Filed 3/19/14 In re C.V. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re C.V., a Person Coming Under the                                H039230
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JV39450)


THE PEOPLE,

         Plaintiff and Respondent,

             v.

C.V.,

         Defendant and Appellant.



         The juvenile court found appellant C. V. to be a ward of the court under
sections 600 et sequitur of the Welfare and Institutions Code, based upon allegations that
he robbed two other minors. His chief contention on appeal is that the trial court erred by
overruling a hearsay objection to testimony by a police officer recapitulating the reports
of other officers concerning the conduct of two companions of appellant’s who testified
on his behalf at trial. Appellant also contends that counsel failed to render effective
assistance when he failed to lodge a further objection to this testimony on the ground that
it violated his right to confront the witnesses against him under the Sixth Amendment of
the United States Constitution. We have concluded that although it was error to admit
this testimony over a hearsay objection, neither that error nor the posited ineffectiveness
of counsel can be judged prejudicial by the applicable standards. Accordingly, we will
affirm the jurisdictional order. However we will sustain appellant’s objection to a
condition of the dispositional order which prohibited his association with certain persons,
on the ground that such a condition is wholly unsupported by the record.
                                       BACKGROUND
       It is undisputed that in the late afternoon of August 9, 2012, Eric A. and Mark M.
were approached by another youth who took cash from them under threat of physical
violence. The only point of controversy at trial was the identity of the perpetrator, i.e.,
whether the victims had been robbed by appellant or by one Christopher G., who was one
of appellant’s three companions at the time of the offense.1
       Thirteen-year old Eric A. testified that shortly before the robbery he and Mark M.
had purchased some items in a sporting goods store. As they walked away from the
store, they became aware of a group of youths walking behind them. The group
consisted of appellant, who was then 17 years old; two other “teen-aged kids” around
appellant’s age; and “maybe . . . a 7 or 8-year-old.” One member of the group, whom
Eric A. identified as appellant, began talking to them. At first he asked them “regular
questions,” like which school they went to. But then he moved in front of them and
began to ask “questions like if we had any money.” By this time his companions had
gone ahead without him. The robber first “asked us for everything in our pockets, then
just our money.” “He said, you know, if you don’t give me your money, I’m going to
punch you.” He also told Eric A. that one of his companions had a knife, “and that he


       1
         Because some of the participants have the same initials as others, we have
included the first names of all six involved minors. We have regularized the spelling of
some names to reduce the risk of disclosing identities. (See Cal. Rules of Court,
rule 8.401.)

                                              2
was going to take me to an alley and stab me.” At that time Eric A.’s height was “like
5’1”, 5’2”,” whereas the robber was “bigger.” Eric A. gave him “approximately
22 bucks,” and Mark M. also gave him some money. The robber then ran down the street
to catch up with his friends. When the four of them went into a guitar store, the victims
called the police, who came to the scene. At some point Eric A. was taken in a patrol car
to look at some possible suspects. He recognized appellant, and identified him to an
officer.
       Asked whether he “ha[d] any question in [his] mind of the person who robbed
[him] that day,” Eric A. replied, “Not really.” Asked more specifically whether it was
“even possible” that one of the “2 other teenagers present” could have been “the one who
robbed you,” he testified, “Not really. He was the biggest of them all.” Asked who he
was referring to, he said, “The man in the purple shirt,” referring to appellant.
       On cross-examination Eric A. was asked whether there were “2 boys who looked
similar out of the group of 4,” to which he replied “A bit,” while adding that “the one in
the purple shirt was definitely a bit more mature looking than the other.” He recalled that
the person who took his money had “spiky hair,” but could not recall whether he was
wearing jeans. Asked if he had told Mark M. (or perhaps a police officer) that the robber
was wearing jeans, he replied, “I’m not sure. I think I remember that the one who was
robbing us was actually wearing shorts, I think.” He acknowledged that events had been
“more fresh in [his] mind” on the day of the occurrence, and that “some of the details”
were now “a little fuzzy.” The detail of the robber’s pants might “[p]ossibly” be one
such detail. He remained confident, however, that the person who robbed him “had the
spiky hair,” while “the other person who kind of looked like” the robber “had flatter
hair.” He added, however, that it was only “[a] bit” flatter and that “they were even
similar looking in the hair; just little differences.” He also recalled that while both of the



