Opinion
B219807
08-26-2011
In re CHRISTIAN D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN D., Defendant and Appellant.
Courtney M. Selan, 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 Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. FJ45134)
APPEAL from an order of the Superior Court of Los Angeles County, Shep A. Zebberman, Temporary Judge (Cal. Const., art. VI, § 21.) Modified and, as modified, affirmed.
Courtney M. Selan, 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 Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Christian D., a minor, appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following a determination he committed the offense of weapons on school grounds (Pen. Code, § 626.10, subd. (a)). The court ordered appellant placed home on probation and specified a maximum term of physical confinement of three years. We modify the order of wardship and, as so modified, affirm it.
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
On September 14, 2010, appellant filed a petition for a writ of habeas corpus (B227312) and, on September 21, 2010, this court ordered that this appeal and the petition be concurrently considered. The petition will be the subject of a separate order.
FACTUAL SUMMARY
1. People's Evidence.
Viewed in accordance with the usual rules on appeal (In re Dennis B. (1976) 18 Cal.3d 687, 697), the evidence established that on March 4, 2009, off-duty Los Angeles Police Officer Robert Calzadillas was employed as a security officer at the Evans Adult School (Evans) in Los Angeles. Calzadillas contacted appellant in class and, about 11:30 a.m., searched appellant on the second floor of the Campion building on campus. Calzadillas recovered a closed folding knife with a locking blade from inside appellant's left front pocket. Calzadillas gave the knife to school police when they arrived. A photograph of the knife was marked for identification.
Calzadillas, recalled as a People's witness, also testified as follows. Calzadillas had worked at Evans for about seven years and, as a result, he was familiar with the school. The prosecutor asked Calzadillas, "Officer, you said that the school teaches juveniles in G.E.D. courses; is that correct?" After the court overruled appellant's foundation and hearsay objections, Calzadillas replied, "To the best of my knowledge, they assist juveniles to obtain their G.E.D. I don't know what kind of classes they teach there, but juveniles I have known do go there to obtain their G.E.D. or assist them." (Sic.) Calzadillas testified he did not know exactly what the title of the classes were or what was taught, but he knew "some juveniles go there for that purpose."
The prosecutor asked Calzadillas if he ever had an opportunity to speak to anyone who taught the classes at the school. Calzadillas replied, "I talked to them not particularly as to what they're teaching or how they teach it." (Sic.) The following then occurred: "[The Prosecutor]: All right. So you know that juveniles go there to get their G.E.D., but you don't know the subject matter of the classes taught. [¶] Is that what you're saying? [¶] [Calzadillas:] A Correct."
2. Defense Evidence.
In defense, Judy Tlumak testified as follows. Tlumak was an assistant principal in counseling services at Evans and was employed as an administrator. Evans had officers on campus who were from the Los Angeles School Police and Los Angeles Police Department. The officers were employed through the school district. Tlumak was not aware that any of the officers were administrators. During cross-examination, the prosecutor asked Tlumak if Evans taught GED courses. Tlumak indicated yes.
ISSUES
Appellant claims (1) the trial court erroneously excluded certain proposed testimony from Tlumak as a discovery sanction, (2) appellant was denied effective assistance of counsel because his trial counsel did not know the court could not impose such a sanction, (3) there was insufficient evidence appellant committed a violation of section 626.10, subdivision (a), (4) the trial court abused its discretion by declaring the present offense a felony, and (5) the trial court erred by imposing a maximum term of confinement.
DISCUSSION
1. The Trial Court Did Not Prejudicially Err by Excluding Certain Defense Testimony, and Appellant Was Not Denied Effective Assistance of Counsel.
a. Pertinent Facts.
After the People rested, the court denied appellant's Welfare and Institutions Code section 701.1 motion to dismiss. Appellant called Tlumak as a witness. The prosecutor objected appellant had not provided notice Tlumak would testify.
The court ruled Tlumak could impeach Calzadillas but, because appellant had committed a discovery violation, appellant could not present the proffered testimony from Tlumak as part of an affirmative defense. Appellant did not present the proffered testimony either as impeachment of Calzadillas or as part of an affirmative defense negating the People's case-in-chief.
b. Analysis.
