Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36089
PREMO, J.
The juvenile court found J.P. (minor) to be a person described by Welfare and Institutions Code section 602 (wardship for violation of law) in that he had possessed live ammunition (count 1), committed child endangerment (count 2), and contributed to the delinquency of a minor (count 3). It also sustained a section 777 petition (violation of probation) grounded upon minor’s possession of gang paraphernalia. It then placed minor on probation with conditions. On appeal, minor contends that (1) the juvenile court erred by overruling his objection to the testimonial competency of the victim, (2) he received ineffective assistance of counsel because counsel failed to object to testimony opining on the victim’s out-of-court truthfulness, (3) the juvenile court erred by overruling his hearsay objection, and (4) the juvenile court imposed unconstitutional probation conditions. We modify one of the probation conditions and affirm the judgment.
Further unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
Minor’s six-year-old brother told his elementary school teacher that minor had given him, and he had willingly consumed, beer and marijuana on the previous weekend. He further told her that the two had taken pictures with minor’s silver gun and he wanted to be a good Sureno. The teacher believed the brother and reported the statements to the police. She repeated the statements to Santa Clara Police Officer Doug Bell when Officer Bell arrived at the school to investigate. She advised Officer Bell that the brother primarily spoke Spanish, and Officer Bell secured the services of Officer Rojas to translate an interview with the brother. With Officer Rojas translating, the brother told Officer Bell that minor and minor’s friend had forced him to drink beer and smoke marijuana on the previous weekend while his mother was asleep; he added that he wished to be a good Sureno; he described Nortenos as his enemies; he offered that minor had given him minor’s black metal and chrome gun to hold. The officers then went to minor’s home to execute a probation search. Minor’s mother was present and spoke in Spanish, which Officer Rojas translated for Officer Bell. She offered that minor’s property was in a hall closet and bedroom. At some point, minor’s brother returned home from school and the officers asked about the location of the gun. The brother pointed to a dresser drawer where the officers found a plastic BB gun that the brother said belonged to him. He also pointed to a blue duffle bag in a bedroom closet and said that minor’s gun was inside with the real bullets. The officers searched the duffle bag and found minor’s identification card, a blue bandanna, and a box of.357-caliber bullets.
When the People called minor’s brother to testify at trial, minor made a competency objection. The juvenile court conducted a voir dire examination and overruled the objection. It explained: “Well, I think, frankly, based on what I’ve seen so far, he’s able, as a 6-year-old, to respond to questions and to do so honestly. His ability to understand the question is obviously limited because he’s 6 years old.” Minor’s brother then testified that he was “kidding” when he told his teacher about things that had happened at his house. He denied that minor had ever given him beer or marijuana and stated that minor’s gun was a toy. He said that the bullets he showed the police were not minor’s and that he had never seen those bullets. He explained that he had told his teacher about beer and marijuana so as to avoid going to class and doing homework. Officer Bell and the brother’s teacher then testified as to the brother’s prior inconsistent statements.
COMPETENCY TO TESTIFY
Minor contends that the juvenile court abused its discretion when it concluded that his brother “understood his duty to answer questions truthfully.” He urges that the error was prejudicial as to counts 2 and 3 because, had the brother “been found incompetent, there would have been no evidentiary basis to admit the testimony of Officer Bell and [the brother’s teacher].” Minor simply fails to carry his burden to demonstrate an abuse of discretion.
“[E]very person is qualified to testify except as provided by statute. [Citation.] A person is disqualified as a witness only if he or she is ‘[i]ncapable of expressing himself or herself [understandably] concerning the [testimonial] matter’ [citation], or is ‘[i]ncapable of understanding the duty of a witness to tell the truth’ [citations]. Capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion.” (People v. Anderson (2001) 25 Cal.4th 543, 572-573.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) In reviewing the question of a witness’s competency, the reviewing court may examine the entire record made by the witness and is not restricted to the voir dire examination of the witness. (People v. Smith (1958) 162 Cal.App.2d 66, 69.)
Minor points to “several examples of [his brother’s] inability to differentiate between the truth and a lie” elicited by the juvenile court during the voir dire examination. He then argues the following: “Despite understanding the questions asked, [the brother] lacked the ability to understand the difference between the truth and a lie. He failed to answer the questions related to whether he knew defense counsel despite having played a game with her. Despite knowing the fact that there were no crayons on the table, [the brother] could not understand whether it would be the truth or a lie to say that there were crayons on the table. When pressed as to whether his incorrect statements were the truth or a lie, [the brother] answered that he did not know. Indeed, each time [the brother] was asked to identify the difference between the truth and a lie, [he] consistently stated that he did not know that crucial difference.”
Minor, however, is relying on snippets of the brother’s voir dire answers that arguably support an inability to differentiate a true statement from a false one while overlooking answers and testimony that support the juvenile court’s conclusion. For example, the brother answered affirmatively when the juvenile court asked him, “And you know the difference between the truth and a lie?” and “I assume you understand the difference between the truth and a lie?” He also correctly identified several other statements directed toward his capacity to differentiate. For example, when asked what was the color of a pen, he correctly answered blue and white, and, when asked whether the pen was black, he answered affirmatively by pointing out that the ink was black. Although the brother’s answers were not uniformly correct, they were sufficiently accurate to justify the juvenile court’s decision to deem him competent to testify. Such inconsistencies in testimony go to the minor’s credibility as a witness and not to his or her competency to testify. (In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299.)
