In re D.D. CA1/4 filed
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Filed 3/30/11 In re D.D. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FOUR In re D.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A128630 D.D., Defendant and Appellant. (Alameda County Super. Ct. No. SJ09012943) Following a contested jurisdictional hearing on a juvenile wardship petition alleging that appellant, minor D.D., committed felony vandalism to a bus causing damage of $400 or more, the juvenile court sustained the allegations as a misdemeanor. (Pen. Code, § 594.) At disposition, the court placed appellant on probation, without a declaration of wardship, for a period not more than six months. (Welf. & Inst. Code, § 725, subd. (a).) On appeal, appellant contends the juvenile court erred by admitting documents under the business record hearsay exception; convicting him of vandalism; committing judicial misconduct by reading an intake report; allowing improper lay testimony; allowing improper cross-examination; and by making erroneous statements in a minute order. We affirm the jurisdictional order. 1 I. FACTS In April 2009, Julie B. was riding home from school on an AC Transit bus when a rock thrown from a wooded area hit a window, causing the glass to break and fall out. Once the rock hit, she turned and saw appellant alone in the woods hiding behind trees and brush. Julie knew appellant from school, but had never spoken to him. Approximately one week later, her school s principal called her and two other students who were also on the bus out of class to come speak with the police. After hearing multiple students had already identified appellant, Julie said she saw appellant throw the rock at the bus and identified him in a school yearbook. Alameda County Sheriff s Deputy David Vola interviewed appellant the day after the incident. Appellant initially told Deputy Vola the damage was caused by a female punching the window. After Deputy Vola said that did not appear to be the source of the damage, appellant claimed a tall, skinny White kid threw a rock at the bus. AC Transit employee Broderick Haile testified he creates cost estimates for damaged buses. The prosecutor sought to submit into evidence a handwritten document prepared by Haile summarizing the costs of repairs in replacing the window, which showed a total cost of $883.79. All the figures used for the document were electronically recorded by an employee making repairs at the time the repairs were made. The prosecution had asked Haile to create the document for use at trial; he did not create it for his employer, AC Transit. The court accepted the document as a business record over appellant s objection. Appellant s friend and schoolmate Justin R. testified that he, appellant, and three other boys were walking along a wooded trail after school on the day of the incident. Justin testified he saw a tall, skinny boy with medium-length black hair throw a rock at a bus, heard the rock hit the bus, but did not know if it broke a window. He claimed to have been two to three feet from the individual, but was unable to see his face as he felt uncomfortable look[ing] at him like that. In September 2009, after learning appellant was going to get in trouble for the broken window, Justin wrote a note for appellant explaining his version of the incident. 2 The juvenile court found appellant had committed vandalism based on Julie s credible testimony. It also found appellant s inconsistent statements to Deputy Vola conflicted with the defense theory provided by Justin s testimony. Because of inadequate proof of damages, the court concluded the vandalism charge was a misdemeanor. At the dispositional hearing in April 2010, the juvenile court placed appellant on probation without wardship for a period not to exceed six months. II. DISCUSSION A. Admission of Damage Estimate Appellant argues the juvenile court abused its discretion by admitting Haile s cost estimate of damage to the bus. He reasons the document satisfies none of the requirements for the business record exception to the hearsay rule and its admission mandates reversal. Generally, hearsay evidence is not admissible. (Evid. Code, § 1200, subd. (b).) A document containing hearsay is admissible as a business record if: (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian . . . testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. (Id., § 1271.) Electronic data entry into a computer qualifies as a writing. (See id., § 250; Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 798.) A computer printout of data entry is considered an original of that data. (Evid. Code, § 255.) The trial court enjoys wide discretion in deciding whether a sufficient foundation has been laid to qualify evidence as a business record. (People v. Beeler (1995) 9 Cal.4th 953, 978.) First and foremost, the document submitted by Haile fails to qualify as a business record as it was not created in the regular course of business. Haile admitted to personally handwriting all the information on the document at the request of the prosecution. He also admitted it was not created for AC Transit, but rather for use at trial. Had the document been prepared for AC Transit, Haile would have filled out further information and submitted it to a clerk for review. Therefore, the document was 3 not created in the regular course of business. It is thus unnecessary to determine whether the document satisfies the other business record requirements, and we conclude the juvenile court abused its discretion in admitting the document. Even though it was error to admit the document, the error was harmless. The cost estimate was the only evidence tending to show that the damage amounted to $400 or more, the threshold for a felony violation