In re Christopher C.

Filed 10/20/06 In re Christopher C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Temporary Judge.^*

Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a contested jurisdictional hearing, the juvenile court sustained an allegation against Christopher C. (appellant) that he committed assault with a deadly weapon, inflicting great bodily injury (Pen. Code, §§ 245, 12022.7). The court adjudged appellant a ward of the court, determined the maximum term of confinement to be seven years, and committed appellant to the county boot camp for a minimum of 90 days. Appellant’s placement later was modified when he developed a medical condition, and he was ordered to spend 45 days in the juvenile center.

Appellant contends that his constitutional rights were violated when certain hearsay statements were admitted; that the juvenile court erred when it failed to make a finding pursuant to Penal Code section 26; and that the juvenile court erred when it failed to exercise its discretion in setting a maximum term of confinement under Welfare and Institutions Code section 731. As to each argument, appellant also contends he received ineffective assistance of counsel. We find no merit to appellant’s claims and affirm.

FACTS

Ruben G. testified that he was walking to school on May 17, 2005, when he ran into appellant and his brother, Victor, as they came out of an alley. Several other boys, some whom Ruben recognized, were with Victor and appellant. Several in the group called Ruben a “scrap,” a gang insult. When Ruben walked away, Victor hit him in the back of the head. The others in the group started hitting Ruben, and appellant sliced Ruben’s neck with a broken glass bottle. The group then disbanded.

Ruben’s friend, Alfredo A., came to his aid. Ruben’s neck wound required 13 stitches. Ruben, who had a prior juvenile adjudication for battery, testified that he had family members who are Sureno gang members, but he claimed not to be a gang member. Ruben first encountered Victor and appellant the night before, at a baseball game. Victor and appellant were with a group of kids that challenged Ruben to a fight, but he refused.

Deputy Sheriff Tom Wilcox investigated the crime and interviewed appellant. Appellant told the officer that the fight started when the group was attacked by Ruben, Alfredo, and a third person named Nieto. Appellant stated that he saw Ruben choke Victor, so he picked up a broken bottle he found in the alley and hit Ruben with it. The broken bottle “slipped off [Ruben’]s face and got him in the neck.” Appellant believed the fight took place because Ruben thought appellant and Victor were gang members, but appellant denied belonging to a gang.

Victor told the officer that Ruben, Alfredo and Nieto surprised the group and began the fight. Victor claimed that Ruben choked him with a sweatshirt. While Victor claimed not to be a gang member, he was friendly with Norteno gang members, and he believed Ruben thought he was a gang member. The officer opined that Ruben was a gang member.

Several of the boys involved in the altercation testified that they were walking with appellant and Victor when Ruben and Alfredo started calling Victor names, such as “buster,” which is an insult to a Norteno. Victor and Ruben fought. The boys claimed that Ruben and Alfredo had chased them the day before the fight, and they were familiar with them because they walked the same route to school each day.

One of the boys, Rafael H., testified that he saw appellant running around, but did not see him fight with anyone. Although Rafael acknowledged that appellant broke a bottle as they were leaving the house that morning, he did not see appellant with a bottle during the fight. Rafael claimed there was bad blood between Victor and Ruben. Another of the boys, Jesus B., testified that appellant was “[j]ust standing right there” during the fight, and he did not have a bottle with him when they left the house. A third boy, Oscar G., did not see appellant during the fight. Oscar testified that he is treated as a Norteno because his older brother is a Norteno, but that appellant does not associate with a gang. Carlos G. testified that he saw Ruben sock Victor and Victor sock him back.

Appellant testified that, before he went to school that morning, his father told him to pick up a broken bottle in the yard, but he did not take it with him. As he and his friends were walking to school, they saw Ruben and Alfredo. Ruben came up to appellant and his brother and said, “Come on. What’s up bitch?” Ruben called both Victor and appellant “buster.” Appellant testified that Ruben then hit his brother, had him in a headlock, and choked him. Appellant started to run, but was worried about his brother and picked up a bottle. Appellant swung the bottle at Ruben, and it cut his throat. Ruben let go of Victor and the boys ran away.