                                              3
youths wore black t-shirts, “they had different pictures on them.” One shirt had “like
small pictures on it,” while “the one who robbed us had like this big like drawing on it.”
       Although Eric A.’s memory was “fuzzy” with respect to the circumstances of his
in-field identification of the robber, he believed that the suspects were all seated near the
store entrance except for the one he identified as the robber, who was “being talked to by
the police.” He testified that he took “quite a bit of time looking at him and the other
people,” but conceded that, “[a]t first,” “it was confusing, because they looked so
similar.”
       On redirect, Eric A. testified that police had “not exactly” “sa[id] anything to
[him] that basically told [him] who to identify.” They had asked him “if any of [the
suspects] had looked like they had robbed me.” Asked if they made “any suggestions . . .
as to who you should pick out,” he replied, “Not really. They just kind of, you know,
point out like, was it—was it that person? Was it like— [¶] Q And you made the
decision as to who it was? [¶] A Yes.” Presented with two photographs depicting
appellant and Christopher G., respectively, Eric A. testified that he was “pretty sure” the
former was the robber. He concluded by agreeing that he was “positive in [his]
identification today in court.”
       When defense counsel attempted to question Eric A. further about the degree of
certainty in his identification, the court terminated the line of inquiry by sustaining an
objection that counsel had misstated the witness’s testimony and then adding on its own
initiative, “I feel like we've been over this a time or 2. So if you have any other
questions, please go ahead.” Examination of the witness concluded with the following
question and answer: “Q. (By Ms. Smith) I’m just trying to be clear with you, [Eric], if
there’s any question in your mind after looking at the 2 pictures and after having time to
think about it as to which one. [¶] A. I actually do not. Because I remember that—



                                              4
because I remember that one thing that I really noticed was the stress lines on his head
(indicating).”
       Mark M., also 13 years old, gave an account largely congruent with that of Eric A.
He testified that there was a group of four people behind them—one who “seemed very
young,” one who “seemed older but still quite young,” and two who “were a lot older but
didn’t seem like adults.” One member of the group said hello and asked them what
school they went to, where they lived, and what grade they were in. Mark M. and Eric A.
answered these questions without stopping. They then “went to the bank,” outside of
which the group of four “went in front of us,” except that “one of the them stopped and
turned around and started . . . talking to us.” He asked what they had in their pockets, to
which they replied that they “d[idn’t] want to tell him.” Then he “said like, are you sure?
We kept saying no. Then after awhile they [sic] said, Give me everything in your
pockets.” Mark M. identified appellant as the person who made that statement.
       Asked if the person made any threats to him, Mark M. replied, “not . . . to me but
my friend.” He said, “I’m gonna punch you if you don’t give me everything in your
pockets. And another time he said, I’m going to drag you into an alley. And my friend
there has a knife. And he’ll stab you.” Mark M., who was “scared,” “gave him my
wallet and my phone.” The robber took $40 from his wallet, then returned the wallet and
phone. The witness then corrected his testimony to state that he only “showed” the phone
to the robber, who “didn’t take it.” The robber then rejoined his friends, who crossed the
street and continued walking. The two victims followed them until they entered Guitar
Center. At some point Eric A. called police.
       After the police arrived, Mark M. was taken in a “police vehicle” to “take a look at
possible suspects of the robbery.” At that time he identified “the minor.” Asked whether
he had any doubt, as he sat in court, that appellant was the person who robbed him, he
answered “No.” Shown two photographs—presumably the same two already shown to

                                             5
Eric A.—he identified the photograph of appellant as depicting “the person who robbed”
him.
       On cross-examination, Mark M. agreed that the person who robbed him had
“spiky hair,” as “opposed to the other guy who had flatter hair.” The robber was wearing
a black t-shirt, but the witness could not recall the design on it. The robber was wearing
shorts, not jeans. On redirect, he testified that he did not recognize the t-shirt in the
photograph of the person he had identified as the robber. He affirmed that he was
“positive that the person who robbed you is the minor.” None of appellant’s three
companions were involved in the robbery.
       The prosecution then called Officer Wendy Hoskin, who testified that she was the
“main investigator in the case and took the money record report.” She interviewed one
victim and conducted the in-field showup as to both victims. She conducted the two
identifications separately. She first testified that Mark M. identified appellant without
hesitation. He identified the other three detained youths only as the robber’s friends. He
identified the robber “by his face and clothing.” Officer Hoskin then “drove him back to
his parents.” She then picked up Eric A. and took him to the scene of the detention. He
too was “positive” in his identification, saying, “That’s the guy who robbed us.” He
identified him by “his face, clothing and hair.” Afterwards she drove him back to his
parents.
       The prosecutor then asked Officer Hoskin whether “any of the other kids,”
meaning the robber’s companions, “attempt[ed] to talk to you about the case.”2 She


       2
          This testimony is curious because according to a supplemental police report
attached to the petition, Christopher G. told officers at the time of the boys’ detention that
appellant had perpetrated the robbery. His statement is itself somewhat striking because
it recapitulates in detail the conversation between the robber and the victims, even though
the testimony at trial consistently indicates that the robber’s companions had walked well
ahead when the robbery took place.

