Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YJ32171, Wayne C. Denton, Commissioner.
Loyola Law School Center for Juvenile Law and Policy, Samantha Buckingham and Maureen Pacheco for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Appellant Ivan G. appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 and placing him home on probation. The order was entered after the trial court found true the allegations that appellant committed an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and exhibited a deadly weapon other than a firearm (id., § 417, subd. (a)(1); count 2). Appellant also appeals from a post-adjudication order denying his motion pursuant to sections 775 and 778 to set aside the court’s jurisdictional findings and disposition.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
On appeal, appellant contends the court (1) erred in ruling that his “involuntary and unmirandized” statements could be used for impeachment and (2) abused its discretion in denying his motion pursuant to sections 775 and 778. We affirm the orders.
FACTS
On July 17, 2008, appellant, then 15 years of age, was attending summer school at Morningside High School in Los Angeles. Roderick B. and Breena B. were students in appellant’s English class. On this particular day, appellant got into an argument with Breena B., and the two students exchanged racial and gang-related insults.
During a break, appellant approached Roderick B. and tried to stab him with a pair of scissors twice. On the second attempt, appellant punctured Roderick B.’s shirt slightly. Roderick B. took off his shirt and attempted to defend himself until school security officers grabbed him and took him to the school office. Appellant was arrested by school police.
DISCUSSION
A. Impeachment
Prior to the adjudication hearing, appellant filed a motion “to suppress minor’s statement and tangible evidence.” Therein, appellant argued that statements he made to police after the incident were the product of the “functional equivalent of custodial interrogation.” Appellant sought to suppress a statement he made to a school security guard, as well as a statement made to school police, alleging they were taken in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution, as well as the Fourth Amendment protection against unreasonable searches and seizures. Appellant did not assert that his statements to police were involuntary. The People did not file a written opposition to appellant’s suppression motion.
When the adjudication hearing commenced, appellant’s counsel moved the court to treat appellant’s motion as having been conceded by the People and to order the exclusion of appellant’s statements. The People countered that the motion was moot, in that they did not intend to introduce appellant’s statements in their case-in-chief. In light of this representation, the court ruled that the People were not to use appellant’s statements in their primary case.
After the People rested, appellant’s counsel called appellant to testify. At that juncture, the court stated, “Keep in mind, I made an order that the People cannot use any statements in their case-in-chief. But they can be used for impeachment.” When appellant’s counsel stated it was her position that the People conceded appellant’s suppression motion, the court said, “They did not concede anything. They said they were not going to use the statements in their case-in-chief. But they can be used for impeachment” if appellant takes the stand.
Appellant’s counsel acknowledged that statements obtained in violation of Miranda can be used to impeach. Counsel erroneously represented, however, that appellant’s motion also argued his statements were not voluntarily obtained. As such, counsel asserted, “Ivan should be allowed to testify without being impeached on the basis of those statements because the government has not responded to the motion. They have not offered evidence to prove that any statements they allege were made... voluntarily.” The court noted the issue was an interesting one but denied the motion. Following the court’s ruling, appellant elected not to testify and rested his case.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Our review of appellant’s written motion readily reveals that it did not include a claim that his statements were obtained involuntarily. (See Jackson v. Denno (1964) 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908].) Therefore, any claim relating to the voluntariness of appellant’s statements was waived on appeal. (Evid. Code, § 353; People v. Mayfield (1993) 5 Cal.4th 142, 172; People v. Wader (1993) 5 Cal.4th 610, 635; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
With regard to the Miranda issue, statements obtained in violation of Miranda may be used for impeachment purposes. (See Harris v. New York (1971) 401 U.S. 222, 224 [91 S.Ct. 643, 28 L.Ed.2d 1]; People v. Peevy (1998) 17 Cal.4th 1184, 1188.) “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” (Harris, supra, at p. 225.) Thus, if a defendant testifies in his own behalf, he may be impeached with statements obtained in violation of Miranda. (Id. at pp. 225-226.) The court properly so ruled in this case.
B. Discovery/Brady Material
Appellant contends the court abused its discretion in denying his motion to set aside the order adjudging him a ward of the court, a motion which was premised on a claim of Brady error. We disagree.
Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215].
At appellant’s arraignment on September 17, 2008, his counsel personally served a discovery request on the prosecutor, seeking, among other things, Brady information. Defense counsel asked for RAP sheets for all potential prosecution witnesses, information regarding conduct or bad acts involving moral turpitude that would negatively affect the witnesses’ credibility and all exculpatory evidence.