of vandalism. (See Pen. Code, § 594, subds. (b)(1), (b)(2)(A).) The juvenile court concluded there was insufficient evidence to sustain a felony vandalism violation, and instead found appellant guilty of misdemeanor vandalism. Appellant s argument that without the cost estimate the court cannot sustain the vandalism charge misses the point. The monetary value of the damage caused is not an element of the crime,1 but rather goes to the level of punishment. The prosecution proved all elements of the crime of vandalism, but simply failed to convince the juvenile court that the crime committed was a felony. Thus, any error in admitting the cost estimate was harmless as appellant was not adversely affected. B. Sufficiency of Evidence that Appellant Committed Vandalism Appellant also argues that insufficient evidence was established to prove he committed misdemeanor vandalism. He reasons there was no direct evidence that he personally threw the rock, thus making the misdemeanor vandalism finding equivalent to a finding of vicarious liability. Without such direct evidence, appellant maintains the juvenile court was required to find the allegation untrue. Any person who maliciously defaces, damages, or destroys a vehicle that is not his or her own is guilty of vandalism. (Pen. Code, § 594, subd. (a).) If the vehicle belongs to a public entity, it is inferred the person neither owned the property nor had the permission 1 Penal Code section 594 states in pertinent part: (a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys. [¶] . . . [¶] (b)(2)(A) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. 4 to deface, damage, or destroy the vehicle. (Ibid.) When reviewing a claim of insufficiency of the evidence, we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139.) The evidence must be reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) When reviewing circumstantial evidence, if the circumstances reasonably justify the trier of fact s findings, a reasonable contrary finding does not warrant reversal. (People v. Lenix (2008) 44 Cal.4th 602, 627-628.) The bus belonging to AC Transit was a public entity s property, thus we can infer the property was not appellant s and was damaged without permission. We need only decide whether sufficient evidence exists to show beyond a reasonable doubt that appellant maliciously threw the rock that damaged the bus. Appellant s reliance on In re Leanna W. (2004) 120 Cal.App.4th 735, to assert he was found vicariously liable for throwing the rock, is misplaced. In that case, no evidence was provided showing Leanna was the person who damaged the property at issue or the only person at the scene of the incident. (Id. at p. 744.) In the instant case, Julie testified that after the rock hit the bus, she turned and saw appellant standing alone in the woods in the direction the rock was thrown from. Julie later identified appellant to both her school principal and the police. Therefore, sufficient evidence existed that appellant threw the rock at the bus. The juvenile court gave more credit to Julie s version of the facts based on the other testimony provided at the jurisdictional hearing. Deputy Vola s testimony indicated appellant gave conflicting accounts of the incident. Neither version placed him with others at the time of the incident. The only evidence implying appellant did not throw the rock was from appellant s friend Justin. Justin testified that he, appellant, and three others witnessed another individual throw the rock at the bus. The juvenile court discredited Justin s testimony because it conflicted with appellant s statements to Deputy Vola in regard to who was present at the time of the incident. Accordingly, sufficient 5 evidence was present to find appellant maliciously damaged the bus by throwing the rock. C. Misconduct in Reading Intake Report Appellant also argues the juvenile court committed prejudicial and reversible judicial misconduct by reading an intake report prior to ruling on the vandalism allegation. He asserts the juvenile court relied upon the report to conclude appellant s statements to Deputy Vola were incompatible with his defense and Justin s testimony. Juvenile court proceedings are bifurcated to provide a jurisdictional hearing at which competent evidence is adduced, and to make certain the jurisdictional order is made before the social study report containing material irrelevant to the issue of guilt is considered. (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1343.) This rule is codified in California Rules of Court, rule 5.780(c), providing that juvenile courts may not read or consider any portion of a probation report or police officer report relating to allegations during a contested jurisdictional hearing. (Cal. Rules of Court, rule 5.780(c).) After finding appellant committed misdemeanor vandalism, the juvenile court indicated it had read the intake report. The intake report provided by the probation officer is the type of document meant to be excluded from consideration during the jurisdictional phase. Therefore, we agree that the juvenile court improperly read the intake report prior to making a finding on the petition. However, this error does not require reversal. The juvenile court made clear its jurisdictional finding was based solely on the testimony provided. In discussing the reasons for his finding, the judge made repeated references to the testimony. We have concluded that the vandalism finding was based on sufficient evidence, and there is no indication the juvenile court relied upon the intake report. Therefore, the error was harmless. D. Lay Testimony by Deputy Vola Appellant argues that the juvenile court erred in allowing Deputy Vola to provide lay testimony regarding his credibility. He contends Deputy Vola s testimony was in the 6 nature of a lay opinion because it did not clarify his previous testimony and went to the veracity of appellant s defense theory. Lay opinion testimony is limited to opinions that are rationally based on the perception of the witness and helpful to a clear understanding of the testimony. (Evid. Code, § 800.) Appellate courts accord broad deference to the trial court s decision to admit lay testimony that is subject to cross-examination. