People v. R.W. CA2/5 ( 2015 )

Filed 9/9/15 P. v. R.W. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B257582
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TJ20861)
v.
R.W.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Donna
Groman and Gibson Lee, Judges. Affirmed.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Analee J. Brodie, Deputy Attorney General, for
Plaintiff and Respondent.
At a contested adjudication hearing, the juvenile court sustained a petition alleging
that defendant and appellant R.W. (appellant) committed second degree robbery in
violation of Penal Code section 211. The court found appellant to be a ward of the court
under Welfare and Institutions Code section 6021 and placed him on home probation.
Appellant contends that the juvenile court abused its discretion when it denied his
requests for a continuance of the adjudication hearing. Appellant also presents other
claims of error: that the court should have granted his request to reopen his case-in-chief
at the hearing, that insufficient evidence supports the court’s verdict, and that his request
to have his shackles removed at the adjudication hearing should have been granted.
Under the applicable standards of review, we affirm the court’s judgment.
BACKGROUND
A. Pre-Hearing Proceedings
The district attorney filed a petition alleging that appellant committed second
degree robbery when he took personal property from Liliana May (May) on April 21,
2014. Three additional minors were also charged in connection with the same April 21,
2014, incident and all, including appellant, were ordered detained pending further
proceedings.
At a court appearance on May 8, 2014, counsel for appellant requested a one-week
continuance of the adjudication hearing, which was set to commence (in accordance with
the time limits specified in section 657) five days later, on May 13. Defense counsel
stated she was seeking the continuance because she needed “to know if there’s any
audio/video-recorded statements of the witnesses in this case.” The juvenile court, the
Honorable Donna Groman presiding, denied the request, stating, “All these young men
are detained. I’m not going to find good cause to continue a trial date (1) without a
written motion (2) without a showing of good cause.” When appellant’s attorney asked if
1
All undesignated references are to the Welfare and Institutions Code.
2
she could file a written motion that afternoon, the court replied, “It’s too late. It’s
absolutely too late.”2
Regardless, appellant’s attorney filed a written motion for a continuance under
section 682 later that same day. The motion counsel filed asked to continue the
adjudication hearing for “approximately 2 weeks.” Counsel’s declaration submitted with
the motion argued the continuance was necessary because she had not yet received any
discovery in the case; counsel specifically requested any audio or video recorded
statements (including any statements of witnesses and any statements made during a field
show up), any crimes of moral turpitude of any of the witnesses, and MDTs. The
declaration further stated that “there is investigation pending” and asserted “I will not be
ready to proceed until I receive the results of my investigation.”
Judge Groman did not take action on the written continuance motion, and the
parties (including the other minors charged in related petitions) appeared in court on
Tuesday, May 13 for the adjudication hearing with a different judge, the Honorable
Gibson Lee, presiding. Before the hearing began, the court heard from counsel for
appellant. She informed the court that she was again requesting a continuance of the
hearing to the following Monday—over her client’s objection. Defense counsel
explained that she received discovery from the People the day prior and from her own
investigator that morning. She argued that she needed an expert appointed because of the
discovery she received, and she lodged a motion for appointment of an eyewitness expert
with the court. The court did not grant the requested continuance and proceeded
2
Toward the end of the hearing, counsel for appellant asked the prosecutor to turn
over crimes of moral turpitude and video-recorded statements “before the next court
date.”
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with the evidentiary hearing.3
B. The Adjudication Hearing
May, the victim of the robbery, testified that she was waiting at a bus stop when
she saw a red car with a spoiler and a damaged taillight drive by several times. Soon
thereafter, two young men came up from behind her and one pulled a purse she was
carrying off her shoulder. She testified that she was facing the boys as soon as the first
pulled on her bag, that she then fell to the ground, and that the second boy, who was
wearing a green sweater, then snatched a chain off of her neck. She saw both boys run
and chased them for a short distance until they got into a red car, driven by a third person
wearing a pink shirt, and drove away. The prosecutor asked May whether the young man
who stole her chain was present in court, and she said no. She did testify, however, that
while the robbery was “still fresh in [her] mind” she successfully identified that boy in a
field identification with police officers that responded after she called 911. On cross-
examination, counsel for appellant confronted May with prior descriptions of the
perpetrators she had given, including during her 911 call after the incident and to a
defense investigator she spoke to on May 8, 2014, that varied from her description in
court of what the boy who stole her chain was wearing.
