Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VJ39512, Gibson W. Lee, Juvenile Court Referee.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
The juvenile court sustained a petition alleging that appellant Jose B. committed vandalism causing more than $400 in damages in violation of Penal Code section 594, subdivision (a), a felony. The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged appellant to be a ward of the court, and placed him on home probation for a period not to exceed six months.
Appellant appeals from the orders sustaining the petition and adjudging him a ward of the court, contending that his right to confrontation was violated by the admission of a written estimate from a window repair/replacement company and further contending that the juvenile court erred in admitting the written estimate as a business record under Evidence Code section 1271. We agree that the estimate was erroneously admitted and reduce appellant's offense to a misdemeanor. We affirm the juvenile court's order in all other respects.
Facts
On March 8, 2010, about 9:30 p.m., Carlos Jimenez was working at his family's flooring business. He heard dogs barking, looked outside and saw appellant scratch the building's window with a key. The damaged area was about three inches by one foot. Jimenez and his cousins and nephews went outside, stopped appellant and flagged down a passing patrol car. Police arrested appellant.
At some point thereafter, Jimenez called the Better Window Company ("BWC") and described the damage to the window. A few hours later, Jimenez received a fax from BWC giving an estimate of $550 to replace the window.
Discussion
Appellant contends, and respondent does not dispute, that the written estimate from BWC was hearsay. Appellant further contends that the juvenile court erred in admitting the estimate under the business records exception to the hearsay rule. We agree.
Hearsay 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).) Hearsay evidence is inadmissible except as provided by law. (Evid. Code, § 1200, subd. (b).)
The written estimate was hearsay under Evidence Code section 1200, subdivision (a). It was a "statement." (See Evid. Code, § 225 ["'Statement' means (a) oral or written verbal expression...."].) It was obviously one "made other than by a witness while testifying at the hearing." (Evid. Code, § 1200, subd. (a).) The estimate was offered to prove the truth of the matter stated, i.e., that the replacement cost of the window was $550. (See Pacific Gas & Electronic Co. v. G.W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 42-43 ("P.G. & E.") ["Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or that the charges were reasonable"].)
Assuming for the sake of argument that the estimate were offered for some other reason, not argued here, appellant's conviction would still have to be reduced to a misdemeanor. The estimate was the only proof that the damage exceeded $400. If the estimate was not offered for its truth, there is no evidence of the amount of the damage.
The trial court admitted the written estimate under the business records exception to the hearsay rule found in Evidence Code section 1271. That section provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
The trial court has wide discretion in determining whether sufficient foundation is presented to qualify a document as a business record. (People v. Beeler (1995) 9 Cal.4th 953, 978-979.) Here, the court erred in finding that there was sufficient foundation to admit the document.
As respondent correctly points out, there is no requirement that the person who prepared the business record testify as to its content. (People v. Beeler, supra, 9 Cal.4th at p. 979.) Someone with knowledge of the business must testify, however. In this case, that means that someone with knowledge of BWC's business had to testify. While Jimenez's testimony could satisfy some of the requirements of Evidence Code section 1271, he did not have the knowledge of BWC's business needed to satisfy other requirements.
Jimenez's testimony showed that the writing was made at or near the time of the act, condition or event. Jimenez called BWC and requested an estimate, and he received the estimate via fax within a few hours of his call. This testimony also shows the identity of the estimate, that is, that it came from BWC. Jimenez also testified that he provided a description of the damaged window to BWC, and this is evidence of one source of information used by BWC in preparing the estimate. This evidence does not satisfy all the requirements of Evidence Code section 1271, however.
What is lacking in this case is evidence of the internal workings of BWC. There is no evidence that the estimate was made in the regular course of BWC's business. Jimenez's testimony that the estimate was made in response to his phone call says nothing about the normal course of business at BWC. For example, the normal course of business at BWC might be to provide estimates after a BWC representative viewed the window in question. The estimate sent to Jimenez after only a phone call might be an aberration.
