Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J09-01131.
POLLAK, J.
INTRODUCTION
The minor, D.W., appeals from the jurisdiction and disposition orders of the juvenile court declaring him a ward of the court and committing him to the Department of Juvenile Justice. Following a court trial, the court found that D.W. had committed seven offenses, including one count of second degree robbery. Defendant contends that the principal witness with respect to the robbery charge was incapable of expressing himself coherently in English and should have been disqualified as a witness, that the amount of restitution that was ordered is excessive, and that the maximum term of his commitment was incorrectly calculated. The Attorney General acknowledges an error in the designation of the maximum term of commitment, which we shall correct, but we shall otherwise affirm the judgment.
STATEMENT OF FACTS
At the jurisdictional hearing, there was testimony of the following facts. On July 22, 2008, Faiz Algharazi was in his office at the rear of the J&S Market in Richmond and his clerk, Helmy Hugais, was manning the cash register. At around 9:00 p.m., Algharazi observed in the security camera either two or three masked men dressed in black enter the store and approach Hugais at the cash register. One of the masked men, wearing a mask covering the bottom half of his face, went to the back office and confronted Algharazi. Algharazi testified that he was able to clearly see the skin color, eyes, and hair, among other physical traits of the man. Algharazi testified that the man pointed a silver and black gun at him and ordered him to “put your hands up.” The masked man then demanded, “give me the money” and told Algharazi to go “down on the floor.” After patting down his waist area and finding no weapon, the masked man told Algharazi to “wake up, ” indicating that he should stand and not look at him. Algharazi told the intruder that “we didn’t have no money” but after the man stated “give me the money, I’m going to kill you, ” Algharazi handed him an envelope containing $8,000 in cash. The masked man and his cohorts, who had taken additional cash out of the cash register and from Hugais’ wallet, then fled.
Algharazi and Hugais reported the robbery to the police. One or two days later they saw the men they believed were the robbers in a car near the store and they immediately notified the police. Police detained the car and Hugais and Algharazi then independently identified D.W. as the masked man who had taken the money from Algharazi. Algharazi again identified D.W. in a subsequent photo lineup and at trial.
The Contra Costa County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging that D.W. had committed seven offenses: second degree robbery (Pen. Code, §§ 211, 212), possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of marijuana for sale (Health & Saf. Code, § 11359), reckless driving (Veh. Code, § 2800.2), hit-and-run driving (Veh. Code, § 20002, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). The robbery count included two enhancements for personal use of a handgun (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). The juvenile court sustained the petition as to all counts.
At the disposition hearing, the court adjudged D.W. a ward, committed him to the Department of Juvenile Justice for a maximum term of commitment of 18 years six months, and ordered him to pay victim restitution of $10,000, for which he and the others involved in the robbery were jointly and severally liable. D.W. filed a timely notice of appeal.
DISCUSSION
The trial court did not err by failing to appoint an interpreter
Algharazi was the principal witness identifying D.W. as the person who robbed him. His first language is Arabic and as readily appears from the transcript his command of English is halting. Near the start of his direct examination, D.W.’s attorney stated, “Your Honor, I have some concerns about language issues here.” At other points during his testimony the attorney asserted that Algharazi had failed to understand a question put to him, and unsuccessfully objected to leading questions with which his testimony was clarified. Nonetheless, at no point did the attorney assert that Algharazi was incompetent to testify or that he should be required to testify through an interpreter. On appeal, D.W. contends that under Evidence Code section 701 Algharazi was incompetent to testify and that because of the critical witness’s lack of understanding D.W. was denied his constitutional rights of confrontation and due process.
The failure to object to the testimony on the grounds raised for the first time on appeal may well have forfeited the right to assert those grounds on appeal. (People v. Romero (2008) 44 Cal.4th 386, 411 [failure to object “precludes [defendant] from now asserting errors relating to the witness interpreters”].) Nonetheless, because counsel did direct the trial court’s attention to his concern over the witness’s command of the English language, we shall consider his contentions on the merits.
Evidence Code section 701, subdivision (a)(1) provides that a person is disqualified to be a witness if “[i]ncapable of expressing himself or herself concerning the matter so as to be understood either directly or through interpretation by one who can understand him.” Evidence Code section 752, subdivision (a) provides, “When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court and jury, an interpreter whom he or she can understand and who can understand him or her shall be sworn to interpret for him or her.”
D.W. bases his argument primarily on the asserted incompetence of Algharazi. However, the trial court more than once stated that while Algharazi “just wants to get to the point” by providing narrative answers to limited questions, he understood the questions that were put to him and provided understandable responses. When asked by defense counsel whether he was able to understand the prosecutor’s questions, Algharazi responded that he did and assured counsel that he would indicate if he did not understand a question. Only in cases of clear abuse of discretion may we depart from a trial court’s determination concerning the competency of a witness. “The burden of proving a witness’s incompetence lies with the objecting party.” (People v. Augustin (2003) 112 Cal.App.4th 444, 448.) “Capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion.” (People v. Anderson (2001) 25 Cal.4th 543, 573.) “Unlike a witness’s personal knowledge, a witness’s competence to testify is determined exclusively by the court.” (People v. Lewis (2001) 26 Cal.4th 334, 360.) D.W. makes no reference in his appellate briefs to Evidence Code section 752, but the trial court’s discretion to determine when an interpreter is required under section 752 undoubtedly is equally broad.