Los Angeles Police Officers Stephen Buehler and Ruben Cardenas responded to
May’s 911 call and both testified at the hearing. Officer Buehler testified that less than
3
There was some confusion about whether Judge Groman had already denied the
defense request to continue the hearing. Defense counsel told the court that she was
“asking for a continuance today again of one week,” and the court asked if it (the
continuance request) was heard on May 8. Defense counsel responded, “Yes, and the
judge denied it.” Defense counsel then attempted to clarify that she had subsequently
filed a written motion for a continuance, but Judge Lee continued under the impression
that the issue had already been ruled on by Judge Groman: “It appears that the motion—
the motion to continue was brought and heard before another bench officer, and it was
ruled upon, it was denied, and so that ought to be the order. So if, in fact, it is—it’s a
renewal of a motion to continue, that motion is denied.”
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an hour after the robbery and about a mile and a half away from where it occurred, he and
Officer Cardenas stopped a red vehicle with a broken taillight and a spoiler. Four
occupants were inside the car; the driver was wearing a pink polo shirt. A boy identified
as appellant was sitting in the back seat. According to Officer Buehler, on the floorboard
of the vehicle’s back seat he found a debit card with the name “Liliana May” and he
found a green sweatshirt on the rear passenger’s seat. The officers detained the boys and
Officer Cardenas conducted a field show-up—giving May a standard admonishment and
asking her to look at the boys one by one to see if she could identify whether any were
involved in the robbery. Cardenas testified that May identified appellant as the person
who pulled the chain off her neck. May also identified another co-minor as the one who
stole her bag and the third co-minor as the driver of the car who was wearing the pink
shirt. May did not identify the fourth boy in the car as a participant in the robbery.
The prosecution also called Brian Turner, a bystander near the scene of the
robbery, as a witness. He testified he was walking to his car when he noticed three young
men running towards a red car to join a fourth who was driving. Shortly after, Turner
saw May who said, “Help me. They just robbed me. They just robbed me.” In court,
Turner identified co-minor D.G. as the driver of the red car and co-minor L.A. as one of
the boys he saw running into the red car that sped off. Turner was not asked whether he
could identify either of the other two occupants in the car.
After the prosecution rested, appellant testified. He denied being involved in the
robbery. According to appellant, he was heading home on the bus with co-minor L.A.
(and another boy) and they got off the bus together when L.A. got a phone call from
someone who offered to give them a ride home. Co-minor D.G. picked them up in the
red car when they got off the bus, and three to five minutes later, they were pulled over
by the police.
DISCUSSION
A. The juvenile court’s denial of a continuance is not reversible error
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We review the juvenile court’s denial of a continuance for abuse of discretion. (In
re Maurice E. (2005) 132 Cal. App. 4th 474, 481; In re Michael D. (1987) 188 Cal. App. 3d
1392, 1395; In re Lawanda L. (1986) 178 Cal. App. 3d 423, 428.) If an abuse occurred,
appellant must show it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error to warrant reversal.
(People v. Watson (1956) 46 Cal. 2d 818, 837; People v. Gonzalez (2005) 126
Cal. App. 4th 1539, 1549; see also In re Celine R. (2003) 31 Cal. 4th 45, 59-60.) Here,
even assuming appellant could show an abuse of discretion in the failure to grant a
continuance beyond section 657’s 15-day deadline to hold an adjudication hearing, we
conclude appellant has not demonstrated prejudice.
The basis for the defense request(s) for a continuance on May 8 was the asserted
lack of discovery materials. Defense counsel requested specific items of discovery from
the prosecution and asked, at the May 8 hearing, that they be provided “before the next
court date.” In her subsequently filed written motion, defense counsel also explained that
her own investigation was underway and that she would “not be ready to proceed until I
receive the results of my investigation.” By the next court date—the May 13
adjudication hearing—defense counsel confirmed she had received discovery from the
prosecution (the day prior) and her own investigator (that morning). Defense counsel did
not argue on May 13 that the late receipt of discovery precluded her from making
effective use of the materials she received, and the record in fact shows otherwise:
defense counsel’s use of a recording of May’s 911 call when cross-examining her, for
instance. Thus, we hold appellant has not shown a result more favorable to him would
have ensued in the absence of the denial of his motion to continue for the reasons offered
by the defense on May 8. (Gonzalez, supra, 126 Cal.App.4th at p. 1549.)
Before the presentation of evidence began at the May 13 hearing, defense counsel
again argued (over her client’s objection) for a one-week continuance for a separate
reason: that her review of the discovery provided convinced her that she needed an expert
appointed in the case. The court did not grant the request for a continuance, and
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appellant has not adequately shown prejudice from the court’s decision to move forward
with the hearing as scheduled.
