In re Mark A.

• Decision Date: 13 November 2007
• Docket Number: No. G038332.,G038332.
• Citation: 156 Cal.App.4th 1124,68 Cal.Rptr.3d 106
• Court: California Court of Appeals Court of Appeals
• Parties: In re MARK A. et al., Persons Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. Alfred A., Defendant and Appellant.

68 Cal.Rptr.3d 106 156 Cal.App.4th 1124 In re MARK A. et al., Persons Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent,
v.
Alfred A., Defendant and Appellant. No. G038332. Court of Appeal, Fourth District, Division 3. November 13, 2007.

[68 Cal.Rptr.3d 107]

Deborah A. Kwast, Orange County Public Defender, Frank Ospino, Assistant Public Defender, Paul T. DeQuattro, Deputy Public Defender, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Marianne Van Riper, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

IKOLA, J.

Alfred A. (father), the presumed father of one-year-old V.A., 10-year-old Alfredo A., and 12-year-old Mark A., appeals from a judgment under Welfare and Institutions

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Code section 300 et seq.,¹ declaring the children dependents of the court and vesting custody with the Orange County Social Services Agency (SSA).² Father contends the court wrongly ordered him to testify at the combined jurisdiction and disposition hearing, despite his assertion of the Fifth Amendment privilege against self-incrimination. When he refused to obey the order, the court imposed an evidence sanction against him by striking the testimony of other witnesses.

We agree the court erred when it ordered father to testify. The court concluded father had no Fifth Amendment privilege in the dependency proceeding because section 355.1, subdivision (f) (section 355.1(f)), precluded use of his testimony in any other proceeding. The court's conclusion impliedly found the immunity provided by section 355.1(f) was coextensive with father's Fifth Amendment privilege, thereby justifying his compelled testimony. But a comparison of the plain language of section 355.1(f) with the equally plain language of the United States Supreme Court in Kastigar v. United States (1972) 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (Kastigar) reveals the statutory immunity provided by section 355.1(f) is more limited than the Fifth Amendment privilege the statute purports to replace. A procedure exists by which SSA, after notice to the district attorney, could have requested immunity for father coextensive with the privilege (Cal. Rules of Court, rule 5.548(c)),³ but SSA made no such request and the court made no such order. The court instead incorrectly interpreted section 355.1(f) as providing the requisite immunity as a matter of law. Under these circumstances, the father retained the right to assert his Fifth Amendment privilege against self-incrimination. The court also lacked the authority to impose an evidence sanction by striking the testimony of other witnesses, whether or not father properly invoked his Fifth Amendment right. We nevertheless conclude the error did not result in a miscarriage of justice. Accordingly, we affirm the judgment.

FACTS

In the allegation most relevant to this appeal, SSA alleged that father, while intoxicated, had repeatedly struck V.'s mother, Myra A. (mother), while she was holding the infant V. in her arms, causing mother to drop the child, resulting in a fracture of V.'s right femur. The incident had resulted in father's arrest on multiple criminal charges, including, as relevant here, willful cruelty to a child with possible injury or death (Pen.Code, § 273a, subd. (a)), inflicting corporal injury upon a spouse (Pen.Code, § 273.5, subd. (a)), and violation of a protective order with physical injury (Pen.Code, § 273.6, subd. (b)). In its August 9, 2006 juvenile dependency petition, SSA alleged that V. came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse of child under five), and (j) (abuse of sibling). SSA further alleged that Alfredo and Mark came within

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the jurisdiction of the juvenile court under section 300, subdivisions (a) (threat of serious physical harm), (b) (failure to protect), and (g) (no provision for support). The juvenile court detained the children on August 10, 2006.

The Jurisdiction and Disposition Hearing

At the combined jurisdiction and disposition hearing in January 2007, the court received into evidence and considered eight separate reports prepared by SSA, and heard testimony from social worker Barbara Mautino, Mark, and mother. All three witnesses were called by father: Mautino for the purpose of cross-examining her on the reports she had prepared, and Mark and mother as witnesses on father's behalf.

