Opinion
B159116.
7-31-2003
In re RICHARD R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RICHARD R., Defendant and Appellant.
Jerry Sies, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Supervising Deputy Attorney General and Michelle J. Pirozzi, Deputy Attorney General, for Plaintiff and Respondent.
This appeal follows the adjudication and disposition of two Welfare and Institutions Code section 602 petitions that were filed regarding appellant Richard R. in 2002. Appellant admitted the charges in the first petition, filed January 16, 2002, one count of unlawful driving/taking a vehicle (Veh. Code, § 10851, subd. (a)) and one count of felony evading a police officer (Veh. Code, § 2800.2, subd. (a)), allegedly committed on November 17, 2001. The juvenile court found both offenses to be felonies; ordered probation; and granted deferred entry of judgment for not less than 12 months nor more than 36 months pursuant to Welfare and Institutions Code section 790. The court explained to appellant and his family that if appellant complied with the conditions, the case would be dismissed; if not, the court would revoke the section 790 deferred entry of judgment and proceed to disposition or sentencing. The court specifically told appellant that "you would be a most likely candidate for camp."
Less than two months later, the incident giving rise to the second petition occurred. The section 790 order was initially ordered to remain in force and affect. The probation officer interviewed the victim and appellant and recommended that appellant be found in violation of probation, the section 790 order be vacated and set aside, and appellant be committed to the Camp Community Placement Program. At a hearing on April 24, 2002, the court again ordered the section 790 order remain in full force and effect. The court was advised that further investigation was needed.
The second petition alleged as Count 1 that "On or about 04/02/2002 . . . the crime of ASSAULT WITH DEADLY WEAPON, BY MEANS LIKELY TO PRODUCE GBI, in violation of PENAL CODE 245(A)(1), a Felony, was committed by said minor, who did willfully and unlawfully commit an assault upon [the victim, Christian L.] with a deadly weapon, to wit, knife, and by means of force likely to produce great bodily injury." In calling the case against appellant and co-minor Hector G., the court stated that count 1 "alleges assault with a deadly weapon by means of force likely to produce great bodily injury, violation of Penal Code section 245(a)(1), a felony."
On May 2, 2002, the juvenile court again continued the matter for further preparation. On May 7, 2002, the court held an adjudication hearing and sustained both counts in the second petition (Pen. Code, § 245, subd. (a)(1), assault with a deadly weapon and by means likely to produce great bodily injury and Pen. Code, § 136.1, subd. (b)(1), dissuading a witness from reporting a crime), filed April 5, 2002, but struck the criminal street gang special allegation (Pen. Code § 186.22, subd. (b)(1)) for failure of proof. Appellant was found to be a ward of the court pursuant to Welfare and Institutions Code section 602. At the dispositional hearing held the same day, the section 790 order was terminated; custody was taken from appellants parents; and he was committed to the probation department for placement in the violent offender program. After aggregating the two petitions, the court set the maximum term of conferment at five years and four months. The court imposed a gang registration order pursuant to Penal Code section 186.30, subdivision (3). This appeal follows. Concluding there was no reversible error, we shall affirm.
The minute order of May 7, 2002, states that count 1 was declared to be a felony and count 2 was a misdemeanor. Although striking the gang allegation, the court clearly found there was evidence supporting appellants involvement with the Westside Pomona gang.
STATEMENT OF FACTS
Christian L., a 14-year-old student at Ganesha High School in Pomona, was walking home from school on April 2, 2002, with his friend David S. when appellant and Hector G. approached them on bicycles in an alleyway, which Christian took as his usual shortcut home. Christian knew Hector as a student at school "as a friend" he had known his whole life; he had seen appellant but did not really know him. Christian started running as fast as he could; when he stopped, appellant started beating him up. Appellant, whom Christian knew as "Capper," said "Westside. Westside" and told the victim to say "Fuck Twelfth Street." Appellant punched and kicked him; Christians nose started bleeding from the initial punch to his face, and he fell to the ground, where appellant continued to punch and kick him. He was punched in the face and chest and kicked in his back. Appellant continued to say "Westside. Westside." David just stood there.
Christian, not a gang member, knew there was a gang called "Westside Pomona Gang," and that Twelfth Street was also a gang. He has since left Ganesha High School and has transferred to another school because he is scared that the Westside gang, which has threatened him since this incident, will beat him up again. Someone named Moses from the Westside Pomona gang made a threat of bodily harm in reference to this case. A school police officer from Ganesha testified there is a big gang problem at the school. The court then sustained objections on relevancy as to why Christian transferred.
