Opinion
C071466
05-14-2020
In re J.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.R., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV115695)
Appellant J.R., was declared a ward of the juvenile court (Welf. & Inst. Code, § 602 ) and placed on probation after he admitted having committed grand theft from a person (Pen. Code, § 487, subd. (c)). In this appeal challenging an order finding he violated probation, appellant contends the trial court violated his due process rights by allowing hearsay evidence over his confrontation right objection. (§ 800, subd. (a) [postjudgment orders in section 602 cases are appealable].)
Undesignated statutory references are to the Welfare and Institutions Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A juvenile wardship petition alleged that J.R., then age 16, had committed robbery (§ 211). According to the juvenile intake report, a male suspect grabbed a cell phone from a passenger riding the Sacramento Light Rail train and ran off the train when it stopped at the Florin Light Rail station. Video surveillance led police to appellant.
Appellant ultimately admitted he committed grand theft from a person (§ 487). The juvenile court found a factual basis for the admission. At the disposition hearing, the court declared appellant a ward of the court, committed him to Juvenile Hall for 41 days, with credit for time served, ordered him to complete 20 hours in Juvenile Community Service work, and committed him to Level "A" placement.
Appellant was placed at the Pacific Lodge Boys' Home (PLBH) in Woodland Hills. Woodland Hills is in Northern Los Angeles County.
The following month, a probation officer filed a report and notice of probation violation pursuant to sections 602 and 777, subdivision (a)(2), alleging three counts.
Count I alleged that the minor failed to obey the reasonable directives of the placement staff, in that he was directed to stop smoking cigarettes and turn in his paraphernalia and he failed to obey that directive.
Count II alleged that the minor was suspended from school for reasons of misconduct.
Count III alleged that the minor failed to submit to chemical testing of the blood, breath, and urine as directed by the placement staff.
The probation officer recommended a Level "B" placement.
At the hearing on the probation violations, the sole witness was probation officer Ralph DeLoach. During his testimony, the trial court admitted the following three prosecution exhibits over appellant's hearsay and confrontation clause objections:
Exhibit 1 was an email, from a PLBH case manager to DeLoach, asking him to detain appellant due to various rule violations, including smoking cigarettes and refusing to turn in smoking paraphernalia. DeLoach testified he met with appellant and PLBH staff the next day, read the email to appellant verbatim, and appellant "acknowledged his tobacco and marijuana addiction, and basically his behavior, and that he was not able to guarantee that he was going to avoid continued negative behavior that would justify his removal as a placement failure." DeLoach testified that he spoke with the persons who had observed appellant smoking but was unable to remember their names at the hearing. He further testified appellant admitted smoking and acknowledged that he failed to obey staff directives to quit smoking cigarettes and turn in his smoking paraphernalia.
Exhibit 2 was a "Notice of Suspension" form of Los Angeles County Office of Education, stating appellant was suspended from school because he "was disruptive, defiant, failed to follow instructions. Breaking metal part of pencil off from other student's pencil and drug talk. Called teacher 'a bitch.' When he left class, he called teacher a bitch again." DeLoach testified he did not ask appellant about the school suspension when he met with appellant, because the suspension occurred after the meeting. When DeLoach later spoke with appellant about the allegations of probation violations, he informed appellant that one of the counts was based on the behavior resulting in the school suspension. DeLoach did not recall appellant's response, but said appellant did not deny the activity that resulted in the suspension. DeLoach testified he has worked for the probation department for 28 years, was familiar with this type of form, and knew it was important for these documents to be accurate because they become part of the student's permanent school record.
Exhibit 3 was DeLoach's "field supervision record," which included his notes about staff reports of appellant's behavior and the officer's meeting with appellant in which appellant said he did not know why he engaged in that behavior, other than to blame it on his grandmother's death. DeLoach testified that in their meeting, appellant admitted he failed to submit to chemical testing of blood breath or urine as directed by staff. On cross-examination, DeLoach acknowledged that his notes in the field supervision record did not specifically state that appellant expressly admitted the conduct.
The juvenile court found appellant in violation of probation and in doing so, explained its reasons for allowing the exhibits. The court noted that reliable hearsay is admissible in hearing on probation violations. Exhibit 3 was written by the probation officer who testified. As to the case manager's email, it made little sense to require the author or other staff persons to travel from Northern Los Angeles County to Sacramento to testify, when the probation officer testified the minor admitted smoking and refusing to discontinue smoking and refusing to submit to the chemical test. The court found appellant's admissions to the probation officer provided a sufficient level of trustworthiness to overcome the hearsay objection. As to the notice of suspension, the court considered it trustworthy, given the probation officer's experience with these forms, even though there was no testimony that appellant expressly admitted the misconduct. The court also denied a motion to strike the probation officer's testimony.
Appellant's counsel told the juvenile court that the objections were based not only on the hearsay rule but also on the confrontation clause. The court said that did not change the analysis.
After a disposition hearing, the juvenile court continued appellant as a ward of the court, revoked probation and reinstated probation on specified conditions, and committed him to Level "B" placement.
