Opinion
G053748
11-17-2017
In re E.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.M., Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DL0498) OPINION Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed as modified. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
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Social media content can play a pivotal role in a criminal or juvenile trial, but like all evidence, sometimes it turns out to be significant, and sometimes it does not. Here, it does not affect the outcome.
"Use of social media, in its myriad of forms, has become ubiquitous in our society." (Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, 208, review granted Dec. 16, 2015, S230051; see California Rules of Court, rule 8.1115(e)(1).) Facebook, Instagram, and Twitter "each provide digital platforms on which users may post communications, commentary, photographs, video clips, or other items the user may wish to share within a social network. Evidence gathered from social media is becoming equally ubiquitous in our courtrooms." (Facebook, supra, at p. 208.)
E.M. (the minor), a ward of the court, contends: (1) there was insufficient evidence she committed assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); and (2) the juvenile court erred in denying her motion to dismiss on grounds the prosecution failed to produce and/or preserve favorable, exculpatory video evidence of the assault that found its way onto Facebook. We reject both contentions.
All further statutory references are to the Penal Code unless otherwise stated.
The court imposed a probation condition that the minor have no contact with the victim in its oral pronouncement of judgment. We modify a contrary minute order and affirm.
FACTS
The minor, her friend J.G., and E.C. (the victim) were all students at Sierra Intermediate School. One day in December 2015, the victim was on her way home from school and heard someone say "let's go get her." The victim testified J.G. threw her down to the ground by her hair and began beating her. According to the victim, J.G. was on top of her and punched her in the face about 11 or 12 times.
The victim also felt the minor kicking her in the head. While the victim testified she could not recall how many times she was kicked, she also testified it was "around six" times. A crowd of onlookers cheered the minor and J.G. on as they assaulted the victim. The incident lasted approximately three minutes, at which time police arrived and the minor and J.G. fled.
The victim was swollen, red, and bruised under her eyes and on her cheeks, and suffered a headache and lightheadedness. Emergency medical personnel treated her at the scene. Later that day, she sought medical treatment from her own physician. The victim was not prescribed any treatment or medication after the visit. She did not immediately return to school because winter break intervened.
The victim later learned an unknown person had posted a video of the incident on Facebook, a social media network. The victim watched the video, which was about three minutes long. The victim told police there was a video, and they could look "on the profiles and it was there." She also told Assistant Principal Rudy Aguila about the video and where to find it.
School Resource Officer Christopher Mireles interviewed the victim who told Mireles the minor kicked her six to seven times in her torso and face. Mireles also interviewed the minor, and she confessed to kicking the victim four times in the torso and "at least once" in the head or face. She admitted striking the victim while she was still being pinned down on the ground. The minor told Mireles she did not care about what she did.
Weeks after the attack, an unknown person showed Aguila a cell phone, which contained a 10 to 15 second video clip of the incident. In the video, Aguila observed the minor deliver "two short kicks" to the victim. He testified, "It would be like pushing something out the door. Yeah, there was no wind up, so from a standing position where your legs are even, a push in that direction or a kick in that direction." Aguila described the minor's kicks to the victim as having "not much force." He disagreed the minor kicked the victim in the head six or seven times. However, he did not see the entire attack on the video. Aguila testified he never attempted to collect the video, stating "it [was] not relevant to an administrative perspective," because suspensions and/or discipline problems had already been handled. Aguila also testified the victim had lied to him twice in the past-once by saying she was present at a school shooting and, on another occasion, by claiming to have a brother; neither story was true.
The district attorney filed a petition to declare the minor a ward of the court (Welf. & Inst. Code, § 602). It charged her with one count of assault with force likely to produce great bodily injury, a felony (§ 245, subd. (a)(4)).
Section 245, subdivision (a)(4) provides, "Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
The minor filed a motion to dismiss for destruction and/or loss of video evidence and violation of due process under Brady v. Maryland (1963) 373 U.S. 83 (Brady), California v. Trombetta (1984) 467 U.S. 479 (Trombetta), and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). The People opposed, and the court denied the motion.
The court found the petition's allegations true but found a misdemeanor rather than a felony violation. The court adjudged the minor a ward of the court and placed her on probation, with several conditions, including that she have no contact with the victim and witnesses.
DISCUSSION
Sufficiency of the Evidence
The minor argues there was insufficient evidence she committed assault by means of force likely to produce great bodily injury, because she did not apply force sufficient to produce great bodily injury, and because she did not aid and abet an offense likely to result in great bodily injury. We need not reach the second contention, because there was sufficient evidence the minor applied force by means likely to produce great bodily injury.
