Opinion
C083733
03-01-2018
In re J.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.D., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV135242)
J.D. (the minor) appeals from the juvenile court's order revoking his probation and committing him to the Department of Juvenile Facilities (DJF). (Welf. & Inst. Code, § 800.) The minor contends: (1) The court erred by finding he had failed to complete a required alcohol and drug assessment, because his failure to do so was not willful. (2) The court erred by finding he had committed an offense under Penal Code section 288, subdivision (a). His purported confession was uncorroborated, in violation of the corpus delicti rule. But even if that rule does not apply, there was no admissible evidence of the offense because the purported recording of his confession was not properly authenticated.
Undesignated statutory references are to the Welfare and Institutions Code.
We conclude: (1) substantial evidence showed the minor's failure to complete the alcohol and drug assessment was willful; (2) the corpus delicti rule does not apply to juvenile probation revocation proceedings; and (3) the recording was sufficiently authenticated. We affirm the order revoking probation.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2013, the Sacramento County District Attorney filed a section 602 petition alleging the minor had committed three acts of lewd and lascivious conduct upon a child under 14 by force or fear (counts 1, 2, & 5; Pen. Code, § 288, subd. (b)), and three acts of lewd and lascivious conduct upon a child under 14 (counts 3, 4, & 6; Pen. Code, § 288, subd. (a)).
On August 27, 2013, the minor admitted counts 3 and 6, and the remaining counts were dismissed on the People's motion.
On September 26, 2013, the juvenile court adjudged the minor a ward of the court and granted him probation with conditions that included participating in a sex offender treatment program, obeying all laws, and avoiding children under age 15 when not under the supervision of a parent or "responsible adult."
On August 31, 2015, the district attorney filed a probation violation petition, alleging the minor had had unsupervised contact with children under 15. The juvenile court found the allegations true, revoked the minor's probation, and reinstated it with conditions that included participating in an alcohol and other drugs (AOD) assessment, as well as modifying the ban on unsupervised contact with children to "under 14."
On February 25, 2016, the probation department filed a probation violation petition alleging the minor had unsupervised contact with a child under 14, and had not participated in an AOD assessment. On March 8, 2016, the district attorney filed a probation violation petition alleging 12 counts, then moved to dismiss all allegations except count 1 that alleged the minor had committed a new violation of Penal Code section 288, subdivision (a).
After a contested hearing on both petitions, the juvenile court sustained the second and third allegations. The court did not sustain the first allegation, finding the term "responsible adult" was unconstitutionally vague.
The juvenile court thereafter committed the minor, now 19 years old, to DJF for the maximum confinement time of 2 years 9 months, with credit for time served of 290 days, the commitment not to exceed age 21.
DISCUSSION
I
Minor's Failure to Participate in Alcohol and Other Drugs Assessment
The minor contends the juvenile court abused its discretion by sustaining the allegation he did not participate in an AOD assessment, because there was no substantial evidence his failure was willful. According to the minor, he made a good faith effort to comply with this condition but had too many simultaneous and conflicting obligations to meet them all, and was further handicapped by his family's poverty and the limited means of transportation available to him. Viewing the evidence most favorably to the court's ruling, as we must, we conclude there is substantial evidence the minor willfully failed to take any steps either to comply with this condition or to seek to modify it.
A.
Legal Standards
Under section 777, which governs juvenile probation violation proceedings, the prosecution must prove the violation by a preponderance of the evidence. (In re Eddie M. (2003) 31 Cal.4th 480, 486, 501, 506; In re J.L. (2008) 168 Cal.App.4th 43, 59.) No different standard applies where the alleged violation consists of committing a new criminal offense. (§ 777, subd. (c); Eddie M., at p. 501.)
To justify revoking probation, a violation must be willful. (People v. Gonzalez (2017) 7 Cal.App.5th 370, 382.)
Where the lower court finds a probation violation by a preponderance of the evidence, we review the court's factual findings for substantial evidence. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) We review the decision to revoke probation for abuse of discretion. (Ibid.)
B.
Facts
The requirement to obtain an AOD assessment was imposed as a probation condition in September 2015, after the minor admitted to his probation officer, Jose Cruz, that he had recently smoked marijuana, and he could not thereafter complete a drug test.