When appellant stopped kicking and punching, appellant told Hector to start hitting Christian. Hector started hitting the victim, who was still on the ground, on the face, neck and chest with closed fists. While the victim was sitting down and facing the ground, Hector pulled out a four-inch folding knife about a foot in front of the victims face. Christian also believed a knife was at his throat when somebody had their arm around him and saw this in the video shown in court.
The school police officer from Ganesha High School obtained the videotape from one Willie P. Hector was holding the knife in the video.
Appellant and Hector then grabbed Christian and stood him up; Hector held him in a headlock. Both of them held up Christian, and Hector told him to go under the bridge; Christian replied "No, No." At some point while Hector was holding the standing victim, Hector said "I should kill you right now." Appellant then started socking the victim again as Hector held him. Both of the assailants told Christian he better not tell anybody else what happened. Then the beating started again.
Christian did not know where the knife was at that point. Hector had one arm on the victims neck and one behind the victims back when he stated he should kill the victim.
The victim was injured, with bumps and bruises to his head, face, chest, abdomen and back area. There was a footprint on his back from where appellant kicked him and a bruise the pattern of a shoe print on his right shoulder. He testified he did not fight back. Photographs taken by the Ganesha High School police officer show bruising to Christians face and chest and a bruise to his shoulder and back; the police officer verified the injuries, including the imprint bruise of a shoe on Christians back. The shoes appellant, who was associated with Westside Pomona, wore to school the next day matched the imprint on Christians back.
A videotape of the incident, which the victim was unaware was being taken, was played for the juvenile court. The court stated the tape began midway through the alleged assault. A knife can be seen in Hectors hand.
According to the school police officer, Hector started hanging out with members of Westside about three of four months before the hearing; appellant had been involved at least that whole school year. The officer did not know if Hector was actually a gang member. Christian was not involved in a gang but had a cousin from the Twelfth Street gang, a rival gang of Westside. The officer had had numerous contacts on campus with Christian, but not related to physical altercations or gangs; they were in the nature of friendly conversation. He had never known either Christian, appellant, or Hector to carry a knife or for appellant and Christian to have hard feelings about each other. Christian had not told the officer he was afraid of appellant.
Appellant and Hector rode their bikes towards the school. Christian ran to a local fast food restaurant and tried to call his father. When he saw the school police officer, who took photographs, Christian declined medical treatment.
On cross-examination, Christian admitted he had been in trouble with the principal, police, and his parents for fighting. PAGE CONTAINED FOOTNOTES By the time of trial, he was in ninth grade; he had last been in a fight before this incident when he was in seventh grade. He had seen both appellant and Hector earlier in the day at school but there had been no confrontation. He had done nothing that day to make him afraid of them. However, in the past, on several occasions appellant would "yell out stuff" to him that would make Christian afraid, such as calling Christian a "little bitch."
On the day of the incident, there was a rally in the gym at school and appellant threw up "W" signs at Christian. The victim denied making any type of gesture toward appellant or Hector during the rally, having a knife earlier in the day or ever, ever touching the knife, or throwing any punches. He also denied being in the alley to tag for Twelfth Street; he admitted having friends in Twelfth Street. He agreed that Hectors mother had come to visit him a week or two before the hearing but denied telling her that he and David had knives; he also denied telling her he was sorry that he and David started the fight.
When Christian denied ever carrying a knife to school, he was asked if he was familiar with a peer counseling program at his high school. He was and had participated in it. He also answered that he knew a Joanna G., Hectors G.s sister. Defense counsel for Hector asked if appellant was carrying a knife the week before when he met Joanna G.; the prosecutor objected that she had received no discovery about any such possible impeachment evidence. The court agreed that the prosecutor was entitled to any such witness statements, which admittedly had not been provided to the District Attorney. Defense counsel stated she had stepped into the case that morning and had not talked to the mother or the sister of her client. The court replied that neither the People nor the defense can sandbag the other side. Hectors defense counsel had told the prosecutor only that the knife was not her clients. The court would not allow further inquiry about "anything relating to any contact [Christian L.] has had with Joanna [G.]. [P] Not only is there, apparently a discovery violation, but on 352 grounds, it is more prejudicial than probative."
