Opinion
H047650
07-01-2021
In re P.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.D., Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19JV43744A
Bamattre Manoukian, J.
P.D. appeals from the juvenile court's dispositional order placing her on probation after she was found to have committed an assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). P.D. argues that the juvenile court erred when it admitted hearsay testimony about the victim's concussion and that it abused its discretion when it denied her motions to reduce her felony to a misdemeanor under section 17, subdivision (b). As we explain, we find no merit in P.D.'s arguments and affirm the dispositional order.
Unspecified statutory references are to the Penal Code.
I. Background
A. The Petition
On June 18, 2019, the Santa Clara County District Attorney's Office filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that P.D. came within the juvenile court's jurisdiction for committing an assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 1).
B. The Jurisdictional Hearing
1. The Offense
Victim testified at the jurisdictional hearing. Victim and P.D. attended the same high school. On May 17, 2019, victim and a friend walked across the street from the high school to the CVS store. Victim saw P.D. and P.D.'s friend inside the store, which caused victim concern. The previous day, P.D. had told victim that she wanted to fight victim because victim was “talking shit” about P.D.
Victim left the store and started walking quickly away from P.D. P.D. came from behind and grabbed victim by the hair in the parking lot. P.D. pulled victim down and started to punch, slap, and kick victim. P.D. struck victim in the head and the face about 20 times, and she “threw [victim's] head... down to the ground and hit it hard.” Victim blacked out momentarily when her head hit the ground. She was unsure of how long she lost consciousness. Victim also believed that P.D. kicked her stomach. Victim did not fight back. Eventually, victim heard P.D.'s friend tell P.D. to get off victim, and P.D. stopped the assault. P.D. and her friend left.
A video depicting a portion of the assault and a transcript of the video was admitted into evidence. Under California Rules of Court, rule 8.407(e), “[e]xhibits that were admitted into evidence, refused, or lodged may be transmitted to the reviewing court as provided in rule 8.224.” Under rule 8.224(a)(1), “a party wanting the reviewing court to consider any original exhibits that were admitted in evidence, refused, or lodged but that were not copied in the clerk's transcript under rule 8.122 or the appendix under rule 8.124 must serve and file a notice in superior court designating such exhibits” within 10 days after the last respondent's brief is filed. Neither party requested that the video be transmitted to this court for review. The minute order dated November 1, 2019, reflects that the juvenile court ordered the video returned to the district attorney's office. We contacted the juvenile court to request the video and were advised that the juvenile court no longer has possession of it.
Afterwards, victim got up by herself and walked back to the high school. Her eye was puffy and bruised, and she had a scratch on her eyebrow. Her mouth and nose were bleeding, but her teeth were all intact. She also had tender bumps on her head. Victim called her grandfather, and her grandfather told her to go to the school's office. Victim's grandfather took her to the hospital, where she spoke to a police officer who documented her injuries.
After the assault, victim did not take time off from school. Two of the tender spots on her head went away after two days, and she did not have to receive any stitches. Victim did not need surgery, and the doctors who saw her did not have to perform any special techniques to stop her nose and mouth from bleeding. The only item that victim was given to treat her injuries was a cold compress for her eye. According to victim, doctors told her that she had suffered a concussion. The swelling around her eye later worsened, and she developed a black eye. After the assault, victim started to get headaches, and her vision changed. Victim, however, did not need to wear glasses.
About two weeks after the incident with P.D., victim was in another fight and someone else slapped her head about five times. The injuries that victim sustained from her altercation with P.D. did not get worse after this second, unrelated fight.
2. The Section 17 , Subdivision (b) Motions and the Juvenile Court's Jurisdictional Finding
After victim testified, the prosecution and defense both rested. Defense counsel requested that the juvenile court reduce P.D.'s offense to a misdemeanor under section 17, subdivision (b) on the basis that there was a “lack of substantial injury to the claimant witness.” The prosecutor opposed the motion and argued that the injuries suffered by victim were not relevant; the issue was whether the force that P.D. used during the assault was likely to cause great bodily injury. The juvenile court denied the section 17, subdivision (b) motion.
