Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. DL030615. Joy W. Markman, Judge.
Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont, Gil Gonzalez and Marissa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A Welfare and Institutions Code section 602 petition alleged Lucas C. violated Business and Professions Code section 25662, subd. (a) (minor in possession of alcohol; count 1) and Penal Code section 148, subd. (a)(1) (resisting and obstructing a peace officer in the performance of his duties; count 2). The court found true both counts and ordered Lucas placed on supervised probation for a minimum of six months, subject to various terms and conditions not relevant to the appeal.
Lucas contends the trial court abused its discretion when it excluded his attorney’s video technician from the courtroom during trial, which he claims prevented the technician from assisting the attorney with video playback during cross-examination of a prosecution witness. Lucas also challenges the sufficiency of the evidence to support the court’s true finding on count 2.
Although we agree the trial court abused its discretion by excluding the defense’s video technician from the courtroom, we nonetheless find no prejudice to Lucas as a result of this decision. Defense counsel conducted an adequate cross-examination of the prosecution’s witness without the video playback, and ultimately counsel played the entire video for the court. Furthermore, the court’s true finding on count 2 is supported by substantial evidence. Therefore, we affirm the judgment.
I
FACTS
On November 3, 2007, Orange County Sheriff’s Deputy Joe Allemand, who was dressed in plain clothes while on assignment with a special enforcement team at a skate park in Laguna Hills, noticed a group of 12 to 15 young males, including Lucas, rolling and smoking marijuana cigarettes and drinking beer. Another member of the special enforcement team, Orange County Sheriff’s Deputy Isaac Felter tried to approach the boys, but they immediately started to disperse. Allemand then showed the group his badge and directed them to remain where they were because they were being detained. The boys decided to scatter.
Allemand grabbed Dagan Hurn, who had been left holding the marijuana. Allemand pushed the struggling Hurn to the ground, and Hurn began screaming for help. A group of approximately 50 young skaters started to form a circle around Allemand and Hurn. Ethan, Lucas’s brother, emerged from the circle with his fists clenched and began advancing toward Allemand. As Allemand prepared to release Hurn so he could deal with the oncoming Ethan, Felter arrived and intercepted Ethan, taking him to the ground. As the crowd increased around the two deputies and their downed suspects, Allemand drew his gun and verbally and physically warned them away.
Within approximately five minutes, several patrol cars responded to the deputies’ call for backup. After securing Ethan, Hurn, and an additional suspect in the backseat of patrol cars, Allemand directed other deputies to collect evidence, such as beer cans and backpacks, from the scene. While the officers were collecting evidence and securing detainees, Lucas approached Allemand in a state of agitation, smelling of alcohol and waving his cell phone in Allemand’s face. Lucas identified himself as the brother of one of the detained suspects, and demanded that Allemand take his phone and speak to his guardian, who he said was on the other end of the line. Allemand repeatedly told Lucas he had no time to speak to anyone on the phone. Several witnesses stated that Lucas was told up to a dozen or more times to leave the officers alone and to get out of Allemand’s face, but Lucas persisted in his demands. After several such exchanges, Allemand threatened to take Lucas to jail if he did not leave the scene. Lucas refused to back down and Allemand arrested him.
Allemand remained at the scene for two hours following the arrests. During that time he was engaged in collecting evidence; filling out booking forms and juvenile paperwork; collecting, photographing, and identifying evidence; and releasing subjects to their parents. A preliminary alcohol screening test indicated that Lucas’s blood alcohol content was 0.04 percent. Lucas was eventually charged and released to his guardian.
II
DISCUSSION
A. The Dragging Trial and the Uncooperative Video Player.
During the trial, Lucas’s counsel cross-examined Allemand in an attempt to impeach his testimony, using a DVD video taken from the video system mounted in the patrol car of one of the responding deputies. Counsel experienced problems attempting to playback the DVD, marked as Defense Exhibit C. When Lucas’s counsel asked the court for permission to bring in a technician from his office to assist him, the court permitted it. However, when the technician arrived the court stated, “this is a confidential proceeding, all juvenile matters, he can’t stay here to help you.” When the technician did not immediately leave the courtroom, she said, “I’m ordering him to leave. Pursuant to juvenile court rules, you have him help you now and you don’t keep asking questions of the witness. He cannot hear the witness’ testimony or any of the evidence. You can have him set up what you need, but then he leaves the courtroom.”
