Filed 5/1/13 In re R. H. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re R.H., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,
                                                                       G045924
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL037927-013)
         v.
                                                                       OPINION
R.H.,

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Nick A.
Dourbetas, Judge. Reversed and remanded.
                   Cannon & Harris and Donna L. Harris, under appointment by the Court of
Appeal, for Defendant and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
                                         *    *   *
              The juvenile court sustained a wardship petition after finding R.H. violated
his probation by committing 23 instances of tagging property belonging to the City of
Lake Forest (the City). The case was primarily based on photographs and documents
generated by a graffiti cleaning company the City hired. The photographs were uploaded
to a database maintained by the Orange County Sheriff’s Department. Before admitting
the database evidence, the prosecutor called the City’s public works manager, Luis
Estevez, to establish the business records exception to the hearsay rule. On appeal, R.H.
asserts the juvenile court committed reversible error by admitting the hearsay evidence.
He is right. We reverse the juvenile court’s ruling and remand the matter for retrial.
                                              I
              In August 2010, R.H. was declared a ward of the Orange County Juvenile
Court following his admission he committed three counts of petty theft. R.H. was placed
on supervised probation. Over the next year, 12 more petitions were filed. In September
2010, R.H. committed the offense of vandalism under $400 (Petition No. 2). In October
2010, he again committed vandalism under $400 (Petition No. 3), violated his probation
by failing to remain law abiding (Petition No. 4.), committed another act of vandalism
(Petition No. 5), and possessed a small amount of marijuana and drove without a license
(Petition No. 6). R.H. admitted the allegations in these petitions, and the juvenile court
ordered he continue as a ward of the court on supervised probation but with the condition
he be confined to a juvenile institution for 30 days and pay a restitution fine.
              In December 2010, Petition No. 7 was filed charging R.H. with second
degree burglary, petty theft, and false representations to a peace officer. The following
month, Petitions Nos. 8, 9, and 10 charged R.H. with multiple counts of vandalism,

                                              2
possessing a switchblade, and possessing an aerosol paint container. Petition No. 10 was
dismissed because it was a duplicate filing. Petition No. 11, an amended subsequent
petition, charged R.H. with five counts of vandalism causing damage of $400 or more
(counts 1-5), and 18 counts of vandalism causing damage less than $400 (counts 6-23).
In April 2011, the court granted the prosecutor’s motion to dismiss Petition No. 11, but
the charges were immediately refiled as Petition No. 13. In July 2011, the prosecutor
filed a notice of probation violation (Petition No. 14), alleging R.H. tested positive for
methamphetamine, participated in gang activities, associated with gang members, stayed
out overnight without permission, and failed to report to probation and school without
excuses for his absences.
              Because this appeal concerns the evidence presented at the jurisdictional
hearing on Petition No. 11, we will limit our summary of the underlying facts
accordingly. Before the jurisdictional hearing, R.H. moved to exclude 23 photographs
(exhibit 3), depicting graffiti in various places in the City, as lacking foundation unless
the person who took the photographs testified as to their authenticity. He maintained that
without such foundation, the photographs were inadmissible hearsay.
              The prosecutor made the offer of proof that Estevez would testify and
establish the admissibility of the photographs under the business records exception to the
hearsay rule. He explained Estevez’s job included tracking tagging incidents in the City,
and he was qualified to testify about the process by which the City obtained the graffiti
photographs. Specifically, when graffiti was reported to the City, employees would
submit a work order to a cleaning company contracted by the City to photograph the
graffiti before removing it, and the photograph would automatically be uploaded to the
Orange County Sherriff Department’s “TAGGER” system. Once the damage was
repaired, the graffiti removal company sent the City an invoice for payment. The court
determined Estevez was a qualified witness to lay the foundation for the business records



