Opinion
B227481
08-03-2011
In re A.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
Lea Rappaport Geller, 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, Assistant Attorney General, David C. Cook and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. FJ43734)
APPEAL from an order of the Superior Court of Los Angeles County. Robin Miller Sloan, Judge. Affirmed.
Lea Rappaport Geller, 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, Assistant Attorney General, David C. Cook and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found that A.H. (minor) violated the terms of his probation and ordered him into suitable placement. On appeal, the minor challenges the ruling based on evidentiary error.
We find no error and affirm.
FACTS
The minor, a tall boy and a third boy approached N.E. Flanked by the minor and the third boy, the tall boy asked N.E. what time it was, and N.E. answered. Then the tall boy asked N.E. for his cell phone. When N.E. said he did not have a cell phone, the tall boy threw a punch at N.E. but missed.
The Los Angeles District Attorney's Office filed a petition under section 602 of the Welfare and Institutions Code alleging that the minor committed attempted robbery. (Pen. Code, §§ 211 & 664.) In October 2008, the juvenile court found the allegations true and sustained the petition. The minor was permitted to go home on probation subject to various terms, including these: obey all laws; obey all orders of the probation department; report to the probation department as directed; attend a school program approved by the probation department; maintain satisfactory grades; and notify the probation department of any absences.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The periodic reports filed by the probation department indicated that the minor was a documented member of the "Schoolyard Crip" street gang with the moniker of "G-Man." In early 2009, he was cited for possession of marijuana. Then, a few months later, he was cited for petty theft. In May 2009, the minor was arrested for attempted second degree robbery. The probation reports also indicated that the minor had been missing and failing classes.
On July 7, 2010, Latanya Wright (Wright), the minor's school probation officer, filed a notice of probation violation pursuant to section 777 and an accompanying report. The report averred in part: "The minor's progress since his last court appearance is unsatisfactory. He has failed all of his classes with 70 plus unexcused absences. His efforts have declined tremendously." She attached a computer printout showing his absences and failing grades.
The parties convened for a hearing. The juvenile court placed the minor on house arrest and set a probation violation hearing. House arrest was subject to the following conditions, among others: obey all laws; follow all orders of the probation department; and attend school regularly.
At the ensuing probation violation hearing, Wright was called to testify. She stated that the minor had violated the terms of his probation by failing to report to his probation officer, attend school on a regular basis and maintain a "C" average or better in his classes. Regarding the foundation of her knowledge, Wright stated that she works on the campus of the minor's school. The students that she supervises are supposed to report to her by signing in when they arrive at school and when they leave. As verified by the school's computer system, the minor was enrolled in summer school as directed. He did not, however, report to Wright during the summer term. In addition, he was supposed to call Wright once a week when summer school was out, but he failed. Wright regularly checked the computer system and verified that the minor was missing classes. He never notified Wright of those absences. The computer system also verified his unsatisfactory grades. The minor's attorney asserted a continuing objection that Wright's testimony lacked foundation or personal knowledge and was based on impermissible hearsay. The objections were overruled. At the close of the hearing, the juvenile court found that the minor had violated the terms of his probation and removed him from the custody of his family. He was placed under the supervision of the probation department for suitable placement.
In his opening brief, the minor states that the computer records were admitted into evidence. We treat his statement as a judicial admission. (Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 747.)
This timely appeal followed.
DISCUSSION
The minor contends that the juvenile court abused its discretion when it relied upon the computer records.
We disagree.
Section 777, subdivision (a)(2) "establishes the juvenile court procedure for finding probation violations and modifying prior dispositions when new misconduct is committed by those on probation for crimes previously adjudicated under section 602." (John L. v. Superior Court (2004) 33 Cal.4th 158, 165.) "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 (1989) 215 Cal.App.3d 452 (Brown)] and any other relevant provision of law." (§ 777, subd. (c).)
Brown held: "As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [Citations.] 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.]" (Brown, supra, 215 Cal.App.3d at pp. 454-455.) A party's failure to offer evidence contradicting the hearsay is a factor cutting in favor of finding sufficient indicia of reliability. (Id. at pp. 455-456.)
"Evidence that is properly viewed as a substitute for live testimony, such as statements to a probation officer by victims or witnesses," is probably inadmissible. (People v. Abrams (2007) 158 Cal.App.4th 396, 405 (Abrams).) In part, this is because it is important for the trier of fact to consider the witness's demeanor. But the rule "is otherwise where the evidence involves more routine matters such as the making and keeping of probation appointments, restitution and other payments, and similar records of events of which the [witness] is not likely to have personal recollection and as to which the [witness] 'would rely instead upon the record of his or her own action.' [Citation.]" (Ibid)
In our view, the computer records had substantial indicia of reliability. Wright is stationed at the school as a probation officer, which indicates she is familiar with its computer system. She printed the minor's records off the computer system herself. The inference is that they were prepared by the school and produced in court in a routine and orderly manner. Though the minor objected, he did not offer any evidence to contradict what the computer records showed, i.e., he did not offer evidence that he attended all his classes and earned passing grades.
Moreover, we note that if the custodian of records had testified, he or she would have done no more than authenticate the computer records and then rely upon the records to establish the minor's absences and grades. Calling the custodian of records would not have furthered the search for truth.
According to the minor, the computer records should not have been considered because they were not admissible under the business records exception set forth in Evidence Code section 1271. We fail to see the point. Even if Evidence Code section 1271 does not apply, the computer records were still admissible under section 777 and Brown and therefore properly considered. The minor did not advert to any law case law to the contrary.
Evidence Code section 1271 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."
Regardless, any error was harmless under People v. Watson (1956) 46 Cal.2d. 818, 836 [a ruling may be overturned only if it is reasonably probable that a result more favorable to the appellant would have been reached in the absence of the error]. Wright testified that the minor was required to enroll in summer school and report to her every day. The reasonable inference from her testimony is that these actions were ordered by the probation department. She also testified that the minor failed to report to her as required. Her testimony therefore established a probation violation without reference to the computer records. Thus, we easily conclude that the absence of the alleged error would not have changed the outcome.
DISPOSITION
The order is affirmed.
________________________________ , J.
ASHMANN-GERST
We concur:
________________________________ , P. J.
BOREN
________________________________ , J.
CHAVEZ