Romeo C., In re

• Citation: 40 Cal.Rptr.2d 85,33 Cal.App.4th 1838
• Decision Date: 19 April 1995
• Docket Number: No. C018544,C018544
• Court: California Court of Appeals
• Parties: In re ROMEO C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ROMEO C., Defendant and Appellant.

Page 85

40 Cal.Rptr.2d 85

33 Cal.App.4th 1838

In re ROMEO C., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. ROMEO C., Defendant and Appellant.

No. C018544.

Court of Appeal, Third District, California.

April 19, 1995.

Certified for Partial Publication. ^*

Review Denied July 12, 1995.

[33 Cal.App.4th 1841] Mark L. Christiansen, under appointment by the Court of Appeal, Granite Bay, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger and Timothy L. Rieger, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Acting Presiding Justice.

Following a contested jurisdictional hearing, the juvenile court found that the minor Romeo D.C., along with co-accuseds James C. and Low Ching S., had committed a felony violation of Penal Code section 246 (unlawfully and maliciously discharging a firearm at an inhabited dwelling). ¹ The court also found in enhancement that a principal in the offense was armed with a shotgun (§ 12022, subd. (a)(1)) and that the offenses were committed by and for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

At the dispositional hearing the juvenile court found the minor to be a ward of the court and ordered him committed to the California Youth Authority ("CYA") for a total of 11 years, based on a 7-year term for the main offense, a 1-year enhancement pursuant to section 12022, subdivision (a)(1), and a 3-year enhancement pursuant to section 186.22, subdivision (b). The minor was also ordered to pay a $250 restitution fine.

On appeal the minor contends: (1) no substantial evidence supports the minor's adjudication; (2) his statement to the police should have been excluded because it was obtained in violation of Miranda; ² (3) evidence was improperly admitted against him under the In this published portion of the opinion we conclude the juvenile court properly exercised its discretion to preclude cross-examination of the probation officer at the dispositional hearing. In the unpublished portion of the opinion, we agree with the minor that both enhancements must be stricken, but reject his other contentions.

"coconspirator exception" to the hearsay rule; (4) the juvenile court's refusal to permit the minor to present the minor's full statement to the police in evidence caused him prejudice; (5) no substantial evidence supports the street gang enhancement; (6) the firearm enhancement must be stricken because the use of a firearm is an element of the offense the minor committed; (7) the juvenile court improperly denied the minor the opportunity to obtain the testimony of the probation officer at the dispositional hearing; (8) the juvenile court abused its discretion by [33 Cal.App.4th 1842] committing the minor to CYA; and (9) the juvenile court improperly imposed the restitution fine without determining the minor's ability to pay.

FACTS ^**

DISCUSSION

I **

VII

The minor contends the juvenile court erred prejudicially at the dispositional hearing by refusing to allow him to cross-examine the probation officer who prepared the dispositional social study. According to the minor, both statutory right and due process entitled him to obtain the probation officer's testimony. We disagree.

Our first task is to identify the appropriate rules of evidence to be applied at a dispositional hearing.

Welfare and Institutions Code section 701 governs the conduct of jurisdictional hearings. That statute provides in relevant part: "The admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision." (See rule 1488(b) of the Cal.Rules of Court; In re Antonio A. (1990) 225 Cal.App.3d 700, 704, 275 Cal.Rptr. 482.) ¹²

There is no correlative statute making the Evidence Code generally applicable to a dispositional hearing. Rather, Welfare and Institutions Code section 706 provides: "After finding that a minor is a person described in Section 601 or 602, the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer and such other relevant and material evidence as may be offered, and in any judgment and order of disposition, shall state the social study made by the probation officer has been read and considered by the court." (Italics added; see In re Michael V. (1986) 178 Cal.App.3d 159, 169-170, 223 Cal.Rptr. 503.) ¹³

