Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J38106
Lambden, J.
A juvenile wardship petition pursuant to Welfare and Institutions Code section 602 was filed, alleging that defendant committed an assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). After a contested jurisdiction hearing, the lower court sustained the charge. Subsequently, defendant moved for a new trial, arguing that the mother of the victim improperly coached witnesses by making improper gestures while the witnesses were testifying at the jurisdiction hearing. The court found there was some coaching, but denied the motion for a new trial because it found no prejudice. The court adjudged defendant a ward of the court and placed defendant on probation in her parents’ custody.
All further unspecified code sections refer to the Welfare and Institutions Code.
Defendant appeals and argues that the lower court should have granted her motion for a new trial. She contends the coaching by the victim’s mother of the witnesses during the jurisdiction hearing was prejudicial. We are not persuaded by defendant’s argument and affirm the lower court’s judgment.
BACKGROUND
The Petition and Jurisdiction Hearing
On November 26, 2007, a petition filed pursuant to section 602 alleged that defendant, a teenaged girl, committed an assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) against another teenaged girl. The probation report prepared for the detention hearing stated that, according to the police report, witness A.A. saw defendant punch B.L. (the victim) and the victim lost consciousness. A.A. told the police that defendant stood next to the victim and kicked her twice in the head. The probation report recommended that defendant be detained.
Commissioner Robert C. Fracchia held a contested jurisdiction hearing, which took place on January 31 and February 1, 2008. Evidence at the hearing established that, at approximately 10:00 p.m., on November 20, 2007, defendant and the victim engaged in a physical altercation regarding a boy. No one, including the victim, could state who threw the first punch.
The victim’s brother, M.M., was standing in front of his mother’s house when he noticed about five or six people come to the house. The people in the group told him that they wanted to fight his sister; he responded that she was not coming outside. His sister, however, did come outside. He saw his sister fighting with another female but it was too dark for him to see who the other female was and other members of the group starting hitting him. At one point, he saw a male hit his sister.
The victim could not remember what had happened but A.P., the victim’s sister, and A.A., the victim’s cousin, were outside the house when the fight occurred and they testified about what they observed. They both said that they saw defendant and the victim hitting each other and that the fight ended after defendant kicked the victim while she was on the ground. A.A. specified that defendant kicked the victim twice in the head while the victim was on the ground. A.A. and A.P. testified that immediately after kicking the victim, defendant and others fled.
Officer Jeffrey Paul Osgood testified that he went to the victim’s home on November 20, 2007. He arrived as the victim was being taken away in an ambulance. The victim had a bump on the back of her head that was about two inches wide and one-half inch high, and scars on her knees and back.
On February 1, 2008, the court sustained the charge of assault with force likely to produce great bodily injury against defendant. On February 27, 2008, the court granted defense counsel’s request to be relieved as defendant’s attorney and the court appointed new counsel for defendant. Defendant’s new attorney filed a motion for a new trial on the basis that the mother of the victim coached the witnesses while they were testifying.
The New Trial Motion and Hearing
On June 26, 2008, Judge Garry T. Ichikawa presided over an evidentiary hearing on the motion for a new trial. Defendant’s father testified. He confirmed that he was present at the jurisdiction hearing. He asserted that he observed the victim’s mother shrugging her shoulders, moving a fist to her ear, and moving her head up and down or side to side when A.A. and A.P. were testifying. He believed the two girls were looking at the victim’s mother while testifying.
While A.A. was on the stand, the father of defendant informed the bailiff of what he had seen. The bailiff talked to the victim’s mother, and the father saw the mother “stiffen up.” Later, the father noticed that the bailiff was still watching mother. She, according to the father, had discontinued her head movements, but he saw her continue to place her hand behind her ear. The father said that he disclosed his observations to defendant’s former trial counsel at the end of the trial, and the attorney told him that he had informed the judge. Later, the father clarified that he believed he told counsel about what he had seen at the end of the first day of the hearing, not at the end of the entire hearing.
A.A. was the first witness for the prosecution and A.P. was the second witness for the prosecution. The victim, A.A., A.P., and M.M. all testified on January 31, 2008. The two police officers testified on February 1, 2008.
