Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J217-744, Lawrence Kapiloff and Andrew Kurz, Judges.
HUFFMAN, J.
The juvenile court adjudged Jonathan M. a ward of the court (Welf. & Inst. Code, § 602) after making a true finding that he had inflicted injury on his live-in girlfriend (the mother of his child), Georgina M. (Georgina; Pen. Code, § 273.5, subd. (a), count 1). The court dismissed a count of unlawful removal or obstruction of a telephone (Pen. Code, § 591, count 2). The court placed Jonathan on probation at the home of his parents, subject to numerous conditions.
Jonathan appeals the true finding on count 1, contending it must be reversed because the trial court abused its discretion by failing to exclude out-of-court statements in the form of tape recordings and transcripts of Georgina's two telephone calls to 911 police dispatch, reporting that Jonathan hit her and ran away, and she wanted him arrested. He argues the calls and transcripts contained inadmissible hearsay statements, and moreover, their admission violated his constitutional right to confront his accuser at trial. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) Jonathan next argues that without the hearsay statements, no substantial evidence supports the true finding, and reversal is required. He also challenges several of the conditions of probation imposed as overbroad and unreasonable.
As discussed below, we agree that the trial court abused its discretion in admitting the out-of-court statements, because no foundation for them was established, after Georgina refused to testify on Fifth Amendment grounds. No alternative, adequate means of authentication were pursued, so that the statements remained inadmissible hearsay, and their erroneous and prejudicial admission requires reversal. We reverse the true finding on count one for evidentiary error, and consequently need not reach either the confrontation claims or the challenges to the probation conditions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident
The record as augmented includes the reporter's transcript of court proceedings and also transcripts of two 911 calls (the "911 materials"). It is not disputed that on August 19, 2007, Jonathan and Georgina were a teenage couple (ages 15 and 17, respectively) living together with their three-month old baby at the home of Jonathan's parents. After they argued about his use of the telephone to call someone, Georgina placed a 911 call at 11:56 a.m. from the next-door neighbor's house. She told the operator that Jonathan hit her and was most likely going to run away. She was not in need of an ambulance, and had already called her mother and planned to leave the house, when Jonathan unclicked the phone as she started to call the police. The dispatcher said that she would send police to the neighbor's house, where Georgina was at the time.
Shortly thereafter, San Diego Police Officer Kyle Kelley was dispatched and arrived at the house. He found Georgina crying and emotionally upset, and he could see scratches on her face. He did not remember that she had a child with her. Kelley and Georgina went back to Jonathan's house and looked at the bathroom, where there was broken mirror glass that had fallen to the floor. Jonathan was not at the house. Another officer arrived and took several photos of the scene and of Georgina's injuries, which included redness underneath her right bicep. The officers left.
Later that afternoon, Georgina placed another 911 call at 5:13 p.m., and told the operator that she already had a case number and had been threatened by that person and wanted to get him arrested, because he was looking for her. She said that after her first police report, she went back to the house to pick up her baby's stuff, and Jonathan came out "trying to act aggressive" against her and threatening that she "was go[ing] to pay for everything that [she was] doing," and he was going to look for her. The dispatcher sent out another police officer to take a report.
On December 20, 2007, the People filed a petition pursuant to section 602 alleging that Jonathan had inflicted injury on Georgina (Pen. Code, § 273.5, subd. (a)), and had unlawfully removed or obstructed a telephone (Pen. Code, § 591, count 2).
B. Jurisdictional Hearing; Dispositional Hearing
Trial on the petition began on February 29, 2008. Before evidence was taken, the court remarked, "I understand you have a tape." An attorney acting for Georgina then addressed the court, as follows: "Before we go to that, I've been asked to counsel a witness named Georgina [M.] She's the alleged victim in this case.... I'm asking to be appointed. If there can be a stipulation, she has stated she will be invoking her Fifth Amendment rights." The court agreed to appoint that attorney, explaining to other counsel a proposed procedure: "It's my understanding that the attorney representing the victim in this case -- the alleged victim in this case has indicated she will invoke her Fifth Amendment rights in this instance. Is it necessary to go through the steps of putting her on and having her state this on the record or can it be stipulated that that is what she will do?"
