In re M.D. CA1/4 ( 2016 )

Filed 1/28/16 In re M.D. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re M.D., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v. A141206
M.D., (Alameda County
Defendant and Appellant. Super. Ct. No. SJ13021413-01)
M.D. (minor) appeals from an order of wardship entered pursuant to Welfare and
Institutions Code section 602 following the juvenile court’s finding that he committed a
lewd act upon a child under the age of fourteen. Minor contends that reversal of the
juvenile court’s jurisdictional finding is required for numerous reasons. First, minor, who
was thirteen years old at the time of the incident in question, asserts that his federal due
process rights were violated because the prosecution did not rebut the presumption of
criminal incapacity for a minor under the age of fourteen. Second, he asks this court to
review the victim’s sealed academic and medical records to determine whether the
juvenile court erred by failing to disclose any discoverable materials in violation of
minor’s rights to due process and confrontation. Third, minor asserts that the juvenile
court committed statutory error by viewing the crime scene outside of his presence and in
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the absence of a waiver. Minor also argues that certain of these errors were cumulatively
prejudicial.
In addition, minor separately argues that the juvenile court abused its discretion at
disposition by imposing unreasonable probation conditions prohibiting various types of
gang involvement. Minor also contends that these probation conditions were imposed in
violation of his First Amendment rights. Finally, in a companion petition for writ of
habeas corpus, minor complains that the juvenile court improperly permitted a witness to
make a blanket assertion of his right against self-incrimination, thereby violating minor’s
right to present a defense.1 We affirm the judgment. Minor’s petition for writ of habeas
corpus has been summarily denied by separate order.
I. FACTUAL BACKGROUND
A. Introduction
On August 6, 2013, the Alameda County District Attorney filed an original
wardship petition under Welfare and Institutions Code section 602 alleging that minor
committed felony rape (Pen. Code, § 261, subd. (a)(2)), felony forcible lewd and
lascivious act against a child under the age of fourteen years (Pen. Code, § 288,
subd. (b)(1)), and felony first-degree attempted burglary (Pen. Code, §§ 459, 664).
On November 20, 2013, the juvenile court made no finding on the rape allegation,
but found the lewd act allegation true beyond a reasonable doubt. On November 21,
2013, the court dismissed the attempted burglary allegation on the prosecutor’s motion,
with facts and restitution open.
On January 16, 2014, the juvenile court adjudged minor a ward of the court and
placed him at home on probation.
B. Respondent’s Case
1. R. Doe
R.D. attended junior high school in Newark, California, and was in the seventh
grade. She was twelve years old at the time of this incident. M.D. was in R.D.’s sixth
1
By order dated November 10, 2014, we indicated that minor’s petition for writ of
habeas corpus would be considered together with this appeal.
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period science class. While R.D. was not close with M.D., she admits that she was good
friends with him and liked him as a person. She also trusted him and felt comfortable
being around him. One day in April of 2013 around 4:00 p.m., R.D. was alone after
school waiting for her mother to pick her up. A few of M.D.’s friends approached R.D.
on bicycles at the bottom of the staircase in the front of the school. R.D. only knew
Francisco, Oscar, and M.D. of the four or five boys that approached her. R.D., not
feeling afraid, walked up to the group and exchanged greetings with Francisco and M.D.
After Francisco and R.D. embraced, M.D. and R.D. walked towards a big brick wall
connected to the fence of the baseball field while the other boys stopped by the pool.
As they were walking towards the baseball field, R.D. and M.D. talked about
R.D.’s cutting issues and her relationship with her girlfriend named Jasmine, whom she
had been with since the beginning of the school year. R.D. has a sexual preference for
girls. She also asked him, “how it is to, like, not really care about anything and not be so
deep about things.” M.D. sat down on the bleachers while R.D. was standing up. In the
middle of their conversation, M.D. stood up and shoved her into the wall that was three
or four feet behind her. He put his hands on her waist and forcefully pushed her against
her will. R.D. did not flirt with M.D. and did not want to have any kind of sexual
relations with him.
When M.D. pushed her up against the wall, she pushed him back telling him “no”
and was trying her hardest to get him off of her. M.D. also kissed R.D. on the lips while
restraining her by the waist. She did not kiss him back. M.D. then began touching her
breasts underneath her clothing after pushing up her bra. R.D. told him to “stop” two to
four times and told him “no” approximately two times. M.D. removed her belt and
pulled her pants and underwear down to her ankles against her will and then restrained
both her arms against the wall. She continued to try and push him away by pushing his
shoulders. M.D. undid his pants and, bending down, inserted his erect penis into her
vagina without a condom for at least one minute. M.D. was slanted toward her and
moved his waist up and down. This incident occurred with both minors standing up.
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R.D. stated she was a virgin at the time. She did not scream because she was
embarrassed, felt weird, and no one was around since it was late after school.
R.D. stated that she saw Francisco by the pool before the assault occurred when
she was talking to M.D. on the bleachers. She also knew that Francisco was by the pool
during the assault, but did not see him. Still in shock, R.D. redressed herself. She then
walked back towards the pool away from where M.D.’s friends were standing after the
assault occurred. Four or five of the boys were still there, two of whom she recognized
as Francisco and Jairo. R.D. subsequently walked to her friend Laynisha’s house, but did
not tell her about the sexual assault because she was still in shock and did not want
anyone to know because she was embarrassed. She had confided in Laynisha in the past
about her relationship with her girlfriend, Jasmine, and that she used to cut herself.
