In re G.B.

 

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,         Plaintiff and Respondent,                           v.   G.B.,         Defendant and Appellant.	G046494            (Super. Ct. No. ST001059)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">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 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. 

                        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 name=SearchTerm>“their behavior ‘“is
considered
unacceptable
solely name="SR;5757">because name="SR;5758">of name="SR;5759">their name="SR;5760">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. 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 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).) 

                        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 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, 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 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.