Opinion
A150343
03-29-2018
In re C.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1601084)
Minor C.G., a ward of the court, appeals following a juvenile adjudication that he committed the crime of attempted second degree robbery. He raises a single issue on appeal. C.G. argues that juvenile court limitations on his cross-examination of the victim and an investigating police officer violated his confrontation rights secured by the sixth amendment. We conclude that any possible constitutional error was harmless beyond a reasonable doubt. The adjudication of the juvenile court is affirmed.
BACKGROUND
C.G. was charged in a petition with attempted second degree robbery. (Pen. Code, §§ 211, 212.5, 664.) The charge arose out of an incident that occurred one afternoon after school when the victim and four of his friends came upon C.G. and five of his friends.
The victim and his friends were approached by C.G. and his group. One of C.G.'s friends approached the victim and one of the victim's friends and seemed to be looking for a fight. C.G. says that his friend wanted to confront the victim because the victim had bullied the friend's cousin. The victim said he did not want any trouble, and both groups moved on. After walking a short distance, one of C.G.'s friends returned to the victim, pinned him against a fence and hit him. Again the victim tried to continue on his way with his friends.
A short time later in a nearby park, the victim was approached by C.G. C.G. asked the victim what he had in his pockets, hit him twice in the face and threw him to the ground. When the victim was down, C.G. hit him a few more times and reached for the victim's pockets. The victim was able to resist C.G.'s reaching into his pockets.
C.G. did not deny confronting the victim or hitting him. According to C.G., he was not intending to rob the victim, but instead was trying to take revenge for something the victim said about C.G.'s mother. C.G. says he patted the victim's pocket when he was on the ground because one of his friends said to "check him." But C.G. never intended to take anything from the victim, and told one of his friends that the victim did not have anything.
The incident was over and both groups went on their way.
The court imposed wardship on C.G. after finding he committed an attempted second degree robbery. He was placed on probation with 90 days of supervision in his mother's home. He appeals the adjudication.
DISCUSSION
A. The Contested Evidentiary Rulings
C.G. argues the juvenile court made several evidentiary rulings that standing alone, and most definitely in combination, had the effect of depriving him of his right to confront the witnesses against him. Two of the rulings were made during his counsel's cross-examination of the victim, three of them occurred during his counsel's direct examination of the investigating police officer, and one ruling was made during C.G.'s direct examination.
During cross-examination of the victim, C.G.'s counsel asked him if he liked the girl that was walking with his group. An objection was made on the basis of relevance. The objection was sustained. Later during the victim's cross-examination, he was asked whether he told the investigating police officer that he was with his friend, Samuel. A hearsay objection was sustained. Then, the victim testified that he told the officer he was with three friends, but did not tell him their names.
C.G.'s lawyer asked the investigating officer whether he asked the victim who was with him during the incident with C.G. The officer said he did. When the officer was asked what the victim told him, the prosecution objected on hearsay grounds. The objection was sustained. C.G.'s lawyer then explored with the officer whether the victim identified specific people who were with him at the time, and established that Samuel was the only one identified by the victim.
C.G.'s lawyer also tried to explore her perceived inconsistency in the victim's testimony over whether he was walking home when the incident occurred or going to a pizza parlor. Hearsay objections were sustained to a series of questions about where the victim told the officer he was going. But counsel did establish that the victim never told the officer he was going to a pizzeria.
Finally, a hearsay objection was sustained when defense counsel asked Officer Guzman whether he heard that one of C.G.'s friends "had . . . a problem" with the victim. Then, during C.G.'s direct examination, the court sustained a relevance objection when C.G. was asked if one of his friends was mad at the victim. But C.G. was able to testify that his friend wanted to fight the victim. B. Legal Analysis
A "constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) In this case, even if we assume that the court made evidentiary errors and that the errors constitutionally affected C.W.'s sixth amendment rights, we conclude the errors were harmless.
"Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
C.G. argues the court's evidentiary rulings had prejudicial effect because he was charged with robbery, not battery. He acknowledges that he struck the victim, but denies that he attempted to rob him. Thus, he says, "restrictions on the defense's ability to fully expose [the victim's] inconsistencies and possible biases could have made the difference." Not so.
There is no doubt the testimony of the victim and the investigating officer were central to the prosecution's case. They were the only witnesses called by the prosecutor. But the limits on their examination go to collateral issues of credibility that were immaterial at best and otherwise adequately explored by the defense. Whether the victim told the investigating officer he was with more than one friend or was going for pizza rather than going home had no bearing on whether C.G. harbored the intent to steal anything from him. Moreoever, the defense made its point that the victim gave differing accounts of these details at times. The victim testified on direct examination that he was with a girl and three boys, yet told the officer that he was with three friends. The officer said the victim did not tell him of other witnesses to the incident, and when he said who he was with, he identified only his friend Samuel. The victim testified on cross-examination that he and his friends were going to a pizza parlor when the incident happened. But C.G.'s lawyer was able to show that he never said that to the investigating officer and that the park where the incident occurred was not on his way home. There was enough in this record for counsel to argue that the victim's testimony contained inconsistencies and was not to be trusted.
There was also sufficient evidence to argue that the incident was brought about by animus between the two groups and not a desire to steal. The victim said the altercation began when he tried to protect his friend, and C.G. asked the victim if he wanted to fight. The victim also described one of C.G.'s friends as angry, and C.G. said he hit the victim after he insulted C.G.'s mother. Thus, the key points counsel wished to make were shown and sufficient facts were available for argument in this record.
C.G. says that more permissive examination of witnesses would allow the defense "to fully expose [the victim's] inconsistencies and possible biases and could have made the difference in whom the court chose to believe." We disagree. The record shows the court was well aware of the dynamics between C.G. and the victim and his friends. The two groups of kids did not like each other. And the victim hedged on the collateral issues of his company and whether he was going home or to a pizza parlor when the incident occurred. But the court heard uncontroverted evidence that C.G. hit the victim and took him to the ground. It was also not disputed that C.G. reached for the victim's pants pocket. Both C.G. and the victim say that C.G. reported to his friends that the victim had nothing in his pocket. The victim says C.G. said so only after he pushed C.G.'s hand away. C.G. says he never intended to take anything from the victim, but the court determined the attack was an attempted robbery.
We are convinced beyond a reasonable doubt that further cross-examination on the issues of the victim's company, his route home or the animus between the two groups would not have changed this result. The examination of the witnesses was suitable for its proffered purpose of exposing inconsistencies and possible biases. The court was well aware from the existing record that the two groups were hostile to one another, and that the victim was being vague about certain details.
DISPOSITION
The adjudication is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Jenkins, J.