Filed 10/26/18 In re J.V. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

J.V. (Minor), a ward of the juvenile court, appeals from a finding that she violated four probation conditions, and a disposition order that included she complete a 90-day home supervision program. She alleges the juvenile court admitted unreliable hearsay to prove she violated the condition to attend school regularly and there was no evidence in the record to prove the other three probation conditions were willfully violated. For reasons below, we affirm the order.

I. BACKGROUND

On April 18, 2016, J.V. (Minor) pleaded no contest to a misdemeanor assault by force, in violation of Penal Code section 245, subdivision (a)(4). In a May 16, 2016 disposition hearing, the juvenile court recommended she be admitted as a ward of the court and imposed probation conditions, including: (1) she attend school regularly (school attendance condition); (2) report to the Deputy Probation Officer when directed (reporting condition); (3) complete 50 hours of community service by November 16, 2016 (community service condition); and (4) pay a $25 restitution fine by August 16, 2016 (restitution condition).

The deputy probation officer assigned to Minor was Michael Harmer. Harmer, Minor, and Minor’s mother had a meeting scheduled on February 2, 2017, at 3:30 pm to review Minor’s conditions of probation because Harmer was told, by school officials, that Minor was having some truancy issues. At the time, Minor was enrolled at Greenwood Academy. At 3:15 pm on February 2, 2017, Harmer called Minor to ask if she and her mother were coming; Minor said she was unable to come and her mother was working. Minor failed to show at the appointed hour. On February 6, 2017 and February 24, 2017, Harmer looked up Minor’s school attendance record using the computer application PowerSchool. The attendance record indicated that Minor had failed to attend classes, and sometimes was absent from school the entire day, between February 6 and 17.

On March 13, 2017, a probation violation petition was filed alleging Minor failed to attend school regularly, follow probation orders, complete 50 hours of community service by November 16, 2016, and failed to pay her restitution fine by August 16, 2016. A probation violation hearing was held on April 17, 2017.

At the hearing, the prosecution called Harmer as their only witness and submitted one exhibit: a four-page PowerSchool printout of Minor’s attendance record (hereinafter attendance record). As to the alleged school attendance condition violation, Harmer testified—over numerous foundation objections by Minor’s counsel—that he was trained in accessing, and regularly accessed, PowerSchool, and that the attendance record shows Minor’s repeated absence from school in the 2016–2017 school year. The juvenile court noted Minor’s objections and asked a couple of follow up questions, but then entered the printouts into the record as exhibit one. Harmer also testified that Minor missed the February 2, 2017 scheduled meeting, paid the restitution fine late, on March 21, 2017, and as of April 17, 2017, had not provided him with proof of completion of Minor’s community service hours.

On cross-examination, Harmer testified that he could not remember having a conversation with Minor about doing her community service hours at a beauty salon, that he told her to hang on to a paper proving she had done her community service hours, or that Minor had told him she had problems getting to school because of transportation issues. Minor offered no witnesses or exhibits in her defense.

The juvenile court found Minor had violated all four probation conditions and ordered that Minor continue as a ward of the court, participate in independent study to graduate high school, and serve 90 days on the home supervision program. Minor timely appeals.

II. DISCUSSION

A. Alleged Hearsay Violation

A court can revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe. . . that the person has violated any of the conditions of . . . her supervision.” (Pen. Code, § 1203.2 subdivision (a).) The People have the burden of proof to show a probation violation by a preponderance of the evidence standard. (Evid. Code, § 500; People v. Rodriguez (1990) 51 Cal.3d 437, 446.) Admissibility of evidence is reviewed on an abuse of discretion standard. (People v. Brown (1989) 215 Cal.App.3d 452, 454-455 (Brown).)

The High Court, in Gagnon v. Scarpelli held that under the due process clause of the federal Constitution, a defendant in a probation revocation hearing generally has a “conditional right to confront adverse witnesses” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 (Gagnon); see Morrissey v. Brewer (1972) 408 U.S. 471, 487 (Morrisey).)[1] Recognizing that these proceedings are informal and applying the flexible due process minima delineated in Morrissey, the Gagnon court explained that “[w]hile in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.” (Gagnon, supra, 411 U.S. 778 at p. 782, fn. 5.) Thus, in juvenile probation revocation proceedings “[t]he 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, 215 Cal.App.3d (1989) and any other relevant provision of law.” (Welf. & Inst. Code, § 777, subd. (c).) Under Brown, a hearsay statement may be admitted in a probation revocation proceeding if it “bears a substantial degree of trust-worthiness” and “there are sufficient ‘indicia of reliability.’ ” (Brown, supra, 215 Cal.App.3d at p. 454.)

