In re G.B. CA4/3

Filed 5/23/13 In re G.B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re G.B., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

G046494

Plaintiff and Respondent,

(Super. Ct. No. ST001059)

v.

OPINION

G.B.,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Deborah

J. Chuang, Judge. Affirmed.

Michelle C. Zehner, under appointment by the Court of Appeal, for

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and

Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

The Probation Officer filed a petition under Welfare and Institutions Code

section 601, subdivision (b) (all further statutory references are to the Welfare and

Institutions Code unless otherwise indicated) seeking to have G.B. (minor) declared a

ward of the court as a truant. The juvenile court sustained the petition after admitting,

over minor‟s objection, school district records documenting his numerous absences and

the district‟s unsuccessful efforts to resolve the problem. The court then issued a

dispositional order, placing the minor in his mother‟s custody under the probation

officer‟s supervision with conditions requiring him to enroll in and attend school.

On appeal, the minor argues the admission of his school records violated

his right of confrontation and they were inadmissible as business records because the

custodian of records‟ affidavit accompanying the records failed to describe the mode of

preparation. Further, acknowledging his probation has terminated, minor claims the

issues raised are not moot. Finding no error, we affirm the judgment.

FACTS

The only evidence presented at the jurisdictional hearing was minor‟s

school records from the Placentia-Yorba Linda Unified School District. The documents

reflect minor, born in February 1994, began the 2010-2011 school year enrolled at

Valencia High School. In September and October 2010, the school‟s attendance director

sent minor‟s mother letters informing her of his unexcused absences. The second letter

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requested minor and his mother attend a meeting with the school attendance review team

scheduled for October 11. The records contained a document dated October 11,

purportedly signed by minor and his mother, in part, stating minor agreed to “[a]ttend

school regularly and on time each day” and “[h]ave no truancy or unexcused absences.”

It included an acknowledgement “further violations of school rules and regulations can

result in a referral to the District Attorney and the district‟s School Attendance Review

Board.” (Italics omitted.)

Thereafter, minor transferred to El Camino Real Continuation High School.

This school‟s attendance records indicate that of the 78 class days between late October

2010 and mid-March 2011, minor had 38 days of unexcused absences. In November, the

district attorney‟s office contacted his mother and scheduled another meeting.

The district scheduled a third meeting with minor and his mother for

February 22, 2011. A document dated February 22, purportedly signed by minor, his

mother, and members of the district‟s student attendance review board again stating

minor would “[a]ttend school regularly and on time each class period” and “[h]ave no

truancy or unexcused absences.” In mid-March, minor dropped out of school.

DISCUSSION

Claiming his probation was terminated in July 2012, minor first contends

that ruling does not moot this appeal. Other than merely acknowledging minor‟s

statement his probation was terminated, the Attorney General does not disagree. The

dispositional ruling in a proceeding under section 601 is an appealable judgment. (§ 800,

subd. (a); In re James J. (1986) 187 Cal.App.3d 1339, 1341.) Since the appellate record

does not reflect termination of minor‟s probation and neither party cites authority

declaring such an order renders a pending appeal moot, we proceed to consider the

substantive issues raised by the appeal.

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Minor contends the juvenile court‟s admission of his school records

violated his constitutional right to confront and cross-examine witnesses as construed by

the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 [124

S.Ct. 1354, 158 L.Ed.2d 177] and its progeny. We find this argument unpersuasive.

Crawford held “Testimonial statements of witnesses absent from trial [are

admissible] only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” (Crawford v. Washington, supra, 541 U.S. at

p. 59.) However, this rule is inapplicable here for two reasons.

First, the rule applies only in criminal proceedings. Crawford is based on

the United States Constitution‟s Sixth Amendment. It provides “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him . . . .” Cases have recognized “„[t]he confrontation clause is a criminal law

protection‟” and thus the Crawford doctrine does not apply in other contexts.

(Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159,

1171.)

Minor‟s petition alleged he was a truant under section 601, subdivision (b).

It applies to a minor with “four or more truancies within one school year,” or where “a

school attendance review board or probation officer determines . . . the available public

and private services are insufficient or inappropriate to correct the habitual truancy,” “or

if the minor fails to respond to directives of a school attendance review board or

probation officer or to services provided . . . .” “Persons within section 601 are

commonly referred to as „status offenders‟” because “their behavior „“is considered

unacceptable solely because of their age.” [Citation.]‟ [Citation.]” (In re P.A. (2012)

211 Cal.App.4th 23, 35; see also In re Michael G. (1988) 44 Cal.3d 283, 287, fn. 2.)

Minor notes “juveniles are guaranteed the right to confrontation in

section 602 proceedings” and argues the same rule should apply here because a wardship

finding under section 601 can lead to restrictions on a juvenile‟s freedom and autonomy.

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Both the United States and California Supreme Courts have held many of the

constitutional rights accorded to adults charged with criminal offenses apply to juveniles

who charged with violating the law under section 602. (In re Gault (1967) 387 U.S. 1,

12, 30-31; Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375-376.) This includes

the right to confront and cross-examine witnesses. (In re Gault, supra, 387 U.S. at p. 56.)