After the sexual assault, R.D. continued to go to school with M.D. in her science
class, but the two never talked about the incident. At the end of the school year, R.D.
passed her yearbook around and M.D. signed it. M.D. also wrote, “You’ve been really
nice this year,” adding “LOL” and “HMU” along with his number. “LOL” means “laugh
out loud” and “HMU” stands for “hit me up.” When R.D. saw his comment in her
yearbook she felt that “it kind of hit me ‘cause I had kept it to myself for the rest of the
year. So the whole thing went through my head, and I tried to ignore it, but it just–it kind
of–it made me, like–felt like an insult to me.”
After the assault, R.D. was friendly with M.D. but never tried to call him. R.D.
recalls telling her mother about the sexual assault at the end of June,2 approximately two
or three months after the sexual assault occurred. She told her that she was “raped” and
that her arms were pinned. About one week after R.D. told her mother, she also told a
therapist from the Child Abuse Listening, Interviewing, and Coordination Center
(“CALICO”) about the incident.
2
According to R.D.’s mother, Julie M., R.D. actually told her mother about the incident
on July 26, 2013. Officer Ramos subsequently took down Julie M.’s statement about
R.D.’s disclosure to her the following day on July 27, 2013.
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Approximately one week before the sexual assault, R.D. was briefly admitted to
Willow Rock Center (“Willow Rock”). In fact, R.D. was confident about the timing of
the sexual assault because she recalled that she was at Willow Rock the week before it
happened. While at Willow Rock, R.D. told a psychiatrist that she was having a difficult
time because she cheated on Jasmine, her girlfriend, with another girl named Cynthia T.
R.D. said, “I felt like a bad person, I felt depressed and I just felt very, very guilty.” She
admitted to cutting herself and taking ibuprofen pills to hurt herself in the past because
she felt guilty about cheating on Jasmine. R.D. was admitted to Willow Rock for a
second time in July of 2013 for over one week. She told her mother about the sexual
assault after the second Willow Rock visit.
R.D. said she considered Cynthia T. a close friend in whom she would confide.
She did not consider Jessica D. as close of a friend, but more of a casual acquaintance.
2. Officer Randy Ramos
Officer Randy Ramos of the Newark Police Department met with R.D.’s parents
on July 27, 2013, and took down their initial statements. On July 31, 2013, he also
observed R.D.’s CALICO interview with a therapist through a one-way mirror and then
subsequently met with R.D. Ramos made an in-court identification of M.D. as the minor
he arrested on August 4, 2013. On the day of M.D.’s arrest, he brought the minor to the
Newark Police Department where Ramos took his statement after reading him his
Miranda rights.
During his testimony, Officer Ramos recounted his interview with M.D. When
Officer Ramos asked minor who he had sex with at the junior high school, M.D.
mentioned a girl other than R.D. In regard to the incident with R.D., minor said that he
“made out” with her and massaged and sucked on her breasts. He repeatedly denied
having sex with R.D. Minor confirmed that R.D. told him to stop approximately two or
three times. M.D. further stated that he did not know why he did not stop making sexual
advances on her when she told him to stop.
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C. Defendant’s Case
1. Julie M.
R.D. disclosed the incident to her mother, Julie M., on July 26, 2013. The
following day, Julie M. met with Officer Ramos at the Newark Police Department and
discussed what her daughter had revealed to her about the incident. Specifically, Julie M.
informed Officer Ramos that R.D. said Francisco led her out to the field where M.D. was
located and then Francisco left. R.D. also told her that M.D. “forced himself on her and
held her and he was strong.” Julie M. stated: “I know when she told me what had
happened I didn’t ask her for complete details. I heard enough. I heard what I needed to
hear.” She said that R.D. did not tell her that she was pinned to the ground during the
assault. But, Julie believed she might have told Officer Ramos that R.D. was pinned to
the ground because “that’s probably something that I imagined happen[ed], but [R.D.]
did not tell me those specific details, no.”
2. Jairo V.
Jairo V. knew R.D. because they went to school together at the junior high school,
but he did not consider her a close friend. Jairo also knew M.D. and became friends with
him in the sixth grade. He remembered the incident occurring in the middle of March.
Jairo stated that M.D., Francisco, and Oscar all met up at the flag pole after school that
day at approximately 2:45 p.m. Jairo saw R.D. with Jessica and Cynthia later that day
around 4:00 p.m. Jairo, M.D., Oscar, Francisco, R.D., and Jessica were by the pool at
this time. Cynthia left for softball practice. Jairo testified that R.D. was acting normal
towards M.D. when the group was talking. At some point, M.D. and R.D. left together
without informing the rest of the group that they were leaving. Jairo told Francisco and
Oscar that he wanted to go spy on them.
Jairo said M.D. and R.D. were walking toward the dugout area of the baseball
field, but then he lost sight of them. He went with his iPod and turned on the camera to
film them. Jairo saw a shadow of M.D. and R.D. leaning on the wall and they were
making out and kissing. He estimates he was about seven feet away from them when
they were kissing and that is the only kind of physical contact he saw. He also saw R.D.
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up against the wall. Then, he went around the dugout to get a better angle on them. He
believed that M.D. and R.D. never saw him at any point while he was spying on them.
Jairo only observed them talking about Jasmine after he moved positions.
After their conversation, Jairo saw R.D. and M.D. walking together towards the
pool area. Jairo then saw R.D. and M.D. meet up with the rest of the group made up of
Francisco, Oscar, Jessica, and himself. Jairo noticed that R.D. was acting normal as if
nothing happened and was not upset when she returned to the group. Then, R.D., Jessica,
and Cynthia left together around 4:30 p.m. after saying good-bye to everyone. Jairo
estimates that M.D. and R.D. were alone for six to seven minutes. Jairo also told an
investigator that he saw R.D. and M.D. hug each other good-bye.