At a meeting on September 30, 2015 at the minor's high school, Officer Cruz directed the minor to complete an AOD assessment. Cruz told him he could do so on Mondays or Thursdays during the day, on the first floor of the juvenile court building, about seven miles from the minor's home. There was no required fee, so far as Cruz knew. Cruz also gave the minor's grandmother, with whom he lived, a telephone number to contact about the assessment.
At that time, the minor did not own a car. He got to school by riding a bicycle or a skateboard. His grandmother or one of his brothers sometimes drove him to his required sex offender counseling that was 7 to 10 miles from his home. He also sometimes rode his bicycle or skateboard to counseling, or took the bus with money from his grandmother.
Officer Cruz knew the minor was struggling to pay his counseling fees, even though they had been reduced on account of his limited means. Cruz did not offer to obtain a bus pass for the minor or arrange to have him taken in for the assessment; nor did he tell the minor what the costs of drug and alcohol counseling might be.
The minor's grandmother testified that, at the time, her sole source of income to support herself, the minor, and his two brothers, who all lived together in a motorhome on her daughter's property, was $1,800 to $1,900 per month in food stamps and disability benefits.
As of February 24, 2016, when Officer Cruz detained the minor, he had not obtained an AOD assessment.
The minor's counsel argued that since the assessment was ordered, the minor had also been required to attend school full-time and to attend sex offender counseling during school hours, and had done both, even though his family had no reliable transportation. The minor's counsel argued his failure to complete the assessment was not willful: "He simply could not take care of the counseling component because he was in school. Had he not been going to school, we'd have a violation for not going to school. Had he not been going to [sex offender counseling], we'd have a violation for that. He was juggling so many balls at that point. We all know what happens when you juggle too many balls. You drop them all. He was doing the best he could. It was not willful failure. He was taking care of what Deputy Cruz said was the most important part, was going to juvenile sex offender counseling. There wasn't the time, the money, the transportation to take care of the [AOD] component."
The prosecutor replied: "With respect to the [AOD] assessment and counseling, it's important to note that Deputy Probation Officer Cruz did, in fact, testify that [the minor] admitted to the probation officer that he used marijuana, that the condition was put in place for his rehabilitation purposes; that Probation Officer Cruz testified, and [the grandmother] even corroborated, that the officer was helpful towards [the minor]. He would give him rides from school to home on occasion, so if [the minor] was in need of assistance with this particular order, the officer was an available resource to [the minor]. If it was for a lack of money or resource or something of the sort that he could not comply with this condition, it was [the minor]'s responsibility as a probationer to communicate that to his officer."
The juvenile court initially declined to sustain this allegation, reasoning as follows: The AOD assessment condition was imposed after one positive test for marijuana, but all other tests were negative. Numerous searches of the minor's room and of his person failed to find illegal drugs. The minor conscientiously attended school and sex offender counseling, despite the family's difficulties with money and transportation and concerns over the grandmother's health. He was doing the best he could under challenging circumstances. Thus, his failure to obtain an AOD assessment was not willful.
However, after reading the transcript of Officer Cruz's testimony, the court found: "[The minor] did not start the assessment or do anything with regards to the AOD assessment. . . . [¶] I was under the impression that he had made initial efforts, but had not completed the assessment. And in re-reading or reading the testimony of Officer Cruz, it appears that [the minor] made no effort with regards to compliance with probation condition number 9 that was imposed September 15th, 2015. [¶] And so I do find that based on the evidence and by a preponderance of the evidence[,] actually even much more so than a preponderance of the evidence, I find that by the standard of even beyond a reasonable doubt that that condition is sustained. [¶] I appreciate what [counsel] says that [the minor] was doing a lot of, he was going to school. He was . . . participating in the juvenile sex offender counseling. But when conditions get issued he needs to comply with them or inform his probation officer as to why he needs perhaps more time or come to court. He's got a lawyer. Just inform someone that that condition needs to be modified or whatever. [¶] But he cannot just ignore it and not comply with it."
C.
Analysis
When an appellant contends insufficient evidence supports a finding by the lower court, the appellant must set out all of the evidence, including the strongest evidence against him or her, and show that evidence, viewed most favorably to the court's finding, is insufficient. He or she may not satisfy this burden merely by reciting his or her own evidence, or by stating the evidence in the light most favorable to himself or herself. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) The minor does not meet his burden because his account of the evidence omits the court's finding he not only failed to take any steps to obtain an AOD assessment, but also failed to inform his probation officer or his attorney that he was having difficulty complying with the condition and would need to request a modification.