In response, counsel for the People stated that she would be calling Georgina as a witness because she planned to ask particular questions to which there should be no objection. The court then listened to the first 911 tape recording. Before the second tape was played, counsel for Jonathan objected that the matter was hearsay, and was not being offered for any proper purpose, such as impeachment. The court told counsel, "We should have put her on first then. But [¶] I'm going to continue to hear this and let you put the person on. It's quarter after 11 now, and I want to get through with this thing. Put on the next tape." The second 911 tape recording was then played. The court then told the prosecutor to call her first witness, Georgina.
Georgina testified about living with Jonathan and their baby at his parents' home on August 19, but she refused to answer any further questions about calling the police or having scratches on her face: "On advice of counsel I take the Fifth to remain silent." When the prosecutor objected, Georgina's appointed attorney said: "Your Honor, this is a situation where I think that she's already been told by the prosecution she could be facing charges for making a false police report. Anything regarding this incident on that date she will be asserting her Fifth Amendment rights." The court agreed she had a right to do that, and made findings that "she's... unavailable" and would not be subject to recall to authenticate her voice on the tape.
In response, counsel for Jonathan made a motion to dismiss on the ground that he was effectively prevented from exercising his right to confront and cross-examine witnesses against him. The court denied the motion, stating that even though Georgina was unavailable, the court could go forward to hear other testimony from the police officer, because "I don't know what's going to happen, so I'm not going to dismiss at this point in time."
Officer Kelley testified about responding to a request for assistance on a domestic violence matter, and his observations at the scene. Although the prosecution's trial brief contained allegations that Jonathan had shoved Georgina into the bathroom mirror, which broke it, no such evidence was directly presented at trial. The prosecutor rested her case after requesting that the 911 tape recordings and transcripts be entered into evidence.
The defense did not offer any evidence, and again sought dismissal for lack of confrontation and because the statements were given some time after the actual incident occurred, so it was unclear whether the witness was telling the truth on the phone call. The defense argued the 911 material should be excluded, because it was "being offered as testimonial evidence. There is no other testimony as to the crimes alleged other than the words that are on that 9-1-1 tape. And based on Crawford [v. Washington, supra, 541 U.S. 36], my client has no ability now under the Constitution to cross-examine his accuser." In response, the court made these comments:
"The problem with that is I sit and hear I don't know how many of these domestic violence cases, and you couldn't get anywhere because the victim has rescinded either out of fear or whatever and we never would get to it. I disagree with you. It seems to me that I have photographs of the victim taken by the police. He noticed scratches and so forth, and a call to 9-1-1. I'm going to allow the tapes."
After argument, the court continued to explain its findings:
"Domestic violence has been occurring ever since we left the caves. And it's only recently that we've tried to do something about it to protect not only women in an instant like this, but partners in a relationship. It seems to me because of the law, because the way the law was written and because of the evidence we can take in these cases, many times a judge goes out far on that limb as to perhaps going too far and not being sustained by a higher court. But as far as I'm concerned, I'm willing to risk that, because it seems to me in this instance there's no question in my mind looking at the slightness of this young lady, hearing the tapes where she's very upset and fearful, looking at the scratches on her face, and what has happened -- yes, she changed her mind. My goodness, if I had a dollar for every time a woman changed her mind in a situation like this in my almost 14 years now -- as a matter of fact, 14 after I retired, three more before -- I could really retire, because that happens. And it angers the court that this happens, because these young people sometimes don't understand how serious that can become over a period of time, and we can't condone it."
The court then found count 1 to be true beyond a reasonable doubt as a misdemeanor pursuant to section 17(b)(4) of the Penal Code, and dismissed count 2.