                                              3
exception and the photographs were admissible. The court did not specifically rule on
R.H.’s authentication objections.
              At the contested jurisdictional hearing, Estevez testified he oversaw all
maintenance operations for the City, including graffiti removal. He explained the City
had a hotline to receive reports of graffiti. Estevez’s secretaries were responsible for
taking information received on the hotline and preparing work orders (with a tracking
number) for the Bonanza Cleaning Company (Bonanza), a graffiti removal company that
had a contract with the City for its services.
              Estevez testified Bonanza did not independently remove graffiti, but waited
for a work order from the City. It was contractually required to remove graffiti within
24 hours of notification in order to avoid a performance deficiency deduction of
$250 per incident. Before removing the graffiti, Bonanza employees were required to use
a GPS-enabled telephone with a camera to photograph the graffiti. Estevez stated
Bonanza’s photographs were automatically uploaded to the “TAGGER” database loaded
on the cellular telephone. The Sheriff’s Department created the database as a tool for the
agency to review and track graffiti as it was reported. Deputies would monitor whether
particular gang monikers were appearing in other cities.
              Estevez noted the City had computer online access to the TAGGER
database. Estevez reviewed the invoices Bonanza sent the City each month listing the
work order calls and the corresponding cost of removal. The invoices relating to the
23 incidents were contained in exhibit 4. On cross-examination, Estevez stated public
works inspectors verified the graffiti was removed a few times a week.
              Exhibit 3 was a packet of photographs and a cover page listing 23 separate
instances of graffiti, including the corresponding dates, their location in the City, and the
tracking number for each city work order. The cover page also listed the monikers shown
on each picture: The gang monikers most often contained in the photographs were
“Bust,” “Saigon,” “Love” and “Bomber.”

                                                 4
              Deputy Carlos Barrientos spoke with R.H.’s mother in September 2010.
She gave the deputy a bag containing aerosol spray can nozzles and a piece of paper
bearing the moniker “BUST.” Deputies Troy Feely and Dallas Hennessey were assigned
to a special investigation team for crimes involving graffiti in the City. They used the
TAGGER database. In October 2010, Feely saw the word “BUST” on a wall in an area
where tagging commonly occurred. The moniker was written in large letters and there
were smaller monikers written near it. This was not the first time Feely had seen the
moniker “BUST,” and he had seen it at different locations.
              Hennessey used the TAGGER system and learned “BUST” was R.H.’s
moniker. The deputy testified R.H. typically either printed or used a bubble style of
writing and his letter “U” looked like the letter “V.” Hennessey found on the database
other incidents of R.H.’s graffiti, all having the unique stylized “U” and most of the
graffiti was fairly centralized to within a quarter mile radius of R.H.’s residence. There
were a few incidents of graffiti farther away from his house, the farthest being five miles
away.
              Feely and Hennessey went to R.H.’s apartment for a probation search to
look for further evidence of graffiti. R.H.’s mother gave the deputies a notebook binder
containing drawings and several monikers and tagging names, including “BUST,”
“TOKE,” “TOKER,” “MEME,” “SAIGON,” “LOVE,” and “BCOA” (a reference to the
Barrio Chico Orange Avenue gang). Feely later spoke with R.H. at a school run by the
probation department in Santa Ana. Feely noticed R.H. had “MEME” written on his
hand. They searched R.H.’s items in the classroom and found two sheets of paper
bearing the word “TOKE” inside his folder. Hennessey opined this meant R.H. was also
connected to that moniker.
              After considering the evidence and argument from counsel at the
jurisdictional hearing on Petition No. 11, the juvenile court found the vandalism
allegations in counts 1 through 23 to be true. Thereafter, R.H. admitted committing the

