Anthony P., In re, B005331

• Court: California Court of Appeals
• Citation: 167 Cal.App.3d 502,213 Cal.Rptr. 424
• Decision Date: 29 April 1985
• Docket Number: No. B005331,B005331
• Parties: In re ANTHONY P., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. ANTHONY P., Defendant and Appellant.

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213 Cal.Rptr. 424 167 Cal.App.3d 502 In re ANTHONY P., A Person Coming Under the Juvenile Court Law.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
ANTHONY P., Defendant and Appellant. No. B005331. Court of Appeal, Second District, Division 7, California. April 29, 1985.
Certified for Partial Publication ^*.
Review Denied Aug. 15, 1985. ^**

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[167 Cal.App.3d 504] Howard J. Stechel, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Mark Alan Hart, Supervising Deputy Attys. Gen., for plaintiff and respondent.

[167 Cal.App.3d 505] JOHNSON, Associate Justice.

Anthony P., a 17-year-old minor, appeals from the order continuing wardship (Welf. & Inst.Code, § 602) entered upon findings that he molested a child under the age of 18 and committed battery (Pen.Code, §§ 647a, 242). He was committed to the Youth Authority for a maximum period of confinement of six years and two months, with credit for 553 days of previous custody. ¹ He contends:

"I. The evidence was insufficient to sustain the petition. A reasonable doubt existed with respect thereto requiring that the minor be acquitted and the petition dismissed.

"II. The restriction of cross-examination as to racial bias and prejudice was improper and prejudicial to the minor's right to confront and cross-examine his sole accuser and this deprivation requires that the adjudication be reversed.

"III. The trial court admitted prejudicial hearsay statements of the complaining

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witness which were used to convict this minor requiring that he be granted a new trial.

"IV. The prosecutor injected unproven and inadmissible prior offenses into the trial phase of the proceeding and referred to the minor in prejudicial terms requiring that the minor be granted a new trial.

"V. The aggregation of offenses against the minor was done without proper notice and the sentence imposed should be vacated.

"VI. The sentence was apparently based on the assumption that the offense prohibited by Penal Code, section 647a carried a maximum sentence of up to one year whereas said section states that the offense charged carries a sentence of up to six months except in cases not here applicable. The sentence should accordingly be reconsidered."

We find appellant indeed was denied his constitutional right to cross-examine the complaining witness about racial bias and therefore reverse.

FACTS AND PROCEEDINGS BELOW

The complaining witness is Deborah M., a 15-year-old white girl, the appellant, a 17-year-old black, were students at Taft High School in Los [167 Cal.App.3d 506] Angeles. According to Deborah M.'s testimony at trial, she was standing near her locker during fifth period when appellant approached and asked for a date. Ms. M. refused and started to walk away. Ms. M. testified appellant then followed her and repeatedly grabbed her in the area of her bust, buttocks and crotch. Ms. M. fled and appellant followed. She ultimately saw schoolmate Michael P. and requested his assistance. During cross-examination, appellant's counsel asked Ms. M. whether she had "a prejudice against black people," to which she responded in the negative. Counsel next asked, "Would it offend you if a black person asked you for a date?" The prosecutor's objection to this question was sustained.

Michael P. testified that when Ms. M. approached she was "upset and emotionally nervous," and stated appellant had just molested her. Michael P. then ran up to appellant and questioned him. Appellant denied touching Ms. M. No witnesses testified to having observed appellant following or touching Ms. M. in any way.

In his defense, appellant testified that when he approached Ms. M., he only told her she was pretty, after which they went their separate ways. Appellant denied touching or following Ms. M.

At the close of the adjudication hearing, the district attorney orally reminded appellant that aggregation would be sought at the dispositional hearing. At that hearing, appellant was ordered placed in the California Youth Authority for a maximum period of confinement of six years and two months, calculated by selecting five years for a 1981 robbery, eight additional months for a 1981 burglary, two months for a 1982 battery, and an additional four months for the molestation of Deborah M.

DISCUSSION

The case against appellant hinged entirely on the credibility of one witness--Deborah M. The trial judge only allowed defense counsel to pose one question on the issue of this witness' possible bias against persons of appellant's race. For reasons explained below, we find this violated appellant's constitutional right to cross-examine the witnesses against him and therefore reverse. Since this case may be retried, in the unpublished portion of this opinion we comment on certain other issues raised by appellant.