Appellant testified that, two months prior to the incident in question, Ruben approached the group with a screwdriver in his hand and said, “What’s up, bitches?” But the group ignored Ruben and continued on to school.

1. Did the admission of a hearsay statement of appellant’s nontestifying brother violate appellant’s right to confrontation? Was counsel ineffective for failing to object?

Appellant’s contested jurisdictional hearing was conducted jointly with the jurisdictional hearing for his brother, Victor, and for Alfredo A. Victor did not testify at the hearing.

During the hearing, the juvenile court heard evidence of a separate fight that took place on May 2, 2005. The fight involved Victor but not appellant. Sheriff Deputy Warren Parker interviewed Victor after the fight. At the hearing, Deputy Parker testified that Victor told him Jose, the other individual involved in the fight, had tried to fight Victor earlier in the day but other students intervened. Later that same day, Victor walked by Jose and said, “What’s up bitch?” Jose then punched Victor and a fight ensued. Deputy Parker testified that Victor told him that Jose was Sureno, and that he personally was not a gang member, but that he “backed up Norteno.”

As to the evidence regarding the May 17 fight which involved both appellant and Victor, Deputy Wilcox testified that he interviewed both appellant and Victor after the fight. Deputy Wilcox testified that he believed Ruben was a gang member and that Victor was friendly with Nortenos. Deputy Parker also testified that he had no recollection of Victor saying that appellant hit Ruben with a bottle. Victor did tell the deputy that he was not wearing a sweatshirt during the fight.

Appellant contends admission of Victor’s statements requires reversal on Aranda/Bruton grounds (People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123) and violated his right to confront and cross-examine Victor under Crawford v. Washington (2004) 541 U.S. 36. Appellant claims that “[i]f the court had been made aware that it could not consider Victor’s statements against appellant, a different result might well have followed.” We disagree.

We first note that since appellant did not object to admission of Victor’s statements at trial on Aranda/Bruton or constitutional grounds, he cannot complain for the first time on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Mitcham (1992) 1 Cal.4th 1027, 1044.) Thus, both the Aranda/Bruton and Crawford claims fail for want of an objection below. However, since appellant also makes a claim of ineffective assistance of counsel for failing to make such objections, we address the issues on their merits.

A. Aranda/Bruton

Aranda articulates a rule of criminal procedure prohibiting the introduction of a defendant’s extrajudicial statement that directly or inferentially implicates a jointly tried codefendant, unless the statement was redacted to eliminate the direct or inferential reference to the codefendant. (People v. Aranda, supra, 63 Cal.2d at pp. 528-531.) In Bruton, this procedure was considered an effective means of preserving a criminal defendant’s constitutional right to cross-examination. When such a confession or statement comes in and the declarant defendant testifies, there is no need to redact the statement as the implicated codefendant has the opportunity to test the veracity of the statement through cross-examination of the declarant. (Bruton v. United States, supra, 391 U.S. at pp. 124-128, fn. 3, pp. 129-136; see also People v. Fletcher (1996) 13 Cal.4th 451, 455-456.)

But Aranda/Bruton procedures are not required in trials to the court. (People v. Walkkein (1993) 14 Cal.App.4th 1401, 1406-1409.) And the prophylactic strictures of Aranda and Bruton also do not apply to juvenile proceedings. (In re Jose M. (1994) 21 Cal.App.4th 1470, 1479-1481.)

Appellant acknowledges the holding in Jose M., but claims it is distinguishable from the case here because defense counsel in Jose M. objected to the introduction of the codefendant’s statements, and “thus the juvenile court was made aware that it could not consider the statements against the minor.” But even were we to assume for the sake of argument that appellant is correct that the juvenile court improperly considered Victor’s statements as evidence against him, we would not find such error to require reversal. Victor’s statement as to the May 2 fight made no mention of appellant. Victor’s statements after the May 17 fight were not inculpatory of appellant.