Appellant claims the above ruling by the trial court was error. He argues reciprocal discovery rules applicable to adult criminal proceedings do not apply to juvenile delinquency proceedings absent a trial court order making those rules applicable; therefore, since the trial court here issued no such order, no discovery violation occurred and the trial court erred by excluding Tlumak's testimony as a discovery sanction.
There is no need to decide the issue. The essence of Tlumak's excluded testimony simply would have gone to the issue of whether Evans utilized a traditional system (kindergarten and grades 1 to 12, inclusive) to classify students and administer instruction. That testimony would not have impacted Calzadillas's uncontradicted testimony to the effect Evans provided instruction to minors enabling them to obtain their GED's. This testimony by Calzadillas provided evidence supporting an independent theory on the basis of which the trial court might conclude Evans "provided instruction in kindergarten or any of grades 1 to 12, inclusive" within the meaning of section 626.10, subdivision (a). As we conclude in part 2 below, that theory was valid, there was substantial evidence to support it, and the trial court reasonably relied on that theory to conclude appellant committed the present offense. The alleged trial court error was harmless under any conceivable standard. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 .)
Appellant presents the related claim he was denied effective assistance of counsel because his trial counsel did not know reciprocal discovery rules did not apply in his case to permit the trial court to exclude Tlumak's proffered testimony. There is no need to decide whether appellant's counsel provided constitutionally-deficient representation in this regard. The analysis supporting our conclusion that the alleged trial court error was not prejudicial compels the conclusion that the alleged constitutionally-deficient representation by appellant's trial counsel was not prejudicial. Appellant's ineffective assistance claim fails. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
2. There Was Sufficient Evidence Appellant Violated Section 626.10, Subdivision (a).
Appellant claims there was insufficient evidence he violated section 626.10, subdivision (a) because there was insufficient evidence Evans was a school "providing instruction in kindergarten or any of grades 1 to 12, inclusive" within the meaning of the subdivision. The parties dispute, inter alia, whether the evidence to the effect Evans provided instruction enabling minors to obtain their GED's provided sufficient evidence satisfying the above quoted element of subdivision (a). For the reasons discussed below, we reject appellant's claim.
Appellant's claim raises an issue of statutory construction and the rules of statutory construction are familiar. The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. Ordinarily, the words of the statute provide the most reliable indication of legislative intent. When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. When the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, and the statutory scheme of which the statute is a part. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) Because the statutory language at issue in this case is reasonably susceptible to more than one interpretation, we must interpret that language using extrinsic aids.
a. Pertinent Legislative History of Section 626.10.
Section 626.10, had its origin in Assembly Bill No. 124 (AB 124), which Assemblymen Wadie P. Deddeh and Bob Wilson introduced in the Assembly in 1973. (Assem. Bill No. 124 (1973-1974 Reg. Sess.) as introduced January 22, 1973; Assem. Final Hist. (1973-1974 Reg. Sess.), p. 141.) The bill as introduced proposed to authorize specified public school personnel to seize from pupils objects capable of inflicting personal injury. (Assem. Bill No. 124 (1973-1974 Reg. Sess.) § 1.)
Section 626.10, in effect at the time of appellant's 2009 offenses, stated, in relevant part: "(a) Any person, . . . who brings or possesses any . . . knife having a blade longer than 2 ½ inches, . . . upon the grounds of, or within, any public or private school providing instruction in kindergarten or any of grades 1 to 12, inclusive, is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison."
However, as amended in the Assembly on August 13, 1973, the bill, in relevant part, "prohibit[ed] any person from bringing or possessing on public elementary, junior high or high school grounds any knife" (Legislative Analyst, Analysis of Assem. Bill No. 124 (1973-1974 Reg. Sess.) as amended Aug. 13, 1973, italics added), making the offense a misdemeanor. (Ibid.)