There is no direct evidence the minor did not so inform counsel or the probation officer. But given the importance of this point, and the failure of the minor's counsel to present any evidence the minor did so, we must infer the minor did not do so, as the juvenile court found.
By the time this condition was imposed, the minor was 17 years old and had been on probation for two years; thus, he could be presumed to understand his obligations as a probationer. Furthermore, at the hearing just before the juvenile court imposed the condition, the court stated if the minor felt he could not comply with a probation condition, "it's his obligation to come back to the court and get a modified order. You didn't do that [as to the condition barring unsupervised contact with minors]. So for me, there was a knowing element to this. [G]iven your probation status and very specific orders of this Court, that was not a decision for you to take lightly, to disregard or try and maneuver around." Thus, the minor was on notice he could not ignore probation conditions, and if he neither complied with a condition nor sought to modify it, his noncompliance would be deemed knowing.
The minor relies on People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring) and People v. Cervantes (2009) 175 Cal.App.4th 291 (Cervantes). These cases are factually far removed from the present case.
In Zaring, the trial court revoked the defendant's probation and sent her to prison immediately because she appeared late in court one morning, despite the fact she had a plausible justification (she needed to take her children to school) and the possibility other circumstances beyond her control could also have made her late. (Zaring, supra, 8 Cal.App.4th at pp. 365-367, 376-379.) Assuming her timely appearance was a condition of probation, the appellate court found the trial court had abused its discretion in deeming the violation willful, since it was a one-time, inadvertent, and easily excusable act. (Id. at pp. 378-379.) In our case, the minor's conduct was not a one-time or inadvertent event, but a continuous, knowing failure even to attempt compliance for a period of six months despite the court's pointed advice at the prior hearing.
The court stated in Zaring: "Nothing in the record supports the conclusion that her conduct was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court." (Id. at p. 379.) The minor quotes that sentence as though it defined the minimum standard for finding a violation of probation. It does not. A willful violation of probation need not be irresponsible or contumacious; it need only be knowing or purposeful. (Cf. Pen. Code, § 7, subd. (1).)
Cervantes, supra, 175 Cal.App.4th 291 is equally inapposite. There, although the trial court knew at the time of sentencing the defendant was subject to deportation, the court ordered him to serve 60 days in county jail and then return to court for a review hearing. He did not do so because he could not, having been transferred in the interim to the custody of Immigration and Customs Enforcement. (Cervantes, supra, 175 Cal.App.4th at p. 293.) The trial court found the defendant's immigration status rendered him no longer suitable for probation. (Id. at p. 294.) The appellate court found since compliance was literally impossible, the defendant had not violated probation. (Id. at p. 297; see also People v. Galvan (2007) 155 Cal.App.4th 978, 981-984.) The facts of Cervantes, like those of Zaring, supra, 8 Cal.App.4th 362 bear no resemblance to those of our case.
We conclude substantial evidence showed the minor's violation of this probation condition was willful.
II
Taped Confession Was Properly Admitted
The minor contends the juvenile court erred by sustaining the allegation he had committed a new offense under Penal Code section 288, subdivision (a). He contends the corpus delicti rule applies to juvenile probation revocation hearings, and the use of his taped confession during a telephone interview with a police detective as the sole evidence against him violated that rule. He also contends that, even if the corpus delicti rule does not apply, there was no admissible evidence against him because the recording of the interview was not properly authenticated. We reject these contentions.
A.
Facts
From May 2014 to January 2015, when the minor was 16 or 17 years old, the grandmother, the minor, and the minors' 2 brothers lived in a motorhome on the grandmother's daughter's property on Elder Creek Road. Her daughter lived in the main house along with other relatives including her daughter's granddaughter, M., born in 2009.
Before moving into the motorhome, the grandmother told her daughter the minor was on probation for a sex charge involving under-14 boys, and could not be around children under 14 without adult supervision. Whenever the minor was in the motorhome, the grandmother was also there.