The parent of other children involved in the incident attended the jurisdiction hearing. This parent testified that she also saw the mother of the victim making hand signals, moving one hand across her throat, shaking a fist, and nodding her head while A.P., the victim, and M.M. were testifying. She informed the bailiff and Tamani Jenkins, a person from the public defender’s office, of her observations. Jenkins, according to this parent, told her that she could not do anything because she had already told the bailiff. The witness saw the bailiff speak to the mother while the victim was testifying, but this parent noticed that the mother continued her conduct, just more discreetly.
Jenkins testified that she attended the jurisdiction hearing. She stated that defendant’s father told her that the victim’s mother was making gestures and she contacted the bailiff. Jenkins did not believe that anyone alerted the judge about this issue and Jenkins did not report these complaints to defendant’s attorney.
The bailiff testified that he saw the victim’s mother making movements and “shaking her head up, down, yes or no,” during the victim’s testimony. He told her to stop, and did not observe her make any other gestures after that. He did not tell the judge because he did not think it was necessary since she had stopped.
The Court’s Ruling
On July 3, 2008, the court denied the motion for a new trial. The court stated: “It was established that there was some coaching from the audience of witnesses. However, when reviewing the testimony as a whole and all the other evidence that was established, I’m going to find that there was sufficient corroboration of the witnesses’ testimony and not grant the motion. [¶] In terms of the corroboration, this would include, but not be limited to, the following: [¶] It’s pretty much undisputed that the location of the assault occurred outside of the victim’s house. [¶] It’s undisputed as to who the fight was between. [¶] It was between the victim and the defendant. [¶] It’s undisputed or sufficiently corroborated that the victim was rendered unconscious as a result of this fight. [¶] It’s also undisputed regarding the nature––the serious nature and extent of the victim’s injury.” The court also denied defendant’s request to reduce the offense to simple assault.
The court adjudged defendant a ward of the court and placed her on probation in her parents’ custody.
Defendant filed a timely notice of appeal.
DISCUSSION
In the lower court, defendant moved for a new trial, arguing that the mother of the victim was signaling answers to the witnesses while they were testifying. The trial court found that there was witness coaching, but it denied the motion for a new trial on the basis that defendant failed to establish prejudice. Defendant asserts that the lower court erred in finding no prejudice.
The People point out that a motion for a new trial is not authorized in juvenile delinquency proceedings, but such a motion is essentially the same as a motion under Welfare and Institutions Code sections 775 and 778. (See In re Kenneth S. (2005) 133 Cal.App.4th 54, 62.) Section 775 provides: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” Section 778 reads: “Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court....”
Defendant’s claim that the mother of the victim influenced witnesses’ testimony is akin to a claim of spectator misconduct. (See, e.g., People v. Craig (1978) 86 Cal.App.3d 905, 919-920 [claim that witness’s testimony was coached or fabricated because courtroom spectator made hand motions during the witness’s testimony treated as claim of spectator misconduct].) “Spectator misconduct is a ground for mistrial if it is ‘of such a character as to prejudice the defendant or influence the verdict.’ ” (People v. Chatman (2006) 38 Cal.4th 344, 368-369.) To warrant a mistrial, “a party’s chances of receiving a fair trial [must] have been irreparably damaged.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) “[P]rejudice is not presumed when spectators misbehave during trial; rather, the defendant must establish prejudice.” (People v. Cornwell (2005) 37 Cal.4th 50, 88, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant argues that the question is whether the spectator misconduct during the trial was “ ‘so inherently prejudicial as to pose an unacceptable threat’ ” to the right to a fair trial (Norris v. Risley (9th Cir. 1990) 918 F.2d 828, 830). We do not use the Ninth Circuit’s definition of prejudice, since our Supreme Court has defined prejudice in the context of spectator misconduct. (See, e.g., People v. Bolden, supra, 29 Cal.4th at p. 555.)
We usually review the trial court’s decision for an abuse of discretion (see, e.g., People v. Slocum (1975) 52 Cal.App.3d 867, 884), since the trial court is in the best position to determine the effect of any alleged spectator misconduct on the trial. Here, however, the motion for a new trial was not before the same person who conducted the jurisdiction hearing; we therefore have the exact same documents that served the basis for Judge Ichikawa’s denial of the motion for a new trial. Accordingly, we review Judge Ichikawa’s finding of no prejudice de novo.