On cross-examination, Jairo testified that he was at M.D.’s grandmother’s house
when M.D. was arrested. He did not know what M.D. was arrested for at the time, but
later found out while eavesdropping on M.D.’s aunt and his parents that M.D. was
arrested for conduct related to the incident in question. Jairo stated that he showed the
video he filmed to M.D., but deleted it a week or two after the incident. He erased the
video because “there was nothing interesting on there.” Jairo never saw R.D. hanging out
with M.D. after the incident and did not pay attention to R.D.’s attitude for the rest of the
school year. He did not see anything that caused him to be alarmed when he saw M.D.
and R.D. at the dugout.
3. Francisco R.
M.D. intended to present Francisco as a witness at trial. The court appointed
counsel for Francisco because of an attempted burglary charge involving M.D.,
Francisco, and Jairo and the prosecution’s theory that Francisco acted as a crime partner,
lookout and aider and abettor during the sexual assault. Francisco spoke with his
attorney, who advised him of his rights, and thereafter he elected to invoke his privilege
against self-incrimination with respect to any questions about the day of the incident and
his presence there.
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4. Jessica D.
Jessica D. testified that she knew R.D. better than most of her friends because
R.D. came to her more than other people to talk about her problems. They would hang
out three to four times per week at school back when Jessica went to the junior high
school. She also knew M.D. through school and friends. One day in April, Francisco,
M.D., and Jairo approached Jessica, Cynthia, and R.D. after school. Cynthia left to go to
baseball practice and then the group walked by the tennis courts. R.D. and M.D. then left
the group to go to the bleachers while the rest of the group walked the other way towards
the baseball fields and into the dugout. Jessica never saw anything that happened
between R.D. and M.D. around the baseball field. Approximately ten minutes later, M.D.
met up with Francisco and R.D. rejoined with Jessica. M.D. and R.D. said goodbye to
each other in a friendly way and acted perfectly fine around each other according to
Jessica.
R.D. and Jessica walked on one side of the tennis courts while Francisco and M.D.
walked on the other. At this time, R.D. told Jessica that “she felt bad because she cheated
on Jasmine” with M.D. and “that [M.D.] and her made out and she let him go up her shirt
and he tried to go in her pants, but she said no and then that’s when he stopped.” Jessica
thought R.D.’s tone of voice was normal and not depressed, but that she kept staring at
the ground and was kind of frustrated.
Jessica testified that R.D. once told her that she had sexual intercourse with
someone in sixth grade, a year before the incident with M.D. Jessica also never saw R.D.
hang out with M.D., except for the day when the incident occurred. She did not see them
hang out at any time after the incident. Jessica never knew R.D. to be untruthful. She
knew that R.D. dated Jasmine and Cynthia in the past. One day after the incident, Jessica
saw R.D. with Jasmine and noticed that R.D. acted like her normal self.
5. Cynthia T.
Cynthia T. knew M.D. and R.D. because they all went to junior high school
together. Cynthia and R.D. “were really good friends at one point.” They also dated for
approximately two weeks and were friends for six months, but were no longer friends at
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the time of the hearing. R.D. told her when they were friends that she had a crush on
M.D. “at the very beginning of the school year but she didn’t anymore.” She also told
Cynthia that she was bisexual. Cynthia observed R.D. having a romantic relationship
with a boy named Riley C., who also went to the junior high school. Specifically,
Cynthia saw them holding hands at school more than once but less than five times in the
past, and Riley talked to Cynthia about his relationship with R.D.
Cynthia remembered the day in question and stated that Jessica, Francisco, Jairo,
Oscar, R.D., and M.D. were hanging out in front of school by the school sign. Cynthia
confirmed she left for baseball practice around 3:45 p.m. that day. She recalled R.D. not
specifically interacting with M.D., but talking together with the whole group. Francisco
and Jessica left from the group conversation first and went to the baseball fields together.
Then, Cynthia and R.D. left for the restroom so that Cynthia could change her clothes for
baseball practice. As she was about to leave for practice, she also saw Jairo, Oscar, and
M.D. standing by the sign. Cynthia never saw M.D. alone with R.D.
6. Officer Randy Ramos
Officer Ramos took Julie M.’s statement on July 27, 2013, regarding the sexual
assault. According to Ramos, Julie M. said that R.D. told her M.D. pinned her down on
the ground and sexually assaulted her.
D. Rebuttal
1. Assistant Principal Rosewood
Rosewood was the assistant principal at the junior high school. On September 13,
2013, she searched Jairo V.’s backpack and found two computers that belonged to the
school. She contacted the police, filed a report, and suspended Jairo five days for
stealing.
2. Officer Jeffrey Revay
Officer Revay responded to a report of stolen computers at the junior high school
on September 13, 2013. He was contacted by Assistant Principal Rosewood and was
informed that Francisco R. and Jairo V. were the responsible parties involved. Jairo told
Officer Revay that, when the two stolen Mac Mini laptops were discovered in his
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backpack, he had been returning them to the school because he had knowledge that they
were stolen from the school’s computer lab. He also told Officer Revay that he had
initially planned to sell the computers for profit before he decided that he wanted to
return them to the school. Officer Revay arrested Jairo for felony possession of stolen
property. Jairo did not admit to stealing the computers from the school, but refused to
identify who actually stole them because “he was not going to rat on the kid.”
