Filed 1/30/18 In re A.D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

A.D. appeals from a judgment declaring her a juvenile court ward after the court found true an allegation she committed a misdemeanor battery (Pen. Code, § 242) against a schoolmate. She contends we must reverse the judgment because the court abused its discretion and violated her federal constitutional rights by declining to grant her a two-week continuance to secure the attendance of a minor witness whose father declined to make her available to complete her testimony notwithstanding a subpoena and a court order compelling her attendance at the adjudication hearing.

We conclude the court did not abuse its discretion or violate A.D.'s constitutional rights because granting the continuance would have significantly delayed the completion of the hearing, the minor witness's appearance was not assured, and her testimony would have been cumulative. Given our conclusion, we need not decide whether the court's decision prejudiced A.D.

II

BACKGROUND

A

A.D. and the victim attended the same school, but did not get along with one another. One afternoon, A.D. and her friend followed the victim to a class and yelled derogatory statements at her. At the end of the school day, the victim went to the front of the school to wait for her father. A.D. and A.D.'s friend approached the victim and challenged the victim "to do something about it" if the victim thought she was "all that." The victim was scared. She thought A.D. and A.D.'s friend were going to fight her.

The victim saw her father's car parked across the street and walked toward it. She heard someone behind her and, when she turned around to look, A.D. pushed her into her father's car. The victim fell onto the rear driver's side light, breaking it. The victim tried to go around the car and get into the passenger seat, but A.D. pushed her again. A.D. then grabbed the victim by the shoulders while A.D.'s friend punched her in the face.

The victim's father saw the altercation in the driver's side mirror of his car. He got out of his car and tried to find out what was happening, but A.D. and A.D.'s friend laughed and ran away. The victim's father called 911 and the responding officer took statements from him and the victim.

An investigating officer subsequently interviewed the victim and her father. Their statements to the investigating officer corroborated the statements in the responding officer's report. The investigating officer also interviewed A.D., but was unable to contact and interview A.D.'s friend.

B

On the day of the altercation, the school's assistant principal was supervising students as they were being picked up. The assistant principal did not see the altercation. However, she saw A.D.'s friend run across the street and the victim's father get out of his car. The victim's father pointed toward A.D.'s friend and shouted, "[G]et her." The assistant principal saw A.D. and A.D.'s friend run away together.

Several months after the incident, A.D. contacted a male student, who was A.D.'s friend, but not the victim's friend. A.D. and the male student did not discuss the case, but A.D. told him to tell what he saw happen. On the day of the altercation, he was standing in the student pick-up area and noticed A.D., A.D.'s friend, and the victim arguing. Soon after, A.D.'s friend punched the victim. A.D. was standing 20 feet away next to the male student at the time. A.D. did not participate in the fight or push the victim; however, A.D. went over to her friend after the altercation to find out what happened.

A.D. testified she had previously fought with the victim over a boy. Around lunchtime on the day of the altercation, A.D. and the victim exchanged "bad words." They continued arguing as A.D. and A.D.'s friend followed the victim to the victim's classroom. After school, A.D. walked up to the victim and asked the victim if she had a problem with A.D. The victim did not respond, prompting A.D. to ask her, "[W]hy do you act all that when you're with your friends during school, but when I'm in front of you, you don't say anything?" The victim's father arrived around then. When the victim started walking toward his car, A.D.'s friend asked A.D. if A.D. was going to let the victim go. A.D. said to "just leave it," but A.D.'s friend ran up to the victim and punched her. A.D. was on the sidewalk at the time and did not push, hold, or punch the victim. After the altercation, A.D. and A.D.'s friend ran away together because they knew law enforcement officers would be coming.

III

DISCUSSION

A

During the hearing, A.D. called a female student as a witness. A.D. had asked the student through social media whether she remembered anything about the incident and whether A.D.'s lawyer could contact her. The female student testified she was waiting outside the school when the victim cursed in Spanish to A.D.'s friend. A.D.'s friend ran up to the victim and hit her. A.D. was on the other side of the street standing next to the female student at the time. The female student never saw A.D. push or hit the victim.

After A.D.'s counsel concluded his direct examination, the court ordered the female student to return to court four days later; however, she did not appear as ordered because her father refused to bring her and neither he nor her mother would make her available. The court indicated it would need to strike her testimony because the People had not had an opportunity to cross-examine her. A.D.'s counsel requested a two-week continuance so he could try to get the female student to appear. The People opposed the continuance, arguing there was no good cause for it because there was no reasonable basis for believing the female student would actually return to court. The court stated it would give A.D.'s counsel one more opportunity to contact the female student's parents and obtain the female student's appearance; however, the court was not comfortable continuing the hearing for two weeks because A.D.'s counsel had already tried and failed to obtain the female student's appearance and a continuance was unlikely to be fruitful.

Later the same day, after all of A.D.'s other witnesses had testified, A.D.'s counsel informed the court the female student's mother would make her available to appear in court after school in two weeks. The court indicated it did not believe a continuance of that length in the midst of the hearing would be appropriate, especially since the female student had been ordered to return to court and did not.

A.D.'s counsel argued the female student was an exonerating witness who did not participate in the altercation and was unable to appear through no fault of her own because of a disagreement between her parents. Conversely, the People argued there was no good cause for the continuance because the court had ordered the female student to appear, she failed to do so, her father indicated she would not be appearing, and, although her mother was apparently willing to let her appear, it was unclear whether her parents were in agreement on the point. The People also argued the female student's testimony was unnecessary as it was cumulative to the testimony provided by A.D. and the male student.

The court denied the continuance and struck the female student's testimony because the prosecution had not had an opportunity to cross-examine her. The court noted the petition alleged one count of misdemeanor battery, the hearing had already spanned four hours over two days, the court had ordered the female student to appear and A.D.'s counsel made multiple attempts to obtain her appearance, but her father was unwilling to bring her to court, and, even if she were made available, the hearing's conclusion would be delayed for two more weeks. The court further noted both A.D. and the male student had already testified that A.D. did not participate in the battery. Finally, the court questioned the importance of the female student's testimony since it found she lacked credibility.

B

A.D. contends the court abused its discretion and violated her federal constitutional rights by denying her request for a continuance to secure the female student's testimony. "[T]he trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citations.] ... [Citations.] When a continuance is sought to secure the attendance of a witness, the defendant must establish '[s]he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.] The court considers ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)

"A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal." (People v. Doolin (2009) 45 Cal.4th 390, 450.)

Here, the record shows the female student's testimony was cumulative to A.D.'s testimony and the male student's testimony. Granting the continuance would not have assured the female student's further appearance because the female student's parents disagreed about whether she should appear further for the hearing. Moreover, the female student's testimony was unlikely to have benefited A.D. as the court was skeptical of the female student's credibility. Consequently, we cannot conclude the court abused its discretion in denying A.D.'s request for a mid-trial continuance. "Since there was no abuse of discretion 'there is thus no predicate error on which to base [A.D.'s] constitutional claims.' [Citation.] Accordingly, we reject them as well." (People v. Panah (2005) 35 Cal.4th 395, 425–426.)

IV

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

DATO, J.