M. sometimes came to the motorhome to see the grandmother when the minor was there. One night, possibly in June 2014, she slept in the motorhome on the couch with the grandmother. The minor's bed was in the back of the motorhome, within view of the common sitting area. Before M. went to sleep, she sat on the minor's bed for 20 to 30 minutes and talked with him. She was wearing a blouse and "leggings" or "tights."
The grandmother believed M. never got up or left the couch that night; because she sleeps very lightly, she thought she would have woken up if M. had ever left her side. The minor never told her he had touched M. inappropriately.
Sacramento Police Detective Pamela Linke testified that in November 2015 she reviewed a patrol officer's report that stated that, during a therapy session, the minor had disclosed sometime in the previous year, while on his grandmother's property on Elder Creek Road, he had pulled down the pajama pants of M., a four- or five-year-old female relative, and inappropriately touched her vaginal area.
On November 12, 2015, Detective Linke interviewed the grandmother's daughter by telephone. Later on the same date, Linke spoke to Probation Officer Cruz.
On December 16, 2015, Detective Linke spoke on the telephone to a person she believed to be the minor and recorded the entire conversation. She had brought the tape to court.
The minor's counsel declined to stipulate the transcript he had just received was a true and accurate copy, because he had not yet heard the recording. The prosecutor moved the tape into evidence. The minor's counsel asked whether it was premature to enter it in evidence before playing it. The prosecutor replied Detective Linke had represented she took the statement and the tape was a true, accurate, and complete recording of the statement, which was a sufficient foundation to admit it.
At the juvenile court's suggestion, the beginning of the tape was played and Detective Linke identified her voice on the tape. Finding a proper foundation had been laid, the juvenile court admitted the tape.
The minor's counsel said his "foundational objection" remained because they had so far heard only 30 seconds of the tape. The juvenile court noted counsel's continuing objection and invited him to renew it if the rest of the tape did not match the transcript.
The next day, Detective Linke returned to the stand and the entire tape was played. We summarize and quote from the transcript.
Counsel did not renew his "foundational objection" thereafter.
When the grandmother answers the phone, Detective Linke asks for the minor. The grandmother says: "That's my grandson. Just a minute. [J.] -- " A person identified in the transcript as the minor says, "Hello?" Detective Linke says: "Hi is this [J.D.]?" The minor answers, "Yes."
We call this person "the minor" hereafter for convenience, acknowledging the minor asserts he was not shown to be the speaker.
Detective Linke asks a series of background questions. The minor identifies the phone as his grandmother's cell phone, correctly states her name, and gives his own cell phone number. He identifies his probation officer as Jose Cruz, verifies his latest address in the file, confirms his date of birth, and confirms he is still on "ankle monitor" for a probation violation. He accurately describes his last probation violation, agrees he was originally arrested for "some child molest stuff," states he is not married but has a girlfriend and a child who do not live with him, and explains he lives with his grandmother and his two brothers; the grandmother had raised them all since they were one year old.
Detective Linke explains she wants to "follow up stuff on um, something that you disclosed during a polygraph test you had recently? [¶] . . . [¶] With a counselor, do you know what I'm talking about?" The minor says, "Yes." Linke asks if the incident involved "your little cousin" and if her name was "M[.]"; the minor answers both questions affirmatively.
H.H., the minor's sex offender counselor at the time, testified that as of June 2015, she had told the minor he would need to take a polygraph test because she had concerns about his honesty during counseling. The minor then told her things that caused her further concern (not during a polygraph examination, but in anticipation of one) and she wanted to discuss them with probation authorities. H.H. stated the minor had told her about unsupervised contacts with underage minors and smoking marijuana, but she did not say whether he mentioned the alleged molestation of M. Detective Linke later testified H.H. had disclosed that incident to the police.
Asked to describe what happened in his own words, the minor states: "Um, she had spent the night in my, my room, well uh, my I guess my part of the motorhome. It, it was just where my bed was and I got curious when she was laying there asleep -- so and I pulled down her pants and I, I touched her down there and then I pulled her pants back up before she woke up. Or, I didn't think she woke up at all." The minor adds that this happened more than a year ago, probably in September or October, when he was 16, in the place where he was living with his grandmother and brothers.