While Algharazi did not have command of the English language with the facility of a native speaker, there is no basis to disagree with the trial court’s determination that he understood the questioning and that his testimony was comprehensible. Algharazi acknowledged that he was more comfortable speaking Arabic than English, but he testified that he spoke both languages. When asked, he told defense counsel he understood “the word comfortable” in this context.
In one excerpt of Algharazi’s testimony cited by D.W. in support of his argument, defense counsel asked, “Mr. Algharazi, while you’re inside of the office, is there any equipment which allows you to see the cash register?” Algharazi responded, “Yeah. I go to the office, and I look, two guys. He come in to Helmy.” After attempts to restate the original question, the court interjected, telling Algharazi “All I need you to do is really listen to the question, and he’s going to move one step at a time. And so all he’s asking right now is what kind of equipment is back there that lets you see the cash register.” Algharazi then answered, fully responsively, “Okay, the camera. The camera, yeah.”
In another example cited by D.W., defense counsel questioned Algharazi about a conversation with his brother in which the brother told him that workers at a nearby market had observed a person they thought was D.W. purchase the masks that appeared to be those worn by the robbers. Although Algharazi’s testimony over several pages of transcript contains inconsistencies (particularly as to whether this conversation was with his brother or with Hugais) and is often confusing, there is no indication that Algharazi did not understand the questions put to him or responded unintelligibly. After numerous clarifying questions, by counsel and the court, Algharazi unequivocally confirmed that “your brother told you that the people at the Fourth Street Market told him that before the robbery some people had come in to buy masks” and that “your brother told you that the Fourth Street Market people thought it was [D.W.] that had bought the masks.” As in Augustin, “[t]he victim’s recorded testimony in the present case was comparatively coherent, and taken as a whole, provides sufficient evidence to support the finding that [he] was competent to testify.” (People v. Augustin, supra, 112 Cal.App.4th at p. 449.) Moreover, because the court was the trier of fact, there was no need to determine whether each of 12 jurors could understand Algharazi; what was critical was that the judge and the defendant could understand him. The court obviously did, and there is no indication that defendant or his attorney were unable to do so.
Although this testimony obviously was hearsay, it was elicited by the defense over the prosecutor’s objection in an apparent attempt to undermine the basis for Algharazi’s identification of D.W. as the robber.
Were confirmation of Algharazi’s ability to communicate in English necessary, the trial court’s perception was confirmed by the fact that immediately after the robbery, Officer John Lopez spoke with Algharazi without the aid of an interpreter. Lopez testified that Algharazi was able to provide a description of the suspect based on “height, weight, hair color and eyes” and a description of the gun that was used. The officer gave no indication that he was unable to understand Algharazi or that there was anything about the descriptions Algharazi provided that suggested he misunderstood any of his questions or provided incoherent responses. The trial court did not abuse its discretion in allowing Algharazi to testify without an interpreter, nor was D.W. deprived of any constitutional rights.
Restitution was appropriately fixed at $10,000
D.W. contends the trial court abused its discretion in fixing the amount of restitution. The Attorney General argues that the objection has been forfeited because it was not raised in the trial court. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) While there apparently is merit in the Attorney General’s contention, we have no hesitation in concluding that the amount of restitution set by the trial court was not an abuse of discretion.
Under Welfare and Institutions Code section 730.6, subdivision (h), the court is required to order restitution in an “amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor’s conduct for which the minor was found to be a person described in [Welfare and Institutions Code] Section 602, including all the following: [¶] (1) Full or partial payment for the value of stolen or damaged property....” We review the juvenile court’s restitution order for abuse of discretion. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) A court abuses its discretion by acting contrary to law, by failing to use a rational method that can reasonably be said to make the victim whole, or by making an order that is arbitrary, capricious or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Anthony M., supra, at p. 1016.)
D.W. contends the juvenile court abused its discretion in that the court did not conduct a restitution hearing and arbitrarily set the amount of restitution at $10,000 even though the envelope Algharazi handed over contained only $8,000. However, D.W. did not request a hearing to determine the amount of restitution and the record fully supports the amount fixed by the court. In addition to the $8,000 contained in the envelope, the probation report refers to stolen $1,500 “cash from the register” and cash from the clerk’s wallet. The $10,000 figure is thus amply supported by the record and involves no abuse of discretion.
The maximum term of commitment must be corrected
The Attorney General acknowledges that the trial court erroneously designated the maximum term of commitment as 18 years six months. Included in this total is eight months on the count for possession of methamphetamine (Health & Saf. Code, § 11378) and one year on the count for transportation of a controlled substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)). However, as the Attorney General agrees, the two counts arose from the same course of criminal conduct, D.W.’s transportation of methamphetamine on October 17, 2008. Under Penal Code section 654, sentence may be imposed only for the offense carrying the longer term. The longer of the terms is the one-year sentence on the transportation count so that the eight-month sentence for possession must be stayed. The maximum term of commitment therefore must be reduced to 17 years 10 months.
DISPOSITION
The judgment and abstract of judgment shall be modified to state that the maximum term of commitment is 17 years 10 months. In all other respects, the judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.