Section 245, subdivision (a)(4) prohibits "an assault upon the person of another by any means of force likely to produce great bodily injury." The force used must be likely to produce an injury that is "significant or substantial, not insignificant, trivial, or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) Whether the minor used force likely to produce great bodily injury is a question for the trier of fact. (People v. McCaffrey (1953) 118 Cal.App.2d 611, 616-617 ["It is not essential to a conviction of such charge that the victim be held over a blazing furnace or be fired upon with an atomic weapon. The stroke of a fist or the kick with a shoe has invalided many a man or caused him to go into decline, or to suffer neurasthenic disorders for his remaining years. But whether the blow of a fist or the kick of a shod foot was of such force as was likely to produce great bodily injury was a question for the jury."].)
We review the record in the light most favorable to the judgment. (In re Jose R. (1982) 137 Cal.App.3d 269, 277.) We need search no further than the minor's account of the incident as communicated to Mireles to reject her contention she did not apply force likely to produce great bodily injury. The minor admitted she kicked the victim in the head, presumably with a shoe affixed to her foot, as there is no suggestion she was barefoot at the time. She admitted striking the victim while she was vulnerable, pinned down on the ground. While the number of kicks delivered was an issue in dispute, with the victim first testifying she could not recall, and later testifying it was "around six times," and Aguila testifying it was "two short kicks," there is no dispute the minor delivered at least one kick to the victim's face or head. Even a single kick to the face or head can cause serious damage, including injury to an eye socket or knocking out teeth. A blow to the eye could cause blurred or double vision. There are small bones in the face that could easily be broken with a solid kick. A fracture to the delicate bones around the sinuses, eye sockets, bridge of the nose, or cheekbones has the potential to cause lifelong disfigurement. A fractured jaw bone might require the jaw to be wired shut for long periods of time; not to mention the possibility of concussion. All of these maladies are possible with just a single kick. (See In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161 [one blow to the face of the victim was likely to cause great bodily injury].)
It is borderline frivolous for the minor to argue a kick to the face is not likely to result in great bodily injury. Across the board, we reject the argument.
Disclosure and Preservation of Video Evidence
The minor contends her conviction should be reversed, because Aguila was an agent of the prosecution's investigative team, the prosecution violated Brady by failing to disclose exculpatory video evidence, and the prosecution violated Trombetta and Youngblood by failing to preserve favorable video evidence. We are not persuaded.
Brady concerns the failure to disclose exculpatory evidence. In Brady, the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)
Similarly, the failure to preserve favorable evidence can be problematic. "Due process requires the state preserve evidence in its possession where it is reasonable to expect the evidence would play a significant role in the defense." (People v. Alexander (2010) 49 Cal.4th 846, 878.) The evidence must "possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, 467 U.S. at p. 489.) However, negligent destruction or failure to preserve potentially exculpatory evidence, without evidence of bad faith, will not give rise to a due process violation. (Youngblood, supra, 488 U.S. at p. 58.)
Here, there is no Brady or Trombetta / Youngblood violation for one simple reason: the minor had equal access to the Facebook video through the exercise of reasonable diligence. As to Brady, the video was never improperly suppressed by the prosecution team. '"[T]he prosecutor had no constitutional duty to conduct defendant's investigation for him. Because Brady and its progeny serve "to restrict the prosecution's ability to suppress evidence rather than to provide the accused a right to criminal discovery," the Brady rule does not displace the adversary system as the primary means by which truth is uncovered. [Citation.] Consequently, "when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.'"" (People v. Superior Court (2015) 61 Cal.4th 696, 715; see United States v. Stuart (8th Cir. 1998) 150 F.3d 935, 937 ["Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence."].)
Similarly, as to Trombetta / Youngblood, there were other reasonably available means by which the video could have been obtained. And, there is no evidence the prosecution ever possessed the video in the first place, and therefore no evidence the prosecution destroyed or failed to preserve evidence. (Trombetta, supra, 467 U.S. at pp. 488-489.)
Here, the video first came to light during the victim's testimony at the adjudication hearing when she volunteered she had seen a video of the assault on Facebook. Aguila later testified he viewed a portion of the video when an unknown person showed him a cell phone capable of displaying the video. There is no evidence the video was made or posted by, or at any time in the possession of, Aguila, the police, the minor, or the victim. It was made and posted by an unknown user on an unknown user's Facebook account. As such, the minor had equal access to the video or to determining who may have created and/or posted it. Indeed, she may have had greater access, or a greater likelihood of discovering how to access it, because it was most likely posted by another student. It was not incumbent upon the prosecution team to produce the video or, if they ever had it (of which there is no evidence), to preserve it. As noted in one treatise, "cases that have found due process violations following Trombetta and Youngblood are as rare as hens' teeth." (Levenson & Ricciardulli, Cal. Criminal Motions (2017) § 3:22.) This is not such a case. The minor has not established error under Brady or Trombetta / Youngblood.