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 876-877.) Appellant confuses factual and opinion testimony. Deputy Vola never gave an opinion on the veracity of the statements made by appellant, and restricted his testimony to their substance. He testified that appellant initially told him a female punched out the window on the bus, and later claimed another individual threw a rock at the bus. The prosecutor asked Deputy Vola if the statements were different, a question appellant objected to as calling for opinion testimony. Without receiving an answer from Deputy Vola or ruling on the objection, the juvenile court found that, based on the officer s previous testimony, appellant s two statements were factually different. Deputy Vola did not offer opinion testimony, and no abuse of discretion occurred in admitting his testimony. E. Recross-examination of Justin Appellant contends that the juvenile court abused its discretion by allowing recross-examination of Justin concerning his written statement. He argues that any discussion of the note on redirect examination concerned the motivation for its creation, and questions on recross-examination about content exceeded the scope of redirect. The purported error, he claims, was prejudicial. A witness may be cross-examined regarding any matter within the scope of the witness s direct examination. (Evid. Code, §§ 761, 773, subd. (a).) Cross-examination is not limited to a categorical review of the matters, dates, or times mentioned in direct examination, and may concern any subject matter that overcomes or qualifies the effect of testimony from direct examination. (People v. Farley (2009) 46 Cal.4th 1053, 1109.) The trial court must exercise reasonable control over the mode of interrogation to 7 efficiently ascertain the truth. (Evid. Code, § 765, subd. (a).) Wide discretion is granted to the trial court in controlling the scope of relevant cross-examination. (People v. Farnam (2002) 28 Cal.4th 107, 187.) The juvenile court properly allowed Justin to be questioned regarding the written statement on recross-examination. While questioning Justin on redirect examination, appellant asked if he decided to write the statement after finding out appellant was going to court. On recross-examination, respondent questioned Justin about his exclusion of specific details within the written statement. This question was allowed because it was a related issue and something the court needed addressed. Even if the subject matter had not been raised on redirect examination already, the court had the discretion to allow the questioning for its own benefit. (See Evid. Code, § 765.) Therefore, no abuse of discretion occurred. F. Maximum Term of Confinement Appellant argues that the January 28, 2010 minute order incorrectly states that he received a one-year maximum term of confinement. He contends the juvenile court made no such order and that the minute order should be corrected accordingly. A maximum term of confinement must be imposed when a juvenile court orders a minor removed from the physical custody of his or her parents. (Welf. & Inst. Code, § 726, subd. (c); In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Entry of judgment in the minutes is a clerical function, and any discrepancy between the oral judgment and the minutes is presumably the result of clerical error. (Pen. Code, § 1207; People v. Mesa (1975) 14 Cal.3d 466, 471.) Appellate courts may augment the record when necessary. (Cal. Rules of Court, rule 8.340(c).) Both parties agree that the January 28, 2010 minute order inaccurately reflects that the court ordered a maximum term of confinement. The judge did not set a maximum term of confinement at either the jurisdictional hearing or dispositional hearing. Moreover, any such order would have been improper because the juvenile court had no authority to determine a maximum term of confinement absent ordering appellant s removal from home. (In re Matthew A., supra, 165 Cal.App.4th at p. 541.) The minute 8 order from the January 28, 2010 hearing must be amended by redacting the clause indicating a maximum term of confinement. G. Cumulative Error Appellant finally argues that the cumulative error rose to the level of reversible and prejudicial error. Reversal of judgment will not occur absent a clear showing of miscarriage of justice. (Cal. Const., art. VI, § 13.) However, an independent series of harmless trial errors may sometimes rise by accretion to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.) As discussed in part II.C., ante, the juvenile court erred in admitting the document prepared by Haile and in reading the intake report prior to the jurisdictional finding. It cannot be said these errors in combination rendered the degree of overall unfairness to appellant more than that flowing from the sum of the individual errors. (People v. Hill, supra, 17 Cal.4th at p. 847.) No prejudicial error occurred. III. DISPOSITION We direct that the reference to a maximum term of confinement be removed from the January 28, 2010 minute order, and, with this correction, affirm the jurisdictional order. _________________________ Reardon, J. We concur: _________________________ Ruvolo, P.J. _________________________ Rivera, J. 9
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