Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. JJ13947
APPEAL from an order of the Superior Court of Los Angeles County No. JJ13947, Robert Ambrose, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Cynthia L. Barnes, 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, Senior Assistant Attorney General, Victoria B. Wilson and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Zelon, J.
Jose V. appeals from the juvenile court’s order of wardship after finding he possessed methamphetamine, a felony, and marijuana, a misdemeanor. He was ordered home on probation. Jose V. contends the court improperly denied his request for a continuance during the jurisdictional hearing to consult an expert witness. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Summary of Evidence Presented at the Jurisdictional Hearing
1. Prosecution Evidence
At around 5:00 p.m. on July 2, 2006, a Huntington Park police officer saw Jose V. drop a hand-rolled cigarette on the ground. The officer searched him, and found what appeared to be two baggies of methamphetamine and one baggie of marijuana in his pockets. When asked about the narcotics, after waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), Jose V. said he had picked up the baggies of methamphetamine after finding them on the street and he had possessed the marijuana for a while. Jose V. admitted knowing when he pocketed the baggies the substance inside them was methamphetamine.
Luis Olmos, a criminalist for the Los Angeles County Sheriff’s Department, conducted various laboratory tests to identify the substances inside the baggies. He concluded the substance in two of the baggies was methamphetamine, and in the remaining one baggie was marijuana.
2. Defense Evidence
A defense investigator testified he had interviewed Jose Sanchez, Jose V.’s cousin, who admitted the narcotics belonged to him. According to the investigator, Sanchez explained he had left the narcotics inside a pair of his shorts that Jose V. had apparently decided to wear and was then arrested.
Jose Sanchez was called as a defense witness, but invoked his Fifth Amendment privilege against self-incrimination and refused to testify.
Defense Request for a Continuance
On July 11, 2006, defense counsel requested from the prosecution discovery of “all laboratory . . . and other reports concerning the testing and examination of” the physical evidence in this case. The jurisdictional hearing commenced on July 25, 2006.
During his direct testimony, criminalist Olmos referred to notes of his lab tests on the suspect substances. The lab notes included information about what specific tests were performed to identify the substances and when the particular tests were conducted. Before cross-examining Olmos, defense counsel complained the prosecution had failed to produce a copy of the lab notes pursuant to the pretrial discovery request. Defense counsel asserted the juvenile court should sanction the prosecution either by excluding Olmos’s testimony, or by providing the defense with a copy of the lab notes and allowing defense counsel time to consult an appointed expert before cross-examining Olmos on his lab notes.
The juvenile court refused to strike Olmos’s testimony, but agreed immediately to furnish defense counsel with a copy of the lab notes and to continue the jurisdictional hearing for “a week” or until “August 4, 2006” to allow defense counsel time to confer with an expert. Defense counsel told the court she needed a longer continuance because she was scheduled to leave for vacation on July 26 and 27 and on August 7 and 8, 2006, and would be reporting for jury duty the week of July 31, 2006.
After further discussion and at the urging of both parties, the juvenile court agreed to entertain further argument the following day. The court then handed defense counsel a copy of the lab notes. The prosecution neither requested nor received a copy of the notes during the jurisdictional hearing.
When proceedings reconvened on July 26, 2006, defense counsel acknowledged the discovery failure appeared to be inadvertent or unintentional. However, defense counsel stated she had reviewed the lab notes over night and found they contained more extensive “scientific testing and conclusions” than the materials that had been produced in pretrial discovery. Defense counsel again asked the juvenile court either to strike Olmos’s testimony or to grant a continuance so that she could have an expert assist her in preparing her cross-examination of Olmos. The prosecutor responded that before the hearing commenced, the defense was given photographs of the seized methamphetamine and marijuana as well as lab receipts reflecting the results of Olmos’s tests. The prosecutor pointed out that because the defense knew the prosecution intended to have a criminalist testify in its case-in-chief, defense counsel could have arranged for a defense expert (chemist) independently to test the substances before the hearing and/or to be available to testify during the hearing.
The juvenile court denied the defense request for a continuance, prompting defense counsel initially to elect not to cross examine Olmos. Defense counsel subsequently changed her mind, although she stated her cross-examination would be constitutionally ineffective under the circumstances.