The following day, the juvenile court sustained the count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The juvenile court stated that “[t]he essential determination is whether the force was likely to produce great bodily injury rather than the actual injury [that] occurred.” The juvenile court characterized the video of the event as “probably the most dispositive evidence” and stated that it considered the assault to be “very violent.” The juvenile court concluded, “[The video] shows an attack on somebody, who's walking, without their knowing it. It shows them being knocked, soared [sic] down to the ground, hair pulled down to the ground and punched repeatedly. There were more blows than I could count, many more blows than I could count.”
Defense counsel subsequently asked the juvenile court if it would again “consider section 17(B) in regards to the nature and quality—” The juvenile court responded, “No, I denied that yesterday and having re reviewed everything I would also deny it today.”
C. The Disposition
On November 25, 2019, the juvenile court placed P.D. on probation subject to various terms and conditions. The juvenile court also issued a three year restraining order against P.D.
II. Discussion
A. Hearsay
P.D. argues that the juvenile court abused its discretion when it admitted victim's testimony at the hearing that her doctors told her that she had suffered from a concussion. P.D. argues that victim's testimony was hearsay and its admission was prejudicial error.
1. Background
During victim's redirect examination, the prosecutor asked, “Did your injuries get worse over time?” Victim responded, “I got a concussion from what the doctors told me.” Defense counsel objected by saying, “Object as hearsay.” The juvenile court responded, “Overruled.” Victim then continued by testifying, “And every [sic] since then they said I'd get headaches, and I get huge headaches a lot.”
2. General Legal Principles and Standard of Review
Under the Evidence Code, hearsay is defined as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), italics added.) Unless the hearsay evidence falls within an exception to the hearsay rule, an out of court statement is inadmissible for its truth. (Id., subd. (b).) We “appl[y] the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th 690, 723.)
“Ordinarily, an improper admission of hearsay... constitute[s] statutory error under the Evidence Code.” (People v. Sanchez (2016) 63 Cal.4th 665, 685.) We analyze prejudice due to statutory error under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which requires reversal only when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”
3. Analysis
P.D. argues that the juvenile court erroneously admitted victim's testimony that her doctors had told her that she had a concussion. P.D. insists that the testimony was inadmissible hearsay and that the prosecutor did not establish that it fell within an exception to the hearsay rule.
The Attorney General argues that the prosecutor unintentionally elicited victim's testimony about her concussion diagnosis because the prosecutor had initially asked victim if her injuries worsened over time—a yes or no question. The Attorney General further argues that victim's testimony was not offered to prove the truth of the matter stated—that victim suffered a concussion—because the prosecutor later argued that the extent of victim's injuries was irrelevant, and he wanted “to focus away from the extent of [victim's] injuries because they don't matter.”
Whether the prosecutor intentionally or unintentionally elicited the out of court statement is not relevant to our analysis. Moreover, the fact that the prosecutor argued that victim's injuries “don't matter” to the juvenile court does not mean that victim's testimony was not offered to prove that she had a concussion. “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) “While... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.” (People v. Muir (1966) 244 Cal.App.2d 598, 604.) In this case, victim's testimony was offered to prove the extent of her injuries—that she was informed by the doctors that she had suffered a concussion, and, as she subsequently explained, she experienced headaches after the assault. The extent of victim's injuries was probative to the amount of force P.D. used during the attack. Thus, victim's testimony about her concussion diagnosis was hearsay because it was “offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)
Nonetheless, reversal is not required because P.D. cannot demonstrate that she was prejudiced by the erroneous admission of the hearsay testimony. Even without victim's testimony relating her concussion diagnosis, there was ample evidence that victim suffered from a head injury. Victim's subsequent testimony that she suffered headaches after the assault was not hearsay. Neither was victim's testimony that she blacked out momentarily when she hit the ground and that she later suffered from changes to her vision, though she did not need to wear glasses. Additionally, there was ample evidence that P.D. used a great amount of force during the attack; victim testified that she was struck about 20 times, she suffered a black eye, and she bled from her mouth and nose. The juvenile court viewed the video of the assault and believed that the attack looked “very violent” and that P.D. had assaulted victim with “more blows than I could count, many more blows than I could count.”