It has been recognized a juvenile subject to a wardship petition under section 601 has a

due process right to a fair hearing. (In re Jesse G. (2005) 128 Cal.App.4th 724, 729

[minor‟s due process right violated by referee who called and questioned sole witness].)

But section 601, subdivision (b) states “it is the intent of the Legislature

that no minor who is adjudged a ward of the court pursuant solely to this subdivision

shall be removed from the custody of the parent or guardian except during school hours.”

The potential for a minor adjudged a truant to suffer more restrictive confinement

requires a further and collateral contempt proceeding. (See In re Michael G., supra, 44

Cal.3d at pp. 287, 294-295, 297; L.A. v. Superior Court (2012) 209 Cal.App.4th 976,

982-985.)

Other statutory provisions also require different treatment for juveniles

alleged to be wards under section 601 than minors alleged to fall under section 602.

Section 601 proceedings are “commenced by the filing of a petition by the probation

officer” (§ 650, subd. (b)), but section 602 proceedings “are commenced by the filing of a

petition by the prosecuting attorney” (§ 650, subd. (c)). In section 601 proceedings, if

“the minor . . . is represented by counsel, the prosecuting attorney may, with the consent

or at the request of the juvenile court judge, or at the request of the probation officer with

the consent of the juvenile court judge, appear and participate in the hearing to assist in

the ascertaining and presenting of the evidence” (§ 681, subd. (b)). But in section 602

proceedings, “the prosecuting attorney shall appear on behalf of the people” (§ 681, subd.

(a)). In addition, under section 701 proof by “a preponderance of evidence, legally

admissible in the trial of civil cases must be adduced to support a finding that the minor is

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a person described by Section . . . 601,” while “[p]roof beyond a reasonable doubt

supported by evidence, legally admissible in the trial of criminal cases, must be adduced

to support a finding that the minor is a person described by Section 602.”

Even if we treat a truancy hearing as equivalent to a criminal proceeding,

Crawford and its progeny only apply to the use of testimonial statements. The California

Supreme Court recently explained “a statement is testimonial when two critical

components are present. [¶] First, . . . the out-of-court statement must have been made

with some degree of formality or solemnity. . . . [¶] Second, . . . an out-of-court

statement is testimonial only if its primary purpose pertains in some fashion to a criminal

prosecution . . . .” (People v. Lopez (2012) 55 Cal.4th 569, 581-582.)

Under this definition, minor‟s school records are not testimonial. The

district attorney introduced the records under the business records exception. (Evid.

Code, § 1271.) Crawford noted when the Sixth Amendment was adopted, “[m]ost of the

hearsay exceptions covered statements that by their nature were not testimonial—for

example, business records . . . .” (Crawford v. Washington, supra, 541 U.S. at p. 56.)

Minor cites Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [129

S.Ct. 2527, 174 L.Ed.2d 314], where the high court stated, while, “[d]ocuments kept in

the regular course of business may ordinarily be admitted at trial despite their hearsay

status . . . that is not the case if the regularly conducted business activity is the production

of evidence for use at trial.” (Id. at p. 321.) He argues this exception applies here

because his school records “were put together by a government employee for the specific

purpose of being submitted to th[e] . . . trial court as a primary source of evidence of [his]

truancy.” (Italics omitted.)

This argument misconstrues the record. School districts maintain records

on student attendance for reasons other than establishing truancy. For example, daily

attendance records are necessary in determining a district‟s receipt of funding from the

state. (Cal. Const., art. 16, § 8, subd. (f).)

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Furthermore, the district delivered minor‟s attendance records in response

to a subpoena and the attached declaration‟s purpose was to authenticate the subpoenaed

documents. This distinction was recognized both in Melendez-Diaz v. Massachusetts,

supra, 557 U.S. at p. 322 and People v. Perez (2011) 195 Cal.App.4th 801, which upheld

the admission of prison records to support prior serious felony and prior prison term

allegations. “In Melendez-Diaz, „[t]he high court distinguished the forensic analysts‟

reports, which were testimonial, from a clerk‟s certificate authenticating an official

record for use as evidence. [Citation.] A clerk, the court explained, “could by affidavit

authenticate or provide a copy of an otherwise admissible record, but could not do what

the analysts did [in Melendez-Diaz]: create a record for the sole purpose of providing

evidence against a defendant.” [Citation.]‟” (People v. Perez, supra, 195 Cal.App.4th at

p. 804.) Thus, the juvenile court did not err by rejecting minor‟s objection the admission

of his school records violated the Sixth Amendment.

Minor‟s final claim is that his school records were inadmissible because

the custodian‟s affidavit failed to satisfy the foundational requirement of describing

their mode of preparation. In support of his argument, he cites Evidence Code

section 1561. That section is part of “a streamlined method for the production of the

records of a business in response to a subpoena duces tecum.” (Taggart v. Super Seer

Corp. (1995) 33 Cal.App.4th 1697, 1705; see Evid. Code, §§ 1560, 1561 & 1562.)