There is also no evidence about the mode of the estimate's preparation and almost no evidence about the sources of information used. There is no evidence about who at BWC prepared the estimate, what method the preparer used or what sources of information the preparer relied on apart from Jimenez's oral description of the window. Thus, the estimate could have been prepared by an administrative employee who simply copied historical invoices for what appeared to be similar work or a technician who used current price lists for an identical window, BWC's actual labor costs, and industry standards for the hours of labor needed. A different formula might be used for estimates based only on the customer's oral description rather than on a visual inspection.
Without more information from BWC, there is no way to determine if the estimate is trustworthy. It should not have been admitted.
It is also questionable whether a repair estimate is substantial evidence of the amount of damage. The actual cost of repair or replacement is certainly substantial evidence, but that actual cost may vary quite a bit from an initial estimate.
To the extent that respondent contends that any error was harmless because Jimenez could have testified about the amount of damage as the property owner, respondent is mistaken. "'An owner of property may, without being qualified as an expert on values, testify as to his opinion of the value of that which he owns. [Citations.] This rule, however, does not extend to the giving of testimony as to the cost of repairs, especially where such testimony is merely a repetition of the statements of other persons to the witness.' [Le Brun v. Richards (1930) 210 Cal. 308 at pp. 319–320.]" (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 111, fn. 26 [property owner claimed that she should have been able to read construction company's excavation estimate to jury]; see also Kitchel v. Acree (1963) 216 Cal.App.2d 119, 125 [testimony of homeowner concerning cost to repair defective work was based upon inadmissible hearsay estimate from plastering contractor]; Garfinkle v. Montgomery (1952) 113 Cal.App.2d 149, 158-159 [trial court properly excluded lessor's damage testimony based on repair estimate that was "pure hearsay"].)
The situation would be different if Jimenez had actually ordered or undertaken the window replacement. There is a corroborative evidence exception to the hearsay rule which permits the admission of invoices, bills and receipts when "a party testifies that he incurred or discharged a liability for repairs." In that situation, "any of these documents may be admitted for the limited purpose of corroborating his testimony." (P.G. & E., supra, 69 Cal.2d at p. 43.)
Absent the erroneously admitted estimate from BWC, there is no evidence that the damage to Jimenez's window exceeded $400. Damage in the amount of $400 or greater makes vandalism in violation of Penal Code section 594, subdivision (a), a felony. (Pen. Code, § 594, subd. (b)(1).) Accordingly, appellant's conviction must be reduced to a misdemeanor violation of Penal Code section 594, subdivision (a). (Pen. Code, § 594, subd. (b)(2)(A).)
Since we have found the estimate inadmissible under state evidentiary rules, we need not and do not reach appellant's claim that the admission of the estimate violated his 6th Amendment right to confrontation.
Disposition
Appellant's violation of Penal Code section 594, subdivision (a) is reduced to a misdemeanor. The court's orders are affirmed in all other respects. The clerk of the superior court is directed to prepare an amended minute order reflecting this reduction and to deliver copies to all interested parties.
I concur: MOSK, J.
TURNER, P.J., Dissenting
I respectfully dissent. When the applicable standard of review as correctly cited by my colleagues is applied, the juvenile court could reasonably find the facsimile transmission document, prepared as a result of a conversation concerning the damage between Carlos Jimenez and the glass company employee, was reliable. (People v. Hovarter (2008) 44 Cal.4th 983, 1011; Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 784; see Loper v. Morrison (1944) 23 Cal.2d 600, 608.) There is no merit to the minor’s confrontation contention. (Crawford v. Washington (2004) 541 U.S. 36, 55.) Further, I would not reduce the offense to a misdemeanor but remand the case for a limited retrial on the issue of the amount of the defacement. (Pen. Code, § 594, subd. (b).) In cases where there is admissibility of evidence error, the proper case is to remand for a retrial where the prosecution can introduce admissible testimony. (Pen. Code, § 1260; see People v. Moore (2006) 39 Cal.4th 168, 173-178.)