On April 6, 2009, after learning that Roderick B. had been involved in an altercation with another student at Westchester High School on March 3, 2009, defense counsel wrote to the prosecution, reminding it of the prior informal discovery request and informing it of the March 3 incident. Defense counsel asked for specific information regarding that incident, whether Roderick B. had been charged with an offense and whether law enforcement had forwarded the case to the district attorney’s office for prosecution. On April 14, the prosecutor disclosed to appellant that Roderick B. in fact had been arrested for fighting on the grounds of Westchester High School on March 3. Unbeknownst to the prosecutor at that time, however, Roderick B. also had been arrested for robbery on March 3.
On August 27, 2009, appellant filed a motion pursuant to sections 775 and 778, asking the court to set aside its April 16 order adjudicating him a ward of the court due to the prosecutor’s failure to disclose Roderick B.’s arrest for robbery. Defense counsel stated her belief that the robbery was committed on March 3, 2009, prior to the adjudication hearing, and that Roderick B. was formally charged with robbery after the hearing, on April 30, 2009.
On September 8, 2009, the court held a hearing on appellant’s motion. It noted that while the prosecutor personally did not know about the robbery at the time of the adjudication hearing, such information was known to the government. For that reason, an obligation to disclose such information existed and the failure to make the required disclosure constituted a discovery violation. The court agreed with the prosecutor, however, that the information that was disclosed about the fight Roderick B. had on March 3, 2009, was supportive of appellant’s position that he was the victim and Roderick B. was the aggressor. Although noting that a robbery can be used to impeach, the court stated its belief that evidence of fighting had more impeachment value than a robbery “in this particular case.” In the court’s view, the prosecution’s failure to apprise appellant that Roderick B. was arrested for robbery did not automatically require it to vacate its jurisdictional and dispositional orders. It therefore denied appellant’s motion but granted him leave to file a new motion in the event he learned more information about the robbery.
On October 7, 2009, appellant filed a second motion pursuant to sections 775 and 778, claiming “the government had an obligation to disclose critical impeachment information about its only witness at trial.” At the December 10 hearing on the motion, defense counsel argued the trial would have been affected if she had been able to confront Roderick B. about the robbery. Counsel added that while the court found Roderick B. to be credible, the most appropriate thing to do was set aside the adjudication since it was uncertain how Roderick B. would have reacted if confronted with questions regarding the robbery. Counsel had no knowledge that Roderick B. had sustained an adjudication for, or been convicted of, the robbery.
Although the court understood defense counsel’s concerns, it stated that “as the judge and jury on this particular case, I don’t think it would have made any difference unless there was some kind of conviction or something. But just the fact he was arrested for a robbery and maybe he would have reacted one way or the other after he was confronted with it, in my opinion, that’s not enough for me to believe that the outcome would be any different, that I would view his testimony any differently. [¶] So I’m going to deny the motion.” It is the December 10th order that is the subject of this appeal.
For this reason, we need not address appellant’s challenges to the trial court’s comments when denying his first motion on September 8, 2009.
Section 775 gives the trial court the authority to modify or set aside any order of the court. Section 778 gives any “person having an interest in a child who is a ward of the juvenile court or the child himself... upon grounds of change of circumstance or new evidence, [to] petition the court... for a hearing to change, modify, or set aside any order of the court.” The denial of a motion pursuant to sections 775 and 778 is reviewed for abuse of discretion. (In re Corey (1964) 230 Cal.App.2d 813, 831-832.)
In Brady v. Maryland, supra, 373 U.S. 83, our nation’s high court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Id. at p. 87.) “‘For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]’ (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133... [, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22]; see also Cone v. Bell (2009) 556 U.S. ___, ___, ___ [173 L.Ed.2d 701, 129 S.Ct. 1769, 1782-1783].” (People v. Verdugo (2010) 50 Cal.4th 263, 279.)
Generally, an arrest is not admissible as proof of guilt or for impeachment. (People v. Medina (1995) 11 Cal.4th 694, 769.) Since Roderick B.’s arrest could not have been used to impeach him at the adjudication hearing, its timely disclosure would not have altered the adjudication result. (People v. Zambrano, supra, 41 Cal.4th at pp. 1132-1133.) Indeed, in denying the motion the court noted “just the fact he was arrested for a robbery and maybe he would have reacted one way or the other after he was confronted with it, in my opinion, that’s not enough for me to believe that the outcome would be any different, that I would view his testimony any differently.”
In the absence of a constitutional violation, the trial court acted well within its discretion in denying appellant’s motion pursuant to sections 775 and 778 to set aside his adjudication. (In re Corey, supra, 230 Cal.App.2d at pp. 831-832.)
DISPOSITION
The orders are affirmed.
We concur: PERLUSS, P. J., WOODS, J.