At the dispositional hearing, the juvenile court continued Jonathan as a ward of the court and placed him on probation on numerous conditions (e.g., 8:00 p.m.-6:00 a.m. curfew, restriction of travel to Mexico, and not living with Georgina and their baby). The court found it was unnecessary to commit him to a 90-day Short Term Offender Program (STOP), although another treatment program was ordered (CHOICE).
Jonathan appeals.
DISCUSSION
Jonathan contends the trial court abused its discretion when admitting the 911 materials, because they were out-of-court statements offered for the truth of their contents, but they lacked any adequate foundation in the evidence to ensure their trustworthiness and completeness under a hearsay exception. He argues there was no adequate showing they qualified as spontaneous statements (Evid. Code, § 1240), business records (Evid. Code, § 1271), or official records created by a public employee (Evid. Code, § 1280), and the trial court should have ruled that they were statutorily barred on hearsay grounds.
Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
Alternatively, he says the admission of the 911 materials violated his rights under the confrontation clause of the Sixth Amendment of the federal Constitution, due to the lack of authentication by and confrontation of Georgina. (Evid. Code, § 405; Crawford, supra, 541 U.S. 36; Davis v. Washington (2006) 547 U.S. 813 (Davis).) Jonathan claims that without the out-of-court statements, there is no substantial evidence supporting the true finding. He further argues the conditions of probation imposed were excessive and unduly burdensome.
When deciding whether evidentiary error is reversible error, the appellate courts consider whether the trial court's exercise of discretion in admitting or excluding the evidence was so arbitrary or absurd as to create a miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).) Even if such an abuse of discretion is found, reversal is not warranted unless it is reasonably probable that a more favorable result would have occurred had the evidence been excluded. (Ibid., citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Although the trial court's ruling on the admissibility of evidence is generally reviewed for an abuse of discretion, such discretion must be exercised within the parameters of the evidentiary rules requiring that a foundation be established for the evidence offered, and in consideration of all the relevant circumstances, as we next outline. (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) As we will explain, our resolution of the evidentiary challenge makes it unnecessary for us to address Jonathan's alternative constitutional arguments.
I
PRESENTATION AT TRIAL; HEARSAY RULES
" 'Hearsay evidence,' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) Where the evidence is not offered for its truth, it need not be considered to be hearsay. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 435.) The prosecutor did not dispute that the 911 materials were hearsay, but sought to show they came within several hearsay exceptions, and were therefore probative on the truth of their assertions.
Before the second tape was played, the court acknowledged Georgina should have been put on the witness stand before the first tape was played, but the court continued to hear the matter, possibly because "It's quarter after 11 now, and I want to get through with this thing." The court then told the prosecutor to call her first witness, Georgina. Before receiving the tapes into evidence, the court was made aware that Georgina had been told by the prosecution she could be facing charges for making a false police report, which led to her decision to assert her Fifth Amendment rights and become unavailable as a witness. Later, Officer Kelley did not attempt to authenticate the tape.
Thus, neither Georgina nor anyone else identified the voices on the 911 tapes nor testified that the tapes or transcripts were accurate and complete reproductions of the conversations. Counsel for Jonathan objected several times on hearsay and constitutional grounds to admissibility at the time and in closing argument, but was overruled.
It was up to the judge to determine the existence or nonexistence of the preliminary facts in deciding whether to admit the evidence. (Evid. Code, § 405, subd. (a); 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 59, pp. 90-92.) Since a tape recording is considered to be a "writing" under Evidence Code section 250, its admissibility depends on foundational rules for writings, as well as hearsay rules regarding its content. (See 2 Witkin, Cal. Evidence (4th ed. 2000)Documentary Evidence, § 12, p. 142; 3 Witkin, Cal. Evidence, supra, Presentation at Trial, § 148, pp. 212-213.) "The usual way of laying a foundation for the playing of a recording is to call a participant or monitor to testify that the conversation was accurately recorded. But this method is not exclusive. Ev.C. 1410 et seq. sets forth methods to establish a writing's authenticity." (3 Witkin, Cal. Evidence, supra, Presentation at Trial, § 148, pp. 212-213.) Such a foundation for authentication is laid by "the introduction of evidence sufficient to sustain a finding." (Evid. Code, § 1400; 2 Witkin, Cal. Evidence, supra, §7, p. 140.) "The lack of a sufficient foundation, however, must be raised by a specific objection, or the defect is waived." (Ibid.)