Having failed to demonstrate the video was improperly suppressed, we need not address the minor's other arguments, including that Aguila acted on the prosecution's behalf as an agent of its investigative team, that the evidence was exculpatory, and that the prosecution acted in bad faith.
Probation Conditions
According to the court's written minute order, one of the minor's probation conditions provides, "Do not contact or cause to be contacted the victims/witnesses of any offense alleged against you." The minor contends: (1) the court should strike the portion of the probation condition that prohibits contact with witnesses because the court did not impose this condition in its oral ruling and because the minor cannot comply with it; and (2) the court should add a knowledge requirement to the probation condition that prohibits contact with the victim, because as written it is unconstitutionally vague and overbroad by failing to prohibit knowing and purposeful contact. The People do not object to us striking the word "witnesses" from the minute order to ensure it is consistent with the juvenile court's oral order. We will modify the judgment accordingly.
The minor argues in its current form, the no contact order is unclear whether unwitting violations of the probation condition fall within its scope. Citing cases such as In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), People v. Petty (2013) 213 Cal.App.4th 1410 (Petty), and People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), she argues an express knowledge requirement can remedy the deficiency. The minor's argument revolves around an issue that was unsettled when the instant case was briefed but has since been decided in People v. Hall (2017) 2 Cal.5th 494 (Hall).
In Hall, defendant requested modification of probation conditions to convey explicitly that they apply only to knowing possession of prohibited items. (Hall, supra, 2 Cal.5th at p. 497.) Our Supreme Court concluded probation conditions already include an implicit requirement of knowing possession, and thus afford defendant fair notice of the conduct required. (Ibid.) The court wrote, "[T]he issue presented here is not what state of mind is required to sustain a violation of probation, but the extent to which that state of mind must be expressly articulated in the probation condition itself to provide defendant with fair warning of what the condition requires." (Id. at p. 500.) The court concluded, "Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person. So too with the narcotics condition, which is best read as proscribing defendant from knowingly using, possessing, or having in his custody or control any illegal drugs, narcotics, or narcotics paraphernalia, without a prescription . . . . Because no change to the substance of either condition would be wrought by adding the word 'knowingly,' we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (Id. at p. 503, fn. omitted.)
The minor has not established the probation condition is unconstitutionally vague and overbroad. This case differs from Sheena K. where the absence of an express requirement of knowledge required modification when the probation condition imposed upon defendant prohibited a minor from associating with anyone disapproved of by probation. (Sheena K., supra, 40 Cal.4th at p. 891.) The condition was modified to read the probationer could not associate with anyone "'known to be disapproved of'" by a probation officer. (Id. at p. 892.) In Hall, the court explained, "[T]he category of prohibited persons [in Sheena K.] was vague, in that the condition failed to specify which persons the probation officer had disapproved of." (Hall, supra, 2 Cal.5th at p. 503.) Here, the probation condition prohibiting the minor from contact with the victim is not so attenuated. The minor knows the victim's identity already. Sheena K. is not controlling.
Similarly, the minor's reliance on Petty and Rodriguez is misplaced. In Petty, the court modified a protective order to provide defendant must not "knowingly" come within 100 yards of the victim or her daughter. (Petty, supra, 213 Cal.App.4th at p. 1424.) The court provided no rationale justifying its actions. In light of Hall, we question whether such a modification was constitutionally required. Rodriguez does not help the minor, because the court in Hall disapproved Rodriguez. (Hall, supra, 2 Cal.5th at p. 503, fn. 2.)
Here we have no trouble concluding the requisite scienter for a violation of the probation condition not to contact the victim is "easily ascertainable by reference to '"other definable sources"' that make sufficiently clear the conditions' scope." (See Hall, supra, 2 Cal.5th at p. 501.) "[T]he question before us is not whether th[e] [requested] degree of precision would be desirable in principle, but whether it is constitutionally compelled." (Id. at p. 503; see also People v. Hartley (2016) 248 Cal.App.4th 620 [trial court's order to stay 100 yards away from victim and not to have electronic, telephonic, or written contact with victim did not require modification to add knowledge requirement].) We conclude the precision requested by the minor is not constitutionally required.
DISPOSITION
The challenged probation condition is modified to strike the word "witnesses" from the no contact order. As modified, the judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.