Moreover, the brother’s trial testimony supports that he knew the difference between the truth and a lie. For example, the prosecutor asked the brother, “Do you remember a couple [of] weeks ago when you told some of your teachers about some things that had been happening at your house?” To this, the brother answered, “Mmm, yeah. But that was not the truth. I was kidding.” And the prosecutor later asked the brother, “Do you remember telling Officer Bell that [minor] made you drink from a large brown bottle?” To this, the brother answered, “Yeah. But that was not the truth.”
Competence of a witness is a matter conspicuously ill-suited to determination by a court that has never seen the witness. It would take a remarkable showing to establish error on such a question. Suffice it to say, since evidence supports the juvenile court’s conclusion, minor has not shown that the juvenile court clearly abused its discretion in reaching its decision. Therefore, the impeaching testimony was properly admitted into evidence and minor’s dependent attack on the sufficiency of the evidence fails.
INEFFECTIVE ASSISTANCE OF COUNSEL
During a hiatus in the teacher’s testimony, the juvenile court asked the teacher a number of questions about the brother and his schooling. At one point, she answered the following question affirmatively: “As an adult working with children in a school setting, on occasion, do you form opinions with regard to whether a child’s telling you a true story or fantasizing and playing?” The juvenile court then asked, “On this occasion, when this subject matter was discussed, was it your opinion, at the time when you were talking to [the brother], that he was being truthful with you as opposed to making up a story?” To this, the teacher responded, “I felt he was being truthful.”
Defendant argues that his counsel rendered ineffective assistance by failing to object to the teacher’s opinion of the brother’s truthfulness. He urges that the evidence was inadmissible opinion evidence and prejudicial given that it undermined “the core of the defense case, i.e., that [the brother] was unreliable and lacked credibility.” We reject minor’s contention.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right “entitles the defendant not to some bare assistance but rather to effective assistance.” (Ibid.) But “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S. 1, 8.)
“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ’ [citation], the contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) In evaluating whether trial counsel’s representation was deficient “we accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel “to defend himself [or herself] against a claim of ineffective assistance after trial rather than to defend his [or her] client against criminal charges at trial.” ’ ” (In re Fields (1990) 51 Cal.3d 1063, 1069.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Here, there is nothing in the record to indicate why defense counsel failed to object to the opinion testimony. However, defense counsel could have chosen not to object because the teacher’s opinion was obvious from the fact that she reported to the police what the brother had told her pursuant to her responsibilities as a mandated reporter under the Child Abuse and Neglect Reporting Act. This Act requires a teacher, among other persons, to notify the police whenever he or she “has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” (Pen. Code, § 11166, subd. (a).) If the teacher in this case did not believe that the brother was being truthful, she would not have reported his statements. In short, defense counsel could have refrained from objecting to an opinion that was self-evident without the admission of the opinion.
Moreover, the record supports that defense counsel put the opinion evidence in perspective so that its import was not taken for the truth as much as for explaining the teacher’s behavior. After the trial court’s questioning, defense counsel received affirmative answers when she asked the teacher, “You’re a mandatory reporter; is that correct?” and “And so when you heard something that sounded like he drank beer and smoked pot with his brother, you had to report it. Right?”
And the record supports that the juvenile court kept the evidence in perspective. In explaining its decision, the juvenile court noted: “And [the teacher] believed that when he was indicating the story about the [beer] and the marijuana that his brother gave him, that he was truthful with her. She was a mandated reporter, so she reported to the police.”
In addition and contrary to defendant’s argument that the opinion evidence was pivotal, the juvenile court rested its decision on objective facts rather than a subjective opinion. It explained: “So on 2 occasions, [the brother] told that story about the alcohol and the marijuana and was relatively consistent, although not exactly consistent, in his statements. [¶]... [¶] And although, obviously, this is a family, they want to help each other, they do not want each other to get in trouble; and they are, at this point, I think, taking that position as a family. [¶] Nonetheless, [the brother] has been candid enough in the past that I believe he’s been essentially truthful when he incriminated his brother; although at some point in time, he realized that he perhaps had said too much and has changed his story.”
In other words, the juvenile court found against the brother’s trial credibility because he had told an incriminating story twice outside court. The closest the record approaches to support an inference that the juvenile court placed reliance on the teacher’s opinion to determine the brother’s credibility was in commenting that there was no corroboration as to whether a real gun or photographs of minor and the brother with a gun existed; the juvenile court then pointed out that the brother was “aware of real ammunition, and he pointed out where it was, and it was there.” In this context, it stated, “And that corroborates, I think, the school teacher’s opinion that he was being honest.”
In summary, minor fails to carry his burden to demonstrate deficient performance or prejudice.
