Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. VJ39461, Heidi W. Shirley, Referee.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Marc A. Kohm, Deputy Attorneys General for Plaintiff and Respondent.
KLEIN, P. J.
S.V. appeals an order of wardship under Welfare and Institutions Code section 602 based on the juvenile court’s finding he possessed for sale a controlled substance. (Health & Saf. Code, § 11378.) We reject S.V.’s claim the juvenile court prejudicially allowed the prosecution to reopen the People’s case in chief after denying S.V.’s motion to dismiss. We also reject S.V.’s claim the evidence was insufficient to support the true finding on the delinquency petition and affirm the order of wardship.
FACTS AND PROCEDURAL BACKGROUND
On March 5, 2010, S.V., a student at La Mirada High School, admitted he had in his possession on campus seven pills of what he described as Ecstasy and that he intended to sell them for $10 each. A petition filed under Welfare and Institutions Code section 602 alleged S.V. possessed for sale a controlled substance, “to wit, Methylenedioxymethamphetamine.”
Prior to adjudication of the petition, S.V. sought to exclude the evidence seized from his person and any statements he may have made to school officials or the police pursuant to Welfare and Institutions Code section 700.1.
At the hearing on the motion to suppress, Ron Carroll, an assistant principal at La Mirada High School, testified that on March 5, 2010, he received information indicating S.V. was selling Ecstasy on campus. Carroll called S.V. to his office and asked S.V. to empty his pockets. After S.V. complied, he was searched and five to seven round pills were found on his person. After hearing argument, the juvenile court denied S.V.’s motion to suppress.
With respect to the adjudication, Sheriff’s Deputy Sean Barnes testified he went to Carroll’s office and recovered seven blue pills with stars on them and a statement S.V. had written. Barnes advised S.V. of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] which S.V. waived. S.V. indicated the pills were Ecstasy, he obtained them from a male Hispanic in the park and he was selling them for $10 each.
Criminalist Bonny Watson testified she performed a presumptive test on two of the pills and found they contained 3, 4-methylene dioxide methamphetamine (MDMA), commonly referred to as Ecstasy. However, Watson clarified that “ecstasy does not necessarily... contain[] this chemical. It could contain a lot of things, but in this case MDMA and ecstasy are known to be semi-related.” When asked to explain what she meant by “semi-related, ” Watson indicated a tablet labeled Ecstasy may or may not contain MDMA. “It may contain a controlled substance. It may contain no controlled substances, but that’s a general term that is used by law enforcement....”
Defense counsel asked Watson no questions.
After the People rested, defense counsel indicated S.V. wished to make a Welfare and Institutions Code section “700.1 motion” and would submit the matter. The juvenile court responded, “That was yesterday.... The 700.1 motion is denied....” The defense then rested.
In closing argument, the prosecutor asked the juvenile court to sustain the petition based on S.V.’s admission he possessed the pills for sale and Watson’s testimony the pills contained MDMA.
Defense counsel noted Health and Safety Code section 11378 required the People to prove S.V. possessed a controlled substance and “ecstasy MDMA is not a controlled substance under schedule 1 [or] schedule 2.” Further, the prosecutor had failed to show MDMA “is an analog to something in schedule 1 or schedule 2....” Therefore, the juvenile court could not sustain the petition.
The prosecutor indicated she would have to look at the code sections and, although the People had rested, two or three questions of the chemist would establish that MDMA was a controlled substance analog. The prosecutor requested permission to reopen, if necessary. When defense counsel objected to reopening the case, the juvenile court stated it too needed to review the code sections and indicated it would give the prosecutor an opportunity to reopen to establish that MDMA was an analog of a controlled substance, if it were necessary.
Defense counsel again objected and argued the prosecutor was asking for a second opportunity to prove the case after defense counsel had exposed the failure of proof. Defense counsel accused the juvenile court of wanting to see S.V. convicted. The juvenile court responded, “I want to come to an accurate correct result, and... it’s my policy to give both sides every opportunity to make their case....”