Accepting that Georgina's statements during the 911 call constitute hearsay and that the hearsay objections were adequately preserved, we next consider whether the trial court abused its discretion in determining that her statements fell within one or more exceptions to the hearsay rule. Originally, the prosecutor sought to bring in the 911 materials under the business records exception (Evid. Code, § 1271), or the exception for official records created by a public employee (Evid. Code, § 1280). The issue of prior inconsistent statements was briefed but not argued at trial. (Evid. Code, § 1235.) The respondent's brief does not rely on any of those arguments and it appears that they have been abandoned.
Jonathan addresses those grounds on appeal, continuing to argue there was an insufficient foundation for the admission of the 911 materials on any theory, because there was no evidence presented from Georgina or from police personnel that the recordings were an accurate reproduction of the conversation, and there was no evidence as to the identification of the voices on the recording.
The official records hearsay exception is closely related to and based on the presumption of proper performance of official duty, pursuant to Evidence Code section 664. (Evid. Code, § 1280; Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 78.) By contrast, here the prosecutor was seeking to show that Georgina's statements on the tapes were reliable, because they were made in a 911 call; however, this approach failed to account for the fact that she as a reporting party had no official duty to be accurate and complete (as further discussed below). To the extent that either the business or official records exceptions are still pursued here by the People, they do not provide any basis to deem the 911 materials to be reliable reports of their contents.
II
OTHER HEARSAY EXCEPTIONS
The People also rely on authorities such as People v. Fonville (1973) 35 Cal.App.3d 693, 708-709 (Fonville), where the trial court relied on Evidence Code section 1421 to allow authentication of a jailhouse tape recording that included the defendant's hearsay statements about what he told the police about his state of intoxication and the victim's activities. The appellate court approved their admission, even without authentication by a testifying witness, on the grounds that the contents of the tape were "matters that are unlikely to have been known by anyone other than the appellant. In effect, the conversation proves itself." (Fonville, supra, at pp. 708-709.)
Section 1421 of the Evidence Code states: "A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing."
A few other cases also use this type of approach for authenticating hearsay by its own content, although the authors of Witkin's California Evidence treatise cite a law review article that criticized the result in Fonville, supra, 35 Cal.App.3d 693, for its "laxity" of analysis. (2 Witkin, Cal. Evidence, supra, § 19, p. 147, citing 52 So.Cal.L.Rev. 1290, 1298.) For example, in People v. Gibson (2001) 90 Cal.App.4th 371, 383, certain manuscripts found in a sex trade defendant's residences, describing prostitution businesses similar to those that she operated, were admitted into evidence after only a general authentication because, "[t]he law is clear that the various means of authentication as set forth in Evidence Code sections 1410-1421 are not exclusive. Circumstantial evidence, content and location are all valid means of authentication [citing People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373; Young v. Sorenson (1975) 47 Cal.App.3d 911, 915]." It was enough for the appeals court in that case that, "[w]e have taken judicial notice of and examined the manuscripts. There are clear references to the author [using appellant's aliases]. The evidence clearly showed that appellant was operating as a madam, that the manuscripts discussed the prostitution business, and that the locations where these items were seized were each a residence of appellant. Moreover, no evidence showed that these items belonged to anyone else. Therefore the manuscripts were properly authenticated." (Gibson, supra, at p. 383.) This analysis sweeps too broadly and is not helpful here.