DISCUSSION
I. Applicable Legal Principles
Appellant challenges the admissibility of the three exhibits. He argues admission of the hearsay evidence violated his due process rights.
In juvenile probation revocation hearings, "[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 . . . ." (§ 777, subd. (c); People v. Brown (1989) 215 Cal.App.3d 452, 454-455.) "As long as hearsay testimony bears a substantial degree of trust-worthiness it may legitimately be used at a probation revocation proceeding. [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient 'indicia of reliability.' [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." (Ibid.)
Regarding the confrontation right, "[p]robation revocation proceedings are not 'criminal prosecutions' to which the Sixth Amendment [right to confront witnesses] applies." (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411; accord People v. Abrams (2007) 158 Cal.App.4th 396, 400 (Abrams) ["the Sixth Amendment's right of confrontation does not apply to probation violation hearings"].) However, a defendant at a probation revocation hearing generally has the right to confront and cross-examine adverse witnesses under the federal due process clause. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 ; People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153 (Arreola); Johnson, at p. 1411; Abrams, at p. 400.)
A defendant's right to confront witnesses at probation revocation hearings is not absolute, however, and may be denied if the court finds good cause for doing so. (Arreola, supra, 7 Cal.4th at pp. 1158-1159; People v. Winson (1981) 29 Cal.3d 711, 719.) Due process does not prohibit the use of documentary evidence accompanied by reasonable indicia of reliability. (Arreola, at pp. 1156-1158; People v. Maki (1985) 39 Cal.3d 707, 715-717.) But evidence that is properly viewed as a substitute for live testimony, such as statements to a probation officer by victims or witnesses, likely falls into a category of evidence covered by our high court's decision in Arreola requiring good cause. The Arreola court held that "the broad standard" of good cause is met in three circumstances: (1) the declarant was unavailable under Evidence Code section 240; (2) the declarant was available but "the declarant, . . . can be brought to the hearing only through great difficulty or expense"; or (3) the declarant's presence would result in a risk of harm, including mental or emotional harm. (Arreola, at pp. 1159-1160.)
II. Analysis
A. Exhibit 1 - Email Regarding Smoking and
Exhibit 3 - Probation Officer's Field Supervision Record
As to Exhibits 1 and 2, appellant argues that to find good cause for admission of hearsay evidence over his confrontation objection, the court had to find that one of the three Arreola circumstances applied. Appellant argues none of the three applies here with respect to the staff members who saw him smoke or asked him to submit to the drug test. We disagree, because the second good cause circumstance in Arreola applies.
Appellant acknowledges the juvenile court referred to the difficulty and expense of obtaining live testimony, compared to the relatively minor benefit, given that appellant admitted his conduct to the probation officer. However, appellant argues the court's statement was based on opinion, not fact, and the court erred in stating the witnesses would have to travel hundreds of miles from "Calaveras County." Appellant, citing the MapQuest Web site, points out that Calaveras County is about 390 miles northeast of PLBH's location in Woodland Hills, in Northern Los Angeles County. The trial court actually said that Woodland Hills was in Northern Los Angeles County "around Calaveras," and taking judicial notice of a map of California, we note that Woodland Hills is near the town of Calabasas, California. In any event, whether the trial court mistook Calabasas for Calaveras is beside the point, because appellant does not dispute that PLBH was in Northern Los Angeles County. Using appellant's own MapQuest calculation, this would mean that the distance between Woodland Hills and Sacramento County was farther than the 390 miles appellant says it was from Calaveras County. Appellant cites no authority supporting his insinuation that the trial court was required to hear evidence of how much it would cost or how inconvenient it would be to make the witnesses travel to Sacramento.
Moreover, as noted, the probation officer read the email concerning appellant's smoking to him verbatim and defendant admitted the allegations therein. For the first time on appeal, appellant argues his admissions to the probation officer were suspect because he is a special education student on psychotropic medication and was deceived at the meeting with DeLoach by not being told the consequences of his admissions. He did not raise these arguments in the juvenile court as a basis to exclude the exhibits. Rather, in the juvenile court he argued the documents did not "back up" DeLoach's testimony that appellant admitted the conduct. On appeal he argues the deceit was that DeLoach planned to subject him to a hearing for probation violation and removal from placement, yet the probation officer testified he did not disclose his plan to appellant at the intervention meeting. Assuming this argument is not forfeited, appellant cites no evidence supporting the claim that he was deceived. Nor does he contend that the juvenile court failed to warn him of the potential consequences of probation violations when probation was granted. As to the medication, he cites to the record showing it was prescribed for insomnia that it purportedly interfered with his ability to focus and benefit from the program. He points to nothing showing that the medication or his special education status rendered his admissions invalid.
Appellant argues staff of PLBH, which "obviously" has an agreement with Sacramento County Probation Department, should expect to have to come to Sacramento from time to time to testify. But there was good cause not to require their attendance in this case aside from the logistical challenges related to distance, travel and coverage for the staff at the school while travelling to Sacramento; DeLoach testified he read the email to appellant, who admitted the reports therein were accurate. Evidence of appellant's statements to the probation officer were admissible as admissions or adoptive admissions. (Evid. Code, §§ 1220 [evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party], 1221 [evidence of statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth].)