                                               6
replied, “No.” She gave the same reply when asked, without objection, whether “any of
those kids that were present that day tr[ied] to tell the police, you’ve got the wrong guy.”
She likewise said “No” when asked, “[A]s far as you are aware, since you’re the
investigating officer in this case, has anyone since that date come forward to San Jose
Police Department to indicate that there’s been an error in identification?”
       On cross-examination, Officer Hoskin testified that she had not searched the
detained minors, although another officer had searched appellant at the scene and he
might have been searched again at juvenile hall. The stolen money “was never
recovered.”
       The defense then called 11-year old Kevin M., who testified that it was
Christopher G.—not appellant—who talked to the other two youths. He did not hear
what Christopher G. was saying. He just kept walking with his brother and appellant. At
some point, Christopher G. caught up with them and showed them some money. He had
not had any money before talking with the other boys.3 They all then went to the Guitar
Center, because Martin M. “needed to fix his guitar.” Inside the store, Christopher G.
“flipped his shirt inside out.” When they left the store, they were “contact[ed]” by police.
He was sure it was Christopher G., not appellant, who spoke to the boys; he had known
Christopher G. longer, and was “more friends” with him.
       On cross-examination Kevin M. testified that both appellant and Christopher G.
were wearing black shirts. He had known appellant since “like since last year,” and
Christopher G. “[l]ike since I moved in.” On the day of the robbery, he had seen
appellant “getting arrested,” which made him “feel bad.” However, he did not tell police

       3
          The police report states that after accusing appellant of the robbery, Christopher
G. told officers he had not seen any money in appellant’s possession, adding that in light
of their failure to find it, appellant “must have hidden the money.” Nothing in the report
suggests that officers asked Christopher G. for permission to search his person, or
otherwise sought to do so.

                                             7
that appellant was not involved. Nor did he “tell them any time later that [appellant] was
really innocent and Christopher G. had done it.” He testified on redirect that he did not
know why he hadn’t told police that appellant was not the robber. He had told a defense
investigator the same thing he was saying today in court.
       The defense next called Kevin M.’s brother, Martin M., whose age is not disclosed
by the record. He testified that he was “sure” it was Christopher G., not appellant, who
“went to talk to the 2 boys.” He had just met appellant the day before, but had known
Christopher G. for the better part of a year. It was Christopher G. he would consider his
friend. After Christopher G. finished talking to the two boys and caught up with his
companions, he showed them some money. He did not tell them how he had gotten it.
Prior to his encounter with the other boys, however, he didn’t have any money. When
they got inside Guitar Center, Christopher G. “seemed like really panicked,” and “was
like in a hurry to like leave.” He turned his shirt inside out. It was a black t-shirt with
red details. At the time of the incident, “Christopher [G.] had like long, spiked up hair,
while Charles had a short buzz cut.”
       Asked whether he said anything to anyone when he saw appellant getting arrested,
Martin M. testified, “I told—I was going to the police. I told them like—I was going to
tell them, but they didn’t let me speak. [¶] . . . [¶] I was going to say that it wasn’t—I
was going to. Like, um, I was going to tell one of the police, but they told me to like
be—to be quiet.” Asked to describe “[e]xactly how did that happen,” he said, “Like,
well, because I was sitting down, because we—we were all sitting down in the—I was
going to say, why are they arresting [appellant]? But I guess before I said anything, one
of the police said not to speak.” Cross-examination elicited the further details that the
boys were sitting down outside the store, that about six officers were present, and that it
was a male officer who told him not to say anything.



                                              8
       Martin M. was then questioned as to whether he had ever told police that they had
arrested the wrong person, at which point he said, “No. Well, I did tell one. But I guess
he didn’t believe me.” This led to the following exchange: “Q. You actually gave a
statement to one that— [¶] A. Yeah. [¶] Q. —that Christopher [G.] was the person
who did this? [¶] A. Yeah. [¶] Q. A police officer that day? [¶] A. Yeah.” The only
identifying detail he could recall about the officer was that he was white. Asked to
explain why he didn’t call the police afterwards to say they had the wrong person, he
replied that he guessed they wouldn’t have believed him because the victim had
described the robber as a “tall, older guy” and appellant, whose height he guessed at six
feet or six feet two inches, seemed to fit that description better than Christopher G., who
was “like 5’6”, 5’5””, and “looks like he’s young.”
       Appellant then took the stand and testified that as he and his companions
approached the other two boys, Christopher G. told them to slow down. After
Christopher G. talked to the two boys, appellant did not see any money on him. Inside
the Guitar Center, Christopher G. “started like panicking,” and “wanted to go back home
like as soon as he could.” When he saw police cars outside the store, he went into one of
the showrooms and flipped his shirt inside out. He and appellant were both wearing
black t-shirts, but they had completely “different logos,” in different colors. Appellant
was wearing green shorts with “like stripes on them.”
       Upon leaving the store, the four boys were detained. Officers did not explain, but
“told us that we knew why were getting detained.” Asked whether he recalled Martin M.
trying to say anything to any of the officers, he replied, “No. The police officer pulled
me away from the rest of the group when they were talking to the rest of them.”
       Asked how long he had known his companions of that day, appellant replied that
he had met Martin M. the day before the incident. He had met Christopher G. perhaps six
years earlier, but appellant’s family had moved away and then returned to the same