The only possible implication of appellant was Victor’s statement that he was not wearing his sweatshirt during the fight, which was in contradiction to appellant’s testimony that he struck Ruben with the bottle because Ruben was choking Victor with his sweatshirt. But to claim the statement implicates appellant is tenuous, at best, because appellant’s testimony was that he did not remember if Victor’s sweatshirt was on or off when Ruben tried to strangle Victor with it. When asked if the sweatshirt was “half off,” appellant replied, “Yeah, something like that.”

Even if there was error in the admission of Victor’s statement about the sweatshirt, it was harmless beyond a reasonable doubt because the statement did not, by itself, incriminate appellant. Although Jesus testified that Victor had not taken off his sweatshirt, Rafael and Oscar both testified that Victor did take off his sweatshirt before the fight, in essence corroborating Victor’s statement. In addition, appellant’s admitted participation in the May 17 fight and acknowledgement that he swung a broken bottle at Ruben, cutting his neck, was sufficient to support the court’s true finding. Any error in considering Victor’s statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

B. Crawford

Appellant also contends that the admission of Victor’s statements to the deputies denied him his Sixth Amendment right to confrontation under the reasoning of Crawford v. Washington, supra, 541 U.S. 36. In Crawford, the court held that, in all criminal prosecutions, where the declarant is unavailable and was not previously subject to cross-examination, extrajudicial “testimonial” statements regarding the defendant are inadmissible in evidence under the confrontation clause. (Id. at pp. 68-69.)

Crawford did not define “testimonial,” but indicated “[w]hatever else the term covers, it applies at a minimum to police interrogations.” (Crawford v. Washington, supra, 541 U.S. at p. 68.) Although the statements here were made in the context of a police interrogation, they did not implicate appellant. As noted previously, the only possible implication of appellant was Victor’s statement that he was not wearing his sweatshirt during the fight, which was in contradiction to appellant’s testimony that he struck Ruben with the bottle because Ruben was choking Victor with his sweatshirt.

Even if the requirements of Crawford are deemed present, i.e., testimonial statements by an unavailable witness, any error in the admission of Victor’s statement about the sweatshirt was harmless beyond a reasonable doubt because the statement did not, by itself, incriminate appellant. Others who testified at the hearing corroborated Victor’s statement. Accordingly, appellant’s constitutional right to confront witnesses was not violated by the admission of the statement. Nor can appellant show prejudice. (Chapman v. California, supra, 386 U.S. at p. 24.)

C. Ineffective Assistance of Counsel

As to the failure to object, appellant bears the burden of proving ineffective assistance of counsel. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) “To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings the result would have been more favorable.” (People v. Haskett, supra, at p. 248; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

We presume that counsel’s conduct “‘falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘”perilous process”’ of second-guessing counsel’s trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979.) “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his [or her] act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Furthermore, counsel need not make a meritless objection to avoid an appellate claim of ineffective assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 432.)

As discussed above, Aranda/Bruton does not apply to a juvenile hearing. (In re Jose M., supra, 21 Cal.App.4th at pp. 1479-1481.) And the statements made by Victor, although made in the context of police interrogation, did not implicate appellant, and therefore did not violate the requirements of Crawford. (Crawford v. Washington, supra, 541 U.S. at pp. 68-69.) On this record, an objection under either Aranda/Bruton or Crawford would have been groundless. Also, as discussed above, any possible failing by counsel did not subject appellant to prejudice, as there is no reasonable probability that, but for counsel’s failings, the result would have been more favorable. (People v. Haskett, supra, 52 Cal.3d at p. 248; People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.)

2. Did the juvenile court fail to make a finding pursuant to Penal Code section 26? Was counsel ineffective for failing to request such a finding?

At the time appellant cut Ruben’s throat, he was two months past his 13th birthday. Appellant contends that the trial court erred by failing to make a finding, pursuant to Penal Code section 26, that appellant understood the wrongfulness of his act.