Lucas’s counsel complained that the technician should be permitted to stay as a representative of his office, but the court stated that the proceedings “are for witnesses, attorneys, parents. That’s it.” Counsel twice attempted to ask questions of the witness while the technician remained in the courtroom, earning further rebuke from the court. The technician fixed the problem, but it occurred again, causing another delay in the proceedings. Then the court ordered Lucas’s counsel to continue with his cross-examination without the benefit of the DVD, stating that the court was not going to wait for counsel to figure out how to operate the DVD player. When counsel objected that he couldn’t complete his questions without the technician’s assistance, the court declared, “All right. Now, cross-examination then is going to end now. Under the Evidence Code, under the law, the court controls the pace of the proceedings. I’m not going to have any more wasted time in the trial.” Lucas’s counsel objected for the record that he “had additional questions that were interrupted by a technical flaw that, I, as a lawyer, prevented me from asking the questions.” The court dismissed Allemand, subject to recall for the remainder of the trial. During redirect of a later witness, and during closing argument, Lucas’s counsel was able to play Exhibit C without any technical problems or other interruptions.
The court did not reference a specific section of the Evidence Code. However, it is well-established the court controls the mode of interrogation of witnesses. “‘A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.’” (People v. Gonzalez (2006) 38 Cal.4th 932, 951. (citing People v. Cox (1991) 53 Cal.3d 618, 700; see Pen. Code, § 1044, Evid. Code, § 765).)
Lucas contends that the trial court abused its discretion when it excluded his counsel’s video technician from the courtroom and prevented the technician from assisting with video playback during cross-examination of Deputy Allemand. Specifically, Lucas asserts there is nothing in the record that reflects the trial court was cognizant of her discretion to permit a defense technician to remain in the courtroom during juvenile court proceedings.
If a trial court is truly not aware of its discretion, then such “failure to exercise discretion is an abuse of discretion.” (People v. Orabuena (2004) 116 Cal.App.4th 84, 99; see also Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449.) Section 676 of the Welfare and Institutions Code provides in pertinent part, “the public shall not be admitted to a juvenile court hearing.... The judge... may nevertheless admit those persons he or she deems to have a direct and legitimate interest in the particular case or the work of the court.” The language of the statute grants discretion to the judge, who “may” admit or deny access to the court as the judge sees fit. (In re Jesse McM. (1980) 105 Cal.App.3d 187, 190.) In addition to Welfare and Institutions Code section 676, California Rules of Court, rule 5.530(e) provides that a court “may admit” other individuals to the proceedings. As both Welfare and Institutions Code section 676 and California Rules of Court rule, 5.530(e) use the word “may” rather than “shall, ” the statutes grant discretion to the court. “Shall” implies a statutorily mandated action, whereas “may” implies a grant of discretion. (Gov. Code § 14.) As Welfare and Institutions Code section 676 and California Rules of Court, rule 5.530(e) both include “may, ” the decision to admit other individuals to the proceedings is discretionary for the court.
At no point did the court acknowledge the above-referenced statutes and rules, nor give any other indication that it was aware of its discretion to admit individuals other than “witnesses, attorneys, [or] parents.” The court acted as if it was unaware of its discretion to allow the technician to remain in the courtroom, and in the absence of contrary evidence in the record, these actions support a finding that the court was not aware of its discretion to allow the video technician to remain in the courtroom.
Furthermore, assuming confidentiality was at the core of the court’s concern, a brief instruction to the technician about the confidentiality of juvenile proceedings would have sufficed. Both Welfare and Institutions Code section 676 and California Rules of Court rule 5.530 provide for admission to court of members of the public if requested by the juvenile and the parent or guardian. Therefore, the trial court could easily have alleviated its concern for Lucas’s confidentiality rights without excluding the defense’s video technician. (People v. Mullens (2004) 119 Cal.App.4th 648, 658 [“‘The term judicial discretion “implies absence of arbitrary determination, capricious disposition or whimsical thinking.”’”].)
We empathize with the court’s desire to run an orderly courtroom. As the record discloses, the court had repeatedly admonished defense counsel to stop asking questions that had already been answered so as to keep the trial moving. And there are other indications in the record that the court may have lost patience with defense counsel. Early in the proceedings, Lucas failed to appear at a scheduled pretrial conference without notice, which forced the court to continue the originally scheduled trial date. On the first day of trial, the start of proceedings was delayed for half an hour while defense counsel set up a DVD video exhibit. The court admonished counsel that day that he should learn how to operate the video player properly so as not to delay the proceedings. However, even assuming the court’s frustration with the pace of the trial was reasonable, the remedy selected, excluding the defense video technician, was not.
The Attorney General asserts “[a]ppellant’s counsel was simply required to know how to operate equipment he intended to use....” Considering our era’s rapid technological metamorphosis, this burden is simply too onerous to impose. It is unreasonable to expect every attorney to be proficient with all the available technology. In fact, the proliferation of information technology professionals within the legal field illustrates the ongoing need for those whose expertise lies in electronics, in or out of a courtroom.