Defense counsel had learned of the statements only that morning and did not reveal them to the deputy district attorney. After the court stated it had made its decision and asked counsel to move on, appellants counsel interjected an objection that she, too, was "not aware of the witness and the statement either, and it sounds like very important information in our self-defense claim." She asked for time for her and the prosecutor to talk to the witness.
The court took a short break to allow all parties to talk to Joanna G. Thereafter, the prosecutor renewed her objection, both on the discovery ground and on Evidence Code section 352. Back on the record, the deputy district attorney related that Joannas G.s purported testimony was that Christian was in possession of a knife one week prior to the incident, statements he denies. The objection was based both on lack of discovery and on Christians alleged possession of the knife the week before being "a collateral issue." Hectors counsel made an offer of proof that Christian told peer counselor Joanna a week before the incident that he was a member of the Eighteenth Street gang, was carrying a knife like that described in this case, and showed her the knife. Appellants counsel added that this evidence was "highly relevant" in light of Christians specific denial he had never had a knife. She had no knowledge about the peer counselor and asked for a reasonable time for the prosecution to investigate rather than penalize appellant by not admitting the testimony.
The court asked if the prosecutor had had an opportunity to interview Joanna G. The prosecutor had interviewed Joanna in the presence of the school police officer, apparently during the break, and represented to the court that defense counsels offer of proof was not what Joanna G. told the prosecutor. Rather, she stated that in the context of a peer counseling session with Christian the week before the incident, Christian told her he had slashed some Westsiders tires at school and then showed her a knife. When asked if she was required to write up a report for a supervisor, she said she was; when asked if she had written it up, she said she had not, that she "only told my supervisor that Christian and I talked about his girl friend." When asked if Joanna had disclosed anything else to Hectors attorney, Joanna replied she had not.
The court ruled it would not allow her testimony on several grounds. First, Joanna G. told the prosecutor different information than the offer of proof. In addition, the young lady, sister of a charged minor, came forth with statements that should have been provided to the prosecutor under section 1054.3. There was no disclosure until the middle of the trial. In addition, the court ruled it would exclude the testimony on section 352 grounds; given the varied testimony by the sister, "there is an undue consumption of time. It is more prejudicial than probative. I do not find it particularly probative in the context of the sister of one of the minors, a failure to provide discovery to the People and completely different versions that have been given both to the prosecutor, with the investigator present, as was given to [Hectors attorney.]" In addition to its concerns under sections 1054.3 and 352, the court was quite concerned that the student might be working under the supervision or direction of a school psychologist, and confidentiality issues might be involved.
He testified his friends in Twelfth Street, with appellant in Westside, did not make him want to fight. It did cause him to be afraid.
Christian admitted entering the alleyway through a hole in the fence, not at the entrance at either end of the alleyway. As he did so, he saw appellant and Hector riding their bikes at one entrance to the alleyway, but he did not anticipate a fight.
Defense
Appellant, a tenth grader, testified in his own defense. He admitted he hung around with people from the Westside Pomona gang but was not "from there" and did not tell the school police officer he was. He denied knowing Christian as an acquaintance or friend, having any conflicts with him, throwing a gang sign at him, or calling him a little bitch. Appellant denied having a knife or telling Hector to use a knife. His version of the incident was that at the school rally, when the boys were across the gym from each other, Christian drew a thumb across Christians throat, a gesture that threatened appellant. Appellant saw a "chrome piece" which he thought was a knife in Christians hand. PAGE CONTAINED FOOTNOTES According to appellant, he was angry with Christian and "just wanted to ask him who he was slicing his throat to" and was going to confront him about that. Christian had mentioned around school that he had a cousin from the Twelfth Street gang.
Appellant testified he believed his life was in danger when he saw the gesture. But he reported it to no one.
Appellant had not arranged to meet Christian that day after school, nor did he expect to see him. Nevertheless, riding his bicycle as shown on the video, he saw Christian and David in the alleyway. When he saw Christian, appellant thought he would go after him to ask why Christian had been slashing his throat in that gesture. Appellant was not afraid of Christian, because "he is, like, smaller than me." Appellant admitted confronting Christian and, when Christian talked back, throwing the first hard punch, and then kicking Christian when he was down. Appellant was not then afraid and backed away; he testified that Christian then took out a knife.