Penal Code section 26 provides in relevant part:

“All persons are capable of committing crimes except those belonging to the following classes: One--Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.”

Here, the juvenile court did not make an express finding on whether appellant knew his conduct was wrongful. But a finding may be implied and is reviewed according to the standard of substantial evidence. (People v. Lewis (2001) 26 Cal.4th 334, 378-379; In re Paul C. (1990) 221 Cal.App.3d 43, 52.)

“In determining whether a minor would be capable of committing a crime under [Penal Code] section 26, the juvenile court must consider the child’s age, experience, and understanding. [Citation.]” (In re Paul C., supra, 221 Cal.App.3d at p. 52, citing In re Gladys R. (1970) 1 Cal.3d 855, 864, and In re Tony C. (1978) 21 Cal.3d 888, 900.) A minor’s age is “a basic and important consideration,” and the closer the child is to age 14, the more likely the minor appreciates the wrongfulness of his or her conduct. (In re Cindy E. (1978) 83 Cal.App.3d 393, 398-399.) “Although a minor’s knowledge of wrongfulness may not be inferred from the commission of the act itself, ‘the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment’ may be considered.” (People v. Lewis, supra, 26 Cal.4th at p. 378.) The minor’s consciousness of guilt is also a consideration. (In re Gregory S. (1978) 85 Cal.App.3d 206, 212.)

Appellant cites numerous cases and claims all are clearly distinguishable from the facts of the present case because “[n]one present[] as absolute a failure to present evidence as this case.” In many of the cited cases, there was sufficient evidence that the minor knew the wrongfulness of his or her acts. For instance, in In re Jerry M. (1997) 59 Cal.App.4th 289, an 11-year-old was found to understand the wrongfulness of his acts of grabbing girls’ breasts when he had been told of the wrongfulness by his mother and appeared to understand the wrongfulness because he refused to accept the girls’ rebuffs and extorted one victim into complying with his demands. (Id. at pp. 298-299.) In In re Paul C., supra, 221 Cal.App.3d 43, the court found a 13-year-old knew that sexually assaulting a nine-year-old was wrong because he had been told by his mother, and he took pains to conceal the act and to minimize his culpability to the police. (Id. at p. 53.) And In re Richard T. (1985) 175 Cal.App.3d 248, a minor, almost 14, was found to understand the wrongfulness of his acts when he stole a toolbox from a pickup after being told to stay away from it by his mother, teachers, and the victim. The minor hid the toolbox and tried to blame another person. (Id. at p. 254, disapproved on other grounds in In re Manuel L. (1994) 7 Cal.4th 229, 232.)

Appellant also cites several cases in which the evidence that the minor understood the wrongfulness of his or her act was found lacking. For instance, in In re Michael B. (1975) 44 Cal.App.3d 443, a nine-year-old broke a rearview mirror, pried open the window of a car, and took a pack of cigarettes. When asked by a police officer if he knew it was wrong to break into cars and steal, the minor said yes. But when asked how it would feel if someone took something that meant a lot to him, the child said he never had anything that meant a lot to him, so it did not matter. The court found that the only evidence, that the minor said yes when asked by the officer if he knew the difference between right and wrong, fell short of that necessary to establish “clear proof” that the minor knew of the wrongfulness of his acts. The court further found that the nature and circumstances of the crime itself did not furnish the necessary proof. (Id. at pp. 445-446.)

We disagree with appellant’s assessment of his own case. Here, appellant, who was 13 years old, appeared to understand the wrongfulness of his act. (In re Cindy E., supra, 83 Cal.App.3d at p. 399 [the closer a minor is to 14, the more likely to understand the wrongfulness of the act].) Some of appellant’s actions demonstrate a consciousness of guilt. Appellant insisted that he cut Ruben because he was choking Victor, in essence, shifting the blame for why he acted, although other testimony described the fight as a “mutual fight” between Victor and Ruben. (Id. at p. 400 [attempt to shift the blame to others or minimize own involvement suggests minor knew wrongfulness of conduct].) Appellant testified that he “took off running” after slashing Ruben, also indicating that he knew his conduct was wrong. (In re Gregory S., supra, 85 Cal.App.3d at p. 212 [minor’s flight from the scene constitutes proof that minor knew wrongfulness of act].)