The minor asserts that the directive of Welfare and Institutions Code section 706 for the court to receive "the social study of the minor made by the probation officer and such other relevant and material evidence as may be offered" means that the court must grant the minor the right to cross-examine the probation officer on request. We cannot subscribe to the view that Welfare and Institutions Code section 706 mandates without qualification the presentation of all relevant evidence at a dispositional hearing. Rather, as we shall explain, such a literal construction of the statute would lead to absurdity. We shall conclude the provisions of Evidence Code section 352 ¹⁴ (allowing the court to limit relevant evidence if it is cumulative A literal reading of Welfare and Institutions Code section 706 requires a juvenile court to receive in evidence such relevant evidence as may be offered. Relevant evidence is defined in Evidence Code section 210 to mean (in pertinent part) "... evidence ... having any tendency in reason to prove or disprove any disputed fact...."

time-wasting, or likely to confuse the issues) are necessarily implied in Welfare and Institutions Code section 706.

This definition of relevant evidence is manifestly broad. Evidence is relevant when no matter how weak it is it tends to prove a disputed issue. (People v. Hess (1951) 104 Cal.App.2d 642, 676, 234 P.2d 65.) Evidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352. (People v. House (1970) 12 Cal.App.3d 756, 773, 90 Cal.Rptr. 831 (conc. opn. of Kaus, J.).)

It has sometimes been said that evidence that is unduly time-consuming is irrelevant; however, in his treatise on "Evidence," Witkin persuasively argues that consumption of time is not properly a part of ascertaining relevance: "There are occasional expressions to the effect that ... evidence, though logically relevant (tending to prove a material matter), is so remote or conjectural, i.e., of so slight persuasive value, as to be legally irrelevant. And sometimes the exclusion of evidence for the policy reason of undue prejudice is placed on the ground of irrelevancy. [p] This splitting of the relevancy doctrine into 'logical' and 'legal' phases has been strongly criticized as useless and misleading. The better view seems to be to consider relevancy a single concept, and to treat all exclusions of logically relevant evidence as exceptions based on policy; e.g., remote or conjectural matter may be relevant but is excluded because it would result in an undue consumption of time. [Citations.]" (1 Witkin, Cal.Evidence, op. cit. supra, Circumstantial Evidence, § 287, pp. 257-258.)

From the foregoing it should be evident that if Welfare and Institutions Code section 706 were construed literally to mandate the admission of all relevant evidence, the result would be to sanction an enormous waste of time in dispositional hearings, where juvenile court judges would be powerless to exclude cumulative evidence or time-consuming evidence of marginal probative value. In this age of fiscal restraint and of overburdened courts, we cannot believe the Legislature intended such a result, which, in our view, would be absurd. The language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272; Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014; see California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340, 33 Cal.Rptr.2d 109, 878 P.2d 1321.) Rather, whatever is necessarily implied in a statute is as much a part of it as that which is expressed. (Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 771, 190 Cal.Rptr. 919, 661 P.2d 1073.) We shall conclude Welfare and Institutions Code section 706 impliedly incorporates Evidence Code section 352.

"By enacting Evidence Code section 352, the Legislature gave the court the means to facilitate judicial economy. This section expressly gives the trial court discretion to exclude evidence '... if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of ... confusing the issues....' [Citation.]" (DePalma v. Westland Software House (1990) 225 Cal.App.3d 1534, 1544, 276 Cal.Rptr. 214.) Evidence Code section 352 applies "across the board" to all criminal proceedings, even after the enactment of article I, section 28, of the California Constitution. (People v. Castro (1985) 38 Cal.3d 301, 306-313, 211 Cal.Rptr. 719, 696 P.2d 111.) Evidence Code section 352 is perhaps the most valuable day-to-day tool available to our busy trial courts. From the viewpoint of the juvenile court judge, conducting a dispositional hearing without Evidence Code section 352 would be like driving a bus without brakes. We shall not presume the Legislature To be sure, the juvenile court did not expressly cite Evidence Code section 352 in its ruling precluding cross-examination of the probation officer, but that fact is immaterial. The trial judge need not expressly weigh prejudice against probative value or even expressly state that he or she has done so. (People v. Crittenden (1994) 9...