Gary G., In re

• Decision Date: 30 January 1981
• Citation: 171 Cal.Rptr. 531,115 Cal.App.3d 629
• Court: California Court of Appeals Court of Appeals
• Parties: In re GARY G., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. GARY G., Defendant and Appellant. Civ. 19185.

Page 531

171 Cal.Rptr. 531

115 Cal.App.3d 629

In re GARY G., A Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. GARY G., Defendant and Appellant.

Civ. 19185.

Court of Appeal, Third District, California.

Jan. 30, 1981.

Rehearing Denied Feb. 24, 1981.

Hearing Denied April 1, 1981.

Eric J. Coffill, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and James Ching, Deputy Attys. Gen., for plaintiff and respondent.

CECCHETTINI, Associate Justice. ^*

The minor, Gary G., was adjudged a ward of the court after it was found he had committed murder in the second degree. (Pen.Code, § 187.) He appeals, asserting (1) lack of substantial evidence to support the finding that he committed murder; (2) the court erred in limiting cross-examination of the victim's brother on the issue of bias; (3) an eye-witness identification of the minor as the perpetrator was tainted by suggestive circumstances leading to the identification; (4) prosecutorial misconduct; (5) his motion for suppression of expert testimony was improperly denied; and (6) he did not receive appropriate discovery of investigative material.

We discuss each contention below and conclude that the judgment be affirmed.

FACTS

On July 18, 1979, Danny G., Charles P. and Vince E. walked to a residential development site near Charles' home. At the site, working inside some large drainage pipe sections, was Bill Williams. Williams' girl friend, Julie I., was also in the ditch keeping him company while he worked. Charles and Vince approached the ditch and began throwing rocks at Julie. After a short period of time the three minors left the area. Vince went home and Danny and Charles went to Danny's house.

Thereafter, Charles and Danny met the minor (Danny's older brother) and informed him that someone was working in the drainage pipes at the residential site. The minor suggested they return to the site. Charles agreed, as he wanted to throw more rocks at Julie.

While walking to the site, Charles noticed that the minor had a handgun tucked in the front of his pants. Charles inquired about the weapon; the minor pulled up his shirt and showed the gun to Charles. Upon reaching the site, Charles and the minor began throwing rocks into the open ditch. The minor pulled out the revolver and shot at a nearby generator; Charles then threw the generator into the ditch. Williams emerged from the pipe after the generator was thrown into the ditch. As Williams approached, Charles said, "I'm going to kill you." Williams responded, "Not if I kill you first." Charles started to run away, at which time Williams climbed into a tractor and drove towards the minor. The minor fired once at Williams and the tractor went into the ditch. The minor jumped into the ditch and fired a second shot at Williams. He then pointed the gun at Julie, who ran from the scene. As the minor and Charles left the area, the minor stated, "I think he's dead. I shot him."

The minor returned home, borrowed the family car and drove Danny, Charles and Vincent to a liquor store. Upon returning from the store, the group was informed that the police were looking for them. Charles and Vincent exited the car and the minor and Danny drove away. Danny did not return home until several days later on July 24. The minor did not return home until August 17, at which time he surrendered to the authorities.

In his defense, the minor testified that he was in Sacramento until 8 p. m. on the day of the murder. His alibi was corroborated by his brother Richard and a friend Melencio T. The minor asserts he did not turn himself in after learning of the shooting as he feared he would be shot by the police.

I

The minor asserts the evidence presented is insufficient to support the finding that he committed the offense. We disagree.

In reviewing the determination by the court, we view the evidence in the light most favorable to respondent and presume in support thereof the existence of every fact the court could reasonably deduce from the evidence. (People v. Vann (1974) 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824.) The test is whether there is substantial evidence to support the conclusion of the juvenile court. (In re John S. (1978) 83 Cal.App.3d 285, 293-294, 147 Cal.Rptr. 771.)

Stripped to its essentials, the minor merely asserts that the court should have discredited the testimony of the witnesses presented by the People and, in turn, should have accepted his alibi defense which was corroborated by his brother Richard and his friend Melencio. The juvenile court resolved this conflict in the evidence in favor of the witnesses for the People; it is not now within our province to reweigh the evidence or resolve conflicts therein in favor of the minor. "The credibility of the witnesses and the weight to be given their testimony are committed exclusively to the trier of fact." (People v. Flummerfelt (1957) 153 Cal.App.2d 104, 106, 313 P.2d 912.)