DISCUSSION
The parties do not dispute the prosecution’s failure to disclose Olmos’s lab notes prior to the jurisdictional hearing constituted a discovery violation. Jose V. contends, however, the juvenile court’s refusal to grant a continuance to remedy the prosecution’s discovery violation amounted to a deprivation of his rights to a competent defense (in violation of the Sixth Amendment to the United States Constitution) and to due process (Fourteenth Amendment).
A jurisdictional hearing may be continued “only on a showing of good cause and only for the time shown to be necessary.” (Cal. Rules of Court, former rule 1422(b)(1), now rule 5.550(b)(1); Welf. & Inst. Code, § 682, subd. (b).) Good cause may result from a discovery violation. Where there is a failure to comply with discovery in a juvenile case, “the court may order the person to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit a party from introducing in evidence the material not disclosed, dismiss the proceedings, or enter any other order the court deems just under the circumstances.” (Former Cal. Rules of Court, rule 1420(j), now rule 5.546(j).) The juvenile court’s decision to grant or to deny a requested continuance will not be reversed absent an abuse of discretion. (See In re Elijah V. (2005) 127 Cal.App.4th 576, 585; see also In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1166 [“Discovery in juvenile matters rests within the control of the juvenile court and the exercise of its discretion will be reversed on appeal only on a showing of a clear abuse.”].)
While a juvenile court may not exercise its discretion over continuances so as to deprive the minor or his counsel of a reasonable opportunity to prepare (see People v. Sakarias (2000) 22 Cal.4th 596, 646), the juvenile court’s ruling in this case had no such effect. “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel. [Citation.]” (Morris v. Slappy (1983) 461 U.S. 1, 11 [103 S.Ct. 1610, 75 L.Ed.2d 610].) Similarly, “it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. [Citation.] Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. [Citation.]” (Ungar v. Sarafite (1964) 376 U.S. 575, 589 [845 S.Ct. 841, 11 L.Ed.2d 921].) “In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1013.)
The circumstances in this case show the juvenile court initially granted the requested continuance, but defense counsel rejected it because the allotted time was inconsistent with her personal schedule. Ultimately, the court refused to grant a continuance on grounds defense counsel should have been prepared to cross-examine the criminalist on his “scientific” testimony from his lab notes. We do not find any basis for a claim of ineffective assistance on this record. On the contrary, defense counsel mounted a vigorous defense on behalf of Jose V. by identifying the failure by the prosecution to comply with discovery, obtaining the withheld materials, and cross-examining the witness.
Defense counsel never did inform the court how long she wanted to continue the jurisdictional hearing.
The noncompliance came to light when Olmos, who had never qualified as an expert in court, read from his lab notes while testifying about his testing procedures and results. Defense counsel demanded copies of the notes and a continuance to consult an expert on grounds Olmos’s tests may not have been accepted as standard within the scientific community and may have therefore produced invalid results. However, nothing in the record suggests the tests identifying the controlled substances in this case were not standard within the scientific community or were improperly conducted with invalid results.
Although the juvenile court stated it was “holding in abeyance” a finding that Olmos qualified as an expert witness, the court impliedly so found at the conclusion of the jurisdictional hearing in determining Jose V. had committed the offenses alleged.
Olmos detailed on direct examination the testing protocol he used to identify the marijuana and methamphetamine, specifically describing each test and the individual results. Olmos also testified the particular tests he relied upon were accepted procedures within the scientific community. Defense counsel cross-examined Olmos on the general method for testing controlled substances in the laboratory as well as on Olmos’s own experience in testing for marijuana and methamphetamine. Although defense counsel’s insistence upon a continuance was an example of “good lawyering” there was no showing the desired expert consultation would have likely assisted the defense, in light of Olmos’s testimony and Jose V.’s own admission to police that he knowingly possessed marijuana and methamphetamine. We conclude that the juvenile court’s denial of the requested continuance did not exceed the bounds of reason or interfere with Jose V.’s rights to a competent defense and due process at the jurisdictional hearing.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J., WILEY, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.