Opinion
A130261
08-24-2011
In re CRISTAL S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CRISTAL S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. JDSQ10-6084)
Cristal S. appeals from orders of the juvenile court finding her in violation of terms of her probation. She contends her constitutional right to confront witnesses against her was violated by the admission of an email and log sheet to prove she failed to submit to urine tests as required by her probation. We affirm.
STATEMENT OF THE CASE
On October 26, 2010, the Del Norte County Probation Department (Department) filed a supplemental juvenile wardship petition under Welfare and Institutions Code section 777, alleging that appellant had violated her probation by failing to provide urine samples for testing as directed by her probation officer on October 19 and 22, 2010. Another supplemental petition was filed on October 28, alleging that appellant failed to provide a urine sample as directed by her probation officer on October 27, 2010.
After a contested hearing on October 29, 2010, the court sustained the allegations and ordered appellant to serve five to ten days in juvenile hall with one day of credit. Appellant was ordered to submit to drug testing three times per week and to attend not less than two 12-step meetings per week.
Appellant filed a timely notice of appeal on November 4, 2010.
STATEMENT OF FACTS
At the hearing, the court took judicial notice of the probation term requiring appellant to drug test. Probation Officer Linda Sanford testified that on October 27, she told appellant to walk to juvenile hall with Mrs. Garcia and provide a urine sample. Probation Officer Katrina Jackson testified that she directed appellant to provide a urine sample on October 19 and on October 22. Jackson knew appellant did not provide a urine sample on October 19, 22 or 27, because the daily log sheets kept to record each time a minor drug tested did not reflect her having tested on those dates. Jackson explained that the logs were kept in the booking area and immediately after a minor completed a drug test, the staff member who took the sample would write the minor's name on the log sheet and initial it. If appellant tested, her name would be on the list; if she did not test, her name would not be there. Jackson testified that the logs were kept in the regular course of business to track who had and had not tested, and were the documents she typically relied upon in the course of her duties to determine whether minors were testing in accordance with their probation terms. If minors were not compliant, the logs were used to prosecute them. Jackson believed the logs were accurate and reliable.
Jackson explained that another way to determine whether a minor had tested was to look at the labels prepared by staff to identify each urine sample. A label would be made when a minor came to juvenile hall, and if the minor did not test, the label would be voided; if a minor did not come to juvenile hall, no label would be made. Jackson described a document she was shown as a label for October 27 with appellant's name and, written over it, "Did not go. No test."
Jackson further testified that she talked with appellant while walking with her from one class to another at her school and asked when appellant was going to provide a urine sample. Appellant explained that she did not provide a sample on October 27, because she had cramps from her period and wanted to go home rather than wait to test. Appellant said that on October 19 she either forgot to test or fell asleep. Jackson did not discuss the October 22 test date with her.
DISCUSSION
Appellant contends the admission of Garcia's email and the Department's log sheets violated her Sixth Amendment right to confrontation because neither Garcia nor the author of the log sheets was a witness at the hearing. Her claim is based on Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford), which held that testimonial statements of a witness who does not testify at trial are admissible only if the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. The " 'core class of testimonial statements' " covered by the Confrontation clause include " 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Melendez-Diaz v. Massachusetts (2009) _ U.S. _, 129 S.Ct. 2527, 2531 (Melendez-Diaz), quoting Crawford, at pp. 51-52.)
Melendez-Diaz held that certificates reporting the results of forensic analysis of material seized by the police were testimonial statements: They were made for the sole purpose of establishing that the material was cocaine, as the prosecution claimed, and " 'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Melendez-Diaz, supra, 129 S.Ct. at p. 2532, quoting Crawford, supra, 541 U.S. at p. 52.) The certificates were not admissible as business records: "Documents kept in the regular course of business may ordinary be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial." (Melendez-Diaz, at p. 2538.)
Appellant contends that the documentary evidence used to prove she did not submit to drug testing was testimonial because it was created solely for use at a hearing to revoke her probation. If deemed nontestimonial, appellant urges the evidence was not reliable: She suggests the email was suspect because it was sent "between two coworkers both with county e-mail accounts and familiarity with the county e-mail system and each other," and the log sheets were accessible to multiple probation officers and reflected only minors' initials not entered by the minors themselves.
Appellant's claims based on Crawford and Melendez-Diaz fail because the Sixth Amendment right to confrontation does not apply to probation revocation hearings. (People v. Gomez (2010) 181 Cal.App.4th 1028, 1039; People v. Abrams (2007) 158 Cal.App.4th 396, 401; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) "Probationers' limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment." (People v. Johnson, at p. 1411.) The right of confrontation at a probation revocation hearing is not absolute and "[d]ue process does not prohibit the 'use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence" accompanied by "reasonable indicia of reliability." (People v. Gomez, at p. 1034.)
Documentary evidence is admissible at a probation revocation hearing where, rather than providing a substitute for live testimony such as statements to a probation officer by victims or witnesses, 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 probation officer is not likely to have personal recollection and as to which the officer " 'would rely instead upon the record of his or her own action.' " (People v. Abrams, supra, 158 Cal.App.4th at p. 405, quoting People v. Arreola (1994) 7 Cal.4th 1144, 1157.)
People v. Abrams, supra, 158 Cal.App.4th 396, for example, found admissible a probation officer's testimony that (1) a different probation officer's report stated the officer had ordered the defendant to report on a certain date and the defendant had not done so, and (2) the department's computer records showed the defendant had not called the department. (Id. at pp. 398-399, 401, 404-405.) People v. Gomez, supra, 181 Cal.App.4th 1028, affirmed the revocation of the defendant's probation based on a probation report that relied upon " 'electronic probation records' " showing the defendant failed to report to the department as required, make restitution payments, or submit verification of his employment and attendance at counseling sessions. (Id. at pp. 1038-1039.) People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066, found admissible a single-page report from the program manager of a counseling program the defendant was required to attend, which stated that the defendant had been terminated due to " 'Too Many Absences' " and had completed " '0 of 20 sessions.' "
The challenged evidence in the present case is of a similar nature: The email and the log sheets simply documented that appellant failed to supply a urine sample on three specific dates. Jackson's description of the procedures used by the Department to keep track of minors' urine testing demonstrated the reliability of the log sheets for this purpose; testimony from the officer who supervised the testing on a given date " 'likely would not have added anything to the truth-furthering process,' " as the evidence concerned "events of which the probation officer is not likely to have personal recollection and as to which the officer 'would rely instead upon the record of his or her own action.' " (People v. Gomez, supra, 181 Cal.App.4th at p. 1038, quoting People v. Abrams, supra, 158 Cal.App.4th at pp. 404-405.)
In any event, any error in admitting evidence of the email and log sheet would be harmless beyond a reasonable doubt. Jackson testified that appellant admitted failing to provide urine samples on two of the three dates alleged. Appellant did not contest these admissions. This in itself established the probation violation for those two dates, and the record provides absolutely no basis to conclude the court's orders would have differed if it considered only two, rather than three, violations.
The orders are affirmed.
Kline, P.J. We concur: Lambden, J. Richman, J.