Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TJ14685, Catherine J. Pratt, Commissioner. Reversed and remanded with directions.
Tonja R. Torres, 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, Assistant Attorney General, Linda C. Johnson, and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
The minor B.B. a ward of the juvenile court, appeals from an order finding her in violation of probation and ordering her into suitable placement. On appeal, the minor contends the finding should be reversed because it was based solely on inadmissible hearsay testimony. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2005, the minor, then 12 years old, admitted she had committed misdemeanor battery as alleged in an amended Welfare and Institutions Code section 602 petition. The juvenile court sustained the allegation and placed the minor on probation without wardship under section 725, subdivision (a). Among the probation conditions were that she obey all instructions of her guardians.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
A probation officer’s report prepared a year later showed the minor had been suspended on three occasions from school for disruptive and combative behavior, and needed additional counseling sessions. The juvenile court terminated the minor’s section 725, subdivision (a) probation, and adjudged her a ward of the court. The minor was ordered home on probation, released to the custody of her cousin as guardian, with the previous conditions of probation to remain in full force and effect.
On November 15, 2007, a section 777 petition was filed for alleged probation violations, which the minor admitted on December 5, 2007. The juvenile court ordered the minor to remain a ward of the court, continued the order for her to remain home on probation and, over objections by the prosecutor and probation officer, ordered the minor released to the custody of Tiesha W. as guardian. The probation officer concluded suitable placement would be of greater benefit to the minor.
Tiesha W.’s first name also appears in the record as “Keisha” and “Tisha.”
On March 5, 2008, a second section 777 petition was filed, which included a report by Lolita Walker, the minor’s probation officer. The petition alleged the minor, then 15 years old, had repeatedly failed to comply “with the guardian’s [Tiesha W.’s] instructions to obey the rules in the home.” The minor denied the allegations.
A contested probation violation hearing was held on March 24, 2008. The minor’s probation officer, Lolita Walker, was the only witness for the People. Walker identified the minor, and over defense counsel’s objections, testified the minor was in violation of probation by breaking items in Tiesha W.’s home, stealing bus tokens belonging to Tiesha W.’s daughter, destroying a camera battery and frequently feuding with the daughter. As a result, Tiesha W.s wanted the minor removed from her home.
Defense counsel objected to Walker’s testimony on hearsay grounds. The prosecutor indicated Tiesha W.s was not present to testify. The juvenile court overruled the objection, noting, “Under [section] 777, reliable hearsay is admissible. I will allow it, and we’ll [sic] expect some sort of explanation of the nature of how she obtained the information.” Walker testified she learned of the probation violations in two telephone conversations with Tiesha W.s, as Walker reported in the section 777 petition filed on March 5, 2008, and which formed the basis of Walker’s hearing testimony. No other evidence was introduced by the prosecutor.
The minor testified as the only defense witness and denied the allegations. According to the minor, she and Tiesha W.s’s teenage daughter initially shared a bedroom, but later the minor was moved into the living room. The missing bus tokens were recovered in the belongings of the daughter, the minor had her own camera battery and never destroyed the daughter’s battery, the minor was never told about any broken items, and, in any event, she had never broken anything in Tiesha W.s’s home. The minor admitted she and the daughter argued occasionally.
Following the presentation of evidence and argument by counsel, the juvenile court found, by a preponderance of the evidence, the minor had willfully violated probation as alleged in the petition and ordered her into suitable placement.
DISCUSSION
The minor contends the juvenile court abused its discretion and violated her right to confrontation by admitting hearsay testimony rather than requiring the live testimony of Tiesha W.s, the only percipient witness to her alleged probation violations.
Section 777, subdivision (c) provides, “The facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order. The court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown,215 Cal.App.3d (1989) and any other relevant provision of law.” (People v. Brown (1989) 215 Cal.App.3d 452, 454; In re Oscar R. (2002) 101 Cal.App.4th 1370, 1378-1379; In re Kentron D. (2002) 101 Cal.App.4th 1381, 1388-1390; see People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160.) Hearsay evidence therefore maybe admissible at a probation violation hearing if such evidence bears a substantial degree of trustworthiness. (Brown, supra, at pp. 454-455.) “In general, the court will find hearsay evidence trustworthy when there are sufficient ‘indicia of reliability.’ [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. [Citation.]” (Ibid.)
California Rules of Court, rule 5.580(e), provides, “(e) Evidence considered[.] The court must consider the report prepared by the probation officer and other relevant and material evidence offered by the parties to the proceeding. [¶] (1) The court may admit and consider reliable hearsay evidence as defined by section 777(c).”
However, reliability is not the end of the analysis. Where such evidence is testimonial, the California Supreme Court has reiterated the well-established principle that “the need for confrontation is particularly important” and we cannot dispense lightly with the defendant’s right at a probation hearing to confront and cross-examine witnesses. (Arreola, at pp. 1157-1159.) Accordingly, reliable testimonial hearsay evidence may be admitted only for good cause. “The broad standard of ‘good cause’ is met (1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.” (Arreola, at pp. 1159-1160.)
Here, the People relied solely on Walker’s hearsay testimony as evidence; in admitting it into evidence, the court presumably found it to be reliable. However, Tiesha W.s did not appear at the probation violation hearing, and the People made no attempt to show that she was unavailable or that there were other grounds for a finding of good cause. (See In re Kentron D., supra, at p. 1393; People v. Cromer (2001) 24 Cal.4th 889, 901.) The record contains no such finding.
Because the hearsay testimony was the sole evidence upon which the finding of a violation was based, we cannot find beyond a reasonable doubt the error did not contribute to the juvenile court’s determination the minor violated her probation. (See In re Kentron D., supra, at p. 1394, citing Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 7 L.Ed.2d 705].) The finding is reversed.
We disagree with the People’s attempts to characterize the minor’s hearing testimony to provide sufficient evidence for a violation. (Arreola, supra, 7 Cal.4th at p. 1161.) Evidence, not speculation, is required.
DISPOSITION
The order is reversed, and the matter is remanded to the juvenile court for a section 777 hearing consistent with this opinion.
We concur: PERLUSS, P. J., JACKSON, J.