Under this procedure, “[u]nless the subpoena provides otherwise [citations], the

custodian or other qualified witness may send a copy of the records by mail in a

sealed envelope [citation]. . . . [¶] Along with the records, the custodian must also send

an affidavit” containing the requirements set forth in Evidence Code section 1561

(Taggart v. Super Seer Corp., supra, 33 Cal.App.4th at p. 1705), which includes the

custodian‟s affidavit identifying the attached copies of the subpoenaed records and

describing their “mode of preparation . . . .” (Evid. Code, § 1561, subd. (a)(4) & (5).)

Under Evidence Code section 1562 “[t]he affidavit is admissible as evidence of the

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matters stated therein . . . and the matters so stated are presumed true,” and “[i]f the

original records would be admissible in evidence if the custodian or other qualified

witness had been present and testified to the matters stated in the affidavit, and if the

requirements of Section 1271 have been met, the copy of the records is admissible in

evidence.”

But as the just quoted statute indicates Evidence Code section 1561 is not

an independent basis for admitting the attached document or documents. For a business

record to be admissible over a hearsay objection, the requirements of Evidence Code

section 1271 must be satisfied. This statute also requires “[t]he custodian or other

qualified witness” identify a writing sought to be admitted as a business record “and the

mode of its preparation” to be admissible. (Evid. Code, § 1271, subd. (c); see Bhatt v.

State Dept. of Health Services (2005) 133 Cal.App.4th 923, 929.)

“The object of [Evidence Code section 1271] is, of course, to eliminate the

necessity of calling each witness. The foundation for admitting the record is properly

laid if in the opinion of the court, the sources of information, method and time of

preparation were such as to justify its admission. . . .” (People v. Williams (1973) 36

Cal.App.3d 262, 275.) “A trial court has broad discretion in determining whether a

sufficient foundation has been laid to qualify evidence as a business record. On appeal,

we will reverse a trial court‟s ruling on such a foundational question only if the court

clearly abused its discretion.” (People v. Hovarter (2008) 44 Cal.4th 983, 1011.)

No abuse of discretion has been shown here. Attached to the school

records was a declaration signed by John Ramirez, identified as the district‟s child

welfare and attendance supervisor. Ramirez described himself as the district‟s

“authorized custodian of records,” a 22-year district employee, with 10 years of service

on its student attendance review board. He identified the enclosed documents as

including minor‟s photograph, a student data form from El Camino High School

containing minor‟s class schedule, his attendance record, letters concerning absences,

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attendance review board documents, and materials documenting attempts to address

minor‟s lack of attendance.

The declaration states: “These records were prepared in the ordinary course

of business at or near the time of the act, condition, or event. . . . I am familiar with the

mode of preparation [of] these documents[,] . . . how these records are produced and

printed and prepared[,] . . . [and] the way in which the information is entered into our

district data base. The method of record keeping has been established to ensure the

trustworthiness of the records. Only certain personnel at the school have access to the

records contained in the documents. Our records are password protected and not

available to all school personnel. . . .”

“Whether a particular business record is admissible as an exception to the

hearsay rule . . . depends upon the „trustworthiness‟ of such evidence, a determination

that must be made, case by case, from the circumstances surrounding the making of the

record. [Citations.]” (People v. Aguilar (1971) 16 Cal.App.3d 1001, 1005.) To establish

minor‟s truancy, the prosecutor cited his El Camino High School attendance record. That

consisted of a one-page document containing his name and other identifying information

at the top, five columns listing the days of the week and each day‟s class periods along

the top, and the dates school was in session appearing vertically on the left of each

column. Letters appear in the columns for each class period on each date. A legend at

the bottom of the page describes the meaning of each letter; whether minor was present,

late, or absent, and if the latter, whether the absence was excused or unexcused. A

summary of minor‟s attendance and absence for each class period also appears at the

bottom of the page.

As for the attempts to correct minor‟s frequent absences, the prosecutor

relied on the letters sent to minor‟s mother from the district attorney and school district

informing her of the problem and scheduling meetings to address it. As to the district

attorney‟s letter, the court stated it did not consider the truth of its contents, “but only the

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fact that . . . there was notification . . . and there was [a] copy . . . the school district had

received . . . .” While the court did not expressly limit its consideration of the school

district‟s letter, presumably it treated that document in the same manner.

Ramirez did not describe in great detail the manner in which school district

employees recorded minor‟s presence or absence, from his declaration. But we can infer

from the contents of his declaration, noting the limitations on access to the district‟s

password protected database, and the format in which minor‟s class attendance was

maintained, that his presence or absence from class and the reason for each absence was

recorded by authorized district employees on each of the dates and the class periods

identified. (See People v. Dorsey (1974) 43 Cal.App.3d 953, 960-961 [prosecution for

issuing insufficient checks; given “common knowledge” on how bank checking account

“statements . . . are prepared,” appellant not prejudiced by “absence of testimony as to the

„method‟ of preparation of [bank] records, i.e., whether by hand or by computer and from

what sources”].) We conclude the trial court did not abuse its discretion in admitting

these documents.

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

IKOLA, J.

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