Nevertheless, we find no prejudice to Lucas as a result of the court’s error. The test for reversible error “is whether there has been a “‘miscarriage of justice, ’” which is typically determined by evaluating the entire record to determine whether ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 493, quoting People v. Watson (1956) 46 Cal.2d 818, 836; People v. Cahill (1993) 5 Cal.4th 478, 492.) Here, the record contains compelling evidence of Lucas’s guilt and scant evidence the court’s error affected the proceedings in anyway. As noted, counsel continued his cross-examination of the witness and presented the DVD in full later in the trial. In short, Lucas fails to demonstrate how the court’s error caused prejudice to his case.
Lucas also asserts the court’s ruling interfered with his ability to present a complete defense, relying on his Fourteenth Amendment right to due process of law, or alternatively, the Confrontation Clause of the Sixth Amendment. We will not catch this “Hail Mary pass.” As Lucas points out in his opening brief, “A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility....”
Here, there was no jury to confuse, and nothing in the record suggests the court would have perceived Allemand’s credibility any differently had defense counsel completed his cross-examination with the DVD. In fact, the court stated, “I want to say right off the bat that I don’t have that much faith in the defense videos.” Thus, Lucas’s inability to play the DVD for the entirety of Allemand’s cross-examination did not prejudice his case nor violate his state and federal Constitutional rights. As noted, defense counsel conducted a thorough cross-examination without the assistance of the video, and it was ultimately played during a later cross-examination of a different witness and during closing argument. Lucas was able to achieve his goal of showing the court the evidence. While he may be unsatisfied with the effect of the evidence produced, he may not now attribute this effect to the court’s error.
B. Lucas Disobeyed and Delayed Deputy Allemand.
The court found Lucas in violation of Penal Code section 148 because he delayed Allemand in the performance of his duties. Lucas argues the evidence is insufficient to support the court’s true finding on count 2. We disagree
“Every person who willfully resists, delays, or obstructs any... peace officer... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed...” is guilty of a misdemeanor. (Pen. Code § 148 subd. (a)(1).) According to our Supreme Court, Penal Code section 148, subdivision (a)(1), a misdemeanor, requires the following elements: ““‘(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.’” [Citation.]” (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.)
On appeal, a challenge to the sufficiency of evidence is evaluated according to “‘“whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.... In making such a determination we must view the evidence in a light most favorable to respondent and presume in support of the judgment... the very existence of every fact the trier could reasonably deduce from the evidence. [Citations.]”’” (In re Adrian R. (2000) 85 Cal.App.4th 448, 452.)
Lucas disregarded the deputies’ repeated warnings and admonitions to “walk away” from them and their two captive charges. In fact, Allemand personally told Lucas in no uncertain terms to leave up to a dozen times. Lucas instead stood in front of Allemand, arm extended, thrusting a phone in Allemand’s face and demanding he take it. Meanwhile, Allemand and the other deputies were outnumbered by an unhappy crowd, a crowd the deputies had already unsuccessfully ordered to disperse. Lucas begrudgingly admitted how upset he was over his brother’s arrest. While an understandable stressor, it is not an excuse to interfere with a peace officer attempting to control a scene and conduct an investigation. Lucas admitted knowing Allemand was a peace officer, and he interfered with Allemand’s control of the scene. Thus, the evidence is sufficient to support the court’s finding.
Lucas relies on In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1330 (Muhammed), for the proposition that ‘“it surely cannot be supposed that Penal Code section 148 criminalizes a person’s failure to respond with alacrity to police orders.”’ The proposition is correct. Lucas is wrong in relying on Muhammed.
In Muhammed, officers had placed a suspect in the back of a patrol car while they processed the suspect’s vehicle. The back window of the patrol car was partially down, and the defendant approached the patrol car and began speaking to the suspect. The defendant was ordered by several officers to step away from the vehicle. In response, the defendant extended his arm out behind him, palm out toward the officers, and continued talking to the suspect in the patrol car. Officers then ordered defendant again to step away from the car and warned him he would be arrested if he did not comply. The defendant continued to refuse to comply, and the officers had to interrupt their investigation to detain defendant.
The Court of Appeal upheld the juvenile court’s determination that the defendant violated Penal Code section 148 because of the delay he caused by his repeated refusal to obey officers’ requests. (Muhammed, supra, 95 Cal.App.4th at p. 1331.) And, much like the defendant in Muhammed, Lucas repeatedly ignored the officers’ repeated attempts to disperse the crowd. Allemand personally told Lucas to leave up to a dozen times. Rather than leave, Lucas stood with his hand outstretched to within a foot or two of Allemand’s face, holding a phone and demanding Allemand take it. Therefore, substantial evidence supports the juvenile court’s true finding on count 2.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J. MOORE, J.