As amended by the Senate on February 7, 1974, the bill proposed that section 626.10, subdivision (a) read, in relevant part, "Any person, except [specified persons] . . . who brings or possesses any . . . knife having a blade longer than 3 ½ inches, . . . upon the grounds of, or within, any public elementary, junior high, or high school is guilty of a misdemeanor." (Sen. Amend. to Assem. Bill No. 124 (1973-1974 Reg. Sess.) Feb. 7, 1974, italics added.)
However, as amended in conference on March 14, 1974, the bill proposed that section 626.10, subdivision (a) read: "Any person, except [specified persons] . . . who brings or possesses any . . . knife having a blade longer than 3 ½ inches, . . . upon the grounds of, or within, any public school providing instruction in kindergarten or any of grades 1 through 12, inclusive, is guilty of a misdemeanor." Proposed subdivision (d) authorized specified employees of a public school providing such instruction to seize any weapons described in subdivision (a). (Conf. Amend. to Assem. Bill No. 124 (1973-1974 Reg. Sess.) Mar. 14, 1974.)
A letter from Assemblyman Deddeh to the Governor stated, "This bill was introduced at the request of local school authorities seeking lawful methods for preventing dangerous weapons being brought on school campuses or to school events." (Assem. Deddeh, sponsor of Assem. Bill No. 124 (1973-1974 Reg. Sess.), letter to Governor, Mar. 18, 1974.)
The Legislature enacted former section 626.10, as urgency legislation which became operative on July 1, 1974. (Stats. 1974, ch. 103, § 1, eff. Mar. 26, 1974, operative July 1, 1974.) Former subdivision (a), of that section, as relevant here, read the same as it did as amended in conference on March 14, 1974, as previously discussed. In the case of In re Z.R. (2008) 168 Cal.App.4th 1510, 1513-1514, the court stated, "In enacting [former] section 626.10, the Legislature was primarily concerned with reducing violence and providing a safe environment on school campuses. (In re Rosalio S. [(1995)] 35 Cal.App.4th [775,] 780.)"
b. Analysis.
The above legislative history reflects the Legislature enacted section 626.10, former subdivision (a) as an urgent response to, inter alia, a widespread problem of knife attacks within, and on the grounds of, schools providing instruction in kindergarten and any of grades 1 through 12, inclusive. Generally, the goals of the legislation were to prevent such attacks and promote safety. However, as shown below, consideration of those goals in the context of the language at issue employed in section 626.10, former subdivision (a), i.e., the phrase "providing instruction in kindergarten or any of grades 1 through 12, inclusive," supports the conclusion that that subdivision (and therefore the substantially similar language in the version of subdivision (a) applicable to appellant's offense) applies, on the facts in this case, to adult schools such as Evans.
It is common knowledge that, in California, kindergarten through the twelfth grade are levels in a system that (1) identifies the outer parameters of a particular group of students, i.e., students between, generally, 5 years old and 18 years old, inclusive, and (2) assigns each such student to a level (kindergarten or one of grades 1 through 12) generally based on the student's age. This procedure classifies the students.
However, this system not only employs a procedure to classify the students, but employs a procedure to administer substantive instruction within that collective student group, because the administered instruction differs according to the student's level, including the levels of grades 9 through 12. According to this system, high school has been associated with grades 9 through 12, or grades 10 through 12, depending upon the particular high school. We refer to the above described system as the traditional system.
Based on the testimony of Calzadillas and Tlumak, the trial court reasonably could have concluded beyond a reasonable doubt that Evans, an adult school, provided instruction to minors enabling them to obtain a GED. We note GED has been defined to mean "general equivalency diploma." (Webster's New World Dict. (3d college ed. 1991) p. 560, italics added.) The education provided to a student enabling him or her to receive a GED is viewed as substantively equivalent to a high school education. (See In re Johnson (1998) 18 Cal.4th 447, 464; Bell v. Mason (2011) 194 Cal.App.4th 1102, 1109, fn. 9.)
Here, Evans provided substantive instruction to its group of students. Moreover, that instruction was deemed equivalent to that received in high schools using the traditional system. In light of the above, the real issue in this case is whether the Legislature intended section 626.10, subdivision (a) to apply (1) only to schools employing the traditional system, or (2) not only to those schools, but to an adult school such as Evans.