E. Conclusion and Disposition
On November 20, 2013, the juvenile court indicated it had reasonable doubt on the
Penal Code section 261, subdivision (a)(2) rape allegation, but found true beyond a
reasonable doubt that minor committed a lewd act in violation of Penal Code section 288,
subdivision (b)(1).
On December 6, 2013, at minor’s dispositional hearing, the juvenile court released
M.D. from juvenile hall to his family on electronic GPS monitoring; ordered minor to
attend a different middle school; required no contact with the victim, her family members
or any of the witnesses; and ordered minor to undergo a guidance clinic evaluation. The
court also made clear that M.D. should have no contact with Francisco, Oscar, or Jairo,
stating: “I don’t want you around those three guys. They seem like a bunch of trouble
when you’re together.” The juvenile court was willing to release minor on electronic
monitoring because the court reasoned that “this is not a kid that I think is going to be a
criminal in his life.” However, he instructed the minor that if “someone says no, it means
no.”
At the continued dispositional hearing on January 16, 2014, the juvenile court
adjudged minor a ward of the court and placed him at home with his mother under certain
conditions of probation. Included among these probation conditions were several
prohibiting gang association and affiliation. On March 4, 2014, minor filed a timely
notice of appeal.
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II. DISCUSSION
A. Minor Understood the Wrongfulness of his Conduct
Minor first argues that the juvenile court erred in failing to make a finding, by
clear and convincing evidence, that he understood the wrongfulness of the sexual
misconduct at issue. Pursuant to Penal Code section 26, “All persons are capable of
committing crimes except those belonging to the following classes: [¶] One—Children
under the age of 14, in the absence of clear proof that at the time of committing the act
charged against them, they knew its wrongfulness.” This statute “articulates a
presumption that a minor under the age of 14 is incapable of committing a crime.” (In re
Manuel L. (1994) 7 Cal. 4th 229, 231.) The presumption applies in proceedings under
Welfare and Institutions Code section 602. (Id. at p. 232.)
Thus, when a child under the age of fourteen is charged with a crime, the
prosecution must prove by clear and convincing evidence that the minor understood the
wrongfulness of his or her conduct. (In re Jerry M. (1997) 59 Cal. App. 4th 289, 297
(Jerry M.).) In making such a determination of capacity, the court must often rely on
circumstantial evidence, “including the minor’s age, experience and understanding, as
well as the circumstances of the offense including its method of commission and
concealment.” (Id. at p. 298; see In re Paul C. (1990) 221 Cal. App. 3d 43, 52 (Paul C.).)
With respect to a minor’s age, “ ‘[i]t is only reasonable to expect that generally the older
a child gets and the closer [he or she] approaches the age of 14, the more likely it is that
[he or she] appreciates the wrongfulness of [his or her] acts.’ ” (Paul C., supra, 221
Cal.App.3d at p. 53; see In re Cindy E. (1978) 83 Cal. App. 3d 393, 399 (Cindy E.) [noting
that child’s age is a “basic and important consideration”].)
Here, minor—who was thirteen years and four months of age at the time of the
charged offense—correctly states that the juvenile court did not make an express finding
that he understood the wrongfulness of his conduct. However, we will affirm a juvenile
court’s implied finding of capacity if it is supported by substantial evidence. (Jerry M.,
supra, 59 Cal.App.4th at pp. 297-298.) Specifically, we will “review the whole record
most favorably to the judgment to determine whether there is substantial evidence—that
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is, evidence that is reasonable, credible, and of solid value—from which a reasonable
trier of fact could have made the requisite finding under the governing standard of proof.”
(Id. at p. 298.)
Applying these principles, we conclude that substantial evidence supports the
juvenile court’s implied finding that M.D. understood the wrongfulness of his conduct.
As stated above, minor was thirteen years and four months old at the time of the incident
in question. He was thus more likely to appreciate the wrongfulness of his act because he
was approaching fourteen years of age. (Cindy E., supra, 83 Cal.App.3d at p. 399.)
Furthermore, the particular method of the act’s commission and its concealment indicate
that minor appreciated the wrongfulness of his conduct. (Cf. Paul C., supra, 221
Cal.App.3d at p. 52.) The sexual misconduct occurred in a secluded area near the
baseball fields. This indicates that minor attempted to conceal his conduct from the
group of friends. Moreover, knowledge of wrongfulness can be inferred from the
circumstances of the offense. (See ibid.) M.D.’s use of physical force to push R.D.
against the wall as well as his continued efforts to restrain her hands against the wall after
becoming aware of her negative reaction to his sexual advances support an inference that
minor understood he was wrongfully acting against R.D.’s will.
With respect to experience and understanding, minor thoroughly reviews his
interview with Officer Ramos on August 4, 2013, at the Newark Police Department. He
argues that his statements throughout the interview show convincingly that he did not
appreciate the wrongfulness of his conduct. We find the exact opposite. Minor told
Officer Ramos that he was sexually active, having had sexual intercourse with another
girl at the junior high school. He clearly and repeatedly expressed his understanding of
the differences between sexual intercourse and other types of sexual conduct, stating, for
instance, that he didn’t make love to R.D., but he did suck on her “titty.” Further, minor
admitted that, although R.D. told him to stop two or three times, he failed to do so. And,
when Officer Ramos asked, “O.k. So why didn’t you just stop dude?,” minor replied,
“Hmm. I’m not sure.” This is a clear indication that minor realized that he should have
stopped under such circumstances and had no valid explanation for his misconduct in
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failing to do so. Viewing the record in the light most favorable to the judgment, we find
substantial evidence that M.D. appreciated the wrongfulness of his conduct for purposes
of Penal Code section 26.