                                             9
apartment complex, where Christopher G. was still living. Christopher G. was “like 2
years younger” than him, or perhaps a year and a half.
       After the defense rested, the prosecutor again called Officer Hoskin to the stand
for rebuttal. She testified that, as investigating officer, she was required to “take the main
report, and . . . coordinate between all the other officers on all the reports.” When other
officers took statements from witnesses, they were to “advise [her] that they’ve done
that.” On that day other officers “did a field interview card on” Kevin M. and Martin M.
“and had asked them if they knew what happened or had any statement.” At this point
defense counsel objected, stating, “Your Honor, I’m going to object as to hearsay.” The
court overruled the objection, adding, “I’ll allow it. Go ahead.” The witness continued,
“Okay. [¶] When they did the field interview card, they asked them if they remembered
what happened or if they saw anything, and they said, No. [¶] And the reason I know
that is because when I went and contacted all the officers and collected all the field
interview cards, I asked the officers, was there any statement from the 2 boys, [Kevin M.
and Martin M.], and they said, No.” On cross-examination, she confirmed that she was
not present when the cards were filled out, and that when officers told her there were no
additional statements, she had to take their word for it because she did not overhear
anything.
       The court then invited argument. The prosecutor argued that the “only” issue was
“whether or not the court finds the victims in this case credible versus defendant’s
witnesses.” Defense counsel argued that the conflicts in the testimony made it impossible
to find beyond a reasonable doubt that appellant was the culprit. The prosecutor replied,
“I think it does sort of stretch the imagination that the 2 witnesses who testified in court
today never told anyone prior to—aside from a public defender investigator[—]that
Charles was not the person who committed the robbery[,] and never bothered to tell any



                                             10
police officer, not even gesticulate or say, hey, you’ve got the wrong guy with respect to
the arrest that occurred on that day.”
       The court found that the allegations of the petition had been proven beyond a
reasonable doubt. The court did not address the issue of identity at that time, but did
allude to it at a later hearing when defense counsel requested a continuance in order to
“request[] some changes to the charges.” The court expressed a willingness to put the
matter over, adding, “but that doesn’t mean I’d be inclined to change the charges. I recall
the trial and the testimony given very clearly. And I was quite persuaded by the
testimony given by the young victims in the matter, as well as their very detailed
identification.”
       Among the recommended conditions of probation was one prohibiting appellant
from “knowingly associat[ing] with any person whom he knows to be, or that the
Probation Officer informs him to be, a probationer, parolee, or gang member.” Defense
counsel moved to strike this condition on the ground that the record gave “no indication
that [appellant] has a history or pattern of hanging around with other juvenile
delinquents.” Expressing the understanding that “these are standard orders” and “not full
gang orders,” the court denied the motion to strike. The court entered written orders
declaring appellant a ward of the court and imposing the recommended condition, among
others. Appellant filed this timely appeal.
                                         DISCUSSION
   I. Hearsay
       The trial court clearly erred in overruling counsel’s hearsay objection to Officer
Hoskin’s testimony concerning other officers’ reports reflecting their questioning of
defense witnesses and what those witnesses said, or did not say, to them. This
recapitulation was “evidence of a statement that was made other than by a witness while
testifying at the hearing and that [wa]s offered to prove the truth of the matter stated.”

                                              11
(Evid. Code, § 1200, subd. (a).) It was therefore inadmissible unless it came within an
exception to the rule against hearsay. (Id., §§ 1200, subd. (b), 1201.) No exception was
cited in the trial court, and respondent cites none on appeal.
       Indeed, respondent’s brief contains no coherent argument in defense of the trial
court’s ruling. The closest it comes is to assert, “Hoskin’s testimony was not introduced
to prove the truth of the statement—that the brothers did not have any knowledge about
the offense—but to establish that there was no record of the brothers giving any
information to the police about what had occurred.” But this mischaracterizes the
testimony. When the objection was lodged Officer Hoskin had not merely been asked
whether she knew of any record of a statement by the brothers. She was asked to relate,
as facts, matters heard, seen, and reported to her by other officers. The officers who
actually observed and interviewed the brothers would undoubtedly have been permitted
to testify, by way of impeachment, to what the brothers had said, or failed to say. But
Officer Hoskin was in no position to give competent testimony on that subject. She could
attest only to what others had told her. That is the form her testimony took: First she
alluded to “a field interview card” indicating that officers had asked Kevin M. and Martin
M. “if they remembered what happened or they saw anything, and they said, no.” Then
she testified that she had “contacted all the officers,” and in the course of collecting the
field interview cards, asked them “was there any statements from the 2 boys . . . , and
they said, no.”4
       4
         The entire exchange is transcribed as follows: “Q. . . . Did anyone advise you
that they’d taken a statement from any other witnesses that day?

