In re Allen J.

Filed 7/20/07 In re Allen J. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Following a contested jurisdictional hearing on allegations that appellant Allen J. committed three counts of lewd and lascivious conduct upon a child under the age of 14 years (Pen. Code,  288, subd. (a)), the juvenile court sustained the allegations in counts one and two of the subsequent petition filed under Welfare and Institutions Code^[1] section 602. Appellant challenges the juvenile courts restriction on cross-examination of the victim and requests that the case be remanded for correction of the minors maximum period of confinement. We affirm the juvenile courts order.

I. FACTS

On May 14, 2006, Rosie Doe, a 13-year-old prostitute, was in a car owned by a man named Sergio ([j]ust a guy she knew). Also in the car were Rosies school friend Brenda, and Brendas grandmother. Sergio stopped in Oakland to pick up appellant Allen J., whom Rosie had never met. The five individuals ended up at an Oakland motel. Sergio and Brenda left the motel shortly thereafter to obtain ecstasy tablets leaving Rosie, appellant, and the grandmother in the motel room. Rosie and appellant consummated two sex acts and engaged in two acts of oral sex with Rosie performing fellatio. Later in the evening, Rosie informed appellant of her age and they subsequently had two or three more sexual encounters.

Oakland Police Officer James Saleda was investigating an unrelated incident in the motels parking lot when he saw Rosie standing on the balcony of a second-floor room. Rosie testified that Officer Saleda knew that she was working as a prostitute because he had found her at the motel on another occasion. He had asked her to testify or give him information against a pimp in a previous case. Appellant was arrested and after being advised of his constitutional rights, admitted to having had sexual intercourse and oral sex with Rosie.

At the contested jurisdictional hearing, the juvenile court refused to allow defense counsel to question Rosie about her status as a runaway or to allow any questioning regarding what, if any, consideration Rosie had received from Officer Saleda in previous prostitution cases. The court found the allegations true on two counts of violating Penal Code section 288, lewd and lascivious conduct upon a child under the age of 14 years. Appellant was committed to the California Youth Authority (now Department of Corrections and Rehabilitation, Division of Juvenile Facilities)^[2] for a maximum term of confinement of five years.

II. DISCUSSION

A. The Juvenile Courts Refusal to Allow Defense Questioning Regarding Victims Living Arrangement Did Not Violate Appellants Constitutional Right to Confrontation.

Appellant contends that the juvenile court committed prejudicial error in violation of his rights under the federal confrontation clause, by refusing to allow counsel to inquire about Rosies current living arrangement. He contends that the witnesss status as a runaway was relevant to issues of bias and a motive to fabricate testimony against appellant, thus undermining her credibility.

First, evidence and testimony must be relevant to the charges being adjudicated. (Evid. Code, 210.) We question the contention that the mere act of running away from home is relevant to the immediate proceeding or is evidence of diminished credibility. Further, from the evidence forthcoming at the hearing, the court was aware of Rosies activity as a prostitute and her use of drugs. This evidence provided a strong basis of impeachment. Thus, to the extent inquiry into Rosies living arrangement had any relevance to her credibility, it was cumulative. (People v. Ledesma (2006) 39 Cal.4th 641, 705.)

Second, appellant cannot establish a confrontation clause violation. The confrontation clause guarantees the right of a defendant to confront witnesses against him or her by cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678.) Contrary to appellants argument, the confrontation clause does not allow all questioning desired by the defense. Rather, trial judges maintain wide discretion in limiting cross-examination on the grounds of prejudice, harassment, or that the examination is repetitive, or of marginal relevance. [T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.] (Id. at p. 679.)

In the immediate case, appellant seeks to rely on Davis v. Alaska (1974) 415 U.S. 308 to justify his proposed line of questioning. Reliance on Davis is misguided. In Davis, the trial court refused to allow the defense to question a witness about his probationary status. The defense argued that the witnesss criminal past gave him motivation to mislead in an attempt to shield himself from culpability. The United States Supreme Court agreed with the defense, holding that the refusal to allow cross-examination about the defendants probationary status denied the defendant his constitutional right to confront witnesses against him. (Id. at p. 318.) The present case is not parallel. The witness in Davis had committed a crime, while Rosie was questioned about her living arrangement, which is marginally, if at all, indicative of criminal behavior and thus has little or no bearing on her credibility. Moreover, appellant offered no evidence to establish any relevance between Rosies living situation and the immediate case. This lack of probative value provided the juvenile court with justification to exclude the questioning under Delaware v. Van Arsdall, supra, 475 U.S. 673. Moreover, the juvenile court did allow testimony concerning Rosies drug use and prostitution, thereby comporting with Davis.

This court will not overturn a lower courts decision to exclude evidence offered for impeachment, absent an abuse of discretion resulting in a miscarriage of justice. (People v. Ledesma, supra, 39 Cal.4th at p. 705.) The lack of probative value in appellants desired line of questioning supports the juvenile courts action and does not meet the requisite abuse of discretion standard. (Ibid.)

B. The Juvenile Court Was Justified In Limiting Questioning Regarding the Victims Previous Relationship With Officer Saleda.