The prosecutor then indicated criminalist Watson had left the building and offered to try to have her return immediately, “or we can continue [the case to] tomorrow and that gives us a chance to look at the code section.” The juvenile court agreed to put the case over to the next day. Defense counsel again objected both sides had rested and argued the juvenile court’s ruling amounted to placing S.V. twice in jeopardy. The juvenile court indicated it understood the objection but was going to allow the prosecutor to reopen.
When the matter resumed the next day, defense counsel again objected to reopening of the evidence. Counsel noted S.V. had not presented any evidence and the juvenile court already had denied S.V.’s motion under Welfare and Institutions Code section 701.1, citing that specific section for the first time.
The juvenile court granted the prosecutor permission to recall Watson. Over S.V.’s objection, Watson testified MDA (3, 4-methylenedioxy amphetamine) is a schedule 1 drug and MDMA is an analog of that drug, “meaning that it shares a substantial chemical structure with that drug.” At that point, the People rested.
After hearing argument, the juvenile court sustained the petition, declared the offense a felony and placed S.V. home on probation.
CONTENTIONS
S.V. contends the juvenile court erroneously denied his motion to dismiss under Welfare and Institutions Code section 701.1, the evidence was insufficient to sustain the true finding on the petition, and the order of wardship must be reversed because the juvenile court prejudicially allowed the prosecution to reopen its case after it had denied S.V.’s motion to dismiss.
DISCUSSION
1. S.V. did not move for dismissal under Welfare and Institutions Code section 701.1 until after the juvenile court had indicated it would grant the prosecutor’s request to reopen the People’s case.
S.V. contends the judgment must be vacated because he interposed a timely and meritorious motion to dismiss. S.V. argues that, because the People failed to prove MDMA was an analog of a controlled substance during Watson’s initial round of testimony, the juvenile court was required to grant his motion to dismiss. (Welf. & Inst. Code, § 701.1; In re Anthony J. (2004) 117 Cal.App.4th 718, 727 [in ruling on a motion to dismiss the juvenile court weighs the evidence then before it and determines whether the People have proved the petition beyond a reasonable doubt].) S.V. concludes this court must vacate the order of wardship.
Welfare and Institutions Code section 701.1 provides, in part: “At the hearing, the court, on motion of the minor or on its own motion, shall order that the petition be dismissed and that the minor be discharged from any detention or restriction therefore ordered, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602.”
This claim fails because S.V. did not make a motion pursuant to Welfare and Institutions Code section 701.1 at the close of the People’s evidence. As noted in the foregoing factual summary, at the close of People’s evidence, defense counsel submitted a motion pursuant to Welfare and Institutions Code section “700.1.” Defense counsel did not make any argument in support of the motion and the juvenile court denied it stating, “That was yesterday, ” referring to S.V.’s motion to suppress which previously had been denied. S.V. did not mention Welfare and Institutions Code section 701.1 until the next day, after the juvenile court already had granted the prosecutor’s request to reopen the case. Thus, S.V. did not make a timely motion to dismiss.
Concededly, it appears defense counsel intended to move for dismissal under Welfare and Institutions Code section 701.1 at the close of the People’s evidence, rather than suppression of evidence under section 700.1. However, given the state of the record, S.V. cannot fault the juvenile court’s denial of the motion interposed by S.V. at the close of the prosecution’s case.
In the reply brief, S.V. claims the reference to section 700.1 in the reporter’s transcript is a typographical error. However, both the trial court and the court reporter heard defense counsel refer to Welfare and Institutions Code section 700.1. It thus appears instead that defense counsel misspoke. Because S.V. failed to interpose a motion to dismiss until after the juvenile court had considered and granted the prosecutor’s request to reopen, S.V.’s appellate contention fails.
In any event, as demonstrated in the discussion that follows, even had defense counsel made a timely motion for dismissal, the juvenile court nonetheless retained discretion to permit the prosecutor to reopen the case in chief.