In a slightly different version of his testimony, appellant thought Christian was going to take out his knife and try to do something with it. Christians hand was at the side near his pocket; he was not then holding a weapon. According to appellant, he first saw the knife when I was fighting him. Then he tried to pull it out from his pocket." Appellant kept socking Christian, and the knife fell to the floor. Christian fell down and was going to get up when appellant kicked him hard in the back. Appellant admitted that David was standing to the side not involved and that appellant and Hector were two-to-one against Christian.
Appellant denied ever asking Hector to get involved or forcing or asking Christian to say "Fuck Twelfth Street." Hector got involved only when Christian had been socked by appellant a few times and Christians knife fell to the ground. Hector picked it up, headed towards appellant, and had the knife towards Christians shoulder. Appellant testified that he "just backed away." Hector threw the knife away; "ticked off" that Christian was again walking towards appellant, appellant again socked Christian. Appellant denied telling Hector to pick up the knife or stab or hurt Christian.
Appellant concedes the video shows Hector with a choke hold on Christian and shows appellant punching Christian. He denied having a weapon in his hand. Appellant testified that Hector held Christian back but never hit him. He at first did not remember if Hector had a knife in his hand when Hector had his arm around Christian, but he did see Hector with the knife in the videotape and then testified Hector had the knife with his arm around Christian. Appellant also saw appellant throw a punch at Christian after Christian was released from that hold even though Christian had not advanced towards appellant, did not have a weapon in his hand, and had not thrown a punch at appellant at that time. According to appellant, Christian hit him only once, an unreported hit on the shoulder, and did not hit Hector at all. Appellant and Hector did both raise Christian up to his feet. After the fight, they rode away on their bicycles and Hector threw the knife on the ground.
He first testified he hit Christian only once. On recross, faced with the videotape, he admitted he "socked him one more time" but did not explain the other bruises to Christians face.
That hit was, according to appellant, after appellants own first swing at Christian and "didnt really hurt me or nothing." Appellant then kicked Christian when he was on the floor, at which point Christian took out his knife.
Although Hectors sister was not allowed to testify, the court permitted his mother to testify over the Peoples objection. She testified that she and her daughter visited Christian two days after the incident, the same day Hector was arrested. She talked to Christians mother, who called her son from the garage; he had his pants on but no shirt. Hectors mother saw no physical trauma around his body or face, and he looked unhurt. She asked Christian what happened. According to Hectors mother, Christian said they got into a fight, he and David had a knife, and David pulled it out first. He also told her he was sorry that the whole thing came about. He admitted he did have a knife. PAGE CONTAINED FOOTNOTES
When she asked Christian if he told that to the police he said "Of course not." Although testifying she had the impression Christian started the fight, which she realized might provide a defense of self-defense for her son, she did not contact the police. Rather, she told only her sons lawyer on the day she hired him, probably a few days after the incident. She also told the lawyer friend of her husband who first appeared for her son.
When Hector offered to call his sister, the prosecutor objected that in her conversation with Hectors sister Joanna that morning, she "did not give me any statement regarding what allegedly occurred when they went and visited Christian." The court again excluded her for the discovery violation. Hector did not testify.
Appellants attorney argued that the truth was somewhere between the testimony of Christian and appellant. She conceded a battery by her client, but not assault with a deadly weapon. She also argued that "the entire length of the knife was three to four inches" so it might not be a "deadly weapon."
Courts rationale and disposition
The court gave a lengthy and thoughtful analysis of its rejection of appellants arguments regarding proof of the commission of the assault with a deadly weapon and his contention of self-defense. Explaining its decision that the People had sustained their burden of proving a felony assault with a deadly weapon occurred, the court stated: "I think it is significant that Christian made his police report without knowing that a videotape was being made, did not view the videotape prior to testifying and that all of the information, while it did occur in the videotape from the middle of the assault on, did corroborate Christians initial report to the police in terms of Hector having a knife, Hector holding him in a choke hold. Quite frankly, Christian, when he testified, was unwilling to state which one had the knife. He couldnt - he didnt see the face. He was in a choke hold. He described how the knife was pointed, and it wasnt until he saw the videotape that he realized that it was, in fact, Hector that had the knife. So this is not a witness who is prone to want to just see that innocent people are convicted. Rather, he immediately tried to contact his father at Burger King, reported this to the police, and photographs were taken, which do depict bruising, the marks of Richard[s] shoe on his back.