An expert’s testimony is helpful when it addresses subjects “sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact” (People
v. McDonald (1984) 37 Cal. 3d 351, 367, italics in original, quoting Evid. Code § 801; see
People v. Walker (1986) 185 Cal. App. 3d 155, 166-167 [finding that corroborative
evidence and defense counsel’s opportunity to discuss the weaknesses of eyewitness
identifications during closing argument rendered the trial court’s exclusion of expert
testimony harmless error]; People v. Datt (2010) 185 Cal. App. 4th 942, 951-953 [jury
instruction on evaluating eyewitness identification can be substituted for expert
testimony].) Here, the trier of fact was a bench officer, not a jury, and the record shows
that appellant effectively sought to undermine the prosecution’s case without expert
testimony. Defense counsel cross-examined May and the police officers to challenge the
identification of her client as a participant in the robbery. During closing argument, she
highlighted without objection the difficult nature of cross-racial eyewitness
identifications (appellant and May are not of the same race): “As we all know, cross-
racial identifications can be very, very difficult.” (Emphasis added.) She further argued
that May was knocked to the ground and had her hands in front of her face for at least
part of the robbery, and that May’s testimony was not consistent with what appellant and
the other minors were wearing in booking photographs. On this record, appellant has not
satisfied his burden to demonstrate that a continuance to seek appointment of an expert
would have resulted in a more favorable outcome.
B. The court did not abuse its discretion when it denied the request to reopen to
introduce a post-arrest hearsay statement of a co-minor
During appellant’s testimony, his attorney asked him if he “[had] a conversation in
[his] holding cell at the last court date with the co-minors.” Appellant said he did, and
defense counsel asked, “did [co-minor D.G.] . . . mention to you whether or not he had
just dropped off or ridden around in the vehicle with anybody else prior to picking the
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three of you up?” The court sustained an objection to the question on hearsay grounds.
After the defense rested but before closing argument, defense counsel sought to revisit
the ruling and argued the statement could be admitted under the hearsay exception for
statements against penal interest. She moved to reopen the defense case for purposes of
introducing the statement on that basis, but the court denied the request. Appellant
argues this was prejudicial error.
We review a ruling on a motion to reopen for abuse of discretion and consider,
among other factors, the significance of the evidence sought to be introduced and the
timeliness of the motion. (People v. Homick (2012) 55 Cal. 4th 816, 881.)
The court did not abuse its discretion when it denied the defense motion to
reopen. The defense motion to reopen was effectively a request to reconsider the ruling
excluding the co-minor’s statement for a reason not argued earlier, namely, that it was a
declaration against penal interest. Defense counsel did not make an offer of proof as to
what her client would have testified when asked about the post-arrest statement allegedly
made by co-minor D.G. Appellant’s claim of error based on the denial of the motion to
reopen fails for that reason alone. (People v. Blacksher (2011) 52 Cal. 4th 769, 819-820
[evidence properly excluded when proponent fails to make an adequate offer of proof
regarding the admissibility of the evidence, citing Evid. Code, § 1200, subd. (b)].)
Further, even if we were to treat the question itself as sufficiently indicative of
what the statement would have been to permit review (that is, that appellant would have
simply answered “yes” to the question posed by his attorney), we see no basis for
reversal. For a statement to qualify under the hearsay exception for statements against
penal interest, “the declarant [must be] unavailable as a witness and the statement, when
made, [must be] so far contrary to the declarant’s pecuniary or proprietary interest, or so
far subjected him to the risk of civil or criminal liability . . . [or] created such a risk of
making him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he believed it to
be true.” (Evid. Code, § 1230.) The statement at issue was not sufficiently inculpatory to
qualify for admission under Evidence Code section 1230. Moreover, the statement was
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not of great significance and, in any event, it is not likely its admission would have
affected the outcome of the hearing.
C. The evidence in support of the verdict was sufficient
Appellant claims that the evidence at the adjudication hearing was insufficient to
establish his guilt beyond a reasonable doubt. The issue at the adjudication hearing was
identity, and appellant claims May’s identification and the evidence that tends to
corroborate it was deficient.
In reviewing a challenge to the sufficiency of evidence, “the reviewing court must
consider the evidence in a light most favorable to the judgment and presume the existence
of every fact the trier could reasonably deduce from the evidence in support of the
judgment. The test is whether substantial evidence supports the decision, not whether the
evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2
Cal. 4th 408, 432.) This standard applies in determining the sufficiency of the evidence to
support the verdict of a juvenile court. (In re Roderick P. (1972) 7 Cal. 3d 801, 809.) “If
we determine that a rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt, the due process clause of the United States
Constitution is satisfied [citation] as is the due process clause of article I, section 15, of
the California Constitution.” (People v. Osband (1996) 13 Cal. 4th 622, 690.)