Even though the 911 materials consist of recordings and transcripts (writings) that begin with the answering party's identifying herself as "911 emergency" or "San Diego police," those portions of the contents do not guarantee the accuracy of the remainder of the account of what happened that day, as given by the caller (Georgina). The 911 material provides the only direct evidence of the elements of the offense and the identity of the perpetrator, since Georgina (after testifying she was still engaged to Jonathan and lived with him and their baby) made herself unavailable, due to the prosecutor's threats to bring charges against her for a false police report. The responding police officer could report only his own observations and activities. The prosecutor did not show that the 911 materials were admissible pursuant to hearsay exceptions in the categories of official or business records, prior inconsistent statements, or self-authentication by content.
Accordingly, this case hinges upon whether the spontaneous statement hearsay exception is sufficient as a basis for admissibility, or if not, if such evidentiary error was prejudicial.
On appeal, Jonathan claims that he may have received ineffective assistance of counsel if his trial counsel failed to adequately object to admission of the 911 materials, or move to strike, or if other objections were not adequately pursued (e.g., probation conditions). There is no companion writ proceeding establishing a record on why counsel made these tactical decisions, and we need not reach the claim of ineffective assistance of counsel on the current record. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
III
SPONTANEOUS STATEMENTS CRITERIA; CONFRONTATION CLAUSE COMPARED
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court 'necessarily [exercises] some element of discretion....' [Citation.]" (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588-1589.) "But ultimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter." (People v. Farmer (1989) 47 Cal.3d 888, 903-904, disapproved on other grounds by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
In People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522, this court provided an overview of the basis for the spontaneous statement exception, and the necessary prerequisites for admitting a hearsay statement pursuant to Evidence Code section 1240:
" 'The foundation for this exception [in the common law] is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury.' [Citations.]... 'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citation.]' [Citation.]"
The focus should be on whether Georgina's statements were made in a context showing they resulted from circumstances of nervous excitement that would have allowed her no time to reflect or embellish the truth. Such hearsay arguments against admissibility of this 911 material are intertwined with Jonathan's claims that his right of confrontation by the witness against him was violated. The authors of 5 Witkin, California Criminal Law (3d ed. 2000) Criminal Trial, section 538, page 769, explain that hearsay rules and the right of confrontation protect similar values, but they remain distinct in application. In each body of law, distinctions are drawn between "testimonial" and nontestimonial statements in determining admissibility of evidence. (Id.; 2008 suppl. pp. 286-295.) The rule of Crawford, supra, 541 U.S. 36, states that with only a few exceptions, "the Confrontation Clause of the Sixth Amendment allows admission of an out-of-court testimonial statement only if the witness is unavailable and there was prior opportunity for cross-examination...." (5 Witkin, Cal. Criminal Law, suppl., Criminal Trial, § 538, p. 286.)
In Davis, supra, 547 U.S. 813, following up on the concepts in Crawford, supra, 541 U.S. 36, the high court rejected the contention that domestic violence cases are entitled to greater flexibility in the use of testimonial evidence. (Davis, supra, at pp. 832-833.) In that case, different circumstances giving rise to several 911 calls in the domestic violence context were analyzed differently, as explained (in sequence) by the authors of 3 Witkin, California Evidence, 2008 supplement, Presentation of Evidence, section 21, page 13 as follows: "(a) victim's statements in response to 911 operator's questions were not testimonial; (b) victim's statements made to police, who arrived at scene after crime was complete, were taken in course of investigation and hence were testimonial...." (Ibid.)
If such 911 materials were not presented for a testimonial purpose, the court considering their admissibility would be required to rely on state rules of evidence, including hearsay rules. (People v. Cervantes (2004) 118 Cal.App.4th 162, 173.) "Crawford stated: 'Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law....' [Citation.] Thus, state courts may consider 'reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. [Citation.]' [Citation.]" (Ibid.)