The court then described the right of self-defense and its inapplicability to the facts in the case at bench. The court noted that appellant "acknowledged that he threw the first punch in the face, which knocked Christian down to the ground, and then kicked him in the back, leaving the shoe print in this victims back. Clearly, [appellant] is the aggressor in this case, and his speculation that Christian may have had a knife in a pocket is nothing beyond that." Moreover, "Richard sought the quarrel [and] was the aggressor." His responses to questions support the version as testified to by Christian that this was a joint two-on-one attack. The court found appellant liable on an aiding and abetting theory for what Hector did with the knife and added: "but if there had never been a knife, the fists, the kicking that Richard acknowledged, certainly with the photographs, the bruising, the shoe mark on the back, in and of themselves, if it had stopped there, is felony assaultive conduct." (Italics added.)
Later in the hearing, after a discussion regarding disposition and when the previous offenses were brought to the courts attention, the court stated it was revoking the 790 deferred judgment. The court noted that appellant had had the benefit of probation, had all Fs in School, and admitted to regular drug and alcohol use. The court stated "This was a very violent assault including a very deadly weapon, and I think that the minor needs to be committed for a long term at the Violence Alternative Program at camp.
The court struck the alcohol and drug finding in the probation report after counsel brought to the courts attention the previous order for the probation officer not to discuss either gangs or that matter with appellant.
The court reviewed the facts in the prior 2002 petition, stealing a car and ripping out the radio when it did not work, then evading officers. The court declared the minor a 602 ward of the court and imposed a maximum of four years on the 245(a)(1) with an additional sixteen months on the second count. Appellant was placed in the camp community placement program, specifically in the violent offender program based on what was "clearly . . . a gang-related assault." Also based on the gang affiliation evidence, the court ordered appellant to register pursuant to section 186.30 and 186.32.
CONTENTIONS ON APPEAL
Appellant contends: 1. The due process clause of the Fourteenth Amendment was violated by the juvenile courts true finding as to count one of the April 5, 2002 petition. 2. The juvenile court violated appellants Sixth Amendment right to present exculpatory evidence and it violated Penal Code section 1054.4, subdivision (c), when it excluded the defense testimony of Joanna G. 3. The separation of powers doctrine of the California Constitution was violated by Welfare and Institutions Code, Article 20.5, and by the revocation of appellants deferred entry of judgment on the January 16, 2002, petition, thus implicating appellants liberty interest and violating the due process clause of the United States Constitution. 4. The juvenile court erred by not declaring whether appellants offense of assault with a deadly weapon was a felony or misdemeanor as required by Welfare and Institutions Code section 702.
DISCUSSION
1. Substantial evidence supports the juvenile courts adjudication.
Appellant contends that, even assuming arguendo every word of Laras testimony was true, there is insufficient evidence to prove the facts alleged in count 1, assault with a deadly weapon, by means likely to produce great bodily injury and the due process clause of the Fourteenth Amendment was violated by the juvenile courts true finding as to count one of the April 5, 2002 petition. His argument is that holding a knife in front of someones face does not constitute "means of force likely to produce great bodily injury" and that a knife is not an inherently deadly weapon and becomes one only when used to cause severe bodily injury. (People v. Flynn (1995) 31 Cal.App.4th 1387, 1394; People v. Herd (1963) 220 Cal. App. 2d 847, 850, 34 Cal. Rptr. 141; People v. Kersey (1957) 154 Cal. App. 2d 364, 366, 316 P.2d 52.) Thus, under In re Winship (1970) 397 U.S. 358, 364, 368, 25 L. Ed. 2d 368, 90 S. Ct. 1068, appellant contends that there was insufficient evidence regarding count 1 and the findings cannot constitutionally stand.
As our Supreme Court stated in People v. Aguilar (1997) 16 Cal.4th 1023, 1028, 945 P.2d 1204: "Section 245, subdivision (a)(1), punishes assaults committed by the following means: with a deadly weapon or instrument other than a firearm, or by any means of force likely to produce great bodily injury. One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975) 14 Cal.3d 169, 176, 121 Cal. Rptr. 97, 534 P.2d 1001 [].)"