The minor says he does not remember what M. was wearing, but accepts Detective Linke's suggestion it was pajamas. He says he pulled M.'s pants down, but not all the way off. He denies having put his finger "between her lips" or "inside of her": "No, I just, I just touched it and then I pulled them back up. I, I didn't like, I, I just touched the top. I didn't go in[,] I didn't move anything around." Asked if he "[j]ust touched it just to see what it felt like," he says, "Yeah." He told himself to stop because he "knew it wasn't right," and he did not want to get more charges because of what he had already been arrested for. He had never done it again since this incident and will not do so; however, he would accept any possible consequences. Asked why he had disclosed the incident to his counselor, he answers: "I didn't want it to get held against me when I got polygraphed and I didn't want to get kicked out of the program. And I wanted to, I wanted to -- I guess, get it out and get it all handled."
On cross-examination, Detective Linke testified that although the reports she reviewed had mentioned digital penetration, a physical examination of M. after the alleged incident had not shown penetration or touching. Although Linke knew counselor H.H., as a mandated reporter, had disclosed the alleged incident to the police, Linke did not interview her. Linke never met the minor in person and had never heard his voice before the phone interview. Linke did not interview the minor's grandmother or brothers. Linke did not interview M.'s mother, who lived with M. and her grandmother. Linke did not go out to the motorhome or attempt to find any physical evidence to corroborate that M. was there. Linke did not interview M., and there was never a "Sexual Assault Forensic Evaluation" (SAFE) interview.
On redirect, Linke testified she had asked M.'s mother if M. could be brought in for a SAFE interview, but M.'s mother and the rest of the family did not want that because it would traumatize her over something she did not even realize had happened.
On redirect, Detective Linke stated because she had received no disclosure from M., she could not find out whether M. remembered anything. Two days after interviewing the minor, Linke asked Deputy District Attorney Jeff Harry (not the prosecutor in these proceedings) what could be done without disclosure from the victim. He said no charges would be filed. Since she could not arrest the minor, she "pended" the case.
The prosecutor argued the following evidence showed the voice on the recording was the minor's: Officer Cruz gave Detective Linke the phone number she called, which was the minor's grandmother's number. The grandmother, with whose voice the court was familiar, answered the phone. The grandmother identified the minor as her grandson and called his name. The person who came to the phone responded affirmatively when asked if he bore that name. He correctly answered all of the detective's background questions, including those that pertained to his infant child and the child's mother. He described the motorhome's interior consistently with the grandmother's description in her testimony. Finally, he correctly gave the victim's "unique" first name.
The prosecutor argued further the grandmother's testimony did not disprove the minor's confession. The grandmother could not know M. had never left her side as she slept at any time during the night, and the incident took place in a very short time in a part of the motorhome where the minor could have been unobserved. Furthermore, the minor's description of M.'s clothing on the night of the incident matched that of the grandmother.
The minor's counsel speculated criminal charges were not filed because Deputy District Attorney Ferry knew the minor's uncorroborated statement would not satisfy the corpus delicti rule. Counsel then asserted that rule should apply to these proceedings. He acknowledged case law holding the rule does not apply to adult probation violation hearings (People v. Monette (1994) 25 Cal.App.4th 1572 (Monette)), but argued the rationale for that holding did not fit juvenile proceedings.
Defense counsel conceded the prosecutor had shown the recorded statement was "internally consistent with having been from" the minor. He argued, however, Detective Linke did not take steps she could have taken to establish the speaker's identity: "She never met [the minor] prior to this hearing. She's seen a picture of him. She never heard his voice before. I assert to you that there has been no proof that it was him in that recording either."
Counsel also asserted that even if the minor's uncorroborated statement could prove a Penal Code section 288 offense and the juvenile court was satisfied the voice on the tape was his, the statement did not establish the elements of the offense by a preponderance of the evidence because the minor said he touched M. out of "curiosity," which did not prove a sexual purpose. The court ruled that in light of the minor's history and his admission his act was wrong, his "curiosity" was sufficiently proven to be sexual in nature. The minor does not challenge this ruling on appeal.
The juvenile court ruled: (1) For the reasons stated in the authorities holding the corpus delicti rule does not apply in adult probation revocation proceedings, it also does not apply in juvenile probation revocation proceedings. (2) The minor's statement proved the elements of the offense by a preponderance of the evidence.
B.
Analysis
1. The corpus delicti rule
The minor contends that, contrary to the juvenile court's ruling, the corpus delicti rule applies to juvenile probation revocation proceedings, and therefore his uncorroborated statement is insufficient to prove the offense. We disagree.