Appellant claims that the juvenile courts refusal to allow questioning regarding Rosies prior relationship with Officer Saleda precluded Allen from developing a record upon which to show that the central witness in the prosecutions case was biased, . . . [and] prevented him from discovering information necessary to develop a possible defense of entrapment. Appellant first contends that its desired questioning was within the scope of proper cross-examination because it was the prosecutor who initially questioned Rosie regarding her prior relationship with Officer Saleda. We are not persuaded.

A witness may be cross-examined upon any matter within the scope of the direct examination . . . . (Evid. Code, 773, subd. (a).) The prosecutor only asked the victim whether she knew Officer Saleda prior to seeing him in the parking lot on the day in question. Overruling the prosecutors objection, the court allowed the defense to question the witness regarding the fact that the officer had requested her help in a previous case. The court sustained the prosecutors objection only when appellants counsel solicited testimony regarding what if any inducements she had received in a previous unrelated case.

We now turn to appellants contention that the prohibited line of questioning was necessary to show bias. We reject this argument. [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679.) Appellants counsel asked no questions regarding the officers involvement with his clients case but instead focused solely on previous interactions between the officer and the witness. The relevancy of any help provided in the past, with no evidence of any assistance with the present case, is thus attenuated. Moreover, here counsel was allowed to elicit testimony concerning Rosies assistance on a prior pimping and pandering case and was allowed to introduce evidence as to Rosies status as a prostitute and her drug use. Thus, essential facts as to Rosies credibility were before the court.

We also reject appellants argument that excluded testimony concerning the prior relationship between Rosie and Officer Saleda may have been relevant to an entrapment defense. The California Supreme Court has set out the proper standard for evaluating the defense of entrapment in People v. Barraza (1979) 23 Cal.3d 675: [W]as the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspectfor example, a decoy programis therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime. (Id. at pp. 689-690; see also People v. Reed (1996) 53 Cal.App.4th 389, 400.)

In this case, there is no evidence or argument suggesting that Officer Saledas actions induced appellant to commit the charged offense or that appellant was pressured by the officer to break the law. Appellant argues that he should have been able to explore the excluded line of inquiry because it bore on whether Officer Saleda enticed Rosie to set up clients. This argument does not advance an entrapment defense and in any event, appellant never pursued this question, focusing instead on previous interactions unrelated to the present case.

Finally, even if the victims testimony was improperly limited by the juvenile court, we conclude this error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Rosies testimony was supported by Officer Saledas testimony and by pictures of the crime scene which showed used condoms. Appellant confessed to sexual acts with the victim after he had been properly informed of his constitutional rights. Finally, the court allowed the defense to challenge the credibility of the victim by introducing evidence of her drug use and work as a prostitute.

C. The Reference to a Maximum Aggregate Sentence of 12 Years 8 Months Does Not Warrant Remand.

Appellant contends that the juvenile court erred in indicating that he was eligible for a maximum period of confinement of 12 years 8 months, because that conclusion purportedly was based in part on an erroneous aggregation of time from prior sustained petitions. He claims that a prior sustained felony was subsequently reduced to a misdemeanor and there was no showing that another offense was ever alleged against him. Appellant asks us to remand to correct the record, but, as we explain, a remand is not necessary.

The juvenile court has two responsibilities when committing a minor to the Youth Authority (YA). First, the court minutes must specify the maximum period of confinement under section 726. (Cal. Rules of Court, rule 5.795(b).) Section 726 provides the general rule governing conditions for removal of a ward from the custody of a parent or guardian. It states that the pertinent wardship order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. (Id., subd. (c).) This provision also defines maximum term of imprisonment as used in sections 726 and 731 (see fn. 3, post), and specifies what that term would be if the court elects to aggregate the minors period of physical confinement on multiple counts or petitions, including previously sustained petitions. We refer to the section 726, subdivision (c) maximum term of imprisonment as the statutory maximum.

Second, under section 731, subdivision (b),^[3] which applies only to YA commitments, the juvenile court must exercise its discretion to set the actual maximum period of physical confinement for the minor before it, based on the facts and circumstances of the matter. This period may not exceed the statutory maximum, but it may be different, i.e., less than the statutory maximum. (See In re Alex N. (2005) 132 Cal.App.4th 18, 26-27.)

Appellant was found to have committed two counts of Penal Code section 288, subdivision (a). A violation of this statute carries a maximum eight-year term of imprisonment. Here the juvenile court properly exercised its discretion under section 731, subdivision (b) to set the maximum term of physical confinement at five years, a period that is substantially less than the statutory maximum facing a comparable adult offender. Appellant concedes that the juvenile courts assignment of a five-year term was a proper exercise of its discretion under section 731, subdivision (b).

Nonetheless, appellant argues that a purportedly incorrect statutory maximum of 12 years 8 months may affect his parole eligibility. The relevant term here is the period of physical confinement which the court in its discretion established under section 731, subdivision (b). This is the period which cannot be exceeded, and thus is the period which could affect parole eligibility. Accordingly, with a valid maximum term of physical confinement established by the court under the facts and circumstances before it, there is no need to remand to correct the record.

III. DISPOSITION

The order is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Welfare and Institutions Code section 1703, subdivision (c).

^[3] Section 731, subdivision (b) provides in pertinent part: A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. . . .