2. The juvenile court committed no abuse of discretion in permitting the prosecutor to reopen the People’s case in chief.
The ability of a trial court to grant a motion to reopen a criminal case to permit the introduction of additional evidence is based on statute and is well settled in the case law. (People v. Ayala (2000) 23 Cal.4th 225, 282; People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Riley (2010) 185 Cal.App.4th 754, 764; People v. Funes (1994) 23 Cal.App.4th 1506, 1520; People v. Goss (1992) 7 Cal.App.4th 702, 706; People v. Rodriguez (1984) 152 Cal.App.3d 289, 295; Pen. Code, §§ 1093, 1094.) We review a trial court’s ruling on a motion to reopen under the abuse of discretion standard based on such factors as the stage the proceedings had reached when the motion was made, the moving party’s diligence in discovering the new evidence, the possibility that undue emphasis would be placed on such evidence before a jury, and the significance of the evidence. (People v. Marshall, supra, 13 Cal.4th at p. 836; People v. Riley, supra, 185 Cal.App.4th at p. 764; People v. Rodriguez, supra, 152 Cal.App.3d at p. 295.) The exercise of the trial court’s discretion will be upheld “so long as the [trial] court is convinced that the failure to present evidence on the issue was a result of ‘inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage....’ [Citation.]” (People v. Goss, supra, 7 Cal.App.4th at p. 708.)
Penal Code section 1093 outlines the typical order of proceedings in a jury trial. It provides that, after the prosecutor has offered evidence in support of the charge and the defendant has had an opportunity to offer evidence in support of the defense, the “parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit[s] them to offer evidence upon their original case.” (Pen. Code, § 1093, subd. (d).) Penal Code section 1094 also gives the trial court discretion to depart from the order of proceedings outlined in Penal Code section 1093 “[w]hen the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court....” (Pen. Code, § 1094.)
Here, after a brief adjudication, the prosecution rested. Defense counsel then made a motion for suppression of evidence, although apparently intending to move for dismissal. Defense counsel submitted the motion for decision without elaborating on its merits. After the juvenile court denied the motion, the defense rested without presenting evidence and the prosecutor made a very brief closing argument. Defense counsel then asserted the prosecution had failed to prove that MDMA was an analog of a controlled substance.
Applying the factors listed above, we find no abuse of the juvenile court’s discretion in permitting the prosecutor to reopen the People’s case in chief. The adjudication and the presentation of the additional evidence both were brief, there was no possibility of undue emphasis on the additional evidence as the case was tried without a jury, and the evidence was significant.
S.V. focuses on the prosecutor’s asserted lack of diligence and argues the People offered no legitimate excuse for the failure to present the missing testimony in the case in chief. S.V. asserts the prosecutor failed to show the missing evidence “could not have been produced before the close of the evidence, ” citing Pocock v. Deniz (1955) 134 Cal.App.2d 758, 761. S.V. claims this is not a case of an inadvertent failure to present available evidence the People intended to produce. Rather, the prosecutor had no intention of producing the evidence until defense counsel exposed the weakness in the People’s case. Because this case involves lack of diligence and ignorance of the law on the part of the prosecutor, S.V. claims the juvenile court lacked good cause to permit the People to reopen the case.
S.V.’s argument is not persuasive. The record suggests the prosecutor believed MDMA was listed in the schedules of controlled substances and no testimony on the analog issue was necessary. Although the prosecutor was mistaken in this belief, contrary to S.V.’s assertion, the prosecutor’s lack of diligence or incomplete knowledge of the relevant statutes is not dispositive of the merits of the issue. The record does not suggest the prosecutor withheld the evidence from the People’s case in chief in order to gain a tactical advantage over the defense. Further, the evidence was necessary to establish an element of the charged offense and it is clear that defense counsel, at all times, was aware of the importance of the evidence and its omission. Thus, the defense was not surprised by the eventual admission of the evidence.