Moreover, "As used in section 245, subdivision (a)(1), a deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. (In re Jose R. (1982) 137 Cal. App. 3d 269, 275-276 .) Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. (People v. Graham (1969) 71 Cal.2d 303, 327, 78 Cal. Rptr. 217, 455 P.2d 153 [], disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal. Rptr. 377, 533 P.2d 1017 [].) Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. (In re Jose R., supra, 137 Cal. App. 3d at p. 276; see People v. Nealis (1991) 232 Cal. App. 3d Supp. 1, 4, fn. 2, 283 Cal. Rptr. 376 [] [citing California decisions holding various objects, not deadly per se, to be deadly weapons under the particular circumstances].)" (People v. Aguilar , supra, 16 Cal.4th 1023, 1028-1029.)
The standard of review is governed by the substantial evidence rule. (In re Roderick P. (1972) 7 Cal.3d 801, 808-809; In re Adrain R. (2000) 85 Cal.App.4th 448, 452; In re Oscar R. (1984) 161 Cal. App. 3d 770, 773, 207 Cal. Rptr. 789.) "This court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]" (In re Jose R. , supra, 137 Cal. App. 3d 269, 275.)
Appellant relies on cases stating that a knife is not inherently a deadly weapon. (People v. McCoy (1944) 25 Cal.2d 177, 188-189, 153 P.2d 315; People v. Herd, supra, 220 Cal. App. 2d 847, 849; People v. Flynn (1995) 31 Cal.App.4th 1387, 1394; People v. Kersey, supra, 154 Cal. App. 2d 364, 365-6.) The same cases make clear that "although not an inherently deadly weapon, a knife becomes such when used in such a manner as to cause severe bodily injury. [Citations.] In determining whether an instrument which is not inherently deadly or dangerous, assumes these characteristics, the trier of fact looks to the nature of the weapon, the manner of its use, the location on the body of the injuries inflicted, and to the extent of such injuries. [Citation.]" (People v. Herd, supra, 220 Cal. App. 2d 847, 850.)
"In assault with a deadly weapon, the character of the particular agency employed is the substance of the offense. While a knife is not an inherently dangerous or deadly instrument as a matter of law, it may assume such characteristics, depending upon the manner in which it was used, and there arises a mixed question of law and fact which the jury must determine under proper instructions from the trial court. [Citations.] Pertinent in this connection is the case of People v. Raleigh, 128 Cal.App. 105, 108-110, 16 P.2d 752 [], where the court pointed out the distinction between instrumentalities which are weapons in the strict sense of the word, such as guns, dirks, etc., and those instrumentalities which are not weapons in that sense, such as ordinary razors, pocket-knives or other sharp objects. With reference to the latter classification the court said: When it appears . . . that [such] an instrumentality . . . is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion." (People v. McCoy, supra, 25 Cal.2d 177, 188-189, italics omitted.)
Holding a knife up to the chest or neck of the victim of a two-on-one fight, while the victim is being held by the assailant, is certainly using that knife as a "deadly weapon." The use of the knife in the case at bench was at least as deadly as the pins placed in apples that were given to a teacher and students in In re Jose R., supra, 137 Cal. App. 3d 269, 275.
We thus need not reach appellants related contention that, if the evidence did not support a finding of the knife as a "deadly weapon" in the case at bench, the court was precluded from its alternative rationale that found appellants independent physical assault of Christian to be sufficient for the offense; appellant claims the finding was precluded by the conjunctive language in the petition in the case at bench. (See People v. Flynn, supra, 31 Cal.App.4th 1387, 1394.) He does not dispute that his conduct would have supported the necessarily finding had the petition alleged violation of section 245(a)(1) in the disjunctive.
The instant petition alleged the crime of assault with deadly weapon, by means likely to produce GBI, a felony, "was committed by said minor, who did willfully and unlawfully commit an assault upon [the victim, Christian L.] wit a deadly weapon, to wit, knife, and by means of force likely to produce great bodily injury." (Italics added.)
Finally, appellant contends that the juvenile courts failure expressly to find that Hectors knife use was a "natural and probable consequence" of the target crime mandates reversal. The gist of his argument is that Hector was the only person wielding a knife and for appellant to be liable on an aiding an abetting theory, the crime must be the "natural and probable consequence" of the target crime and the trial court must make such an express finding. (See People v. Prettyman (1996) 14 Cal.4th 248, 261, 926 P.2d 1013.)