Upon resolution of the issue of credibility, the overwhelming evidence points to the minor as the perpetrator. Williams died from two gunshot wounds, both inflicted by a .38 caliber weapon, "probably a revolver." The minor had shown Charles a .38 caliber revolver moments before the shooting. Julie made a positive identification of the minor as the person who fired two shots at Williams. At the time of the incident, Julie was only a short distance from both Williams and the minor. Upon leaving the scene, the minor stated to Charles, "I think he's dead. I shot him." The minor's brother Danny, who was near the construction site, told his friends that "they" had just shot someone in the field and, while driving to the liquor store, the minor again admitted shooting Williams. Contrary to the minor's assertion, there is nothing in the record indicating that Charles', Julie's or the testimony of any other witness presented by the People was inherently improbable and thus legally unbelievable. (See People v. Mayberry (1975) 15 Cal.3d 143, 150, 125 Cal.Rptr. 745, 542 P.2d 1337.)

Substantial evidence supports the finding that the minor committed the murder.

II

The minor asserts the juvenile court erred in not permitting him to cross-examine the victim's brother, Arval Williams, concerning whether or not Arval was a member of the Aryan Brotherhood. He asserts that members of that group are biased against Mexican-Americans; thus questioning directed toward Arval's possible prejudice was proper and should have been permitted.

While refusal to permit cross-examination of a prosecuting witness can constitute reversible error (see People v. James (1976) 56 Cal.App.3d 876, 887, 128 Cal.Rptr. 733; People v. Grantham (1972) 26 Cal.App.3d 661, 666, 103 Cal.Rptr. 262), no error was committed herein. Arval's testimony was directed solely to events which transpired both before and after the incident and included a description of the type of work his brother was engaged in at the site, a description of the site itself and his discovery of his brother's body. Arval's testimony did not deal with the minor or the dynamics of the crime and the court thus properly restricted the cross-examination.

III

The minor asserts the juvenile court erred in denying his motion for mistrial on the basis of prosecutorial misconduct. Counsel made the motion after both sides had rested and based it on the total record of the proceedings. No specific grounds were included in the motion. It was denied without comment. He asserts the district attorney attempted to prejudice the court by bringing to the court's attention the fact that the minor's father was facing criminal charges. While the district attorney did, on a couple of occasions and in different contexts, bring this fact to the court's attention, so too did counsel for the minor. There is nothing in the record to indicate, however, that any of the district attorney's comments in this regard were made with the intent to sway the court in its disposition of the case, or that the court was influenced.

The minor also asserts misconduct occurred when the district attorney expressed his personal opinion to the court as to the veracity of a witness for the defense. We agree that such an expression of personal opinion amounts to misconduct. (See People v. Perez (1962) 58 Cal.2d 229, 245, 23 Cal.Rptr. 569, 373 P.2d 617.) In order to state a case of misconduct sufficient to warrant reversal, however, it is incumbent upon the minor to demonstrate prejudice resulting from the misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214, 152 Cal.Rptr. 141, 589 P.2d 396.) Here the hearing was in front of a judge, not a jury. (Cf. ibid.) The minor has not shown, nor does the record in any way demonstrate, any prejudice to him attributable to the remarks made by the district attorney. The contention must be rejected.

IV

The minor asserts Julie's in-court identification of him as the perpetrator was tainted by a prior out-of-court identification. Prior to testifying, Julie observed the minor being led into the courtroom. At that time, the minor was handcuffed. The minor asserts the confrontation was so impermissively suggestive as to taint the subsequent in-court identification. We cannot agree.

An in-court identification will be suppressed only if it appears that a prior identification procedure employed to secure it "was so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253; People v. Rodriguez (1977) 68 Cal.App.3d 874, 881, 137 Cal.Rptr. 594.) There is nothing in the record to indicate the hallway confrontation was "impermissively suggestive" or in any way affected the subsequent in-court identification. The hallway confrontation was...