Minor argues there should not have been a probation violation finding on the school attendance condition because the finding was based on inadmissible hearsay. Minor says the attendance record is inadmissible because it lacks an evidentiary foundation and is not reliable. We disagree.

To be admissible over a hearsay objection, some types of documentary evidence require a foundation of live testimony and some do not. (People v. Arreola (1994) 7 Cal.4th 1144, 1157 (Arreola).) The key is whether the documents involved include evidence that is “testimonial” in nature. (Ibid. [“the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor”].) For example, the need for confrontation is particularly important when transcripts of witness testimony in preliminary hearings or probation reports are offered, thus requiring the prosecution to show good cause for admitting such documentary hearsay evidence. (See Arreola, supra, 7 Cal.4th at p. 1160; People v. Winson (1981) 29 Cal.3d 711, 715; In re Kentron D. (2002) 101 Cal.App.4th 1381, 1384 (Kentron D.).) For other documents such as laboratory reports, invoices, or receipts, the need for confrontation is less important because their accuracy can typically be evaluated without observing the demeanor of those who recorded the information. (Arreola, supra, 7 Cal.4th at p. 1157; see People v. Maki (1985) 39 Cal.3d 707, 709; Brown, supra, 215 Cal.App.3d at pp. 455–456). For documents in this latter category, only some showing of an indicia of reliability—which may come from the documents themselves—is required. (Brown, supra, 215 Cal.App.3d at pp. 454–455.)

Because there is no testimonial foundation to support that the PowerSchool printout was an official record kept by a public employee or a business record, Minor relies on Kentron D. In that case, the People introduced hearsay allegations contained in the counts of an accusatory pleading (a Welf. & Inst. Code, § 777 report and notice) as the sole evidence to prove said allegations at a juvenile probation revocation proceeding instead of presenting live testimony from percipient witnesses. Kentron D. concluded the notice was inadmissible hearsay violative of the minor’s right to confrontation guaranteed by federal due process where no showing was made that six probation officers who had observed the minor's misconduct were unavailable, and where the People did not call as witnesses other probation officers present in court. (Kentron D., supra, 101 Cal.App.4th at pp. 1384, 1387-1388, 1393.) On appeal from a probation revocation made upon this showing, the court reversed, finding an abuse of discretion because “[t]here was no showing of good cause to permit the expedient of allowing the People to submit solely on the basis of a written report, which denied appellant, as well as the trier of fact, the opportunity to observe the demeanor of appellant’s accusers, one of the essential components of the right of confrontation.” (Id. at p. 1393)

Kentron D. contrasts with Maki, where our Supreme Court affirmed the admissibility of a Hyatt Hotel receipt and a Hertz Car Rental invoice because this documentary hearsay evidence did not have live testimony as their source and are supported by indicators that the documents are reliable on their face to show the defendant violated his probation condition to not leave the area without permission. (Maki, supra, 39 Cal.3d at p. 717.) The court emphasized that this holding was narrow, as there is no adequate alternative to live testimony, but the court did not want to prohibit the use of appropriate conventional substitutes for live testimony, like the receipt and invoice documentary evidence. (Id. at p. 714.) Notably, the hearsay documents at issue in Maki, on their face, had information that bolstered their reliability. A significant factor was the uncontroverted presence of the defendant’s signature on the invoice. (Id. at p. 716.) The invoice also had the Hertz emblem, date stamps, and in the box printed “Vehicle Rented at (City/State)” was the handwritten inscription “O’Hare Field, Chicago, IL.” (Ibid.) The hotel receipt also had the defendant’s name printed on it and the date. (Id. at p. 717.) Therefore, taken together, the documents provided a sufficient basis to conclude Maki violated his parole. (Ibid.)