       “A. Yes. Officer Daly took a statement—

       “Q. Uh-huh.

        “A. —From one of the witnesses. [¶] And I can’t recall the officers. About 6 or
7 of them there. They did a field interview card on the M[.] brothers and had asked them
if they knew what happened or had any statement.
                                              12
       This was, without question, pure hearsay. Its admission over objection was plain
error. It warrants reversal, however, only if it “resulted in a miscarriage of justice.”
(Evid. Code, § 353, subd. (b); see Cal. Const., art. 6, § 13.) “[A] ‘miscarriage of justice’
should be declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
       We are unable to declare it reasonably probable that in the absence of the
challenged testimony, the trial court would have reached a result more favorable to
appellant. This is not because, as respondent asserts, the evidence against appellant was
“overwhelming.” On the contrary, the evidence as a whole offers many grounds from
which a factfinder might entertain a reasonable doubt that appellant was the perpetrator
of the robbery. But the question before us is not whether another trier of fact, or we
ourselves, might have reached a different conclusion on the evidence before the trial
court. The question is whether the error at issue—here, the admission of hearsay
evidence that defense witnesses failed to make any contemporaneous statements
exculpating appellant—is likely to have had an effect on the outcome. For a number of
reasons, we are unable to say that it did.


       “Ms. Smith: Your Honor, I’m going to object as to hearsay.

       “The Court: “Overruled. I’ll allow it. Go ahead.

        “The Witness: Okay. [¶] When they did the field interview card, they asked them
if they remembered what happened or if they saw anything, and they said, no. [¶] And
the reason I know that is because when I went and contacted all the officers and collected
all the field interview cards, I asked the officers, was there any statements from the 2
boys, the M[.] kids, and they said, no.

       “Ms. Huntley: Okay. No further questions.”

                                              13
       To begin with, the evidence was largely cumulative of other testimony and
inferences to similar effect. The first defense witness, Kevin M., freely acknowledged
that he had not told police, at the time of the arrest or at any later time, that the robbery
had been committed by Christopher G. rather than by appellant. His brother Martin M.
initially testified to the same effect, though he indicated that he attempted to speak to
police but was told “to be quiet” or “not to speak.” A few minutes later he testified that
he “did tell one” officer but “guess[ed] he didn’t believe me.” He then affirmed that he
“actually gave a statement” to one officer “that Christopher [G.] was the person who did
this.” He went on to affirm that he had made this statement to “a police officer that day,”
i.e., the day of the robbery.
       It was this testimony that the hearsay recapitulated by Officer Hoskin tended most
directly to impeach. But we see no reason to suppose that the trial court would have
credited this testimony in the absence of the challenged hearsay. Martin M.’s testimony
on this point appeared internally inconsistent, and could readily be perceived as evolving
on the stand. He first said that he “was going to tell” police about their mistake, but
“[b]efore I said anything, one of the police said not to speak.” It was only a few minutes
later, on cross-examination, that he said he had in fact given a statement to an officer,
who he “guess[ed] . . . didn’t believe” him. This is hardly the kind of testimony that was
likely to inspire confidence in a trier of fact. Moreover the court could quite reasonably
doubt that either Kevin M. or Martin M. would have volunteered that the police had the
wrong youth, since doing so credibly would require them to incriminate Christopher G.,
who both said was a closer friend than appellant.
       Further, the challenged testimony was similar in tenor and effect to testimony
elicited from Officer Hoskin during the prosecutor’s case in chief. At that time she was
asked whether “any of the other kids,” meaning the robber’s companions, “attempt[ed] to
talk to you about the case.” She replied, “No.” She likewise said “No” when asked,

