Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. FJ43894. Shep A. Zebberman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Torres & Torres and Steven A. Torres for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Jason Tran, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
C.D. appeals from an order of wardship (Welf. & Inst. Code, § 602) following a finding he made a criminal threat in violation of Penal Code section 422. He was placed home on probation, and the court specified a maximum term of physical confinement of three years. He contends the court abused its discretion in refusing his request to reopen the evidentiary portion of the trial to allow him to testify, and that the court erred in specifying a maximum period of confinement. For the reasons stated, we strike the maximum period of confinement and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A petition was filed under section 602 of the Welfare and Institutions Code, contending that on or about July 16, 2008, appellant, a juvenile, made a criminal threat in violation of Penal Code section 422. The petition alleged that appellant “willfully and unlawfully threaten[ed] to commit a crime which would result in death and great bodily injury to [Dwayne T.], with the specific intent that the statement be taken as a threat.”
Appellant was 15 at the time.
At the adjudication hearing, the victim, Dwayne T., testified that on July 16, 2008, appellant was sitting next to him in class. Appellant took an object from his pocket and stabbed a newspaper with it. Initially, Dwayne claimed to have a “bad memory” and not to remember anything else appellant did or said afterward. After repeated questioning by the prosecutor, Dwayne testified that appellant threatened him by saying he was going to “cut [Dwayne’s] throat.” Dwayne believed that appellant was going to stab him or kill him and that “[his] life was on the line.”
It was a special education class.
Dwayne could not precisely identify the object in appellant’s hand. It looked like a pen, but appeared to have a sharp tip, like a nail.
Dwayne was too afraid to report the matter to the teacher. He told his mother later that day and reported what happened to school and law enforcement authorities the next day.
The prosecution also called the dean of the high school and a police officer. Neither added substantially to Dwayne’s testimony, except that the officer recalled that Dwayne stated when interviewed the day after the incident that appellant made the threatening statement twice.
On behalf of the defense, counsel recalled a police officer who had testified for the prosecution. The officer stated that appellant and appellant’s backpack were searched the day after the incident and that the object described by Dwayne was not found. Counsel then asked for an opportunity to speak with appellant. The court announced a 10-minute break. After the break, the defense rested. The prosecutor began closing argument, stating: “I’ll incorporate much of my argument [from] the motion to dismiss....” The prosecutor discussed the evidence that appellant “willfully threatened to cut the victim’s throat,” contending that “there’s only one way a person can interpret that [statement].” He discussed the evidence that the victim was placed in fear, which continued to the date of the hearing.
After the prosecution rested, the defense moved to dismiss based on the alleged lack of a “clear reliable statement of a threat that any trier of fact could find [true].” The court denied the motion. The court explained: “I have both on direct and cross, statements by the victim that the minor being 2 to 3 feet away ma[d]e a stabbing motion [with] what [the victim] thought was a pen or some sort of object to the paper and said ‘I’m going to cut your throat,’ and although [the victim] originally said, ‘I don’t remember anything,’ it was clear to me that... the victim testifying was afraid. And [the victim] ultimately did say that that threat was made and he ultimately testified he told his mother, his teacher, and the policeman.”
At that point, defense counsel interrupted and stated “I think my client does want to testify.... [W]e kind of talked about that he would we [sic] speak again and I cut him off.” Counsel sought the court’s permission to re-open. The prosecutor objected. The court denied the request. The court explained: “[Appellant] had an opportunity to consult and make that decision. We took a break for that purpose. And I think it’s a little bit unfair after closing argument has started to give [appellant] that opportunity.”