In reaching this conclusion, we note that, throughout his argument, minor
conflates two distinct issues: whether he actually committed the assault (i.e., whether
their activity was consensual) and whether he had the capacity to understand that such an
assault is wrong. Here, we are concerned only with the capacity issue, and thus many of
the arguments minor makes are irrelevant. Moreover, despite minor’s invitation to do so,
we do not consider the contents of minor’s psychological evaluation in making our
capacity determination, as that evaluation was not before the juvenile court at the time it
made its jurisdictional finding. (Cf. Paul C., supra, 221 Cal.App.3d at p. 53.) Indeed,
were we to consider it, it would only buttress our determination that minor had an
understanding of the dynamics of sexual relations sufficient to support a finding of
capacity under Penal Code section 26.
Finally, we reject minor’s suggestion that we remand this case, even if we find
substantial evidence that he understood the wrongfulness of the conduct at issue, so that
the juvenile court can make its own express finding. Minor’s proposal flies in the face of
the existing case law which holds that “we must affirm an implied finding that the
juvenile understood the wrongfulness of his conduct if the implied finding is supported
by substantial evidence.” (Jerry M., supra, 59 Cal.App.4th at pp. 297-298, fn. omitted;
In re Cindy E., supra, 83 Cal.App.3d at pp. 398-399; In re Marven C. (1995) 33
Cal. App. 4th 482, 486-487.) Minor’s attempts to distinguish this clear precedent are
unavailing. We see no grounds for remand.
B. R.D.’s Medical and Academic Records
Minor next contends that the juvenile court violated his federal due process and
Sixth Amendment confrontation rights to the extent it failed to disclose certain
confidential records related to R.D.’s credibility. He asks us to conduct an independent
review of R.D.’s sealed medical and educational records to determine whether any such
error occurred. Respondent does not object to our review of R.D.’s sealed records in
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order to confirm the juvenile court’s ruling.
The records at issue were produced in response to minor’s subpoenas to Willow
Rock and the Newark Unified School District for R.D.’s medical and school records,
respectively. As stated above, R.D. was admitted to Willow Rock for three days one
week prior to the incident in question. She was again admitted to Willow Rock for over a
week in July, approximately two to three months after the charged offense occurred.
Minor requested that the juvenile court conduct an in camera review to determine if the
records should be disclosed to minor under his Sixth Amendment right of confrontation.
On October 18, 2013, the juvenile court found no discoverable information in
regard to the Newark school records. Specifically, the court stated: “And we have the
issue of the records from his school. So I have gone through those quite thoroughly, and
there is absolutely nothing in there that is discoverable and that is even close to applying
to this case.” On October 29, 2013, the court reviewed the Willow Rock records and
concluded: “So I have reviewed all of the documents that were provided in two separate
envelopes by the Willow Rock Adolescent Treatment Center. There is absolutely
nothing that is discoverable in these records that I found to be even close to being
associated with this case. Let me say it that way.”
On November 1, 2013, the juvenile court reviewed the Willow Rock records for a
second time and stated that “at this time, in mind of all of the testimony I heard from the
complaining witness last week—not last week, but earlier this week—and in that review,
I’ve discovered a very brief sentence, if you will—yes, a sentence—in one of the records
that could be valuable in this case.” On November 4, 2013, both parties stipulated that
the relevant information in the records was dated March 26, 2013.
A witness’s mental illness or emotional instability can be relevant to his or her
credibility. (People v. Gurule (2002) 28 Cal. 4th 557, 591-592 (Gurule); People v.
Herring (1993) 20 Cal. App. 4th 1066, 1072; see also People v. Anderson (2001) 25
Cal. 4th 543, conc. opn. p. 608.) A witness may be cross-examined on such credibility if
such illness affects the witness’s ability to perceive, recall or describe the events in
question. (Gurule, supra, 28 Cal.4th at pp. 591-592.) However, the extent to which the
14
Constitution requires disclosure of private psychiatric records to aid in such cross-
examination is the subject of some dispute.
Under a due process analysis, “[i]t is well settled that the government has the
obligation to turn over evidence in its possession that is both favorable to the accused and
material to guilt or punishment.” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57
(Ritchie); United States v. Agurs (1976) 427 U.S. 97; Brady v. Maryland (1963) 373 U.S.
83, 87.) For purposes of this disclosure rule, information is deemed material “ ‘only if
there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A “reasonable probability” is a
probability sufficient to undermine confidence in the outcome.’ ” (Ritchie, supra, 480
U.S. at p. 57.) Moreover, where there is no clear state policy requiring absolute
confidentiality of the records in question, the public interest in protecting this type of
sensitive information gives way to the due process needs of the defendant to obtain
information material to his or her defense. (Id. at pp. 57-58.)
However, in People v. Webb (1993) 6 Cal. 4th 494 (Webb), the California Supreme
Court questioned whether records related to voluntary treatment by private or county
therapists—like the records at issue in this case—“can be deemed ‘in the possession’ of
the ‘government’ in the manner assumed by Ritchie.” (Webb, supra, 6 Cal.4th at p. 518.)
Specifically, the Webb court opined: “The records were not generated or obtained by the
People in the course of a criminal investigation, and the People have had no greater
access to them than defendant. Given the strong policy of protecting a patient’s treatment
history, it seems likely that defendant has no constitutional right to examine the records
even if they are ‘material’ to the case.” (Ibid.) With respect to a defendant’s Sixth
Amendment rights in this context, the Webb court noted: “Simply stated it is not clear
whether or to what extent the confrontation or compulsory process clauses of the Sixth
Amendment grant pretrial discovery rights to the accused.” (Id. at pp. 517-518.)