Similar to Maki, in People v. O’Connell, the Third District affirmed the trial court’s decision to admit a report stating the defendant had been terminated from a counseling program because of excessive absences and revoke his probation. (People v. O’Connell, (2003) 107 Cal.App.4th 1062, 1064 (O’Connell).) The author of the report, a program manager from the counseling program, did not testify at the probation revocation proceeding. (Id. at p. 1066.) The Third District found that these types of contemporaneous reports, specifically prepared for a hearing on the probationer’s lack of compliance, are “akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings.” (Id. at p. 1067.) Minor’s school attendance report is very similar to the reliable hearsay in O’Connell.

Applying the principles enunciated in Maki, Kentron D., and O’Connell, we conclude the juvenile court did not abuse its discretion in admitting the PowerSchool printout of her school attendance record. The record shows the court considered the foundational testimony Harmer laid out and we find nothing in the record which would warrant a reversal. During Harmer’s testimony, the juvenile court sustained several of the defense’s foundation objections and asked follow up questions on the school attendance record’s origin. After Harmer testified that the attendance record contains Minor’s name, the date the school attendance record was printed, and the information provided on the attendance record, the court admitted the school attendance record as evidence. Minor provided no evidence that the school attendance record was unreliable, only arguing that the proper foundation had not been not been met, which the juvenile court overruled.

Minor would have us reverse the juvenile court’s finding on the grounds that the juvenile court improperly admitted unreliable hearsay because there is no testimony on the reliability of the PowerSchool data itself. The difficulty with this argument is that there is nothing in the record to undermine the juvenile court’s conclusion that the People have met their burden and the reports are reliable. Minor only speculates about the unreliability on appeal.

The juvenile court also did not abuse its discretion because the attendance records are used routinely in the probation officer’s duties and because they were prepared contemporaneously to Minor’s lack of compliance. Harmer testified that he is trained in accessing PowerSchool and accesses it “probably every two weeks.” Date stamps on the school attendance report support that assertion and also could have convinced the juvenile court of the document’s reliability because the reports were prepared contemporaneously to Minor’s lack of compliance. The reports were accessed and printed on February 6 and February 24 of 2016, and the probation violation notice alleged Minor failed to attend school between February 6, 2016 and February 17, 2016.

B. Willful Violation of the Other Three Probation Conditions

Minor would have us reverse the other three probation violations (the reporting condition, community service condition, and the restitution condition) because they were not “willful” violations. This we decline to do. For the court to find a probation condition violation, the violation must be willful and not due to circumstances beyond the probationer’s control. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295 [The defendant did not willfully violate probation for missing a mandatory probation review hearing because at the time of the meeting, the defendant was in the custody of immigration authorities after being handed over by the sheriff’s office].) We review probation violation findings on an abuse of discretion standard. (Ibid.)

Taking the other probation violation findings one by one, we reject Minor’s arguments that there was no evidence of willfulness. The finding that Minor willfully violated the reporting probation condition is supported by substantial evidence. Harmer testified that Minor knew about the February 2, 2017 probation appointment, because the appointment was scheduled three days prior and on February 2, 2017, Harmer called Minor fifteen minutes before the appointment start time. Minor subsequently failed to appear at the appointment with her mother. Although Minor did not testify in her defense or provide any evidence, Harmer’s testimony did provide some evidence the violation was not willful by stating that in their telephone conversation, Minor’s mother was working and thus could not attend. However, we find nothing in the record that warrants a reversal for abuse of discretion. The juvenile court properly weighed Harmer’s testimony and the probation report to find the violation.

The findings that Minor violated the restitution condition and the community service condition are also supported by substantial evidence. Harmer testified Minor violated the restitution condition by not paying the restitution fine, due August 6, 2016, until March 10, 2017. He also testified Minor had not provided him with any proof of completion logs confirming she had completed the community service hours and therefore was in violation of the community service condition. Minor did not offer any evidence why she failed to pay the restitution fine or complete her community service. There is nothing in the record showing the juvenile court abused its discretion in finding Minor violated the restitution condition or the community service condition.

III. DISPOSITION

The order of the juvenile court is affirmed.

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Streeter, Acting P.J.

We concur:

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Reardon, J.*

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Lee, J.**