P.D. argues that the alleged concussion was the most severe injury that victim sustained. As P.D. observes, victim was able to walk back to school by herself after the assault. Nonetheless, the fact that victim did not sustain more grievous injuries is not dispositive. As we have explained, section 245, subdivision (a)(4) focuses on the amount of force used and “whether the victim in fact suffers any harm is immaterial.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
In her reply brief, P.D. argues that her case is analogous to In re Brandon T. (2011) 191 Cal.App.4th 1491, where the Court of Appeal found insufficient evidence to sustain an allegation of assault with a deadly weapon despite the minor's violent attack on the victim. (Id. at p. 1496.) In Brandon T., the minor took a butter knife and tried to cut the victim's cheek and throat, applying pressure that broke the knife's handle but only inflicting “ ‘a small scratch' ” on the victim's cheek. (Id. at p. 1497.) The issue in Brandon T.was whether “the butter knife, as used, was capable of producing death or great bodily injury.” (Ibid.) The Brandon T. court concluded that the butter knife was not capable of producing death or great bodily injury because the pressure that the minor applied broke the butter knife but did not cause death or great bodily injury to the victim. (Ibid.) P.D.'s reliance on Brandon T.is misplaced. Here, the issue is not whether a weapon is capable of producing death or great bodily injury; the issue is whether P.D. used force that was likely to cause great bodily injury.
P.D. argues that the juvenile court believed that whether she exerted force likely to cause great bodily injury was a close issue because the court stated that it would “have to do research on that question about what qualifies as substantial” before it made its ruling. P.D. misconstrues the juvenile court's statements. The question that the juvenile court wanted to research was whether the injuries that victim incurred were substantial. Before it made its ruling, the juvenile court also said the following: “Here is what the Court will tell you from seeing the video. It certainly looked to me like there was more than enough force which could cause serious injury. Okay. The video is very damning as to your client unfortunately....” (Italics added.) In its own words, the juvenile court expressed that it believed that the video of the assault showed that P.D. exerted sufficient force under section 245, subdivision (a)(4).
Based on the record before us, we conclude that even if victim's testimony about her concussion diagnosis had been excluded, “it is not reasonably probable that a result more favorable to [P.D.] would have been reached in absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
B. Discretion Under Section 17 , Subdivision (b)
P.D. argues that the juvenile court abused its discretion when it denied her section 17, subdivision (b) motions to reduce her felony offense to a misdemeanor. P.D. argues that the juvenile court failed to make an individualized consideration of her circumstances and the public interest.
1. Background
After the close of evidence, defense counsel stated, “We would request the Court to Section 17 based on the state of the evidence that is presented in regards to the lack of substantial injury to the claimant witness.” The juvenile court responded, “I suspect I will have to do research on that question about what qualifies as substantial.” Thereafter, the prosecutor argued: “[Victim's injuries are] not even relevant to the charge. The charge is not inflicting great bodily injury.... [¶] The issue is was force being applied by a means likely to cause great bodily injury. Injuries are completely and utterly irrelevant to a 245(a)(4). The question is, was the amount of force used likely to cause. It is not a section—not a case that should be Section 17'd. You have seen the video, and you have seen the brutality. There is absolutely no reason to 17 it. On the 17 issue I rest, but I want to focus away from the extent of the injuries because they don't matter.” The juvenile court ruled, “The section 17 motion is denied.”
The following day, the juvenile court sustained the allegation that P.D. committed an assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The juvenile court noted that it found the video of the assault dispositive, characterizing it as “very violent.” Subsequently, defense counsel asked, “And so, for the record, Your Honor would not consider section 17(B) in regards to the nature and quality—” The juvenile court responded, “No, I denied that yesterday and having re reviewed everything I would also deny it today.”
2. General Legal Principles and Standard of Review
The juvenile court found that P.D. committed an assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), which his punishable either as a felony or a misdemeanor.