Thereafter in People v. Hammon (1997) 15 Cal. 4th 1117, the California Supreme
Court “decline[d] to extend the defendant’s Sixth Amendment rights of confrontation and
cross-examination to authorize pretrial disclosure of privileged information.” (Id. at
15
p. 1128.) In a case involving facts similar to the present proceedings, the Hammon court
concluded that a trial court is “not required, at the pretrial stage of the proceedings, to
review or grant discovery of privileged information in the hands of third party
psychotherapy providers.” (Id. at p. 1119.) The court left open, however, the question of
whether such materials must be reviewed and potentially made available at trial in order
to vindicate a defendant’s Sixth Amendment rights. (Id. at pp. 1125-1128.)
The breadth of a defendant’s trial right to cross-examination under the
Confrontation Clause of the Sixth Amendment was instead discussed in another
California Supreme Court decision, People v. Quartermain (1997) 16 Cal. 4th 600, issued
the next month. Specifically, the Quartermain court opined as follows: “Although the
right of confrontation includes the right to cross-examine adverse witnesses on matters
reflecting on their credibility, ‘trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-
examination.’ [Citation.] In particular, notwithstanding the confrontation clause, a trial
court may restrict cross-examination of an adverse witness on the grounds stated in
Evidence Code section 352. [Citation.] A trial court’s limitation on cross-examination
pertaining to the credibility of a witness does not violate the confrontation clause unless a
reasonable jury might have received a significantly different impression of the witness’s
credibility had the excluded cross-examination been permitted. [Citations.]” (Id. at
pp. 623-624, italics added.) The decision in Quartermain is in accord with the general
tenet that “ ‘[t]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.’ ” (People v. King (2010) 183 Cal. App. 4th 1281, 1314.)
Although we find the Quartermain approach on this issue to be the more
analytically appropriate, we have reviewed the sealed records in this case to determine if
they contain any disclosable information under either the Ritchie due process standard or
the Sixth Amendment paradigm articulated in Quartermain. We conclude that there is no
disclosable information in R.D.’s Willow Rock or Newark records that has not already
been released to minor. There was no error.
16
C. Viewing of the School Grounds
Minor also argues that the juvenile court committed statutory error by visiting the
scene of the charged offense in his absence and without an appropriate waiver of his
presence. The juvenile court described the school visit at issue as follows: “On Friday,
November 15th, I, the court, both counsel, Ms. Backers and Ms. McCannon, the court
clerk and the bailiff drove to [the junior high school]. We arrived there, met with a
couple of the administrators, drove through part of the campus to an area by a baseball
field, got out of our van, looked around several baseball diamonds, drove around the
other part of the school, looked around there, and returned to our court. And the purpose
of that was for everyone to visit the scene and get a better idea of what everything looked
like in person.”
In the criminal context, a defendant has the statutory right to be present during
portions of the trial when evidence is taken before the trier of fact. (Pen. Code, § 977,
subd. (b)(1) & 1043, subd. (a); People v. Blacksher (2011) 52 Cal. 4th 769, 798-799 & fn.
16 (Blacksher); People v. Concepcion (2008) 45 Cal. 4th 77, 81-82 (Concepcion); People
v. Johnson (2013) 221 Cal. App. 4th 943, 948, 954-955 (Johnson).) As one example, the
accused has a right to be present when the trier of fact visits a crime scene. (People v.
Garcia (2005) 36 Cal. 4th 777, 781, 797-798; see People v. Bush (1886) 68 Cal. 623, 631-
634.) This is because a fact finder receives evidence when it views the scene of the
alleged offense. (People v. Bolin (1998) 18 Cal. 4th 297, 325; see also Pen. Code, § 977,
subd. (b).)
“The right to be present may be waived, however.” (Concepcion, supra, 45
Cal.4th at p. 82.) For instance, pursuant to Penal Code section 977, subdivision (b)(2), a
defendant “may execute a written waiver of his or her right to be personally present,
approved by his or her counsel, and the waiver shall be filed with the court.” In addition,
it has been held that defense counsel may properly waive the defendant’s presence so
long as there is evidence that the defendant consented to the waiver. (See People v.
Davis (2005) 36 Cal. 4th 510, 532 (Davis).) “At a minimum, there must be some
evidence that the defendant understood the right he was waiving and the consequences of
17
doing so.” (Davis, supra, 36 Cal.4th at p. 532; see Johnson, supra, 221 Cal.App.4th at
p. 957.)
Here, as respondent acknowledges, the record is silent as to whether the court
obtained a waiver of minor’s presence from minor. Indeed, the juvenile court’s settled
statement filed with this court on May 26, 2015, states definitively that minor “was not
advised on the record of his right to be present and did not enter a waiver of his right to
be present.” Therefore, we cannot conclude that minor knowingly and intelligently
waived his right to presence at the viewing. (Cf. Johnson, supra, 221 Cal.App.4th at
p. 957.)
Even in the face of such an error, however, a defendant bears the burden of
“ ‘demonstrating that his absence prejudiced his case or denied him a fair trial.’ ”
(Blacksher, supra, 52 Cal.4th at p. 799.) Specifically, in the context of the statutory error
complained of by minor, reversal is only warranted “if there is a reasonable probability
that the result would have been more favorable to defendant without the error.” (People
v. Davis (2009) 46 Cal. 4th 539, 611.) Under this standard and the particular
circumstances of this case, we conclude that any such error was harmless.3
Specifically, we find no reversible error because minor “provides no basis on
which one could conclude the result of his trial would have been different” if he had
attended the juvenile court’s school visit. (Cf. People v. Moon (2005) 37 Cal. 4th 1, 21.)