We are mindful that the courts will not reach constitutional arguments if it is unnecessary to do so, such as where state law principles are dispositive of the issues presented. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1356-1357.) However, in this context, the parties have argued the evidence both ways, and we do not ignore the constitutional rules on the right of confrontation in this context. As a threshold matter, the record is inconclusive on whether the 911 materials were presented as testimonial evidence from Georgina, so both hearsay rules and confrontation criteria may shed light on the issues here, at least to the extent of analyzing the foundation for it. The primary issue presented is whether these were out-of-court statements considered for the truth of their assertions. (Evid. Code, § 1200) Whether Georgina's statements to the 911 operators qualify for admissibility under the spontaneous statement rules, as presumably reliable accounts of the charged offenses, is a different foundational issue from the question of whether constitutional principles protecting the right of confrontation of witnesses were offended here.
IV
DISCRETION OF COURT; EVIDENTIARY ANALYSIS
Officer Kelley's testimony regarding his interview with and observations of Georgina was the only direct evidence presented about the offense. Kelley did not witness any argument between Jonathan and Georgina, but when called to the scene, he noticed scratches on her face, her emotional upset, and the broken glass where she told him the incident occurred. Photographs of the scene and her injuries were introduced into evidence. This circumstantial evidence does not necessarily, beyond a reasonable doubt, demonstrate that such an offense occurred, nor conclusively pin it on Jonathan. Without an adequate foundation for the 911 materials, evidentiary error in admitting them would justify reversal on this ground only if it is reasonably probable that a more favorable result for Jonathan would have been reached in the absence of such error. (See Rodrigues, supra, 8 Cal.4th 1060, 1125.)
Certainly, the record here contains some indications that Georgina, in the first call, was still experiencing the immediate traumatic effects of the reported fight with Jonathan, which could support the applicability of this exception. In the tape, she told the 911 operator that Jonathan hit her, although she did not say how long ago, and she said she was not injured to the extent of needing an ambulance. After she had called her mother and planned to leave the house, Jonathan had reportedly unclicked the phone when she started to call the police. She then went to the neighbor's house to call 911, and the responding police officer did not see her baby with her at the time. Those facts are somewhat equivocal as to whether, when making the call, she was under the immediate stress of excitement caused by a perception of a threat. (E.g., how long had she been gone from the house and where did she take her baby?) These circumstances are not as extreme or as closely tied to the exciting event as some that have been described in case authorities. (See, e.g., People v. Brenn (2007) 152 Cal.App.4th 166, 173, in which statements made by a stabbing victim in a 911 call placed minutes after the stabbing were found admissible as spontaneous utterances.)
In her second call, there is only marginal justification for assuming Georgina was speaking without any opportunity to reflect, or directly because of any contemporaneous, ongoing adverse events. In that call, she told the operator that she already had a case number and had been threatened by that person and wanted to get him arrested, because he was looking for her. Previously, she had gone back to the house after her first police report, to pick up her baby's stuff, and Jonathan came out "trying to act aggressive" against her and threatening that "she was going to pay for everything she was doing," and he was going to look for her. Those statements do not state exactly how long ago that happened, and they do not seem to contemporaneously "narrate, describe, or explain an act, condition, or event perceived by the declarant...." (Evid. Code, § 1240.) The statement did not directly follow "the circumstance of the occurrence preceding it." (People v. Ramirez, supra, 143 Cal.App.4th at p. 1522.) Rather, her main focus seemed to be getting Jonathan arrested, which could have been due either to immediate fear or to a desire for retribution.
Overall, the court explained its ruling to admit the tapes was based on the other evidence presented (i.e., photographs of the victim taken by the police, showing she was small in stature and had scratches on her face, and in the recorded call to 911, she sounded very upset and fearful, even though she later changed her mind about cooperating with the police). The court commented it was angered when this scenario happens, "because these young people sometimes don't understand how serious that can become over a period of time, and we can't condone it."