Under Welfare and Institutions Code section 702, when a “minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” Welfare and Institutions Code section 702 does not specify that the juvenile court is required to state its reasoning or rationale in declaring the offense a misdemeanor or felony. (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1180 [“The statute by its terms demands only a declaration—a statement of the existence of either a felony or a misdemeanor.”]; see Cal. Rules of Court, rule 5.780(e)(5).)
Under Welfare and Institutions Code section 702, a juvenile court must declare that a wobbler offense is a felony or a misdemeanor at the jurisdictional hearing (see Cal. Rules of Court, rule 5.780(e)(5)), or, at the latest, at the dispositional hearing (id., rule 5.795(a)).
“[S]ection 17, subdivision (b)... authorizes the reduction of ‘wobbler' offenses—crimes that, in the trial court's discretion, may be sentenced alternately as felonies or misdemeanors... by declaration as a misdemeanor after a grant of probation (§ 17[, subdivision] (b)(3)).” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) Section 17, subdivision (b)(3) provides that a wobbler offense is deemed a misdemeanor for all purposes “[w]hen the court grants probation to a defendant at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”
Under section 17, a felony can also become a misdemeanor for all purposes under the following circumstances: “(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. [¶] (2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. [¶]... [¶] (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. [¶] (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.” (§ 17, subd. (b).)
“The Legislature has... granted broad authority [to the sentencing court] under the express terms of section 17[, subdivision] (b)” to make the determination that an offense is a misdemeanor or a felony. (Alvarez, supra, 14 Cal.4th at pp. 980 981.) Relevant factors to the decision include “ ‘the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, [and] his traits of character as evidenced by his behavior and demeanor at the trial.' ” (Id. at p. 978.) The sentencing objectives described in California Rules of Court, rule 4.410 can also be considered. (Alvarez, supra, at p. 978.) The sentencing objectives listed in rule 4.410 include protecting society, punishing the defendant, encouraging the defendant to lead a law abiding life, deterring the defendant from future offenses, and deterring others from criminal conduct by demonstrating its consequences. (Cal. Rules of Court, rule 4.410(a).)
Alvarez cited to California Rules of Court, former rule 410, which was subsequently renumbered as rule 4.410. (Alvarez, supra, 14 Cal.4th at p. 978.)
The sentencing court's decision under section 17, subdivision (b) “will not be disturbed on appeal unless it is clearly shown the decision was irrational or arbitrary.” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1028.)
3. Analysis
Assuming section 17, subdivision (b)(3) applies in juvenile proceedings (In re E.G. (2016) 6 Cal.App.5th 871, 883 884 [finding § 17, subd. (b)(3) applicable to juvenile delinquency proceedings]), we find that the juvenile court did not abuse its discretion when it denied P.D.'s motions.
P.D. made both section 17, subdivision (b) motions before the juvenile court placed her on probation. In Alvarez, the defendant moved to have his offense reduced to a misdemeanor at the close of the People's case. (Alvarez, supra, 14 Cal.4th at p. 973.) The trial court took the defendant's motion under submission. (Ibid.) The Alvarez court stated in a footnote that “[n]o provision of section 17, subdivision (b) authorizes the superior court judge to [reduce a felony to a misdemeanor] prior to judgment or a grant of probation.” (Id. at p. 973, fn. 2.) We observe, however, that a declaration that a wobbler is a misdemeanor or a felony under Welfare and Institutions Code section 702 in a juvenile delinquency case may be made during the jurisdictional hearing as provided in California Rules of Court, rule 5.780(e)(5).
P.D. argues that the record demonstrates that the juvenile court based its decision solely on the violence of the offense because it did not mention P.D.'s circumstances or the public interest when it made its ruling. Citing Alvarez, supra, 14 Cal.4th 968, P.D. argues that the record must reflect that the juvenile court considered relevant factors. In Alvarez, a three strikes case where the trial court reduced a felony to a misdemeanor under section 17, subdivision (b)(3), the California Supreme Court stated: “[T]he fact a wobbler offense originated as a three strikes filing will not invariably or inevitably militate against reducing the charge to a misdemeanor. Nonetheless, the current offense cannot be considered in a vacuum; given the public safety considerations underlying the three strikes law, the record should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant's criminal history.” (Alvarez, supra, at p. 979.)