                                              14
“[A]s far as you are aware . . . , has anyone since that date come forward to San Jose
Police Department to indicate that there’s been an error in identification?” No objection
was lodged to either of these questions; nor does either appear objectionable. She went
on to affirm that none of “those kids that were present that day tr[ied] to tell the police,
you’ve got the wrong guy.” That question might have been objected to for lack of a
foundation in personal knowledge, since the witness’s own testimony established that she
was absent during much, if not all, of the encounter between officers and appellant’s
companions. But no objection was lodged. In any event we doubt this testimony was
taken by the trial court as proof of anything more than that Officer Hoskin had heard of
no statement by Kevin M. or Martin M. That fact did not flatly prove that neither of them
had made such a statement, but it supported an inference to that effect, since the court
might quite reasonably suppose that any statement by either witness would have been
communicated to her as investigating officer. The court might also reasonably expect
that any relevant statement by Kevin M. or Martin M., or any other witness, would have
been recorded in writing—and that the writing would have been produced to appellant’s
counsel as a matter of routine obligation. (See Cal. Rules of Court, rule 5.546(b)
[requiring petitioner in juvenile court proceedings to “promptly deliver to or make
accessible for inspection and copying by the child . . . or their counsel, copies of the
police, arrest, and crime reports relating to the pending matter”].) The manifest absence
of any such writing was some evidence that no such statement had been made.
       It is of course possible that Martin M. made an exculpatory statement to an officer
who, in dereliction of his duties, failed to make any record of it and failed to mention it to
the investigating officer. But this possibility was only slightly diminished by Officer
Hoskin’s hearsay account of what officers actually told her. Given that account, the
officer in question would have had to be guilty of a further defalcation—affirmatively
misstating the facts. But we cannot credit the premise that the trial court’s findings hang

                                              15
by such a slender thread. The court undoubtedly believed that if any exculpatory
statement had been made to any officer, that fact would have been related to Officer
Hoskin. Her testimony that she was aware of no such statement was itself strong
evidence that no such statement had been made. Her further, objectionable testimony—
that officers told her no statement was made—was mere icing on the cake.
       In essence the challenged testimony suggested the possibility that the testimony of
the defense witnesses had been recently fabricated. Other evidence already before the
court already supported such an inference, most obviously Officer Hoskin’s testimony
that she was aware of no statements by defense witnesses. The challenged testimony
may have lent some marginal additional weight to that evidence, but it is difficult to
believe that it could have been dispositive. Once the other evidence was introduced—in
the form of testimony by Officer Hoskin that she had heard of no prior suggestion that
appellant had been wrongly identified as the robber—the door was open to rehabilitative
evidence by the defense, such as evidence that defense witnesses had in fact made prior
statements consistent with their testimony, if not to police, then to someone. (Evid.
Code, § 791, subd. (b).) In the absence of such evidence, the tendency of the entire
record was to reinforce the substance of the testimony to which objection is made.
       It thus appears to us that Officer Hoskin’s recapitulated hearsay merely confirmed
what the trial court was almost certain to find anyway, i.e., that the defense witnesses
never raised an intelligible suggestion of misidentification until they were interviewed by
a defense investigator some time after the incident. This did not compel a finding that
their testimony was false. There might be many other explanations for a failure to
volunteer their perceptions to police, including their friendship with Christopher G. But
far from supporting reversal, that fact furnishes yet another reason to doubt that the
challenged testimony played a significant role in the trial court’s overall assessment of
the case. The pivotal factor appears to have been the court’s assessment of the relative

                                             16
credibility of the prosecution witnesses and the defense witnesses. The trial court
manifestly concluded that the prosecution witnesses were testifying accurately and that
the defense witnesses were, for whatever reasons, testifying falsely. While another trier
of fact might well have reached a different conclusion, we do not believe any trier of fact
would be significantly influenced by Officer Hoskin’s recapitulation of what officers told
her, or wrote down on interview cards, concerning the failure of Kevin M. and Martin M.
to assert appellant’s innocence at the time of his arrest. We therefore cannot say that the
erroneous admission of that recapitulation is reasonably likely to have affected the
outcome.
   II. Confrontation Clause
       Appellant also contends that the testimony was objectionable as a violation of his
right to confront his accusers under the Sixth Amendment of the United States
Constitution. (See also Cal. Const., art. I, § 15.) We need not determine the soundness of
this premise because, once again, we are unable to conclude that the admission of the
evidence could constitute reversible error under the governing standard of prejudice.
Had a sound confrontation-clause objection to the testimony been made and overruled in
the trial court, the error would be reversible on appeal unless we could declare it harmless
beyond a reasonable doubt. (See People v. Cage (2007) 40 Cal.4th 965, 992, citing
Chapman v. California (1967) 386 U.S. 18 (Chapman); id. at p. 996 [dis. opn. of
Kennard, J.]; People v. Geier (2007) 41 Cal.4th 555, 608 [“Confrontation clause
violations are subject to federal harmless-error analysis under Chapman v. California[,
supra, at p.] 24”].) But because no confrontation objection was lodged, appellant
forfeited any associated claim of judicial error. (See Evid. Code, § 353, subd. (a); People
v. Geier, supra, 41 Cal.4th at p. 609; People v. Riccardi (2012) 54 Cal.4th 758, 827,
fn. 33.) Therefore the confrontation issue is cognizable on appeal only under the rubric
of ineffective assistance of counsel.