The court in People v. Prettyman (1996) 14 Cal.4th 248, 261-262, 926 P.2d 1013, discussed the liability of aiders and abettors: "In People v. Croy [1985] 41 Cal.3d 1, 221 Cal. Rptr. 592, 710 P.2d 392, we set forth the principles of the natural and probable consequences doctrine as applied to aiders and abettors: [An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [P] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury. (Id. at p. 12, fn. 5.) Thus, under Croy, a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the natural and probable consequence of the target crime. [P] As we pointed out earlier, under the general principles of aiding and abetting, an aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman [1984] 35 Cal.3d [547,] 560 . . . .) Therefore, when a particular aiding and abetting case triggers application of the natural and probable consequences doctrine, the Beeman test applies, and the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and
(2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendants confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (Footnote and italics omitted.)
First, appellant by his own conduct encouraged and furthered the "target" crime of assault with a deadly weapon so there need be no finding of "natural and probable consequences." In addition, were such finding required, appellant cites no authority requiring the juvenile court to make an express finding.
2. Whether or not the juvenile court should have permitted the testimony of Joanna G., we find no prejudicial error from the exclusion of her testimony.
There was an offer of proof by co-minor Hector G. of appellants alleged statements to peer counselor Joanna G., Hectors sister, a week before the incident. As explained above, she would have testified inter alia that, contrary to his own testimony at trial that he had no knife, Christian told her he had a knife and showed it to her.
The juvenile court excluded the testimony on the ground that defense counsel for Hector had not disclosed the statement to the prosecution in a timely fashion pursuant to Penal Code section 1054.3 and that the testimony was more prejudicial than probative under Evidence Code section 352. Appellant, whose counsel had not denied discovery to the prosecution and who, like the prosecution, did not have the statement by the peer counselor, requested a continuance for the prosecution rather than penalize appellant for the lack of discovery with which he was not involved. (See People v. Edwards (1993) 17 Cal.App.4th 1248, 1263 [error to preclude defense testimony as sanction where no showing of willful and deliberate discovery abuse or that lesser sanction would be adequate; but error nonprejudicial]; Taylor v. Illinois (1988) 484 U.S. 400, 414-15, 98 L. Ed. 2d 798, 108 S. Ct. 646 [discovery sanction may violate compulsory process clause but that clause does not create absolute bar to preclusion of testimony of defense witness as sanction for violating discovery; factors to be considered by trial court in balancing include "presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process"].)
Appellant contends that exclusion of the testimony of the peer review counselor was a violation of his Sixth Amendment right to present exculpatory evidence and was prejudicial. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1759-60 [exclusion of testimony violated compulsory process clause and was not harmless beyond a reasonable doubt].) He argues that there were less harsh sanctions available, particularly where appellant had not been responsible for any discovery violation.
We need not decide if the trial court erred in not allowing Joanna G. to testify. Given the comments of the juvenile court, the trier of fact in the case at bench, there would not have been a different result had Joanna been allowed to testify under either Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 or People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. Joanna G.s testimony would have been that Christian showed her a knife the week before. Hectors mothers testimony, that when she went to see Christian he admitted having a knife at the time of the incident and was sorry about the incident, was far more probative to the charged offense but was not believed by the juvenile court. Instead, the court explained why it believed Christians testimony about the subject events. Appellants own testimony "acknowledged that he threw the first punch in the face, which knocked Christian down to the ground, and then kicked him in the back, leaving the shoe print in this victims back. Clearly, [appellant] is the aggressor in this case, and his speculation that Christian may have had a knife in a pocket is nothing beyond that." The juvenile court found appellant "sought the quarrel [and] was the aggressor" in a joint two-on-one attack.
The inconsistencies in Joannas testimony to defense counsel and to the People in her interview at the time of trial would have been used to impeach her and add to the lack of prejudice in the exclusion of this witness. (People v. Alcala (1992) 4 Cal.4th 742, 790- 91, 842 P.2d 1192 [finding exclusion of a witness error but not prejudicial under Watson, where witnesss testimony was highly contradictory]; People v. Edwards (1993) 17 Cal.App.4th 1248, 1266-67 [applying Chapman standard to preclusion as a discovery sanction, but finding error harmless beyond a reasonable doubt].) The juvenile court specifically found Christian to be credible; in contrast, the court found the proposed testimony not "particularly probative in the context of the sister of one of the minors, a failure to provide discovery to the People and completely different versions that have been given both to the prosecutor, with the investigator present, as was given to [defense counsel] Ms. Alex." Given the state of the record, we cannot find any prejudice.