HEARSAY OBJECTION
When Officer Bell testified, he explained that Officer Rojas was a bilingual officer who spoke Spanish with whom he had worked on approximately 100 cases requiring the use of his Spanish translation skills. When he began to state what the brother had said as translated by Officer Rojas, minor objected as follows: “Your Honor, I would object as to hearsay. Though the district attorney has kindly tried to characterize Officer Rojas as a translator, I don’t believe that having worked with him on a number of cases qualifies him as a certified bilingual officer, on which this officer can rely exact wording.” The juvenile court overruled the objection.
Minor contends that the trial court erred by overruling his hearsay objection. He urges that “Officer Bell’s testimony was in fact double hearsay as it was the recounting of [the brother’s] statements, but through the lens of Officer Rojas’s translation.” There is no merit to this claim.
In Correa v. Superior Court (2002) 27 Cal.4th 444 (Correa), the court stated that the participation of translators interpreting for officers interrogating witnesses does not interpose a layer of hearsay making the officers’ and interpreters’ testimony of the declarants’ statements multiple hearsay because the officers were recounting the statements of the interpreters rather than of the declarants. (Id. at p. 448.) “Rather, a generally unbiased and adequately skilled translator simply serves as a ‘language conduit, ’ so that the translated statement is considered to be the statement of the original declarant, and not that of the translator.” (Ibid.) Further, although Correa concerned the statements of third party witnesses, the court observed that the language conduit doctrine had been applied in instances in which the criminal defendant made an admission or confession through an interpreter. (Id. at p. 456.)
Minor argues that Correa arose from the context of a preliminary hearing and, as such, is “limited to the then-recent mandate of Proposition 115, which specifically allowed certain types of hearsay at a preliminary hearing.” We disagree.
In agreeing with the weight of recent authority addressing whether a generally unbiased and adequately skilled translator simply serves as a language conduit, so that the translated statement is considered to be the statement of the original declarant, and not that of the translator, the court observed that “[t]he premise that translation necessarily adds a layer of hearsay, however, has not been accepted in recent cases in this and other jurisdictions, even in cases analyzing the point in the context of evidence received at a trial.” (Correa, supra, 27 Cal.4th at p. 454.)
There may be cases in which the interpreter should be called to testify. “ ‘[W]here the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], the translator or a witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the... hearing before the [statement] can be admitted.’ ” (Correa, supra, 27 Cal.4that p. 459, citing U.S. v. Martinez-Gaytan (5th Cir. 2000) 213 F.3d 890, 891; cf. U.S. v. Lopez (2nd Cir. 1991) 937 F.2d 716, 724 [“[e]xcept in unusual circumstances, ” translator is merely language conduit and translation is not additional level of hearsay].) But minor did not object on the ground that Officer Rojas was not competent or gave an inaccurate translation.
Minor’s contention therefore fails.
Our conclusion that the juvenile court properly admitted defendant’s statements made through Officer Rojas necessarily disposes of defendant’s secondary contention that he received ineffective assistance of counsel because counsel failed to object to Officer Bell’s testimony on the ground stated in Crawford v. Washington (2004) 541 U.S. 36. Crawford concerned the Sixth Amendment’s guarantee of the right of confrontation as applied to an unavailable witness’s out-of-court testimonial statement against a criminal defendant. The constitutional concerns of Crawford are not implicated where the statement is, as is the case here, the defendant’s own statement. (People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25; see also U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 525-526 [if translated statement is properly viewed as that of the declarant, and not the interpreter, no confrontation clause issue is implicated because one cannot be denied the opportunity to confront oneself].) In short, counsel had no basis to object under Crawford.
PROBATION CONDITIONS
The instant disposition occurred on February 4, 2010, and concerned petitions D and E.
Minor contends that the juvenile court “imposed several probation conditions... that are unconstitutionally vague and overbroad.”
Minor first challenges the stay-away order as to his brother’s teacher, which reads: “Minor to stay 100 yards from Anna Metichecchia.” The People concede that the order does not articulate a knowledge requirement and should be modified to eliminate the possibility that minor could violate the order by unwittingly entering an area where the teacher happened to be. We agree that the concession is appropriate and will modify the condition.
Minor then challenges probation conditions that were imposed in a 2009 disposition of petitions A and B. He claims that he may now challenge those conditions because the 2010 disposition included the order that “All Prior Orders Not in Conflict With Today’s Orders to Remain in Full Force and Effect.” He concedes that we have held that “routine continuation of a previous order without change [does not] revive[] the right to appeal the merits of a previous order that has become final.” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1139.) But he argues that Shaun R. was wrongly decided and submits that we should follow the reasoning of the dissent in that case.
We agree with the conclusion reached in Shaun R. for the reasons stated therein. No purpose would be served by repeating the reasoning here. The “all prior orders” provision in the 2010 disposition did not create a right to appeal orders from the 2009 disposition and “we are without jurisdiction to entertain the minor’s arguments with regard to the 200[9] Orders.” (In re Shaun R., supra, 188 Cal.App.4th at p. 1141.)
DISPOSITION
The stay-away order reading, “Minor to stay 100 yards from Anna Metichecchia, ” is modified to read, “Minor to stay 100 yards from any location where he knows, or reasonably should know, that Anna Metichecchia is present.” As so modified the judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.