As to Exhibit 1, the email, and Exhibit 3, the report of defendant's refusal to take a drug test reflected in DeLoach's field supervision record, appellant argues that DeLoach was a "poor historian" because he did not know the name of the persons who requested the urine sample or saw appellant smoking. However, the officer testified he spoke with these persons at the intervention meeting and saw no need to keep their names. This is understandable, since appellant admitted the conduct to the probation officer.
Appellant argues the exhibits lacked trustworthiness and reliability. He asserts there are two categories of documentary hearsay evidence: (1) "routine recordkeeping tasks" in which evaluation of a witness's demeanor would add little to the truth-finding process (People v. Gomez (2010) 181 Cal.App.4th 1028, 1038-1039 (Gomez)), and (2) as a substitute for live testimony in which observation of a witness's demeanor is assertedly critical (In re Kentron D. (2002) 101 Cal.App.4th 1381, 1391.) Documents in the first category do not require a showing of good cause, only a showing of indicia of reliability. (Gomez, at pp. 1034-1039.) According to appellant, all of the exhibits fall in the second category. Documents in the second category are properly viewed as a substitute for live testimony, such as statements to a probation officer by victims or witnesses, and require a showing of good cause. (Ibid.)
We agree that Exhibit 1, the email, falls into the second category, but as we have noted, there was live testimony by a probation officer who testified he repeated the allegations to appellant and heard appellant admit them. Appellant's admissions to the allegations in the email made the email admissible.
Exhibit 3, the probation officer's field supervision notes referencing appellant's refusal to take a drug test, is documentary evidence not requiring a showing of good cause, similar to the probation report showing defendant failed to report as directed, failed to pay restitution and failed to submit verification of his employment and attendance at counselling sessions in Gomez. (Gomez, supra, 181 Cal.App.4th at p. 1031; See also Abrams, supra, 158 Cal.App.4th at p. 398 [probation officer report showing defendant failed to report to probation officer and failed to make monetary payments was admissible at probation violation hearing]; See also People v. O'Connell (2003) 107 Cal.App.4th 1062, 1064-1065 (O'Connell) [counseling program manager's report stating defendant was terminated from the program for "too many absences" was admissible to prove discharge from program based on failure to attend].) Additionally, appellant admitted refusing to take a drug test, an event also referenced in Exhibit 3.
Indeed, even if Exhibits 1 and 3 were not admissible, their admission here was harmless beyond a reasonable doubt because appellant admitted the conduct reported therein. (See Arreola, supra, 7 Cal.4th at p. 1161 [concluding that the due process violation therein was harmless beyond a reasonable doubt].)
B. Exhibit 2 - Notice of School Suspension
Appellant asserts that the probation officer did not know whether the person who wrote the notice of school suspension had actually witnessed the misconduct. Appellant points out that the notice of suspension acknowledges the teacher did not discuss the matter with appellant because he was confrontational.
The notice contained two components: (1) appellant was suspended and (2) the suspension was for specified misconduct. The first component is clearly not testimonial evidence, but rather documentary evidence akin to the documents in Gomez and O'Connell discussed ante. The notice reported the event of appellant's suspension. As to the second component, the specific misconduct underlying the reason for the suspension, does implicate appellant's confrontation right. The reason for the suspension is important because appellant's suspension would only be a violation of probation if as specified by the condition of probation, it was "for any reason of misconduct or non-attendance."
The condition of probation stated: "Not to be absent from school or tardy to school until age 18 for more than 30 minutes without a valid excuse and not be suspended or excluded from school for any reason of misconduct or non-attendance." (Italics added.)
However, even assuming the reason for the suspension as set forth in the notice was testimonial and required a showing of good cause, we would still conclude the notice was admissible. As noted ante, the probation officer later spoke with appellant about the probation violation allegations and told appellant that one of the counts was based on the behavior resulting in the school suspension. While the probation officer did not recall appellant's response, he did recall that appellant did not deny the activity that resulted in the suspension. Thus, the failure to deny the allegation concerning the misconduct was admissible as an adoptive admission. (Evid. Code, § 1221.)
Moreover, even if the notice of suspension was not admissible, there were two violations supported by the admissible evidence we have discussed, ante. In light of our conclusion that the juvenile court did not err related to that evidence, there was sufficient evidence upon which the juvenile court relied to find the minor violated his probation. Thus, any error in admitting Exhibit 2 was harmless beyond a reasonable doubt. (See Arreola, supra, 7 Cal.4th at p. 1161.)
C. Conclusion
We conclude appellant fails to show grounds to reverse the order finding him in violation of probation.
DISPOSITION
The order finding appellant in violation of probation is affirmed.
/s/_________
MURRAY, J. We concur: /s/_________
RAYE, P. J. /s/_________
ROBIE, J.