Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 63618
SCOTLAND, P. J.
J.C. (the minor) was continued a ward of the juvenile court (Welf. & Inst. Code, § 602) after the court found that the minor unlawfully took or drove a motor vehicle (Veh. Code, § 10851), received stolen property (Pen. Code, § 496d, subd. (a)), drove without having a driver’s license (Veh. Code, § 12500), and failed to show proof of insurance (Veh. Code, § 16028, subd. (a)). The court determined that the maximum confinement period was five years two months and, as a condition of probation, committed the minor to youth camp for 360 days.
On appeal, the minor contends raises various claims of error. We shall affirm the judgment.
FACTS
On January 10, 2009, Adam Kawalczyk discovered his automobile had been stolen. The car had been locked, and the keys were not in it. Kawalczyk immediately reported the theft to law enforcement. About 10:35 p.m. that day, patrol officers Garrett Schumacher and Keith Berry saw and stopped the stolen car. The minor was the driver and there were two passengers.
The minor claimed that he found the car parked along a curb with the engine running. He needed a ride, so he got in and drove away.
Officer Berry searched the car. There was no key in the ignition switch, and no keys anywhere in the car. Scissors were found on the driver’s side floorboard. Berry observed that the tip of the scissors fit into the ignition keyhole and may have been used to manipulate the switch.
DISCUSSION
I
On direct examination, the minor testified that he was at a party but decided to leave to escape “bad influence[s].” He asked a friend to give him a ride. The friend, who was too drunk to drive, offered his car and told the minor to drive himself home. The engine was already running, which the minor did not consider unusual. The minor did not pay attention to the ignition. About 15 minutes later, the police stopped him in the car.
On cross-examination, the following discourse ensued.
“[Prosecutor]: Q. You said a friend gave you the 1993 green Saturn. What was your friend’s name?
“[The minor:] A. I can’t say, Your Honor, I can’t say.
“Q. You can’t say or won’t say?
“A. (Negative head shake). Next question.
“THE COURT: J[.], you don’t get to pick and choose. Your lawyer chose to put you on the stand. You are under oath to tell the truth, now that is what you are going to do. He had his turn, now he gets his turn.
“[Prosecutor]: Q. What is the name of the person that gave you the green Saturn?
“A. (Long pause) No, no comment. No comment.
Earlier, in response to a question on direct examination, the minor responded, “I ain’t saying nothing, ” after his counsel unsuccessfully asked “where did they [others in the car when defendant was stopped] come from?”
“THE COURT: He is saying no comment. Would you like me to strike his entire testimony?
“[Prosecutor]: Yes.
“THE COURT: I am going to do that. J[.], go ahead and step down.”
Defense counsel asked, “Could we not have him step down?” The court declined. Thereafter, defense counsel did not ask to recall the minor as a witness so he could answer the questions.
In the minor’s view, the juvenile court abused its discretion when it struck his testimony on direct examination after he refused to answer questions on cross-examination. The claim of error lacks merit.
At a juvenile jurisdictional hearing, “[t]he admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision.” (Welf. & Inst. Code, § 701.)
Evidence Code section 773, subdivision (a) states: “A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.”
The right to cross-examine is not merely a statutory right; it is a fundamental requirement for a fair trial. One of the main purposes is to challenge the credibility of the witness. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733-734.)
“Where a party cannot cross-examine a witness because the witness refuses to answer, the trial court may strike the direct examination.” (People v. Daggett (1990) 225 Cal.App.3d 751, 760; People v. Abner (1962) 209 Cal.App.2d 484, 489.) In determining whether an alternative remedy to striking all the examination is appropriate, “‘regard [is] had chiefly to the motive of the witness and the materiality of the answer.’” (People v. Reynolds (1984) 152 Cal.App.3d 42, 47, italics omitted.)
Here, the minor changed his story at trial. He told officers that he found the car parked along a curb with the engine running and, needing a ride, he got in and drove away. At trial, however, he claimed that he got the car from a friend who offered to allow the minor to drive it home.
The identity of the friend who purportedly loaned the car to the minor was material and highly relevant to the credibility of the minor’s story at trial. By refusing to disclose that information, the minor precluded the prosecutor from contacting the person who purportedly gave the car to the minor and presenting that person’s testimony if it discredited the minor’s testimony. There is nothing in the record to suggest the minor had any other motive for refusing to divulge the identity of the person who purportedly loaned the car to the minor. Therefore, it was well within the juvenile court’s discretion to strike the minor’s testimony on direct examination. (People v. Reynolds, supra, 152 Cal.App.3d at pp. 46-47 [the minor’s refusal to answer a relevant question about his claim “deprived the prosecution its right to subject that claim to ‘the greatest legal engine ever invented for the discovery of truth, ’ cross-examination”].)
We reject the minor’s suggestion that the juvenile court should have considered “less drastic alternatives, such as striking a part of his testimony or discrediting his testimony.” It is telling that the minor’s appellate counsel does not even attempt to identify what parts of the minor’s testimony should have been stricken instead of the entirety of the testimony. The minor’s story of how he got the car was his entire defense; he had no other witnesses to present. Thus, we cannot conceive of any way that the juvenile court could have stricken only part of the minor’s testimony as a remedy for the minor’s refusal to disclose material and highly relevant information bearing on the credibility of the minor’s story at trial. And the other alternative proposed by the minor’s appellate counsel, i.e., “discrediting [the minor’s] testimony, ” would have gained the minor nothing because his story of the innocent acquisition of the car from the unidentified friend was in effect his only defense.
