In re David W.

Filed 4/24/07 In re David W. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County,

Rudolph A. Diaz, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

David W. appeals an order declaring him a ward of the juvenile court and ordering him suitably placed based on the finding he committed a lewd act upon a child under the age of 14 years. (Pen. Code, 288, subd. (a).) We reject David W.s claim the juvenile court erroneously excluded evidence favorable to the defense and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The prosecutions evidence.

The evidence adduced at the adjudication indicated that in March and April of 2006, six-year-old A.S. and 13-year-old David W. lived in the same apartment building. David W.s grandmother, Lucille W., frequently babysat A.S. On one such occasion, David W. and A.S. engaged in oral copulation initiated by David W.

Reba S., A.S.s mother, testified A.S. previously had always been excited to go to David W.s apartment. Reba S. noticed a change in A.S.s attitude in early April of 2006. A.S. refused to go to David W.s apartment to celebrate A.S.s birthday on April 7, 2006, even though Reba S. had cupcakes for all the children there. On April 8, 2006, A.S. refused to go to David W.s apartment even though Lucille W. was going to Costco and A.S. had always enjoyed such outings. On the evening of April 8, A.S. told Reba S. that David W. put his mouth on A.S.s penis.

Los Angeles Police Detective Lorena Tarjamo interviewed David W. on May 1, 2006, at a police substation. After advising David W. of his rights per Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], David W. initially denied that anything happened. Tarjamo then told David W., falsely, that DNA evidence had been obtained and asked David W. what that evidence would show. David W. then said the evidence would show that I did it. David W. indicated A.S. asked David W. to look at A.S.s penis. David W. initially refused but then put A.S.s penis in his mouth.

2. The defense case.

Alexandra Weden, a licensed clinical social worker, testified David W. was her client at the Didi Hirsch Community Health Center. Weden sees David W. for ADHD and acting out behavior at school. Testing has revealed that David W. has an expressive receptive language disorder in connection with his ADHD. David W. takes Aterol and may be taking Risperdal. Weden previously has found that, in times of stress or frustration, David W. will falsely admit things he is accused of, rather than acknowledge he does not understand the situation. For example, during testing, David W. will pick the first available answer instead of trying to process information. Weden opined David W.s disorder affected his ability to process what Detective Tarjamo was telling him during the interview. David W. denied the allegations when Weden spoke to David W. about the case. Based on David W.s diagnosis and Wedens observations of his conduct in their counseling sessions, Weden believed David W. falsely confessed in this case.

Raymond Harris, Ph.D., has worked for DCFS and foster family agencies for 20 years. Harris interviewed David W., Lucille W., A.S. and Reba S. in order to evaluate the validity of A.S.s allegations. Harris interviewed A.S. on April 14, 2006. Harris expected A.S. to fumble for words as is typical with children who have been abused. Instead, A.S. presented as a happy go lucky child who did not appear disturbed by the content of what he was relating to Harris. A.S. stood in front of me, he clasped his hands and recited what he thought happened. Harris concluded the childs statement had been rehearsed.

Lucille W. testified she has scolded David W. for teasing A.S. and A.S. has complained to Lucille W. that David W. teases him. On cross-examination during the Peoples case, A.S. denied that he had complained about teasing by David W.

3. The juvenile courts ruling.

After hearing argument, the juvenile court concluded David W.s admission to Detective Tarjamo was very compelling. The juvenile court did not doubt that some teasing occurred, given that David W. was older than A.S. However, the juvenile court found Reba S. had no motivation to make false accusations, concluded the People had met their burden of proof and sustained the petition.

The juvenile court ordered an evaluation of David W. and, upon its receipt, ordered him suitably placed.

CONTENTION

David W. contends the juvenile court erroneously excluded the testimony of Rick Bluer, a DCFS investigator, who investigated this case and concluded the allegations of sexual abuse were unfounded.

DISCUSSION

1. Bluers testimony properly excluded.

a. Background.

When the defense called Bluer as a witness, the prosecutor objected and requested an offer of proof. Defense counsel indicated Bluer investigated this case for DCFS, interviewed David W. and concluded the allegations were unfounded. Defense counsel argued Bluers conclusion was consistent with the defense position that A.S. had been coached and was relevant to impeach the testimony of A.S. and his mother. The juvenile court found Bluers testimony would not be probative and sustained the Peoples objection.

b. David W.s argument.

David W. contends exclusion of Bluers testimony deprived him of the constitutional right to present a defense. (Taylor v. Illinois (1988) 484 U.S. 400, 407-409 [98 L.Ed.2d 798].) He claims Bluers testimony was relevant to show the allegations were untrue, to impeach A.S. and Reba S., to show A.S. had been coached and to explain why David W. falsely would admit the allegations. David W. claims Bluers testimony would have corroborated Harriss testimony that A.S.s recitation of the allegations appeared rehearsed and Wedens testimony that David W. had a disorder that rendered him prone to false confessions. David W. concludes that, because this case was a credibility contest, exclusion of Bluers testimony unfairly prejudiced the defense and reversal is required.

c. Resolution.

Bluers testimony would have consisted only of his opinion the allegations were unfounded. Bluer based this opinion primarily on an interview of David W. However, the juvenile court was as qualified as investigator Bluer to determine whether David W. committed the conduct alleged. (People v. Coffman (2004) 34 Cal.4th 1, 77; People v. Torres (1995) 33 Cal.App.4th 37, 45; People v. Chapple (2006) 138 Cal.App.4th 540, 546-547; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1121.) Given that Bluer was not qualified to express an opinion on the truth of the allegations, exclusion of his testimony was not error.

Further, exclusion of the evidence did not violate David W.s constitutional right to present a defense. Bluers testimony would have been cumulative to the testimony of Weden, David W.s social worker, who testified David W. denied the allegations in a conversation with Weden. Weden indicated she believed David W.s denial and she explained why David W. might make a false confession. Given that Weden was more familiar with David W. than Bluer, and was more qualified to offer an opinion with respect to the possibility David W. might make a false confession, exclusion of Bluers testimony did not implicate David W.s constitutional right to present a defense.

In sum, David W.s claim of improper exclusion of defense evidence fails.

DISPOSITION

The order declaring David W. a ward of the juvenile court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J

.

ALDRICH, J.

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