When those comments were made, the trial court was not confining its analysis to the case before it, to determine whether Georgina's statements during the 911 call were admissible as spontaneous statements. Rather, the court was stating a policy position that domestic violence cases must be taken seriously, with which we can only agree. Nevertheless, it is clear that the juvenile court neglected its duty to require, based on ordinary trial procedure principles, that an adequate foundation to be laid for the 911 tapes. We cannot find any implied findings supporting the decision to admit the 911 materials, regarding the trustworthiness of the statements. The spontaneous statement exception might have supported admissibility of the tapes if there had been any effort to establish a basis for the exception. However, in the absence of any foundational findings by the trial court, and in light of its express statement of nonevidentiary reasons for its decision, we decline to imply a possible factual basis for the exception.
Particularly since the trial court had the entire picture before it, and knew why Georgina was made unavailable as a witness (threatened with prosecution for filing a false police report), the issue of foundation was crucial. The court was told by Georgina that she was still living with Jonathan and her baby at the home of her mother. Together with the inconclusiveness of the circumstantial evidence, we think these factors required the trial court to insist on a further showing of the foundation for her hearsay statements as reported in the 911 materials. The court had already acknowledged that it would have been proper to put Georgina on before the tapes were played, but it never corrected its decision to proceed, once it became clear she would not testify, nor did the court address the existence of or require any alternative approach to establishing a foundation. Indeed, the tapes were played for the court before any attempt to establish their admissibility had been made. This was not a reasonable exercise of discretion. (Farmer, supra, at pp. 903-904.)
In the respondent's brief, the People do not admit any error occurred, nor claim any error was harmless (perhaps recognizing this evidence was essential to the case). For the reasons set forth above, the true finding must be reversed for prejudicial evidentiary error, because it is reasonably probable that Jonathan would have obtained a more favorable result if no such error had occurred. (Rodrigues, supra, 8 Cal.4th 1060, 1125.)
That is not the end of the inquiry, however. Jonathan continues to argue that whether or not the 911 material is considered, the record contains insufficient evidence to uphold the true finding. He believes that all of Georgina's direct testimony should have been stricken (for lack of cross-examination), and with it, any basis for connecting him in particular with the offense. (But see fn. 3, ante.) Alternatively, he contends that even if the 911 material is considered, its contents are still unpersuasive because in it, Georgina said she had been "hit," not scratched or grabbed, such as the photographs seem to substantiate. Similarly, Jonathan claims Georgina simply lacks any credibility so that at most, the evidence shows only a "strong suspicion" that he was the perpetrator. (People v. Johnson (1980) 26 Cal.3d 557, 577.)
It is not now determinative whether there is currently any admissible direct evidence that an offense occurred and Jonathan committed it. "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]" (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) Here, the record contains some quantum of circumstantial evidence that is susceptible of reasonable inferences that Georgina received some kind of injury at her home, where she resided with Jonathan, his parents, and the baby, shortly before the time that Officer Kelley responded there to a domestic violence dispatch. He talked to her about her scratched face and saw broken glass at the scene, and he authenticated photographs to that effect. We are unwilling to declare this record shows a clear insufficiency of evidence about the occurrence of the offense, as charged, when the 911 materials are not considered, or even if they are taken into account. This case does not raise double jeopardy concerns, such as where the government is deemed to have no power to retry a charge based on an inability to present sufficient evidence. (See Oregon v. Kennedy (1982) 456 U.S. 667, 676, fn. 6.) We have declined to base our conclusions on whether the constitutional right to confront and cross-examine adverse witnesses was implicated here. Instead, the proper procedure is to reverse the true finding for prejudicial evidentiary error, as identified above, and return the matter for such further proceedings as may be appropriate.
We need not discuss the propriety of the various probation conditions imposed at the dispositional hearing, and the juvenile court will be required to re-examine them as necessary, following any appropriate proceedings on remand that will resolve the jurisdictional question.
DISPOSITION
The judgment is reversed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.