In re V.Z.

 

 

 

 

 

 

 

 

 

 

 

Filed 7/25/13  In re V.Z. CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
EIGHT

 
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In re V.Z., a Person Coming Under the Juvenile Court Law.	B244524       (Los Angeles County       Super. Ct. No. GJ 29517)
THE PEOPLE,               Plaintiff and Respondent,               v.   V.Z.,               Defendant and Appellant.

 

            APPEAL from
an order of the Superior Court for the County
of Los
Angeles.  Robert
Leventer, Commissioner.  Affirmed.

 

            Lynette
Gladd Moore, 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, Scott A. Taryle and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________________

SUMMARY

The juvenile court found the minor,
V.Z., to be a habitual truant and placed her home on probation.  She contends the admission of the evidence of
her truancy violated her Sixth Amendment
rights under the confrontation clause and was inadmissible hearsay.  The minor forfeited these contentions by
failing to object before the close of the prosecution’s case, and in any event,
they have no merit.  We affirm the
juvenile court’s order.

FACTS

Welfare and Institutions Code
section 601, subdivision (b) (section 601) provides that if a minor has four or
more truancies within one school year, as defined in Education Code section
48260, 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 February 2012, the Los Angeles
County District Attorney filed a petition alleging the minor came within the
provisions of section 601 as a habitual truant. 
The petition identified 20 days in the late summer and fall of 2011
during which the minor was absent or tardy without valid excuse, and also
alleged the minor and her parents had been referred to the school attendance
review board in December 2010 and to the district attorney’s mediation program
in September 2011, all to no effect.

            The minor
declined to admit she was truant from school and a hearing ensued.  Scott Anderle, the assistant director of
student services for the Glendale Unified
School District, was the only
witness.  He testified he was familiar
with the procedures surrounding chronic truancies and was familiar with the
minor’s truancy.  Anderle had attended
the district attorney’s referral hearing in the minor’s case.  He identified the documents recording the
minor’s school attendance, which were marked for identification as exhibits,
and explained how the records were generated. 
The teachers take attendance in the classroom, and that data, entered
both by name and student identification number, “goes right into the computer
and is fed into our student data information system . . . .”  Absences are recorded for each period of the
school day, and four class periods of truancies, each represented by a “U,”
constitute a full day of absence.  

Anderle then explained how excused absences
are accounted for in the system.  “[E]ach
student belongs to a student center that has an attendance clerk.  That attendance clerk is in charge of
clearing all absences for illnesses and other reasons.  The parents have 72 hours to either call in and
excuse the absence or bring in some written verification of excuse of
absence.”  The attendance clerk then
updates the system so that the “U’s” are changed to other designations.  There are attendance clerks at all sites and
an attendance official to whom they report who oversees all the attendance
clerks.  Anderle testified he was in
daily contact with the attendance official. 


Anderle also explained the
protocols for handling truancies.  When a
student is absent for a full day, the school’s phone system automatically
notifies the parents, who also receive letters when the number of truancies
reaches three, five and 10 days.  At
15 days of truancy, the school district meets with the family and student,
and the student signs a contract promising to attend school.  If the student does not attend, there is a
school attendance review board hearing and another contract, and if truancies
continue, there is a referral to the district attorney’s office, where the
family is given an explanation of what will happen next if the student
continues not to attend school.  In this
case, the contracts signed by the minor and her parent and other documentation
of the review board and district attorney meetings were identified and marked
as exhibits, and Anderle testified he personally saw the minor and her mother
sign the district attorney’s mediation contract, after which there were further
unexcused absences.

The prosecutor told the court she
could have the individual school dates on the exhibits of the minor’s attendance
read into the record, but the court said: 
“The documents will speak for themselves as business records.  They are admissible.”  The minor’s counsel made no objection.

The minor’s counsel cross-examined
Anderle, who acknowledged that one reason for maintaining the attendance
records was that California law requires children to go to school; it was
important to keep the records “to give them to the district attorney . . . when
the district opines that a child is truant”; and another reason to keep the records
“is that you can refer to them when you come to court to testify . . . .” 

After Anderle’s testimony, the
prosecutor indicated she had no further evidence or witnesses to offer.  The court said, “I will receive  [¶]  .
. .  [¶] 
. . . People’s . . . 1 through 5 into evidence.”  The transcript shows no objection.  The court asked, “Any defense?”  Counsel replied in the negative and then said,
“We don’t intend to call any witnesses.” 