Rather, minor argues that, had he been allowed to attend the school visit, it might have
triggered something in his mind that would have helped explain Jairo’s testimony or
further undermine R.D.’s credibility. Had the juvenile court found true the charged rape
3
For purposes of this analysis, we will assume without deciding that the mandates of
Penal Code section 977 are applicable in the context of a juvenile delinquency
proceeding under Welfare and Institutions Code section 602. (See Welf. & Inst. Code,
§ 203 [a proceeding in juvenile court shall not be deemed a criminal proceeding]; see
City of San Jose v. Superior Court (1993) 5 Cal. 4th 47, 53-54 [noting that although the
procedural safeguards guaranteed to adult criminal defendants are not applied ipso facto
in delinquency matters, the civil label “ ‘cannot obscure the quasi-criminal nature of
juvenile proceedings, involving as they often do the possibility of a substantial loss of
personal freedom’ ”].)
18
allegation, we might conclude differently. However, with respect to the lewd act
allegation that is at issue in these proceedings, further attacks on R.D.’s credibility or
explanation of Jairo’s testimony would have been of little use to minor’s defense. Jairo’s
testimony was, at best, inconclusive with respect to the consensual nature of the sexual
contact between R.D. and minor. And, R.D.’s version of events was, as we have
previously discussed, corroborated by minor, himself. Specifically, he admitted that he
massaged and sucked on her breasts; that she said no two or three times; and that he
didn’t know why he didn’t stop when she said no. Given these facts, any error with
respect to the handling of the school visit was manifestly harmless.
D. Cumulative Error
Minor also argues that the cumulative impact of several of the errors he raises on
appeal requires reversal of the juvenile court’s jurisdictional finding. Specifically, he
asserts that the combined prejudice he suffered based on the improper site visit and the
juvenile court’s failure to provide him appropriate access to R.D.’s confidential records
critically impacted his ability to undermine R.D.’s credibility. However, because we
have concluded that the only error identified with respect to these issues was not
prejudicial, we also find that there was no cumulative prejudice to minor. (See People v.
Riel (2000) 22 Cal. 4th 1153, 1215 [rejecting the argument that the court committed
cumulative error where there was “no error that, even in cumulation, was prejudicial”].)
E. Gang-Related Probation Conditions
At disposition, the trial court imposed various gang-related conditions on M.D.’s
probation. The court ordered M.D. “not to belong to any criminal street gang or associate
with anyone you know or should reasonably know is a member of a criminal street gang.”
M.D.’s attorney objected to this probation condition saying, “Judge, just for the record, I
am objecting to that condition. I don’t think he’s involved with any gangs.” The court
replied: “It looks to me like he is from the burglary case; not so much from the case here
but the case that was dismissed.” M.D. was next told “not to wear gang clothing, colors
or emblems or get any tattoos or piercings.” Lastly, the court ordered M.D. “not to
acquire any new tattoos or gang-related piercings and have any existing tattoos or
19
piercings photographed as directed by the probation officers.” M.D.’s attorney, however,
lodged no further objection.
Minor argues that the juvenile court abused its discretion when it imposed the
probation conditions prohibiting gang involvement because they were unreasonable
under the factors set forth in People v. Lent (1975) 15 Cal. 3d 481, 486 (Lent), superceded
on other grounds as stated in People v. Wheeler (1992) 4 Cal. 4th 284, 290-292. He also
contends that the gang-related conditions violated his rights under the First Amendment
of the Constitution. We begin by indicating which issues have properly been preserved
for review.
“There is a strict interpretation of the rule of forfeiture under which a probationer
‘who contends a condition of probation is constitutionally flawed still has an obligation to
object to the condition on that basis in the trial court in order to preserve the claim on
appeal.’ [Citation.] Gardineer's rule requires not only objection but a listing of any
constitutional grounds for the objection.” (People v. Brandão (2012) 210 Cal. App. 4th
568, 572 (Brandão), quoting People v. Gardineer (2000) 79 Cal. App. 4th 148, 151.)
Here, minor’s counsel merely objected to the probation condition because he did not
“think he’s involved with gangs.” The attorney did not raise any constitutional concerns.
Moreover, this is not a case that falls into the exception to forfeiture for constitutional
claims which present pure questions of law that can be resolved without reference to the
particular sentencing record developed in the trial court. (See In re Sheena K. (2007) 40
Cal. 4th 875, 889 (Sheena K.).) Rather, addressing minor’s concerns would require
review of his past history as well as the details of his current offense, all contained in the
factual record developed in the juvenile court. Since M.D.’s attorney did not expressly
object on any constitutional basis and this case does not fall within the ambit of Sheena
K., we find that minor has forfeited the opportunity to challenge the gang-related
conditions on First Amendment grounds.
In reaching this conclusion, we find minor’s reliance on Brandão unavailing. In
that case, the court determined that “counsel was able only to begin her objection” to the
probation condition at issue and that “[s]he uttered scarcely more than a few words before
20
the trial court explained that it was uninterested in a challenge to the no-gang-contact
provision.” (Brandão, supra, 210 Cal.App.4th at p. 572.) Under such circumstances, the
court determined that the defendant did not have a chance to fully state all of the possible
grounds for objection before being cut off by the sentencing court and thus did not forfeit
the issue on appeal. (Id. at pp. 572-573.) We disagree with minor’s characterization of
the scenario in Brandão as “virtually identical” to the instant matter. Here, minor’s
counsel did not utter just a few words. Rather, she made it clear that she fully objected to
the probation condition “just for the record.” Without an objection on constitutional
grounds and no evidence that minor was prevented from fully stating his objection, we
must uphold Brandão’s “strict interpretation of the rule of forfeiture” and thus do not
reach the merits of minor’s First Amendment claim. (Id. at p. 572.)
