Filed 7/7/17 P. v. Hernandez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JAVIER HERNANDEZ,

Defendant and Appellant.
D070250



(Super. Ct. No. SCN341978)

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Javier Hernandez was convicted of four offenses related to his harassment and stalking of his former girlfriend, including one misdemeanor count of violating a protective order, in violation of Penal Code section 166, subdivision (c)(1). With respect to that count, on appeal he argues the trial court erred in admitting an uncertified copy of the underlying protective order, although the original order was in the court's file in the criminal proceeding. We find no error and affirm the judgment of conviction in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014 and 2015, Hernandez and Marbel Ochoa were in a romantic relationship and lived together. However, after Hernandez began abusing Ochoa and her five-year-old daughter, Ochoa ended the relationship and Hernandez began to stalk and harass her.
On February 12, 2015, Hernandez was arrested at the apartment where Ochoa was staying with her daughter and mother; Hernandez was arrested after trying to break into the apartment and making verbal threats.
Six days later on February 18, 2015, Hernandez was arraigned on the charges growing out of his conduct on February 12, 2015. Ochoa appeared at Hernandez's arraignment and, at the arraignment, obtained a restraining order protecting her and her mother from Hernandez. The order was served on Hernandez at the time of the arraignment and was made in the criminal case No. CN341978, which had been initiated against him. Thereafter, Hernandez violated the order by repeatedly calling Ochoa.
At trial, in support of the allegation Hernandez violated a restraining order, the People offered an uncertified copy of the February 18, 2015 restraining order. Hernandez objected to admission of the uncertified copy on the grounds it had not been properly authenticated. The trial court overruled the objection and admitted the copy into evidence. Hernandez was thereafter convicted of stalking (§ 646.9), making a criminal threat (§ 422), resisting a peace officer (§ 148, subd. (a)(1)), and violating a restraining order. The trial court sentenced him to a term of 11 years.
DISCUSSION
As we indicated, on appeal Hernandez argues the trial court erred in admitting the uncertified copy of the restraining order. However, in light of the fact that the original order was in the court's file in the very action in which Hernandez was being prosecuted, the copy was admissible under Evidence Code section 1410, which permits a copy to be authenticated by, among other means, circumstantial evidence. (See People v. Skiles (2011) 51 Cal.4th 1178, 1187.) Because the face of the copy showed that the original was in the court's own file in the case the court was hearing, the trial court could reasonably infer from that any discrepancy between the original in its file and the copy could be and would be readily brought to its attention; in this particular and somewhat unique context, the failure of the parties to demonstrate any such discrepancy was a circumstance which itself lent credibility to the copy sufficient to permit its admission.
We agree with Hernandez that the better practice on the part of the prosecutor would have been to obtain a certified copy of the prior order or, in responding to Hernandez's objection, expressly requesting that the trial court take judicial notice of its own file. A certified copy would have been prima facie evidence of authenticity under Evidence Code sections 1530 and 1531 (see People v. Skiles, supra, 51 Cal.4th at pp. 1186-1187); a formal request for judicial notice of the court's file would have formally established that the copy was a faithful copy of the original. Nonetheless, in the unique circumstance presented here, the accessibility of the original to both the trial court and the parties provided reasonable assurance of the copy's authenticity, and the trial court did not err in admitting it.
DISPOSITION
The judgment is affirmed.


BENKE, Acting P. J.

WE CONCUR:



HUFFMAN, J.



HALLER, J.