Alvarez, however, also stated that on appeal, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' ” (Alvarez, supra, 14 Cal.4th at pp. 977 978.) Moreover, we must generally presume that the juvenile court properly followed the applicable law and considered all relevant factors. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed.”]; In re Julian R. (2009) 47 Cal.4th 487, 499 [“when ‘a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order' ”].)
P.D. does not meet her burden to demonstrate that the juvenile court's ruling was an abuse of discretion. The record reflects that the juvenile court determined that P.D.'s current offense was violent. When the juvenile court sustained the allegation against P.D., it remarked that the video showed a “very violent” attack. The circumstances of P.D.'s offense was an appropriate factor for the juvenile court to consider when ruling on a section 17, subdivision (b) motion. (Alvarez, supra, 14 Cal.4th at p. 978.) The juvenile court did not state that it was only considering the circumstances of P.D.'s offense. The juvenile court also did not state that it was declining to consider other relevant factors that were before it, such as P.D.'s lack of a history of juvenile delinquency. The juvenile court's focus on the violence of the charged offense did not mean that it considered only that one factor. (See People v. Myers (1999) 69 Cal.App.4th 305, 310 [trial court's explanatory comments focusing on violence of defendant's crimes when denying motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 did not mean that it considered only one factor].) In fact, when the juvenile court denied P.D.'s section 17, subdivision (b) motion a second time, it expressly stated that it had “re reviewed everything.”
Here, P.D. did not request that the juvenile court articulate its reasons for declining to reduce her felony to a misdemeanor. The waiver doctrine “appl[ies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) Accordingly, any argument that the juvenile court failed to adequately articulate its reasons for denying P.D.'s section 17, subdivision (b) motions is waived.
P.D. acknowledges that her defense counsel cited only to the circumstances of the offense when making both section 17, subdivision (b) motions and did not argue that the juvenile court should also consider P.D.'s circumstances or the public interest. P.D. argues that defense counsel rendered ineffective assistance if counsel's imprecise arguments waived P.D.'s appellate claim that the juvenile court abused its discretion by failing to consider her circumstances and the public interest. We have not concluded that P.D. waived her appellate claim that the juvenile court failed to make an individualized consideration of P.D. and her offense. We have, however, concluded that P.D. has waived any arguments pertaining to the juvenile court's failure to further explain its decisions on her section 17, subdivision (b) motions. P.D. does not argue that defense counsel's failure to request that the juvenile court further articulate the reasons for its decisions constitutes ineffective assistance.
Finally, P.D. argues that when her defense counsel made the section 17, subdivision (b) motions, the probation report in her case had not yet been filed. Thus, P.D. claims that the juvenile court had almost no information regarding her character when it made its decisions on her motions. P.D., however, chose when to make her section 17, subdivision (b) motions, and the fact that additional information about P.D.'s circumstances was contained in the subsequently filed probation report did not render the juvenile court's earlier ruling an abuse of discretion. P.D. cannot fault the juvenile court for failing to consider relevant evidence that was not before it.
The probation report contained statements from P.D. and her parents that indicated that P.D. assaulted victim after victim bullied P.D. The probation report was filed on November 25, 2019. The juvenile court denied P.D.'s section 17, subdivision (b) motions on October 31 and November 1, 2019.
Here, the juvenile court could have reasonably believed that although P.D. did not have a history of juvenile delinquency, the public interest would be furthered by declaring the offense a felony because of the violent nature of the assault. As a result, P.D. does not meet her burden “ ‘to clearly show that the sentencing decision was irrational or arbitrary.' ” (Alvarez, supra, 14 Cal.4th at p. 977.)
III. Disposition
The juvenile court's dispositional order is affirmed.
WE CONCUR: ELIA, ACTING P.J. DANNER, J.