Furthermore, “the testimony of a single witness is sufficient to uphold a judgment even if
it is contradicted by other evidence, inconsistent or false as to other portions.” (People v.
Leigh (1985) 168 Cal. App. 3d 217, 221.)
The evidence in this case was not overwhelming, but it was sufficient to support
the verdict under this standard of review. May did not identify appellant in court, but she
did identify him in the field shortly after the robbery while the crime was still “fresh in
her mind.”4 (People v. Boyer (2006) 38 Cal. 4th 412, 480 [“Identification of the defendant
by a single eyewitness may be sufficient to prove the defendant’s identity as the
4
The juvenile court could have reasonably thought that May’s non-identification of
the fourth boy in the car during the field identification lended greater credibility to her
identification of the boys that were involved.
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perpetrator of a crime. . . . Moreover, a testifying witness’s out-of-court identification is
probative for that purpose and can, by itself, be sufficient evidence of the defendant’s
guilt even if the witness does not confirm it in court”]; see also People v. Mohamed
(2011) 201 Cal. App. 4th 515, 522 [“‘The strength or weakness of the identification, the
incompatibility of and discrepancies in the testimony . . . and the qualification of identity
and lack of positiveness in testimony are matters which go to the weight of the evidence
and the credibility of the witnesses, and are for the observation and consideration, and
directed solely to the attention of the jury in the first instance. . . . ’”].)
Viewed in the light most favorable to the verdict, additional evidence and
testimony provided some corroboration of May’s identification of appellant as a
participant in the robbery: appellant was apprehended in a red car—near the scene of the
crime and shortly after it occurred—with other boys identified by both May and Turner;
Officer Buehler testified that he found a debit card with May’s name on it in the back of
the red car, which is where appellant was sitting; and a green sweater or sweatshirt was
also found in the car (although appellant was not wearing it when the car was stopped by
the police). On all these facts, a rational trier of fact could conclude the petition’s
allegations were proven beyond a reasonable doubt.
D. The denial of the motion to remove appellant’s shackles during the hearing
was not prejudicial error
Before testimony began at the adjudication hearing, defense counsel asked the
court to have appellant and the other minors unshackled. In response, the court said, “I
don’t know what the policy is in this particular department.” The bailiff replied, “Right.
So there’s only two deputies available, your honor; we have three co-minors and all of
the parents.” Defense counsel argued that there needed to be some additional showing
that there was a reason for the minors to be shackled. The court stated, “I understand
that, I understand the motion. It’s denied.”
A juvenile court “‘may not delegate to law enforcement personnel the decision
whether to shackle a defendant.’ (People v. Seaton (2001) 26 Cal. 4th 598, 651.)”
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(People v. Ervine (2009) 47 Cal. 4th 745, 773.) “This emphasis that a showing exist on
the record of ‘manifest need’ for shackles presupposes that it is the trial court, not law
enforcement personnel, that must make the decision an accused be physically restrained
in the courtroom” (People v. Hill (1998) 17 Cal. 4th 800, 841.) Accordingly, whether
there exists a pre-existing “policy” in a courtroom cannot be determinative.
Reversal of a judgment is unwarranted, however, “when the record on appeal is
devoid of evidence that the unjustified use of shackles . . . had any adverse effect.”
(People v. Jackson (2014) 58 Cal. 4th 724, 740 [shackles’ potential to bias jurors].)
“[W]e have consistently held that courtroom shackling, even if error, was harmless if
there is no evidence that the jury saw the restraints, or that the shackles impaired or
prejudiced the defendant’s right to testify or participate in his defense. [Citations.]”
(People v. Anderson (2001) 25 Cal. 4th 543, 596; In re DeShaun M. (2007) 148
Cal. App. 4th 1384). Here, the cause was tried before the juvenile court, not a jury. There
is no evidence in the record that the testifying witnesses were influenced by the shackles;
indeed, May did not identify appellant or any of the co-minors in court, and we see no
indication that appellant suffered any difficulty when testifying in his own defense. We
accordingly find no basis for reversal in the denial of counsel’s motion to have her client
unshackled. (In re DeShaun M., supra, 148 Cal.App.4th at p. 1388 [error harmless under
any standard of review].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
TURNER, P.J.
MOSK, J.
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