Opinion
B225799
09-21-2011
In re MORGAN R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MORGAN R., Defendant and Appellant.
Lynette Gladd Moore, 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, Senior Assistant Attorney General, Linda C. Johnson and Robert David Breton, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. YJ33096)
APPEAL from a judgment of the Superior Court of Los Angeles County. Wayne C. Denton, Temporary Judge. Affirmed.
Lynette Gladd Moore, 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, Senior Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
Morgan R. was declared a ward of the juvenile court under section 602 of the Welfare and Institutions Code after the court found true the allegation that he committed an assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). Morgan R. claims on appeal that the juvenile court denied his right of cross-examination when it disallowed inquiry into a witness's illegal drug use. We affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Jeremy Bunch threw parties on two consecutive weekends while his parents were away. During the first weekend party, a fight had broken out. Morgan R., who went to school with Bunch, was one of the people who caused trouble at the first party. At school the following week, Morgan R. threatened Bunch and gave him "hard looks."
At the second party, Bunch learned that some of the attendees were "affiliated" with the people who had been there the weekend before. He told them to leave the house, but they refused. Bunch picked up a shovel from the back of his truck and again instructed them to leave; they finally departed.
About 30 minutes later, Bunch was outside the house, in the alley near his truck, kissing a girl. He heard people rushing up behind him. When he turned, he saw Morgan R. lunge at him, swinging the shovel over his shoulder at Bunch's face. Bunch was hit in the face and lost consciousness.
Police responded to a call about the disturbance. On the way, an officer saw two male juveniles running in a direction away from the house. Based on the fact that they seemed to be running out of breath and the fact that the police had been called about a juvenile disturbance, he stopped the young men, one of whom was Morgan R. Morgan R. had bloody, scratched knuckles.
Bunch identified Morgan R. as his assailant to the police that evening. He could not identify the others who rushed him. At school, after the second party, Morgan R. admitted that he "probably hit" Bunch with a shovel.
Morgan R. was the subject of a section 602 petition alleging that he had assaulted Bunch with a deadly weapon, a shovel. A second count in the petition, relating to possession of false identification, was later dismissed.
At the adjudication hearing, Bunch acknowledged that there was marijuana in his house and that he had two or three beers before the incident. He denied being drunk. Minor's counsel asked, "Had you been smoking any marijuana?" and the court intervened on Fifth Amendment grounds. The court told defense counsel, "Listen, you've established that there appears to be marijuana in the house. There was a party going on. There was beer there. He had been drinking. [¶] You can draw whatever reasonable inferences you want to, and it's the same thing, you know. Go ahead." Counsel objected on constitutional grounds, and the court responded, "You can draw a reasonable inference. I'm not dumb. I can put 2 and 2 together. You don't have to beat it down with a stick. Move on."
Defense counsel then asked Bunch, "[D]o you have a clear memory of everything that happened on the night of April 3rd, over a year ago?" Bunch responded, "Yes." Counsel asked, "Even though you're saying you had consumed alcohol on that night?" and Bunch again responded, "Yes."
One of the officers who responded to the incident at Bunch's house described Bunch as "dazed and confused" when he arrived on scene. Bunch was initially "disoriented" and so "incoherent" that police could not take a statement from him.
At the close of evidence, the juvenile court stated that it believed that Bunch was not "the greatest witness in the world." "And, you know," the court continued, addressing defense counsel, "the point that you tried to make before, as far as I'm concerned, you made it. There's no doubt in my mind this was an underage party. There was underage drinking. And I believe that Mr. Bunch probably was smoking marijuana and drinking beer, or whatever. So I believe that. [¶] But over[]all, you know, I looked at him very carefully when he testified[,] as I do all the witnesses. And I believe what he said, what he testified to, was true. So Count 1 is sustained." The court sustained the petition's assault with a deadly weapon allegation, declared Morgan R. a ward of the court under section 602, and placed him in the home of his parents on probation. Morgan R. appeals.
DISCUSSION
Morgan R. claims that when the juvenile court refused to permit him to question Bunch about whether he had been using marijuana, the court denied his Sixth Amendment cross-examination and confrontation rights and deprived him of due process and a fair trial.
As Morgan R. acknowledges, when he began to inquire into Bunch's possible use of marijuana, the juvenile court properly attempted to protect Bunch's constitutional right against self-incrimination. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [in any proceeding a witness has the right to decline to respond to questions that may tend to incriminate him or her in criminal activity].) Morgan R. contends, however, that his right to cross-examination was "sacrificed" to that protection. According to Morgan R., the court should have advised Bunch of his Fifth Amendment rights and afforded him the opportunity to consult with counsel rather than limiting Morgan R.'s inquiry into Bunch's possible marijuana use.
By its actions the court clearly attempted to protect both the witness's and the accused's constitutional rights. Counsel was permitted to inquire into the clarity of Bunch's memory of that night, and did so with two questions, one touching on his consumption of alcohol. There is no indication that counsel was precluded from asking any questions about Bunch's perception or acuity on the night of the event; she simply was not permitted to ask if he had used marijuana. The juvenile court, moreover, concluded that Bunch most likely had used marijuana in addition to consuming alcohol. As the court explained, "There's no doubt in my mind this was an underage party. There was underage drinking. And I believe that Mr. Bunch probably was smoking marijuana and drinking beer, or whatever. So I believe that." The court, essentially, assumed that the answer to the prohibited question was "yes," and in doing so, the court accepted the argument that Morgan R. was attempting to elicit evidence to support the argument that Bunch was under the influence of drugs and alcohol at the time of the incident and the identification, with the attendant effects on perception that the use of intoxicating substances can have. Bunch testified as to the clarity of his memory of that night, and police officers testified about his dazed, confused, and disoriented state when they encountered him. Because the juvenile court in this non-jury proceeding inferred that Bunch had used marijuana and it received other evidence of Bunch's condition and mental state that night, any error in limiting the cross-examination on the specific, potentially incriminating question of whether Bunch had in fact used marijuana was harmless. (People v. Cage (2007) 40 Cal.4th 965, 991-992.)
DISPOSITION
The judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
JACKSON, J.