                                            17
        A successful challenge on grounds of ineffectiveness of counsel requires a
determination that (1) counsel’s conduct “fell below an objective standard of
reasonableness” under “prevailing professional norms” (Strickland v. Washington (1984)
466 U.S. 668, 688 (Strickand)), and (2) there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different”
(id. at p. 694). It is unnecessary to address the first question unless the record is
sufficient to answer the second in the appellant’s favor. (See id. at p. 697 [“[A] court
need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . , that course should be followed.”]; People v. Price (1991) 1 Cal.4th 324,
440.)
        Respondent complicates things somewhat by supposing rather injudiciously that
the test for reversible error in this context is that of Chapman, supra, 386 U.S. 18, 24, i.e.,
whether the admission of the challenged evidence was harmless beyond a reasonable
doubt. This would indeed be the governing standard if the evidence had been admitted
over a meritorious confrontation-clause objection. (People v. Geier, supra, 41 Cal.4th
555, 608.) But again, the absence of such an objection in the trial court precludes any
appellate claim of evidentiary error as such. (People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1028, fn. 19; People v. Alvarez (1996) 14 Cal.4th 155, 186.) It has been
cogently suggested that the Chapman test should apply whenever counsel’s unexcused
omissions operate to forfeit important constitutional rights. (People v. Mesa (2006) 144
Cal.App.4th 1000, 1012-1015 (sep. opn. of Johnson, J.).) But such authority as we have
found is to the contrary. (See id. at pp. 1009-1010 (maj. opn.), citing Kimmelman v.
Morrison (1986) 477 U.S. 365, 374-375, 382, fn. 7, and People v. Howard (1987) 190
Cal.App.3d 41, 46-47.) We are therefore constrained, despite respondent’s implied

                                               18
concession, to apply the test enunciated in Strickland, supra, 466 U.S. at p. 694: whether
appellant has established “a reasonable probability that, but for counsel’s [posited]
unprofessional errors, the result of the proceeding would have been different.”
       For reasons discussed in the previous part, we do not believe the present record
satisfies this test. It is true that the identification evidence presented a close and difficult
case. But we are required to focus on the effect of the posited error, which was to permit
Officer Hoskin to relate matters beyond her personal knowledge, attributing them to
absent witnesses. As we have said, the difference between the matters thus admitted and
those otherwise established or suggested by the record appears too slight to sustain a
conclusion that a different result might well have followed without the former.
       We therefore affirm the jurisdictional order finding true the allegations of the
petition.
   III.     Probation Condition
       Appellant challenges a probation condition prohibiting association with gang
members, on the ground that it is not reasonably related either to the crime he was found
to have committed or to future criminality. The challenged condition states “[t]hat said
minor not knowingly associate with any person whom he knows to be, or that the
Probation Officer informs him to be, a probationer, parolee, or gang member.” Defense
counsel objected to this condition at the disposition hearing, stating, “I understand that
given the fact that [appellant] was with Christopher I believe that’s where the concern
arises. However, there’s been no indication that he has a history or pattern of hanging
around with other juvenile delinquents. So I ask the Court to consider striking 13 as
well.” The prosecutor replied that the condition was justified due to “association with a
co-part,” whatever that means. The probation officer stated, “[I]t’s actually a standard
order. Anyone that’s a ward on probation will receive [that condition].” The court



                                               19
adopted the condition on that basis, stating, “I do understand these are standard orders.
These are not full gang orders.”
       Appellant correctly asserts that the challenged condition has no demonstrated
relationship to this crime, appellant’s history, or any concrete risk of future criminality.
The record fails to show any risk whatever that appellant may become involved in gang
culture. He denied any “gang affiliation,” and nothing in the record casts doubt on that
denial. His mother reported without contradiction that “he ha[d] never presented any
behavioral issues within the family home, and ha[d] not demonstrated a problem with
drugs, alcohol, untreated mental illness, prior physically violent behavior, or gang
affiliation.” Indeed the probation report states that appellant “ha[d] reportedly never been
in trouble with the law” and had “no other known delinquent referrals in Santa Clara
County.” Reports of his performance while released on an electronic monitoring
program characterized his conduct as “exemplary” and “exceptional.” The probation
officer described him as “currently enrolled in an appropriate school program.” The only
explanation for the challenged condition appears in the report’s concluding statement that
“in view of the nature of the offense, and the delinquent status of the other minors
[appellant] was with at the time of the offense, this Officer respectfully recommends
[appellant] not . . . associate with others on probation, parole or gang members.”
       As this court recently reiterated, “When a probation condition ‘lack[s] any
reasonable nexus to . . . present or future criminality’ [citation], there is ‘no reasonable
basis for sustaining [the] condition’ [citation].” (People v. Brandao (2012) 210
Cal.App.4th 568, 574 (Brandao), quoting In re Babak S. (1993) 18 Cal.App.4th 1077,
1085.) The condition challenged there was identical in substance to the condition at issue
here. It was undisputed that the condition had “no connection to the crime of which
defendant was convicted.” (Brandao, supra, at p. 574.) The pivotal question was
therefore whether the condition was “reasonably related to a risk that [the] defendant