As shown below, the legislative history of section 626.10 and the section itself evidence a legislative intent to provide protection against evils of knife possession within or on school grounds, evils which exist with the same injurious potential whether or not the school employs the traditional system or is an adult school such as Evans, and protections which the Legislature reasonably could not have intended schools enjoy depending upon whether they employed the traditional system or were an adult school such as Evans.
Thus, by its terms, former section 626.10 was concerned in part with preventing knife attacks upon the grounds of any public school, i.e., grounds upon which students in kindergarten and all grades reasonably might be expected to mingle before school, between classes, and after school, whether or not the school employed the traditional system and whether or not its students were actually receiving instruction at that time in kindergarten or grades 1 through 12. As noted, the Legislature enacted former section 626.10 to prevent dangerous weapons from being brought to school "events," a broad term including a variety of activities which might include students from kindergarten and all grades.
The legislative history reveals the Legislature intended former section 626.10 to prevent harm, not only to students, but to teachers and other persons. The possession of a knife by a student on a school campus can expose students, teachers, staff, visitors, and/or members of the public to a risk of harm in a variety of contexts having nothing to do with whether the school employs the traditional system. In sum, the absence at a school such as Evans of the procedures attending a school in the traditional system is merely part of an alternative way to pursue a substantively equivalent education, and the dangers of bringing or possessing a knife within or on the grounds of either school remain the same.
We conclude the language in section 626.10, subdivision (a), which states, "providing instruction in kindergarten or any of grades 1 to 12, inclusive" applies to adult schools such as Evans which provide instruction to a group of minors resulting in an education deemed substantively equivalent to a high school education and resulting in the obtaining of a GED.
Moreover, our conclusion section 626.10, subdivision (a) is to be construed expansively as indicated above to apply to the described adult schools is supported, as shown below, by the legislative trend in related legislation enacted subsequent to former section 626.10, subdivision (a), as effective in 1974, but prior to the 2009 offenses at issue in this case. That trend has been to expand the scope of the application of subdivision (a) and related sections and to increase the punishment for a violation of subdivision (a) as a legislative response to the increasing and serious dangers arising from persons possessing knives and other potentially dangerous items on school grounds and campuses.
As mentioned, former section 626.10 became operative on July 1, 1974. Former section 626 provides definitions applicable to former section 626.10. Effective January 1, 1975, the Legislature amended former section 626 by the addition of subdivision (a)(4), which defined the term "school." (Former § 626, as amended by Stats. 1974, ch. 988, § 1, ch. 1183, § 1.) Subdivision (a)(4) contained an expansive definition of the term "school" and that definition included an "adult school or any branch thereof." (Ibid., italics added.) Effective in 1984, the Legislature amended former section 626.10 by the addition of subdivision (b), which prescribed possessing, inter alia, a knife "upon the grounds of, or within, any state university, state college, or community college[.]" (Former § 626.10, as amended by Stats. 1983, ch. 1139, § 1.)
Effective between 1985 and 2009, inclusive, the Legislature added stun guns, tasers, ice picks, BB-guns, and spot marker guns to the items the possession of which on school grounds violated former section 626.10, subdivision (a). (Former § 626.10, as amended by Stats. 1985, ch. 1227, § 2 [stun guns]; as amended by Stats. 1986, ch. 1350, § 2 [tasers]; as amended by Stats. 1993, ch. 598, § 4, ch. 599, § 2 [ice picks, BB-guns, & spot marker guns].)
Effective in 1989, the Legislature increased the punishment for a violation of section 626.10, former subdivision (a) or (b) from a misdemeanor to a felony. (Former § 626.10, subds. (a) & (b), as amended by Stats. 1988, ch. 854, § 2, ch. 1113, § 5.5.) Effective in 1994, the Legislature expanded the scope of former subdivisions (a) and (b) to apply to private, not merely public, schools, and reduced the maximum permissible length of the knife blade from three and one-half inches to two and one-half inches. (§ 626.10, former subds. (a) & (b), as amended by Stats. 1993, ch. 598, § 4, ch. 599, § 2.) We also note the list of prohibited items in the full version of subdivision (a) is more expansive than the list in subdivision (b); this is evidence of the heightened legislative concern for schools providing instruction to minors.