The court then asked defense
counsel if she wanted to be heard on the case. 
Counsel answered affirmatively and proceeded to state her position that
“these records are inadmissible under state laws,” with “two layers of hearsay,
at least.”  After asserting the records
did not come within the business records exception, counsel said, “we have a
confrontation clause issue,” the records were “testimonial” and “prepared in
preparation of litigation,” and the minor was denied her right to confront and
cross-examine “the only witness, the teacher, who has personal knowledge of her
absence or presence.”

The court observed the documents
were adequate business records and found the petition true, declaring the minor
a ward of the court and placing her home on probation.  The minor filed a timely appeal.

DISCUSSION

The minor contends admission of the
attendance reports violated her Sixth Amendment rights under the confrontation
clause, and that the records did not qualify as business records or public
records.  Her contentions have no merit.

First, the minor forfeited her
contention by failing to make a timely objection.  She did not object when Anderle testified
about the attendance records, she did not object when the court stated the
records were admissible, and she did not object when the court stated it would
receive the exhibits in evidence. 
Instead, she waited until both prosecution and defense had rested and
the juvenile court had invited argument to state the defense “position” that
the records were inadmissible.  Such an
objection is untimely, and untimely objections will not be reviewed on
appeal.  (Evid. Code, § 353, subd. (a);
see People v. Demetrulias (2006) 39
Cal.4th 1, 22 [“[a]n objection to evidence must generally be preserved by
specific objection at the time the evidence is introduced”]; >People v. Boyette (2002) 29 Cal.4th 381,
423 [“Because defendant did not object at the time the photographs were used in
questioning the witnesses, he failed to preserve the issue for appeal.”]; >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”]; People v. Bury (1996) 41 Cal.App.4th 1194, 1201, fn. 5 [the
defendant “made an untimely objection on constitutional grounds after the
presentation of the evidence”].)

Second, even if the minor’s claim
had not been forfeited, we would conclude it has no merit. 

The attendance records were
properly admitted as business records of the school.  (Evid. Code, § 1271 [a writing made as a
record of an event is not made inadmissible by the hearsay rule if it was made
in the regular course of a business, at or near the time of the event; if
“[t]he custodian or other qualified witness testifies to its identity and the
mode of its preparation;” and if the “sources of information and method and
time of preparation were such as to indicate its trustworthiness”]; § 1280 [a
writing made as a record of an event is not made inadmissible by the hearsay
rule if the writing was made “by and within the scope of duty of a public
employee,” at or near the time of the event, and the “sources of information
and method and time of preparation were such as to indicate its
trustworthiness”].)  The minor’s
contention that the foundation laid for the documents did not meet the
requirements for business or public records “because the prosecution did not
show that they were prepared in such a manner as to be trustworthy” is belied
by the testimony we have just described. 
(See also People v. Martinez (2000)
22 Cal.4th 106, 125, quoting § 664 [“‘[i]t is presumed that official duty has
been regularly performed’”].)  There was
no abuse of discretion in admitting the records.

The minor’s confrontation clause
claim fares no better.  (See >Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305, 324 [“Business and public records are generally admissible absent
confrontation not because they qualify under an exception to the hearsay rules,
but because--having been created for the administration of an entity’s affairs
and not for the purpose of establishing or proving some fact at
trial--they are not testimonial.”].)  As
respondent points out, California
schools are statutorily required to take attendance, and such records are
necessary for budgetary and funding purposes. 
(See, e.g., Educ. Code, §§ 1244, 46000, 46010.3, 46300.)  While attendance records may be used in a
wardship proceeding to show truancy, that is plainly not their primary
purpose.  (See People v. Dungo (2012) 55 Cal.4th 608, 619 [a statement is
testimonial “only if its primary purpose pertains in some fashion to a criminal
prosecution”].)  The attendance records
admitted in the minor’s proceeding plainly were “created for the administration
of [the school district’s] affairs” (Melendez-Diaz,
at p. 324), not for the purpose of proving a fact at trial, and accordingly
there was no confrontation clause violation.

DISPOSITION

            The order
is affirmed.

 

                                                                                                GRIMES,
J.

 

            We concur:

 

 

RUBIN, Acting P.J.                                      

 

 

FLIER, J.