                                              20
[would] reoffend.” (Ibid.) This court concluded that it did not, and modified the
condition to eliminate the reference to gang members.
       We cannot blindly apply the rule of Brandao here, because that case concerned
limitations on the power of a criminal court to impose reasonable conditions when
placing an adult offender on probation. This case concerns the power of a juvenile court
to fashion probation conditions in the best interests of a minor who has been adjudicated
a ward of the court. The scope of the latter power may exceed that of a criminal court
sentencing an adult. “The juvenile court’s broad discretion to fashion appropriate
conditions of probation is distinguishable from that exercised by an adult court when
sentencing an adult offender to probation. Although the goal of both types of probation is
the rehabilitation of the offender, ‘[j]uvenile probation is not, as with an adult, an act of
leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor’s
reformation and rehabilitation.’ (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1089, 12
Cal.Rptr.2d 875, internal quotation marks omitted.) ‘[J]uvenile probation is not an act of
leniency, but is a final order made in the minor’s best interest.’ (1 Cal.Juvenile Court
Practice (Cont.Ed.Bar 1981) § 9.52, p. 256.)” (In re Tyrell J. (1994) 8 Cal.4th 68, 81,
overruled on another point by In re Jaime P. (2006) 40 Cal.4th 128, 130, 139.) “In light
of this difference, a condition of probation that would be unconstitutional or otherwise
improper for an adult probationer may be permissible for a minor under the supervision
of the juvenile court.” (Ibid.)
       It follows that a juvenile court might have discretion to restrict a minor’s
associational freedom on a lesser showing than would justify such a restriction with
respect to an adult offender. Here, however, there was no showing whatever of any
connection to gangs, past or prospective. The nearest the record came to suggesting such
a connection was the probation officer’s allusion to “the delinquent status of the other
minors [appellant] was with at the time of the offense.” But assuming that gang

                                              21
involvement by a minor’s companions would support a prohibition of the type at issue,
“delinquent status” is not “gang involvement.”
`Moreover, the record indicates that the court below did not really exercise any discretion
with respect to the condition in question. The court indicated that it was imposing the
condition, over appellant’s objection, based upon its “understand[ing]” that such an order
was “standard.” The court also alluded to the fact that the condition was “not [a] full
gang order[],” but that observation seems entirely beside the point. The question was not
whether the record could support a more onerous restriction than the one imposed but
whether it supported any restriction at all. The court expressly refused to address that
question on the ground that the proposed order was “standard.” Such a failure to exercise
a discretion vested by law is itself a form of error. (See In re Ronnie P., supra, 10
Cal.App.4th at p. 1091.)
       The case is usefully contrasted with In re Laylah K. (1996) 229 Cal.App.3d 1496
(disapproved on another point in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983,
fn. 4), where the court upheld gang-related prohibitions because the record showed a
“history reflect[ing] increasingly undirected behavior” and the appellants “were clearly in
danger of succumbing to gang pressures.” (Id. at p. 1501.) Here the evidence suggested
no gang pressure on appellant, let alone a danger of succumbing to it. Moreover the
record does not show “increasingly undirected behavior” but one instance of lawless
conduct in what otherwise appears to be a spotlessly virtuous record.
       Nor does this case resemble People v. Lopez (1998) 66 Cal.App.4th 615, 623,
where the defendant admitted his involvement with a gang but challenged the condition
on the ground that there was no evidence the crime at hand bore any relationship to gang
involvement. The imposition of gang-related conditions was held not an abuse of
discretion in light of the defendant’s “age, gang affiliation, and consistent and increasing
pattern of criminal behavior.” (Id. at p. 626.) Here, not only was appellant not a gang

                                             22
member; there was no suggestion of any likely avenue by which he might become a gang
member.
       So far as this record shows, the gang condition had no relation whatever to
appellant or to the crime he was found to have committed. The challenged condition
must therefore be modified to omit any reference to gang membership.
                                       DISPOSITION
       Condition number 13 (number 20 in the order of January 4, 2013) is modified to
state: “That said minor not knowingly associate with any person whom he knows to be,
or that the Probation Officer informs him to be, a probationer or parolee.” In all other
respects the orders appealed from are affirmed.




                                          ______________________________________
                                                     RUSHING, P.J.



WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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