In re N.D. CA2/6 ( 2020 )

Filed 12/16/20 In re N.D. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re N.D., a Person Coming 2d Juv. No. B300184
Under the Juvenile Court (Super. Ct. No. PJ52991)
Law. (Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
N.D.,
Defendant and Appellant.
The juvenile court sustained a petition filed against N.D.,
finding that he committed a misdemeanor battery on a school
employee. (Pen. Code, § 243.6; Welf. & Inst. Code, § 602.) Its
disposition order placed N.D. on home probation for six months.
N.D. contends the juvenile court abused its discretion when it
excluded impeachment evidence in the form of a report made by
the complaining school employee concerning the incident. The
juvenile court reviewed the report in camera, determined it was
privileged, placed it under seal and declined to order its
disclosure. We have reviewed the documents placed under seal
by the juvenile court and affirm.
FACTS
Appellant attended high school in Los Angeles. Margarita
Ojeda worked there as a teacher’s assistant. On May 16, 2018,
Ojeda found appellant and his girlfriend in an alcove during a
class period. Although both students were fully dressed, Ojeda
concluded they were standing in an inappropriate position,
because the girlfriend was in front of appellant with her face near
his crotch, as though they were engaging in oral sex. Ojeda said,
“‘Are you serious? What are you doing?’” “‘You need to be in
class.’” Appellant replied, “‘We’re not doing anything.’” Ojeda
repeated that they needed to be in class. Appellant and his
girlfriend ignored her and walked away. Ojeda went to her
supervisor’s office where she wrote up a report about the
incident, as mandated by the school district.
The next day, appellant confronted Ojeda when she was in
her supervisor’s office. He swung open the office door, pointed at
Ojeda and said in an angry tone, “‘You, it’s because of you, and
you and me are going to talk later, and you are going to hear me
out.’” The supervisor told appellant to leave the office.
That same afternoon, Ojeda was walking down a staircase
alongside another teacher’s assistant, Genesis Pallaroso. They
encountered appellant walking up the same staircase on the
other side of a railing. Appellant smirked when he saw Ojeda.
As they reached a gap in the railing that separated the stairwell,
appellant crossed over to the same side as Ojeda and bumped her
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right upper arm with his elbow. After she was jostled by
appellant’s elbow, the camera bag Ojeda was carrying slipped
down her shoulder. Appellant kept walking up the stairs. Ojeda
was not injured. Her arm was not bruised and she experienced
no pain in her arm after the incident.
Genesis Pallaroso confirmed Ojeda’s description of events.
She testified that, when they saw appellant in the stairwell, he
“looked serious, angry.” Appellant moved over to the same side of
the stairway as Ojeda and “bumped into her arm” with his elbow.
It was her assessment that there was enough room in the
stairway for appellant to pass Ojeda without touching her, “but
he chose to move and then bump into her.”
Ojeda filed an incident report with the school district that
day. Four days later, she filed a report with campus police. She
explained that she waited to make the report because she wanted
to do it when appellant was not on campus.
Before the jurisdictional hearing, appellant’s counsel served
a subpoena on the Los Angeles Unified School District (LAUSD)
for reports and other records involving appellant and Ojeda. The
subpoena requested past complaints made by Ojeda against
appellant because her report to campus police referenced at least
one prior incident. Counsel for the LAUSD moved to quash the
subpoena. At the hearing on that motion, LAUSD counsel
informed the court that only one relevant document, consisting of
four pages, existed. LAUSD asserted attorney client and work
product privileges because the document was an “internal
investigative kind of report.”
After some discussion, the juvenile court reviewed the
document in chambers, with counsel for LAUSD and its
custodian of record. The juvenile court then granted the motion
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to quash, reasoning, “It’s my view the incident is too remote in
time – too remote to be relevant, and it also involves
attorney/client privilege because it’s attorney work product, and
in addition it should be confidential because it names other
minors engaged in activity that would not be appropriate to be
disclosed.” The juvenile court placed the documents it reviewed
under seal. The record does not include a reporter’s transcript of
the in camera hearing.
DISCUSSION
Appellant contends the juvenile court erred when it
granted LAUSD’s motion to quash, preventing appellant from
using Ojeda’s report to impeach her testimony. We review the
juvenile court’s decision for abuse of discretion and find none.
(People v. Vieira (2005) 35 Cal.4th 264, 292.)
Ojeda testified she was “mandated by the district to do the
report” and LAUSD counsel described it as “an internal
investigative kind of report.” The report is “limited in terms of
who has access to it” and is prepared primarily for use by LAUSD
counsel in evaluating the District’s potential liability. When a
corporate employer requires its employee to prepare an incident
report for use by counsel in preparation for possible litigation, the
report is subject to the attorney-client privilege. (D. I.
Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737;
Jessup v. Superior Court (1957) 151 Cal.App.2d 102, 110 [“‘It
follows that where the communication between corporate
employees and is embodied in reports or photographic evidence
for the purpose of redelivery to a corporate attorney the privilege
attaches if the reports and photographs were created as a means
of communicating confidential information to the attorney’”].)
After reviewing the report at issue, we conclude the trial court
4
did not abuse its discretion when it found the report subject to
the attorney-client privilege.
Additionally, any error in failing to disclose the report was
harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Ojeda’s
testimony was consistent with Pallarosos. Both witnesses
testified that appellant intentionally touched Ojeda without her
permission. There is no reasonable probability that Ojeda’s
credibility would have been impeached by her own report so that
appellant would have received a more favorable result.
Appellant requests that we review the documents placed
under seal by juvenile court. Respondent has no objection. Our
review of the sealed documents supports our conclusion that the
juvenile court did not err.
CONCLUSION
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Fred J. Fujioka, Judge
Superior Court County of Los Angeles
______________________________
Goldstein Legal Office and Elana Goldstein, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Acting Supervising
Deputy Attorney General, John Yang, Deputy Attorney General,
for Plaintiff and Respondent.