The jurisdiction/disposition report prepared by Mautino recited the substance of her interview with father. Father and mother were married, but separated. Mother had called father on a Friday evening and asked him to pick her up. Mother told him the baby (V.) "was constipated and had fallen off the bed." She asked him to come and take the child to a hospital. Father protested, and suggested mother take the child to a nearby hospital herself. But later that evening father picked up mother and V. and brought them to his rented garage that had been converted into a living space. Father and mother drank that night, and "mother was getting agitated." Father became "concerned because ... mother has been violent before." He asked a friend who was at a party outside the garage to "call the cops." When the friend left, father "turned around and the next thing [he] knew the baby was on the floor." "He didn't know what happened.... [He] asked her if she dropped the baby, and she just started crying." Father denied he ever hit mother. He also opined that mother's injuries were suffered because "`she hit herself. She has done that before and said I hit her.'"

The social worker also interviewed Mark. She reported Mark was "well groomed and well nourished," and attended an intermediate school in Santa Ana as a seventh grader. He lived with father and his brother in the garage father had rented. Mark understood that his father was in jail for hitting V., but he stated, "`My father did not hit V.'" Mark stated he and his brother were in the garage on the night of the incident, that he was "`half awake,' and that he saw his father 'push' [his] stepmother, but did not see the father hit the child." Mark "had only seen his father drunk once, when his father slapped his stepmother."

Alfredo gave a similar account to the social worker. "[H]e had never seen his father drunk, because his father `always only drinks two beers when he drinks.'" Alfredo "was not aware of the alleged accident with the child V....." Despite Alfredo's lack of awareness, he also stated, "`V. fell off the bed and that is how she got hurt, my father did not hit her.'"

The social worker's jurisdiction/disposition report also quoted extensively from the detention report prepared at the time the children were taken into protective custody, including an interview with mother. Mother had first denied being with father on Friday evening, stating father had picked up V. for his weekend visit. Father had called her the next day and "told her that he took the baby to the emergency room because she seemed to be in pain during diaper changes." "[M]other denied any abuse by V.'s father and stated she had no concerns about his parenting."

Mother's neighbors, however, told the social worker that mother had told them about father having beaten her while she was holding V., and that she had dropped

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V. during the beating. "V.'s legs slammed into a toolbox and her legs bent at an angle." When mother was confronted with the information the social worker had learned from mother's neighbors, she eventually "relented and told the truth about the injury. She stated that the information she give her friends/neighbors was accurate and the father had beaten her up while she was holding V. in her arms."

In an addendum report, SSA reported the opinion of the surgeon who had operated on V.'s femur. The surgeon stated he did "not believe that the break to the child's leg could have occurred from a fall off of a bed."

At the jurisdiction/disposition hearing, father cross-examined Mautino, but she had no further information concerning the precipitating incident. She did testify she had measured the height of the bed at mother's home and found it was two feet above the carpeted floor.

Mark testified consistently with the information he had given the social workers. He stated mother once broke father's stereo with a hammer, and had said mean things to father "like she doesn't want to live here, [and] she's going to burn down the house." But Mark repeated he had not seen the alleged altercation because he was sleeping. He had never seen father or mother hit each other.

Father called mother as a witness. She testified consistently with the second version of the events she had related to the social worker and gave a vivid account of the altercation with father. When she arrived with V. at father's rented garage on Friday night, they both "started drinking." She said father was drunk, so she asked him to take her home. He refused "because he said he was drunk." Father accused her of having a boyfriend at her home, and they argued. The argument escalated when father called her "a bitch and a ho." Mother asked h m "if that was the case, then why did he w ant me there." Father responded she was `just there because he just wanted to fuck [her]." She threw a cell phone at father, but missed him. "That's when [father] punched me in my face." Mother was holding the baby V. during the entire argument. Mother turned after being hit in the face, and father continued beating her in the back and the back of the head until she dropped the baby.

Father Asserts His Fifth Amendment Right Against Self-incrimination

Mother's counsel called father to testify as a witness. Father's counsel announced father's "intention to invoke his right not to incriminate himself and [counsel did] not believe there are going to be any...