After hearing closing argument from both sides, the court found the charge true beyond a reasonable doubt and declared appellant to be a ward of the court. The court stated its reasoning on the record: “[T]he evidence is basically uncontroverted with some very minor inconsistencies from the [victim’s] recollection. He did testify that he didn’t remember.... I believe he did remember... because... he testified to many things and ultimately testified as to what happened, and I believe he was saying he didn’t remember because he was scared. And he appeared to me to be scared today.... [¶]... [The] crux of this case is according to the [victim],... [appellant], while standing very close said, ‘I’m going to cut your throat,’ and stab[ed] a newspaper with what appeared to be either a pen or a knife or a pen/nail....”
The court placed appellant’s care, custody and control under the supervision of a probation officer, but allowed appellant to remain in his home as long as he complied with the terms and conditions of probation. After reciting the terms and conditions of probation, the court stated: “Maximum term of confinement is 3 years.”
DISCUSSION
A. Denial of Motion to Reopen
It is well settled that a trial court has broad discretion over whether to reopen trial to allow the introduction of additional evidence. (Pen. Code, § 1094; People v. Goss (1992) 7 Cal.App.4th 702, 706.) Appellant contends the trial court abused its discretion in denying the defense motion to reopen. We disagree.
“In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: ‘(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.’” (People v. Jones (2003) 30 Cal.4th 1084, 1110, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1520.) The parties agree that the third factor is not applicable here because the court acted as the trier of fact.
Appellant’s request to reopen was not timely. It came at the last stage of the proceeding, after closing argument had commenced. Allowing appellant to testify at that point would have been unfair to the prosecution, giving appellant the opportunity to craft his testimony to the prosecution’s arguments, in particular, his argument that there was only one way to interpret appellant’s statement.
Additionally, appellant was not diligent. The court granted a recess to afford appellant and his counsel an opportunity to confer and discuss whether he would take the stand. When appellant and his counsel returned from recess, counsel indicated appellant’s decision to remain silent by announcing that the defense rested. Appellant thus had ample opportunity to make a considered and counseled decision whether to testify before the case proceeded to closing argument.
Finally, there is no showing that the testimony would have been significant. Appellant’s counsel did not make an offer of proof concerning the subject of the testimony and appellant does not state in his brief what he would have said. Thus, there is nothing to suggest that his testimony would have changed the outcome or that the court’s denial of the request resulted in prejudice to appellant. (See People v. Jones, supra, 30 Cal.4th at pp. 1111, 1116-1117 [where trial court’s refusal to reopen evidence deemed abuse of discretion, reviewing court must consider whether absent the error, the trier of fact would have reached a different result].) The court acted well within its discretion in denying appellant’s request to reopen.
B. Specifying Term of Confinement
Appellant contends the court erred in specifying a maximum period of confinement, as he was placed home on probation. We agree.
“When a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. (Welf. & Inst. Code, § 726, subd. (c).)” (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Another provision, Welfare and Institutions Code, section 731, subdivision (c) (formerly subdivision (b)), “‘provides that the juvenile court has discretion to set a maximum term of physical confinement, based on the facts and circumstances of the case, so long as that term does not exceed the maximum period that could be imposed on an adult convicted of the same offense.’” (In re Ali A. (2006) 139 Cal.App.4th 569, 572.) “By its express terms, [section 731, subdivision (c)] applies only to ‘[a] minor committed to the [Division of Juvenile Facilities].’” (Id. at pp. 572-573.) Neither Welfare and Institutions Code section 726, subdivision (c) nor section 731, subdivision (c) applies where, as here, “the juvenile court committed the minor to the custody of his parents, subject to supervision on probation.” (In re Ali A., supra, at p. 573.) Accordingly, we strike the specification. (See In re Matthew A., supra, 165 Cal.App.4th at pp. 541-542.)
Welfare and Institutions Code section 726, subdivision (c) provides: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship..., the 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.”
Welfare and Institutions Code section 731, subdivision (c) provides: “A ward committed to the Division of Juvenile Facilities may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the Division of Juvenile Facilities 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 that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.”
DISPOSITION
The dispositional order is modified to strike the maximum term of confinement. In all other respects, the order of wardship is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.