In re David V. 9/8/08 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B203840

Case Date: 12/17/2008

Preview:Filed 9/8/08

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

In re DAVID V., a Person Coming Under the Juvenile Court Law.

B203840 (Los Angeles County Super. Ct. No. PJ41304)

THE PEOPLE, Plaintiff and Respondent, v. DAVID V., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County. Fred J. Fujioka, Judge. Affirmed. John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent. _______________

The juvenile court sustained two petitions against appellant, David V., one alleging that he possessed metal knuckles in violation of Penal Code section 12020 and the other alleging that he possessed a weapon on school grounds in violation of section 626.10, subdivision (a). Appellant was declared a ward of the court and was placed in the Camp Community Placement Program for a mid-term program of six months. Appellant appeals from the order sustaining the petition alleging possession of metal knuckles and adjudging him a ward of the court. He contends that the juvenile court improperly admitted expert testimony and that there is insufficient evidence to support the court's finding that he possessed metal knuckles. Additionally, appellant contends that the juvenile court failed to declare the offense a felony or misdemeanor, as required by statute. We affirm the trial court's orders in all respects.
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FACTS Appellant was riding a bicycle when Police Officer Thomas Appleby stopped him. Upon searching appellant, Officer Appleby recovered a bicycle footrest from his rear pants pocket. The footrest was a cylindrical object, approximately three and a half inches long and an inch and a half in diameter, designed for attachment to a bicycle. Although the system of attachment appeared fairly basic, Officer Appleby was unable to affix the footrest to the bicycle appellant was riding. Officer Appleby could not locate a common device by which to secure the footrest to the bicycle, nor could he find a place on the bicycle where the footrest could be attached. There were no other footrests already attached to appellant's bicycle.
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All further statutory references are to the Penal Code unless otherwise indicated.

Throughout trial testimony, the item was referred to alternately as a "footrest," "foot stool," "tooth rest," and "tooth stool." For the sake of consistency, we will heretofore refer to it as a "footrest." 2

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At trial, Officer Appleby was presented as a gang expert and testified that bicycle footrests are commonly used as metal knuckles. He explained that, with the cylindrical object placed in the hand with the fingers rolled over it, it can be used "as an impact punching device to further the effect of punching."

DISCUSSION I. Expert Testimony Appellant contends the juvenile court erred in admitting certain portions of Officer Appleby's testimony. First, appellant argues that the juvenile court should not have permitted Officer Appleby to testify that the bicycle footrest appellant possessed is an item commonly used as metal knuckles. Appellant argues that such evidence was not probative of his knowledge or intent and was therefore irrelevant. Second, appellant contends that the juvenile court should have excluded Officer Appleby's testimony that the bicycle footrest could be grasped in the hand and used as an "impact punching device." Appellant argues that this testimony did not concern a matter outside common knowledge and should therefore have been excluded as being beyond the scope of proper expert testimony. Finally, appellant argues that the juvenile court improperly relied on the admitted expert gang evidence as proof of his intent. A. Forfeiture At the juvenile court hearing, appellant objected to portions of Officer Appleby's direct examination testimony on grounds that it lacked foundation and was narrative. Appellant also objected to the "entire line of questioning" based on relevancy. The Attorney General argues that these objections failed to sufficiently preserve the claims appellant now raises on appeal and, thus, that appellant forfeited his right to make such arguments. Under Evidence Code section 353, subdivision (a), "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to 3

make clear the specific ground of the objection or motion . . . ." A defendant may not, however, "argue on appeal that the court should have excluded the evidence for a reason not asserted at trial." (People v. Partida, 37 Cal.4th 428, 431, original italics.) Here, appellant never objected during trial that Officer Appleby's testimony exceeded the scope of permissible expert testimony or did not concern a matter outside common knowledge. Thus, the juvenile court was never given the opportunity to consider the admissibility of the evidence on these grounds. Appellant's claim that the admitted evidence exceeded the limits of permissible expert testimony is thereby forfeited. Appellant relies on People v. Lewis (1990) 50 Cal.3d 262, 282, in arguing that this court should nonetheless consider the forfeited claim on the merits in order "to forestall an ineffectiveness of counsel contention." However, nothing in Lewis suggests that our Supreme Court intended to establish a rule by which all forfeited claims must be considered on the merits where an ineffectiveness of counsel claim is the likely alternative. The Court emphasized in the recent case of People v. Richardson (2008) 43 Cal.4th 959, 984, footnote 11, that, despite having made past exceptions to the forfeiture doctrine, "we have never held that forfeiture is inapplicable to an entire class of cases . . . ." We thus decline to apply the Lewis exception to the forfeiture doctrine in this case. The forfeiture doctrine does not apply to appellant's relevancy claim, however. The relevancy argument raised on appeal does not invoke facts or legal standards different from those the trial court itself was asked to apply when considering appellant's objection to the prosecutor's entire line of questioning. (See People v. Yeoman (2003) 31 Cal.4th 93, 117.) Thus, consistent with the Fifth Appellate District's ruling in People v. Bailes (1982) 129 Cal.App.3d 265, 273, footnote 2, we hold that appellant's trial objection on grounds of relevancy sufficiently preserved the relevancy argument he now raises on appeal.

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B. Admission of Expert Testimony Appellant argues that Officer Appleby's testimony regarding the common usage of bicycle footrests as metal knuckles should have been excluded on grounds of relevancy because past acts by other persons are not probative of his intent. The Evidence Code defines relevant evidence as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code,

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