I. APPELLANT WAS DEPRIVED OF ADEQUATE OPPORTUNITY TO CROSS-EXAMINE AS TO THE WITNESS' RACIAL BIAS

The right of cross-examination is fundamental. It is fundamental because the Constitution guarantees it to every criminal defendant (Smith v. Illinois [167 Cal.App.3d 507] (1968) 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956; Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, Witkin, Cal.Evidence (2d 1966) § 1198) and to every

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juvenile accused of criminal activity (In Re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.). It also is fundamental in the sense it is the cornerstone and primary raison d'etre of the Anglo-American adversary system. As Justice Black observed: "There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal...." (Pointer v. Texas (1965) 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923.) We depend upon cross-examination to test the truth of evidence submitted to the jury or other fact finder. "Cross-examination has been described as 'the "greatest legal engine ever invented for discovery of the truth." ' [Citation omitted.]" (People v. Brock (1985) 38 Cal.3d 180, 197, 211 Cal.Rptr. 122, 695 P.2d 209.) Consequently, we look askance at the testimony of witnesses who cannot be subjected to cross-examination. Indeed we often exclude evidence for this very reason. (See, e.g., Pointer v. Texas, supra, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; People v. Brock, supra, 38 Cal.3d 180, 211 Cal.Rptr. 122, 695 P.2d 209.)

Cross-examination cannot serve its critical function unless trial lawyers are given wide latitude in the scope, subject matter and technique of their questioning. This is especially true when the cross-examiner is testing the credibility of a witness. True, California law restricts most other forms of cross-examination to the scope of the preceding direct examination. (Cal.Evidence Code, §§ 761, 773(a); Witkin Cal.Evidence (2d 1966) § 1202 et seq.; Jefferson, Evidence Benchbook (1982) § 27.17.) But not so cross-examination directed at the witness' credibility. "The rule restricting cross-examination to the scope of the direct ... cannot reasonably be applied to cross-examination designed to impeach the witness." (Witkin, Cal.Evidence (2nd), supra, p. 1115. Italics in original.) There the trial judge is expected to allow a wide-ranging inquiry as to any factor which could reasonably lead the witness to present less than reliable testimony. (Estate of Kasson (1900) 127 Cal. 496, 59 P. 950; People v. Duran (1976) 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322; Witkin, Cal.Evidence (2d), supra, § 1208; Jefferson, Evidence Benchbook, supra, pp. 799-803.)

A. It Is Proper to Cross-Examine a Witness About His or Her Possible Bias Against the Racial Group of Which the Defendant Is a Member

As best our research can determine this is a case of first impression in California courts on one sub-issue--the propriety of cross-examination to [167 Cal.App.3d 508] test whether a witness entertains a bias against the racial group to which a defendant or other party belongs. (But see People v. Krug (1935) 10 Cal.App.2d 172, 176, 51 P.2d 445, upholding cross-examination to show witnesses were of same nationality as defendant and thus might be biased toward the defendant.) Nonetheless, it is difficult to construe the California Evidence Code any other way. Moreover, this very question has been addressed frequently by courts in other jurisdictions.

Evidence Code section 780 defines what a jury or other fact finder may use to appraise the credibility of a witness.

"[T]he court or jury may consider ... any matter that has any tendency in reason to prove or disprove the truthfulness of [a witness'] testimony at the hearing, including but not limited to any of the following:

" * * *

"(f) The existence or nonexistence of a bias, interest, or other motive...." (Cal.Evidence Code, § 780, italics added. ²

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Proof of a witness' bias or prejudice against the specific individual who is a party in the litigation is clearly admissible. "The credibility of an adverse witness may be assailed by proof that he cherishes a feeling of hostility towards the party against whom he is called; ...." (Silvey v. Hodgdon (1874) 48 Cal. 185, 188; People v. Hannon (1977) 19 Cal.3d 588, 138 Cal.Rptr. 885, 564 P.2d 1203; Witkin, Cal.Evidence (2d), supra, § 1234.) But what if the bias or prejudice is against the racial group of which the party happens to be a member rather than the party himself? Is the logical connection between attitude and testimony too attenuated to affect the witness' credibility?

This precise issue was addressed by a Florida Court of Appeal in 1981.

"At trial appellant's counsel attempted to cross-examine...