3. We will not render an advisory opinion on appellants argument that the separation of powers doctrine of the California Constitution was violated by Welfare and Institutions Code, Article 20.5, and by the revocation of appellants deferred entry of judgment.
Appellant contends that Article 20.5, Welfare and Institutions Code sections 790 to 796, added by Proposition 21, violates the California Constitutions separations of powers doctrine. He argues that the prosecutor and/or probation department is given power that should be reserved to the court. (People v. Navarro (1972) 7 Cal.3d 248, 258, 102 Cal. Rptr. 137, 497 P.2d 481 [declaring section 3051 of the Welfare and Institutions Code unconstitutional insofar as it required the concurrence of the district attorney in order for the court, when it found a case to be an unusual one in which the interest of justice required commitment to the treatment program, and finding the requirement severable from the rest of the provision so that the judge may, in such a case, make a commitment to the treatment program]; Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 122, 127, 95 Cal. Rptr. 524, 485 P.2d 1140 [violation of separation of powers to require prosecutors consent before magistrate can hold defendant to answer for misdemeanor rather than felony where if crime is punishable as either]; People v. Tenorio (1970) 3 Cal.3d 89, 95, 89 Cal. Rptr. 249, 473 P.2d 993 ["finding section 11718 violative of the California constitutional separation of powers, as that concept demands that the branches of government be coequal and that a prosecutor not be vested with power to foreclose the exercise of a judicial power recognized in section 11718 itself."] )
"The law governing deferred entry of judgment was adopted as an initiative measure, Proposition 21, approved by the voters on March 7, 2000." (In re Sergio R. (2003) 106 Cal.App.4th 597, 602, fn. 4.)
In particular, Welfare and Institutions Code section 793, subdivision (a), provides in part: "(a) If it appears to the prosecuting attorney, the court, or the probation department that the minor is not performing satisfactorily in the assigned program or is not complying with the terms of the minors probation, or that the minor is not benefiting from education, treatment, or rehabilitation, the court shall lift the deferred entry of judgment and schedule a dispositional hearing. If after accepting deferred entry of judgment and during the period in which deferred entry of judgment was granted, the minor is convicted of, or declared to be a person described in Section 602 for the commission of, any felony offense or of any two misdemeanor offenses committed on separate occasions, the judge shall enter judgment and schedule a dispositional hearing. If the minor is convicted of, or found to be a person described in Section 602, because of the commission of one misdemeanor offense, or multiple misdemeanor offenses committed during a single occasion, the court may enter judgment and schedule a dispositional hearing." (Italics added.)
We agree with respondent that the issue is not ripe for decision in the case at bench because neither the prosecutor nor the probation department made the decision or "reversed" the juvenile courts granting of deferred entry of judgment. Our reading of the record is that the court itself chose to revoke the deferred entry. Although such a recommendation may have been made by the probation officer, the decision here was the courts own. Thus, we need not decide whether the statute in the abstract violates separation of powers.
4. The juvenile court complied with Welfare and Institutions Code section 702 in declaring appellants offense of assault with a deadly weapon a felony.
Welfare and Institutions Code section 702 requires the court to declare an offense that would be a "wobbler" as an adult to be a misdemeanor or a felony: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." Our Supreme Court in In re Manzy W. (1997) 14 Cal.4th 1199, 1208, 930 P.2d 1255, held that such a declaration is mandatory and, with certain exceptions, there must be a remand to allow the juvenile court to make the finding of felony or misdemeanor. (See also In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.) Appellant claims the juvenile court in the case at bench did not make such a finding and the matter must be remanded.
Our reading of the record reveals the juvenile courts comments demonstrated a clear finding of "felony" assaultive conduct, whether from use of the knife or from appellants physical treatment of the victim. Where as here the juvenile court orally used the word "felony" to describe the conduct, we see no need to remand for a more explicit finding. (Compare In re Eduardo D. (2000) 81 Cal.App.4th 545, 549, where "the juvenile court did not orally indicate on the record whether the crime was a felony or misdemeanor. Nor did the juvenile court use any language that demonstrated an awareness of its discretion to make such a determination.") Although the minute order by itself is insufficient under Manzy W., supra, 14 Cal.4th 1199, 1208, the courts entry of an "x" by the box for "felony" as to count 1 in its minute order lends further support to its exercise of discretion.
Furthermore, as stated in Manzy W., supra, 14 Cal.4th 1199, 1209. "the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit."
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., BOLAND, J.