Further evidence of appellant’s understanding of the wrongfulness of his act can be garnered from testimony at the contested hearing made by his school teacher, who testified as a character witness for appellant. She stated that appellant “made progress” during the school year. When asked what the teacher had observed in appellant that made her think he was progressing, she stated that, for instance, he would ask her during class, “[A]m I behaving better .” The teacher also testified that she knew appellant would not lie to her because he knew she would provide “negative consequences,” implying that appellant understood the consequences of his own actions.

There is also evidence that appellant may have prepared for the fight, or was expecting to encounter Ruben, prior to its occurrence. There was testimony that Ruben, Victor, and appellant had encountered each other previously, although the accounts of when it occurred differed. Ruben claimed it was the night before the fight at a baseball game; appellant claimed it was two months prior to the incident when Ruben first approached the group with a screwdriver; and others who witnessed the fight claimed Ruben and Alfredo had chased them the day before the incident, and that they were familiar with each other because they all walked the same route to school each day. There is also evidence that appellant picked up a broken bottle at his home prior to walking to school. Although appellant testified that he dropped the bottle at home and subsequently picked up another one at the time of the fight, he may very well have armed himself in anticipation of encountering Ruben on the way to school. (People v. Lewis, supra, 26 Cal.4th at p. 378 [minor’s knowledge of the wrongfulness of an act may be inferred from the minor’s preparation].)

We conclude the evidence was sufficient to support a finding that appellant understood the wrongfulness of his conduct. Because we do so, we need not address appellant’s additional argument that counsel was ineffective for failing to raise “the Penal Code section 26 [i]ssue.” (People v. Cox (1991) 53 Cal.3d 618, 656 [appellate court need not determine whether counsel’s performance was deficient if defendant suffered no prejudice as a result of counsel’s alleged deficiencies].)

3. Did the juvenile court err in failing to exercise its discretion under Welfare and Institutions Code section 731 in setting appellant’s maximum term of confinement? Was counsel ineffective for failing to request that the court exercise its discretion?

Appellant was committed to the county boot camp and, subsequently, to a juvenile center. The court calculated the maximum term of confinement as seven years. Appellant contends the juvenile court erred in setting the maximum term of confinement because it did not exercise its discretion in determining what the maximum period of confinement should be, pursuant to the revision of Welfare and Institutions Code section 731, subdivision (b). We disagree.

Whenever a minor is removed from the physical custody of his or her parent, Welfare and Institutions Code section 726, subdivision (c) requires that the juvenile court 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.” The maximum term of imprisonment is defined as “the longest of the three time periods” for adult offenders. (Ibid.)

Welfare and Institutions Code section 731, subdivision (b) provides that the juvenile court is required to make a discretionary determination of the juvenile’s maximum term of confinement in the custody of the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (formerly, the Department of the Youth Authority) (CYA) based on the facts and circumstances of the minor and the offense(s). (In re Carlos E. (2005) 127 Cal.App.4th 1529.) “Section 731 pertains to commitments to CYA.” (Id. at p. 1536.)

Because appellant was not committed to CYA, the juvenile court was not required to exercise its discretion under Welfare and Institutions Code section 731. (In re Geneva C. (2006) 141 Cal.App.4th 754, 759-760.) We reject appellant’s claim to the contrary.

We also reject appellant’s additional claim that counsel was ineffective for failing to request that the juvenile court exercise its discretion under Welfare and Institutions Code section 731. To do so would have been futile, and counsel need not make a meritless objection to avoid an appellate claim of ineffective assistance. (People v. Ochoa, supra, 19 Cal.4th at p. 432.)

DISPOSITION

The findings and judgment are affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

VARTABEDIAN, Acting P.J.

_______________________________

CORNELL, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^*Pursuant to California Constitution, article VI, section 21.