pockets like he had something, and then he put up his fists and said, I [am] gonna punch you if you dont give me whatever. Minor then patted Fernando down, pointed to Fernandos back pocket where Fernando kept his wallet, and asked, [W]hats this? Fernando took out his wallet and gave Minor $40. Fernando testified that he took out the wallet because he was afraid of getting hurt, and he believed Minor had a weapon.

Minor left the scene, and Fernando reported the incident to Deputy Lionel Murphy. Fernando gave a description of Minor to Deputy Murphy. Deputy Murphy opined Fernando appeared a little bit afraid. Shortly thereafter, Minor was detained. In searching Minors person, Deputy Murphy found some money and food from Popeyes. Fernando positively identified Minor as the person who robbed him in a field show-up.

Following a waiver of his constitutional rights, Minor initially stated that his brother had given him some money, and he had purchased some food at a Popeyes. He later admitted that he had received some money from Fernando, claiming that he had simply asked Fernando for some money, and Fernando had given him some. Minor believed Fernando had given him the money because he was scared. When the deputy asked Minor why he thought Fernando was scared of him, Minor said, Because I am a black person; hes a white person. I dont know. Deputy Murphy admitted that there had been an acute amount of racial tension at Vista del Lago High School[.]

II

DISCUSSION

A. Evidence of Victims Fear

Minor argues that the robbery conviction must be reversed because the juvenile court failed to consider relevant evidence and misapplied the law. Specifically, he argues that because he had presented evidence and argued that Fernandos fear was caused by the presence of racial tension at the high school, the juvenile court erred in finding Fernandos source of fear was irrelevant.

During cross-examination, Deputy Murphy testified that there was racial tension at Vista del Lago High School. Defense counsel asked the deputy, Is it true there have been a number of incidents, particularly with regard to that racial tension, over the last several months? The prosecutor objected on relevance grounds. In response to the courts question of relevancy, defense counsel stated, Goes directly towards the amount of fear and the reason for the fear of the alleged victim in this case. The court then asked, Why is the reason for the fear relevant? Defense counsel replied, Because with regard to robbery, Your Honor. Fear, just because an individual is black is not enough relevant fear. Its not a reason, and its not justification for a robbery. The court then inquired, If a witness says, I gave him money because I was afraid of him, why do you need to have a reason as to the basis for the fear? The court continued, Hes fearful or hes not. The witness testified that he was afraid, and thats why he gave him money. The court thereafter sustained the objection.

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (Pen. Code, 211.) Fear is defined as: 1. The fear of an unlawful injury to the person or property of the person robbed . . . ; or, [] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. (Pen. Code, 212.) For the purposes of robbery, fear and intimidation are synonymous. (People v. Davison (1995) 32 Cal.App.4th 206, 213-214; People v. Brew (1991) 2 Cal.App.4th 99, 104.) The element of fear is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property. (Davison, at p. 212.) However, the requisite fear need not be the result of an express threat. (People v. Flynn (2000) 77 Cal.App.4th 766, 771.) Actual fear may be inferred from the circumstances surrounding the offense that are reasonably calculated to produce fear. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698; Brew, at p. 104.) Although the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking [citations], there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished. (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.) We agree with Minor that the act of force or intimidation must be motivated by the intent to steal; if the larcenous purpose does not arise until after the force has been used against the victim, there is no joint operation of act and intent necessary to constitute robbery. [Citation.] (People v. Brito (1991) 232 Cal.App.3d 316, 325, citing People v. Green (1980) 27 Cal.3d 1, 54.)

In the present matter, we reject Minors claim that the court failed to consider evidence that the victims fear was caused by racial tension. On the contrary, even though the court stated the racial incidents at the school were irrelevant in determining whether the victim in fact had fear, the court later noted that it would take the racial tension at the high school into consideration in determining whether the victim had a motive to be biased. In addition, the court was aware of the two sources of the victims fear.

In any event, even if we assume for purposes of analysis that the trial court somehow erred, the error was harmless. We reject Minors claim that the court considered a legally inadequate theory of criminal liability . . . . We also reject Minors general claim that he was deprived his federal constitutional right to due process and the rights under the Sixth Amendment. The trial courts ruling did not prevent Minor from presenting a defense; it merely excluded certain evidence supporting that defense. Under these circumstances, the state-law standard of harmless error as set forth in People v. Watson (1956) 46 Cal.2d 818 applies. (People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Humphrey (1996) 13 Cal.4th 1073, 1089; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Cudjo (1993) 6 Cal. 4th 585, 610-612.)

Initially, we note Minor was allowed to present his chosen primary defense. He was only prevented from delving into the number of racial incidents at the high school. We see no reasonable probability that admission of the racial incidents evidence would have led to a more favorable verdict. The court correctly observed that there was evidence of racial tension at the high school. The court had a full opportunity to assess the victims credibility. The evidence showed that Minor was the source of the victims fear. Minor approached the victim and demanded the victims wallet. The victim initially refused, but when he thought Minor had a weapon, he became afraid and gave Minor the money. Minor himself stated that the victim gave him the money because the victim was scared. Minor further said that he believed the victim was scared because Minor was Black. In fact, evidence that there had been racial incidents between Blacks and Hispanics at the high school would have bolstered evidence of the victims fear.

Accordingly, we see no reasonable possibility that evidence of the number of racial incidents at the high school would have persuaded the trier of fact to accept Minors defense. The evidence strongly suggested that Minor approached the victim and demanded the victims wallet, and the victim gave him the wallet because he was afraid Minor had a weapon and that he would get hurt.

B. Sustaining Prosecutors Objection to Cross-Examine the Deputy

In a related argument, Minor contends that the juvenile court abused its discretion, and violated his constitutional rights, by sustaining the prosecutors relevance objection to question Deputy Murphy regarding racial incidents at Vista del Lago High School.

Assuming, without deciding, the court erred in preventing defense counsel from cross-examining the deputy regarding the racial incidents at the high school, we find no error. Not every restriction on a defendants (here, Minors) desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [106 S.Ct. 1431, 89 L.Ed.2d 674]) California law is in accord. (See People v. Belmontes (1988) 45 Cal.3d 744, 780.) Thus, unless Minor can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesss] credibility (Van Arsdall, at p. 680), the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. (See People v. Frye (1998) 18 Cal.4th 894, 946.)

Here, the record reveals that Deputy Murphy was permitted to testify there was racial tension at the high school. In addition, in closing argument, defense counsel discussed the issue at length. Further, the court noted that it was aware racial tension existed at the school and took that into consideration in evaluating the victims credibility.

Moreover, as noted in part II.A., ante, the California Supreme Court has held that application of the ordinary rules of evidence, such as here, do not violate the right to present a defense. (People v. Alcala (1992) 4 Cal.4th 742, 793.) Under People v. Cudjo, supra, 6 Cal.4th 585, the exclusion of defense evidence of this nature is considered state law error subject to the Watson standard of review. (Cudjo, at pp. 610-612.) As explained above, we see no reasonable probability that allowing further cross-examination of Deputy Murphy in regard to the racial incidents at the high school would have led to a more favorable verdict.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

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