In light of the testimony of Calzadillas and Tlumak to the effect Evans provided instruction to minors enabling them to obtain their GED's, we hold there was sufficient evidence that Evans was a public or private school "providing instruction in kindergarten or any of grades 1 to 12, inclusive" within the meaning of section 626.10, subdivision (a), and that appellant violated that subdivision.
None of appellant's arguments compel a contrary conclusion. In particular, we reject appellant's arguments that Calzadillas was unqualified to testify concerning whether Evans provided GED courses, and that his testimony in which he used the phrase "To the best of my knowledge" was insufficient evidence. There was substantial evidence that Calzadillas, an off-duty police officer and a security officer, was familiar with Evans because he had worked there for seven years and had talked with teachers; therefore, he had personal knowledge of the matters about which he spoke. Moreover, Calzadillas's testimony in which he used the phrase "To the best of my knowledge" was not his only testimony concerning Evans and GED's, and Tlumak testified on this issue as well.
3. The Court Did Not Err by Declaring Appellant's Offense a Felony.
The probation report dated June 4, 2009, reflects as follows. As to the present offense, Evans staff told Calzadillas that two students possessed a knife. Calzadillas contacted appellant and appellant's companion and recovered a locking blade knife from appellant's left front shorts and a locking blade from appellant's companion.
Appellant was 18 years old and a juvenile dependent because his mother used drugs. A court ordered appellant and his siblings suitably placed, and appellant was placed in multiple residences. Appellant claimed to his case worker that appellant regularly attended school and liked his current school. The report does not reflect any previous sustained petitions involving appellant.
The probation report indicated as follows. A police report reflected appellant was a Primera Flats gang member, and had been an active gang member for the past four years. A detention report reflected appellant denied he was active in his gang, and claimed he wanted to remove his tattoos so he would not have to carry weapons.
The probation officer indicated that in February 2008, appellant apparently had been shot by a rival gang. In August 2008, the probation officer learned appellant had been "jumped in the street." (Capitalization omitted.) Appellant received weekly psychotherapy and his therapist indicated appellant was making progress. A probation report dated August 27, 2009, reflects that on July 30, 2009, appellant admitted to the probation officer that appellant was smoking marijuana twice weekly. Appellant tested positive for marijuana use on July 30, 2009, and August 13, 2009.
After the court sustained the petition in the present case and declared the present offense a felony, appellant asked if the court would consider reducing the offense to a misdemeanor. Appellant argued he did not carry the knife in the present case in a concealed manner and he brought the knife into an adult school, not a campus where young children were present. Appellant personally told the court that he carried the knife for protection, he was a gang member, and he had been shot and stabbed. The court denied appellant's request to reduce the present offense to a misdemeanor, noting appellant was an admitted Primera Flats gang member carrying a knife with another gang member who had a knife.
Appellant claims the trial court abused its discretion by denying his request to reduce the present offense (which was a "wobbler") to a misdemeanor. We have recited the pertinent facts. Trial courts have broad authority in ruling on motions under section 17 to reduce a crime to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) We conclude appellant has not demonstrated the trial court abused its discretion in denying his motion. (Cf. People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.)
4. The Trial Court Erroneously Imposed a Maximum Term of Physical Confinement.
At the August 27, 2009 dispositional hearing, the court stated, "The charge is a felony that carries a maximum term of confinement of 3 years." Appellant claims, and there is no dispute, the trial court thereby erroneously specified a maximum term of physical confinement. This was error because the court did not order appellant removed from the physical custody of his parents; instead, the court ordered that appellant remain home on probation. (In re Ali A. (2006) 139 Cal.App.4th 569, 571.) We will modify the judgment by striking the court's order specifying a maximum term of physical confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541-542.)
DISPOSITION
The order of wardship is modified by striking the court's order specifying a maximum term of physical confinement of three years and, as so modified, the order of wardship is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P.J.
ALDRICH, J.