Contrary to the minor’s assertion, the juvenile court’s ruling did not violate the directive of Welfare and Institutions Code section 202, subdivision (a) that a juvenile court must, as the minor puts it, “act in the best interest of the minor.” That subsection simply states the purpose of the delinquency statutes is to “provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor’s family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public.”
Equally without merit is the minor’s complaint that the court offered to strike the testimony before such action was requested by the prosecutor and, thus, “impermissibly assumed the role of [an] advocate and deprived the minor of his due process right to a fair trial.” The juvenile court “has a statutory duty to control trial proceedings, including the introduction and exclusion of evidence.” (People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v. Carlucci (1979) 23 Cal.3d 249, 255; Evid. Code, § 775.) The court’s action was nothing more than anticipating the obvious, that the prosecutor would request the striking of the direct testimony based upon the minor’s refusal to answer a material and critical question on cross-examination that went to the heart of the minor’s defense. There was no due process violation.
II
The minor was charged with, among other things, driving without an operator’s license, a misdemeanor (Veh. Code, § 12500). To prove that charge, the prosecutor introduced a certified copy of a California Department of Motor Vehicles (DMV) document showing the minor’s name, address, and driving record, which included a prior conviction in 2006 for a violation of Vehicle Code section 10851, and the fact that the minor had not been issued a driver’s license (“NO PERMANENT CALIF LIC ISSUED”).
Defense counsel objected on the grounds of relevance, lack of foundation, and hearsay. The juvenile court overruled the objection, noting the document was a certified business record.
In his opening brief, the minor argued the DMV document should not have been allowed into evidence because it was testimonial and deprived him of the right to confront evidence against him. (Citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (hereafter Melendez-Diaz).) Acknowledging that his trial attorney did not raise this objection, the minor says his counsel was “not required to argue the legal consequence of overruling [counsel’s hearsay] objection” and that, in any event, counsel was ineffective in failing to object on the ground asserted on appeal; thus, the claim of error should not be deemed forfeited.
The People correctly respond that the DMV document does not fall within the “‘core class of testimonial statements’” identified in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. (Melendez-Diaz, supra, 557 U.S. ___ [174 L.Ed.2d at p. 321].) Instead, it is an official record and subject to such hearsay exception. (Evid. Code, § 1280 [official records hearsay exception]; People v. George (1994) 30 Cal.App.4th 262, 274.) This is so because the DMV is required to maintain records of all granted and denied applications for licenses and all suspended or revoked licenses (Veh. Code, § 1800, subd. (b)) and convictions under the Vehicle Code (Veh. Code, § 1806). The DMV document introduced in this case was not prepared for the purposes of trial and does not amount to prior testimony at a hearing or trial or before a grand jury or statements obtained during a police interrogation. It was prepared in the normal course of business of the DMV, that is, “to provide a chronicle of some act or event relating to the public employee’s duty.” (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; see Crawford v. Washington, supra, 541 U.S. at p. 56 [158 L.Ed.2d at pp. 195-196].)
In his reply brief, the minor states: “Upon further reflection and a review of the Respondent’s Brief, the minor withdraws [his Melendez-Diaz] argument. We commend his appellate counsel for doing so because, as explained above, the contention lacks merit.
III
The minor lastly contends the prosecutor’s waiver of his closing argument, reserving his right to make rebuttal argument, amounted to prosecutorial misconduct and violated the minor’s Sixth and Fourteenth Amendment rights. We disagree.
When the prosecutor said he waived his closing argument and would “save for rebuttal, ” defense counsel argued the prosecutor could not reserve rebuttal. The juvenile court noted that doing so was standard practice in juvenile court and that, if defense counsel waived argument, the prosecutor would be unable to present a rebuttal.
Defense counsel thereafter briefly argued, challenging the officers’ recollection of the traffic stop, noting the scissors had not been fingerprinted, and claiming the minor had been surprised when told he was driving a stolen car. Over defense counsel’s objection, the prosecutor briefly argued, noting the minor’s surprise was quite an understandable reaction to a felony stop and challenging the minor’s explanation to the officer as to how he came into possession of the car. Defense counsel did not claim that the prosecutor’s rebuttal exceeded the scope of defense counsel’s closing argument.
There was no misconduct. Penal Code section 1093 provides that the People have the right to open and close argument, and nothing bars the prosecutor from waiving closing argument. (People v. Martin (1919) 44 Cal.App. 45, 47.)
The minor’s reliance on People v. Robinson (1995) 31 Cal.App.4th 494 is misplaced because that case is factually distinguishable. There, the prosecutor gave a very short opening argument, which was found to have been done to preclude defense counsel’s reply, and later gave a lengthy closing argument, sandbagging the defendant. (Id. at p. 505.) That did not occur in this case. Here, the prosecutor’s closing argument responded to defense counsel’s arguments. The prosecutor did not sandbag the minor. Contrary to the minor’s suggestion, defense counsel was not entitled to respond to the prosecutor’s rebuttal. Notably, defense counsel did not object to the scope of the prosecutor’s rebuttal. There was no error.
DISPOSITION
The judgment (order of commitment) is affirmed.
We concur: NICHOLSON, J. CANTIL-SAKAUYE, J.