"In every criminal prosecution, it is necessary to establish the corpus delicti, i.e., the body or elements of the crime. These elements are '(1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm.' [Citation.]" (Monette, supra, 25 Cal.App.4th at p. 1575; italics added.)
"The nature of a probation revocation hearing, however, does not require the application of the corpus delicti rule. ' "In [granting a criminal] probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationer's failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. [Citation.]" ' [Citation.] The role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he [or she] can be safely allowed to remain in society. [Citation.]" (Monette, supra, 25 Cal.App.4th at p. 1575.)
"Penal Code section 1203.2 provides the court may revoke probation if it has reason to believe that the person has violated any of the probation conditions. More lenient rules of evidence apply than at criminal trials [citation], and the facts supporting revocation need only be proved by a preponderance of the evidence [citation]. Because the probation revocation hearing differs so substantially from a criminal prosecution, the corpus delicti rule is inapplicable." (Monette, supra, 25 Cal.App.4th at p. 1575.)
Just as adult probation revocation hearings differ from criminal prosecutions in substance and procedure, so too do juvenile probation revocation hearings. As with adult probation, juvenile probation is rehabilitative in purpose, and the court may impose any reasonable conditions it deems appropriate to that end. (§ 730, subd. (b); In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) As in adult probation revocation hearings, the juvenile court may revoke probation if it has reason to believe the probationer has violated any probation condition. (§ 777, subd. (a).) As in adult probation revocation hearings, more lenient rules of evidence apply than at criminal trials, and the facts supporting revocation need only be proved by a preponderance of the evidence, even if the alleged violation consists of committing a criminal offense. (§ 777, subd. (c); In re Eddie M., supra, 31 Cal.4th at p. 501.)
The minor cites no authority on point supporting his position, and we have found none. He relies only on case law dealing with criminal trials or preliminary hearings. (People v. Bryant (2014) 60 Cal.4th 335, 454-455; People v. Alvarez (2002) 27 Cal.4th 1161, 1164-1165; People v. Jennings (1991) 53 Cal.3d 334, 369; People v. Herrera (2006) 136 Cal.App.4th 1191, 1195-1202.) Since the purpose of criminal proceedings is fundamentally different from that of juvenile probation violation proceedings, the cited case law is inapposite.
Based on the holding of Monette, supra, 25 Cal.App.4th 1572 that we find fully applicable to juvenile probation violation proceedings, we conclude the corpus delicti rule does not apply to such proceedings. Therefore, if properly authenticated, the minor's recorded statement was sufficient to prove the allegation of a section 288, subdivision (a), offense by a preponderance of the evidence.
2. Authentication of the recorded interview
The Attorney General asserts this issue is forfeited because trial counsel did not make a timely objection to the admission of the recording on the specific ground raised on appeal. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 435; People v. Holt (1997) 15 Cal.4th 619, 666; People v. Polk (2010) 190 Cal.App.4th 1183, 1194.) He reasons that counsel's preliminary "foundational" objection was based only on the fact he had not yet heard the entire recording, once he had heard it all he did not renew that objection, and he never objected specifically the male voice had not been authenticated as the minor's voice.
The minor responds counsel's objection was sufficiently specific to inform the juvenile court it was based on failure to authenticate the male voice on the recording as the minor's, and it does not matter counsel did not use the term "authentication" because "a 'foundational' objection to a writing is an objection to its authenticity." We are not persuaded.
First, counsel's "foundational" objection was expressly based only on counsel's claim he did not yet know from a small portion of the recording whether the entire recording would correspond to the transcript. Counsel did not assert at that time, even if the recording and the transcript matched, it still needed to be established the male voice belonged to the minor. And once the recording was played in full, counsel did not object to its admission in evidence on that ground (or any other). His assertion in closing argument that it had not been proved the minor was the speaker did not make up for the failure to raise a timely and specific objection on that basis when the evidence was offered. (Evid. Code, § 353.)
Second, even if a foundational objection to a writing may be said in some broad sense to be "an objection to its authenticity," that premise does not avoid forfeiture in this instance because the foundational objection here did not challenge the "authenticity" of any particular aspect of the recording, such as the identification of the speakers' voices.
