In re G.G. CA2/1 ( 2013 )


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  • Filed 12/26/13 In re G.G. CA2/1
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    In re G.G., a Person Coming Under the                                B246586
    Juvenile Court Law.
    (Los Angeles County
    THE PEOPLE,                                                          Super. Ct. No. KJ36545)
    Plaintiff and Respondent,
    v.
    G.G.,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County. Phyllis
    Shibata, Juvenile Court Referee. Affirmed.
    Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A.
    Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
    _________________________________________________
    The juvenile court found G.G., a minor, to be a habitual truant and placed her
    home on probation. She contends the evidence of her truancy was inadmissible for lack
    of foundation and its admission violated her Sixth Amendment right to confront the
    witnesses against her. We affirm the judgment.
    FACTS AND PROCEEDINGS BELOW
    Welfare and Institutions Code section 601, subdivision (b) provides that if a
    minor has four or more truancies within one school year, as defined in Education Code
    section 48260, subdivision (a) or if “a school attendance review board . . . determines that
    the available public and private services are insufficient or inappropriate to correct the
    habitual truancy of the minor, . . . or if the minor fails to respond to directives of a school
    attendance review board . . . the minor is then within the jurisdiction of the juvenile court
    which may adjudge the minor to be a ward of the court.”
    In July 2011, the Los Angeles County District Attorney filed a petition alleging
    that G.G. came within the provisions of Welfare and Institutions Code section 601 as a
    habitual truant. The petition alleged that G.G. “was absent or tardy from school without
    valid excuse” on eight days in the month of October 2009. It also alleged that G.G. and
    her parents were referred to the School Attendance Board in January 2010 and to the
    district attorney’s mediation program in May 2010.
    An adjudication hearing was held in November 2012.
    The People’s principal witness was Jennifer Kottke who, in 2009-2010, oversaw
    student attendance within the Rowland Unified School District (RUSD). Kottke testified
    that in the 2009-2010 school year G.G. was an 8th grade student within the RUSD.
    According to Kottke, RUSD maintained records of student attendance on a computer
    database called AERIES. The attendance information in the system is entered by the
    secretarial or attendance staff at the various schools.
    Kottke identified Exhibits 2 and 3 as attendance records showing that G.G.
    had unexcused absences on October 9, 12, 13, 14, 15, 16, 23, 24, 26 and 27, 2009. She
    testified that the records’ contents were generated by employees of RUSD in the regular
    2
    course of business and the information they contain was entered at or near the time the
    events occurred.
    The court admitted the exhibits over G.G.’s objection of lack of foundation.
    G.G. called no witnesses.
    The petition was sustained and G.G. was placed home on probation. She filed a
    timely appeal.
    DISCUSSION
    I.     G.G. FORFEITED HER CONFRONTATION CLAUSE
    ARGUMENT.
    The People maintain that G.G.’s objection to admission of the attendance records
    based on lack of “foundation” does not allow her to argue on appeal that admitting
    the evidence violated her Sixth Amendment right to confront the witness against her.
    We agree. (Evid. Code, § 353, subd. (a); People v. Alvarez (1996) 
    14 Cal. 4th 155
    , 186
    [“[t]here was neither a ‘specific’ nor ‘timely’ objection below predicated on the
    Sixth Amendment’s confrontation clause”].)
    Furthermore, even if G.G. had not forfeited her objection, we would conclude
    it had no merit. (See Bullcoming v. New Mexico (2011) 564 U.S. ___, fn. 6 [
    131 S. Ct. 2705
    , fn. 6] [business and public records are generally not subject to the confrontation
    clause because they are usually created for the agency’s administrative purposes, not to
    prove a fact at trial (plurality holding)]; People v. Holmes (2012) 
    212 Cal. App. 4th 431
    , 437-438 [statement’s primary purpose must pertain to criminal prosecution].)
    While attendance records are used in wardship proceedings to establish truancy that is
    not their primary use. Public schools are statutorily required to record student attendance
    and those records are primarily used for budgetary and funding purposes. (Ed. Code,
    §§ 1244, 46000, 46010.3, 46300.)
    3
    II.    THE ATTENDANCE RECORDS WERE ADMISSIBLE UNDER
    THE PUBLIC RECORDS EXCEPTION TO THE HEARSAY RULE.
    G.G. argues that records of her purported absences were inadmissible under the
    hearsay exception for official records (Evid. Code, § 1280) because the employees who
    made the entries into the AERIES system were not identified and nothing in Kottke’s
    testimony explained (1) how the school clerks make the decision to accept or reject
    an absence excuse, (2) the training the clerks receive on using the system and (3) the
    protections in place to determine the accuracy or reliability of their inputs and
    determinations.
    At the hearing, G.G. did not object to the attendance records on the ground
    that they were hearsay but on the ground that Kottke had not shown through her own
    knowledge that the requirements for the business records or official records exceptions
    to the hearsay rule had been met. An objection based on lack of personal knowledge
    goes to the foundation for the evidence’s admissibility and is a separate objection from
    hearsay. (Jackson v. Department of Motor Vehicles (1994) 
    22 Cal. App. 4th 730
    , 738.)
    Evidence Code section 1280 states: “Evidence of a writing made as a record of an
    act, condition, or event is not made inadmissible by the hearsay rule when offered in any
    civil or criminal proceeding to prove the act, condition, or event if all of the following
    applies: [¶] (a) The writing was made by and within the scope of duty of a public
    employee. [¶] (b) The writing was made at or near the time of the act, condition, or
    event. [¶] (c) The sources of information and method and time of preparation were such
    as to indicate its trustworthiness.”
    The official records exception is generally easier to establish than the business
    records exception (Evid. Code, § 1271) because, unlike the business records exception,
    the official records exception does not require a witness to testify to the record’s identity
    and mode of preparation. (Jazayeri v. Mao (2009) 
    174 Cal. App. 4th 301
    , 317-319.)
    In People v. Dunlap (1993) 
    18 Cal. App. 4th 1468
    , 1477, the court explained: “Although
    similar to the business records exception . . . , the official records exception differs in one
    important respect. ‘[The former] requires a witness to testify as to the identity of the
    4
    record and its mode of preparation in every instance. In contrast, [the official records
    exception] permits the court to admit an official record or report without necessarily
    requiring a witness to testify as to its identity and mode of preparation if the court takes
    judicial notice or if sufficient independent evidence shows that the record or report
    was prepared in such a manner as to assure its trustworthiness.’” (Quoting from
    Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1966 ed.) § 1280, p. 316.)
    In addition, the statutory presumption that an official duty has been regularly performed
    (Evid. Code, § 664) applies to official writings, but not to business records, and helps lay
    the foundation for admission of the official writing because the presumption shifts the
    burden of proving the foundational issue of trustworthiness of the method of preparing
    the official writing to the party objecting to its admission. (People v. Martinez (2000)
    
    22 Cal. 4th 106
    , 130.)
    For the reasons explained above, the People did not have to present evidence
    of the identity of the clerks who prepared the reports or the mode of their preparation.
    G.G. produced no evidence that the records were untrustworthy. On the other hand,
    the school district has a strong financial incentive not to record students as absent from
    class since the district’s state funding is dependent on its “average daily attendance.”
    (See discussion ante, at p. 3.)
    5
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED.
    ROTHSCHILD, Acting P. J.
    We concur:
    CHANEY, J.
    MILLER, J.
    
    Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    6
    

Document Info

Docket Number: B246586

Filed Date: 12/26/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021