Even though minor forfeited his First Amendment contentions, he did preserve the
issue of reasonableness with respect to the gang affiliation condition by objecting to that
condition in the juvenile court. (See In re Justin S. (2001) 93 Cal. App. 4th 811, 814.)
However, his objection was limited to that single condition and was not renewed in the
context of the other two gang-related conditions. Thus, we deem his reasonableness
challenge to be limited solely to the issue of whether the juvenile court’s order requiring
M.D. “not to belong to any criminal street gang or associate with anyone you know or
should reasonably know is a member of a criminal street gang” was reasonable.
A juvenile court retains broad discretion in imposing probation conditions for the
purpose of rehabilitating the juvenile offender. (In re G.V. (2008) 167 Cal. App. 4th 1244,
1250; In re Babak S. (1993) 18 Cal. App. 4th 1077, 1084.) A juvenile court has the
authority to “impose and require any and all reasonable conditions that it may determine
fitting and proper to the end that justice may be done and the reformation and
rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) “A juvenile
court . . . may even impose a condition of probation that would be unconstitutional or
otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.”
(In re Josh W. (1997) 55 Cal. App. 4th 1, 5; see In re Tyrell J. (1994) 8 Cal. 4th 68, 81,
overruled on different grounds in In re Jaime P. (2006) 40 Cal. 4th 128, 130, 139; see In
21
re Laylah K. (1991) 229 Cal. App. 3d 1496, 1500, disapproved on separate grounds in In
re Sade C. (1996) 13 Cal. 4th 952, 962, fn. 2, 983, fn. 13.) In determining the conditions
of probation, “the juvenile court must consider not only the circumstances of the crime
but also the minor's entire social history.” (In re Todd L. (1980) 113 Cal. App. 3d 14, 20.
(Todd L.).)
But, a trial court’s broad discretion to impose conditions of probation is not
endless. (People v. Lopez (1998) 66 Cal. App. 4th 615, 624 (Lopez).) Rather, pursuant to
Lent, a probation condition will be deemed unreasonable and therefore invalid if it “ ‘(1)
has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality.’ ” (Lent, supra, 15 Cal. 3d at p. 486.) All three
factors must be met in order to invalidate a condition of probation. (In re R.V. (2009) 171
Cal. App. 4th 239, 246.) Thus, even if a probation condition is unrelated to the “crime of
which a defendant was convicted and involves conduct that is not itself criminal, the
condition is valid as long as the condition is reasonably related to preventing future
criminality.” (People v. Olguin (2008) 45 Cal. 4th 375, 379-380.) We review a juvenile
court’s imposition of probation conditions for a “manifest abuse of discretion.” (In re
G.V., supra, 167 Cal.App.4th at p. 1250; In re Josh W., supra, 55 Cal.App.4th at p. 5; In
re Abdirahman S. (1997) 58 Cal. App. 4th 963, 969.)
Applying the standards articulated in Lent, we find that the juvenile court did not
abuse its discretion in imposing the probation conditions prohibiting gang affiliation. In
making this determination, we need not consider the first two Lent factors because we
conclude, under the third Lent factor, that the gang affiliation condition here at issue
forbids conduct that is reasonably related to future criminality. “Because ‘[a]ssociation
with gang members is the first step to involvement in gang activity,’ such conditions have
been found to be ‘reasonably designed to prevent future criminal behavior.’ [Citation.]
Whether the minor was currently connected with a gang has not been critical. Thus,
probation terms have been approved which bar minors from being present at gang
22
gathering areas, associating with gang members, and wearing gang clothing. [Citation.]”
(Lopez, supra, 66 Cal.App.4th at p. 624.)
Finally, M.D.’s reliance on Brandão is again misplaced. The Brandão court held
that the trial court abused its discretion in imposing gang-related probation conditions on
an adult probationer because the record showed “(1) no ties between defendant and any
criminal street gang, (2) no such ties involving any member of defendant's family, and (3)
no criminal history showing or strongly suggesting a gang tie.” (Brandão, supra, 210
Cal.App.4th at p. 576.) In contrast, M.D. is a minor, and a juvenile court has broad
discretion to impose conditions for the purpose of a minor’s rehabilitation. (In re G.V.,
supra, 167 Cal.App.4th, at p. 1250.) Indeed, “[a] condition of probation which is
impermissible for an adult criminal defendant is not necessarily unreasonable for a
juvenile receiving guidance and supervision from the juvenile court.” (Todd L., supra,
113 Cal.App.3d at p. 19.) Given minor’s recent involvement with friends involved in
criminal activity (both the attempted burglary and the theft of school computers), the
gang affiliation condition represented appropriate guidance from the juvenile court,
despite the absence of current gang involvement. Accordingly, minor fails to show that
the juvenile court committed an abuse of discretion in imposing the gang-affiliation
probation conditions.
III. DISPOSITION
The judgment is affirmed.4
4
In his related habeas petition, A143436, minor challenges the juvenile court’s
determination that Francisco R. properly asserted his constitutional right against self-
incrimination. Having determined that the petition does not state a prima facie case for
relief, we have today summarily denied it by separate order of this court. (See People v.
Romero (1994) 8 Cal. 4th 728, 737.)
23
_________________________
REARDON, ACTING P.J.
We concur:
_________________________
RIVERA, J.
_________________________
STREETER, J.
In re M.D. A141206
24