The minor relies on People v. Goldsmith (2014) 59 Cal.4th 258, 267 (Goldsmith). His reliance is misplaced. Although that decision gives a useful account of the rules relating to authentication (id. at pp. 266-267), the court had no occasion to consider whether an objection based on failure of authentication might be forfeited. Thus, Goldsmith does not assist the minor.
For the above reasons, we conclude the minor's failure-of-authentication claim is forfeited. But even if not forfeited, it lacks merit.
A writing must be authenticated before it is admitted in evidence; that is, it must be proved to be the writing its proponent claims it to be. (Evid. Code, §§ 1400, 1401, subd. (a); Goldsmith, supra, 59 Cal.4th at p. 266.) A writing includes "every . . . means of recording upon any tangible thing . . . , and any record thereby created." (Evid. Code, § 250.)
The Evidence Code lists a variety of means to authenticate evidence, but also specifies these are not the exclusive means: "Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved." (Evid. Code, § 1410.)
Although the minor cites other Evidence Code provisions on authentication, he does not mention this one in either his opening brief or his reply brief.
As Evidence Code section 1410 indicates, foundation for a recorded conversation may be supplied by many different means, such as "other witness testimony, circumstantial evidence, content and location, or any other means provided by law, including statutory presumption." (People v. Dawkins (2014) 230 Cal.App.4th 991, 1002, citing Goldsmith, supra, 59 Cal.4th at p. 268.) Only a prima facie case for authenticity is needed to justify admitting the evidence. (Goldsmith, at p. 267.)
Our standard of review on challenges to a lower court's ruling admitting evidence is abuse of discretion. (Goldsmith, supra, 59 Cal.4th at p. 266.)
Here, the prosecutor concisely stated the grounds for concluding the male speaker on the recording was the minor, including the fact he came to the telephone when called by his grandmother and then answered to his name, the fact he correctly answered every background question asked, and the fact he described the alleged molestation in a manner that corresponded to everything otherwise known about it at the time, including his prior admission in counseling. This was more than sufficient circumstantial evidence to make a prima facie case the minor had been correctly identified as the speaker.
The minor characterizes this statement by the prosecutor in closing argument as an improper attempt to authenticate the recording after it had already been admitted. This assertion overlooks the fact the prosecutor and the juvenile court were not put on notice before the recording was admitted that the minor might later challenge the identification of his voice.
The minor asserts the prosecutor's statement was an attempt to invoke Evidence Code section 1421 (authentication by showing 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"), but did not meet that standard because the cited facts do not establish only the minor could have known all the information given by the speaker on the recording. According to the minor, his brothers, who lived with him, could also have known all those facts, and since the detective had not met any of them or heard any of their voices before, she had no way of knowing the speaker was not one of his brothers. We are not persuaded.
First, the prosecutor did not purport to rely on Evidence Code section 1421. Second, the minor's argument rests on speculation and defies common sense. There is no evidence as to what the minor's brothers knew about the facts of his case and his situation. There is no evidence either brother would have had a motive to misidentify himself as the minor and fabricate a confession in his name. Finally, it is inconceivable either brother could have gotten away with such an impersonation in the confined space of a motorhome after his grandmother had called the minor to the phone and remained just steps away.
In his account of the taped conversation, the minor does not mention that after the grandmother answered the phone, the detective asked for the minor by name, the grandmother called out to him by name, and he then answered to his name when the detective asked if he was the speaker. --------
The minor relies on People v. Beckley (2010) 185 Cal.App.4th 509, in which the appellate court held the trial court had erred by admitting evidence downloaded from Internet Websites, including a photograph that had not been authenticated. His reliance is misplaced. In Beckley, unlike in our case, the defendants properly objected to the alleged lack of authentication, and the prosecution offered nothing to show the Websites were trustworthy or the photograph could not have been digitally altered. (Id. at pp. 514-515.) Here, there was neither a proper objection based on authenticity nor a claim the means used to obtain the evidence were technologically unreliable.
The minor asserts the prosecution could have put on more evidence than it did to establish the identity of the male speaker. However, as we have shown, the evidence it put on was sufficient for prima facie purposes, which is all that is required for purposes of authentication.
The minor has shown no abuse of discretion as to the admission of the recorded interview.
DISPOSITION
The order revoking probation and committing the minor to the Department of Juvenile Facilities is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
RENNER, J.