A defendant waives a claim of prejudicial spectator misconduct if the defendant fails to object to and request a curative admonition and the admonition would have cured the misconduct. (People v. Hill (1992) 3 Cal.4th 959, 1000, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Here, trial counsel did not make any objection on the record. Defendant argues that the record does not establish that trial counsel knew about the mother’s gestures as the father of defendant testified that he did not tell counsel until after the trial was over or after the testimony for the first day had concluded. Although it is unclear exactly when the father of defendant communicated his concerns about the mother’s gestures to trial counsel, the record is clear that he did tell counsel at some point and defendant’s attorney never made any objection on the record or notified the court on the record of the claims that the mother was gesturing during the testimony of the witnesses.
Subsequently, after the trial concluded, new trial counsel moved for a new trial. This motion was untimely since it was too late for the court to warn the mother not to make gestures or, if necessary, have her removed from the courtroom. Defendant has not established that her former counsel was unaware of the complaints regarding spectator misconduct and therefore defendant has forfeited this issue by failing to make a timely objection.
Notably, the motion did not include a declaration by former trial counsel regarding his knowledge or lack of knowledge about the alleged coaching.
Even if not waived, defendant’s claim of spectator misconduct fails on the merits. The People do not dispute that spectator misconduct occurred, given the lower court’s finding, but the People maintain such misconduct was not prejudicial. We agree.
The only issue at trial was whether defendant kicked defendant in the head while she was on the ground as the prosecutor conceded that both the victim and defendant were responsible for fighting. The victim could not remember what had happened and M.M., the victim’s brother, did not observe much of the fight. The only witnesses to testify about what happened during the fight were A.A., the victim’s cousin, and A.P., the victim’s sister. Both testified that they saw defendant kicking the victim while she was on the ground, and A.A. said she saw defendant kick the victim’s head twice. The questions therefore are whether the mother of the victim coached them to say this and, if so, whether other corroborating evidence established that defendant kicked the victim.
While there was testimony that the mother of the victim was nodding her head and making hand gestures while A.A. and A.P. were testifying, the record does not specify when during the testimony the signs were made. Without knowing if the mother was making gestures to particular questions, we cannot judge the impact of the mother’s gestures or evaluate whether the mother was signaling how to testify. There is nothing in the record to indicate that the mother was making her gestures during the questions related to seeing the defendant kick the victim. There is simply insufficient evidence in this record to support a finding that the mother actually influenced or affected the content of the witnesses’ testimony and that the mother’s presence in the courtroom “irreparably damaged” defendant’s chance of receiving a fair trial. (See People v. Bolden, supra, 29 Cal.4th at p. 555.) Nor has defendant shown any actual prejudice.
Moreover, there was other corroborating documentary evidence to support the court’s finding that defendant had committed assault with force likely to produce great bodily injury. The probation report prepared for the detention hearing cited information in the police report stating that witness A.A. told the police she saw defendant punch the victim and noticed the victim lose consciousness. Most significantly, A.A. told the police that defendant stood next to the victim and kicked her twice in the head. These statements to the police right after the incident occurred were consistent with A.A.’s testimony at the jurisdiction hearing. Thus, these statements to the police support the conclusion that the mother’s gestures had no effect on this critical aspect of A.A.’s testimony.
Furthermore, as Commissioner Fracchia pointed out, the medical and physical evidence supported a conclusion that the victim was kicked in the head while on the ground. The court also noted that defendant’s flight was evidence of consciousness of guilt. Thus, the physical evidence, medical evidence, and defendant’s flight, independent of the witnesses’ testimony, supported the finding that defendant committed an assault with force likely to produce great bodily injury.
Accordingly, we conclude that defendant has failed to establish that the mother’s conduct of making gestures during the testimony of the witnesses was prejudicial.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
Since defendant referenced the abovementioned statutes when making the motion and the lower court has now declared defendant a ward of the court, the People assert that they will not dispute that the new trial motion was procedurally proper. We agree that the lower court properly considered defendant’s motion.