An analogous situation was presented with respect to prior conviction allegations in People v. Rodriguez, supra, 152 Cal.App.3d at pp. 295-296. Rodriguez upheld a trial court’s order granting the prosecutor leave to reopen the case to prove the allegations even though “the prosecution should have diligently obtained the documents and introduced the proof of the priors at the earliest possible time....” (Id. at p. 296.) Rodriguez noted the defense was not surprised or burdened by the additional evidence and, given the significance of the evidence, the trial court did not abuse its discretion in permitting the prosecutor to reopen the case to present the evidence. (Id. at pp. 295-296.)
Applying similar reasoning here and considering all the relevant factors, we conclude the juvenile court did not abuse its discretion in permitting the prosecutor to reopen the case merely because the prosecutor overlooked an element of proof in the preparation and presentation of the case at adjudication.
Finally, even had S.V. moved for dismissal under Welfare and Institutions Code section 701.1 at the close of the People’s case in chief, the juvenile court retained discretion to permit the prosecutor to reopen. In People v. Riley, supra, 185 Cal.App.4th 754, the trial court permitted the prosecutor to reopen the case in chief after the defendant made a motion for acquittal in a jury trial under Penal Code section 1118.1. Riley rejected the assertion the trial court lacked discretion to permit the People to reopen the case at that juncture, stating: “The purpose of [Penal Code] section 1118.1 is to provide a procedure by which a defendant may promptly terminate a fatally deficient prosecution, not to provide the defendant with a tactical trap when the prosecution inadvertently fails to present evidence in its possession. [W]here the prosecutor simply made a mistake and failed to present evidence that the prosecution had in its possession, the fact that the defendant moved for judgment of acquittal pursuant to [Penal Code] section 1118.1 should not categorically prohibit the trial court from exercising the discretion granted to it under [Penal Code] sections 1093 and 1094.” (People v. Riley, supra, 185 Cal.App.4th at p. 766; see also, People v. Goss, supra, 7 Cal.App.4th at p. 708 [permitting reopening of case after motion pursuant to Penal Code section 1118 to allow the prosecutor to prove prior conviction allegations that had not been bifurcated].)
Under Riley, even had S.V. interposed a timely motion to dismiss at the close of the People’s case, the juvenile court would have retained the discretion to permit the People to reopen. Clearly, the prosecution was not facially deficient. Rather, the prosecutor failed to present evidence it had in its possession. Thus, based on the totality of the circumstances presented, we find no abuse of the juvenile court’s discretion in permitting the prosecutor to reopen the People’s case in chief to prove MDMA is an analog of a controlled substance.
3. Substantial evidence supports the order sustaining the petition.
Health and Safety Code section 11378 proscribes possession for sale of various controlled substances which are described, inter alia, by reference to subdivisions of sections of the Health and Safety Code, including subdivision (d) of section 11054. MDMA is not listed in Health and Safety Code section 11054, subdivision (d). However, the People proved MDMA is an analog of 3, 4-methylenedioxy amphetamine, or MDA, which is a Schedule 1 controlled substance (Health & Saf. Code, § 11054, subd. (d)(6)), and is one of the controlled substances enumerated in Health and Safety Code section 11378. Under Health and Safety Code section 11401, subdivision (a), an analog of a controlled substance classified in section 11054 or 11055 is treated the same as the controlled substance of which it is an analog.
Thus, substantial evidence supports the juvenile court’s finding S.V. possessed MDMA for sale in violation of Health and Safety Code section 11378. (People v. Story (2009) 45 Cal.4th 1282, 1296; In re Dennis B. (l976) 18 Cal.3d 687, 697.)
DISPOSITION
The order of wardship is affirmed.
We concur: KITCHING, J.ALDRICH, J.
A motion pursuant to Welfare and Institutions Code section 701.1 is substantially similar to Penal Code section 1118, which governs motions to acquit in criminal trials when a jury is waived. (In re Man J. (1983) 149 Cal.App.3d 475, 482.)