                                             5
crimes alleged in Petitions Nos. 7, 9, and 12, as well as the probation violation allegations
in Petition No. 14. Counts 2 and 3 of Petition No. 7 and part of Petition No. 9 were
dismissed.
              The juvenile court continued R.H. as a ward of the court on supervised
probation on the condition he spend 224 days in juvenile hall or jail on the A.S.E.R.T.
program. The court determined R.H.’s maximum confinement time was 12 years and
six months. R.H. was ordered to pay restitution and no longer associate with, or be in the
same area as, anyone who was a member of the Calle Orange, Varrio Viejo Orange
Avenue, or Varrio Viejo San Clemente gangs.
                                               II
              R.H. contends the juvenile court committed reversible error by admitting
exhibit 3, containing hearsay photographs and documents relating to the 23 vandalism
crimes alleged in Petition No. 13. R.H. maintains Estevez, a City employee, did not
provide adequate foundation for the admission of the 23 photographs under the business
record exception because Estevez was not a qualified witness, there was no evidence the
documents were made at or near the time of the vandalism acts, and there was no
evidence regarding the method or time of preparation of the photographs, such as to
indicate their trustworthiness. He is right.
              To be admissible, the photographs must get past the same basic evidentiary
thresholds as any other evidence. They must be deemed relevant, authentic, and not more
prejudicial than probative. In this case, there was no dispute the photographs were
relevant and more probative than prejudicial to the case. The court did not rule on the
issue of authentication but admitted the evidence as reliable hearsay under the business
record exception. (Evid. Code, § 1271.)1




1             All further statutory references are to the Evidence Code.

                                               6
              Section 1271 provides, “Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered to prove
the act, condition, or event 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 or other qualified witness 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.” A trial court has broad discretion in
determining whether a sufficient foundation has been laid to qualify evidence as a
business record. On appeal, we will reverse a trial court’s ruling on such a foundational
question only if the court clearly abused its discretion. (People v. Jones (1998)
17 Cal.4th 279, 308 [pathology report prepared by pathologist who worked in same office
as qualifying witness deemed admissible business record].)
              “[S]ection 1271 does not require that the person who gathered the
information contained in a record to testify as custodian of that record. [Citations.] ‘It is
the object of the business records statutes to eliminate the necessity of calling each
witness, and to substitute the record of the transaction or event. It is not necessary that
the person making the entry have personal knowledge of the transaction. [Citations.]’
[Citations.]” (People v. Matthews (1991) 229 Cal.App.3d 930, 940 (Matthews) [deeming
mere retrieval of computer generated rap sheets inadmissible as business records of
identification bureau].) Indeed, “Many business records are prepared through the
activities of several persons, and one employee may report facts he or she knows to a
second employee, who then records those facts in the regular course of business.
[Citation.] So long as ‘the person who originally feeds the information into the process
[has] firsthand knowledge,’ the evidence can still qualify as a business record.
[Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1012 [log sheets created by
gatekeeper and his supervisor admissible business record].)



                                              7
              Here, the photographs were made in the regular course of Bonanza’s
business of graffiti removal. Bonanza’s employees were contractually obligated to make
a photographic record of the graffiti before removing it. As stated above, because the
underlying purpose of section 1271 is to eliminate the necessity of calling all witnesses
who were involved in creating the business record (in this case the individual
photographers), generally the witness who attempts to lay the foundation is a custodian of
the business record. In this case the “custodian” of the photographic record would be
someone employed by Bonanza having the requisite firsthand knowledge of the
business’s photographic recordkeeping procedures.
              The Attorney General recognizes Estevez, the City’s public works manager,
is not a “custodian” of the database of photographs but asserts Estevez was nevertheless a
“qualified witness” who could testify about the trustworthiness of Bonanza’s business
records. Section 1271, subdivision (c), permits either the “custodian or other qualified
witness” to testify as to the records’ “identity and the mode of its preparation.” We
conclude Estevez was not a qualified witness. Estevez, having outsourced the job of
graffiti removal, did not have the necessary knowledge of the underlying working,
maintenance, or recordkeeping of the photographs. He lacked firsthand knowledge of
Bonanza’s recordkeeping procedures. Rather, Estevez’s perceptions about the timing,
conditions, and preparations of the graffiti database was based entirely on the City’s
contractual arrangement with Bonanza, i.e., what Bonanza promised its customer it
would do. Estevez’s mere opinion Bonanza likely complied with its contractual
obligations does not qualify him to testify about Bonanza’s actual practices.
              The Attorney General’s reliance on People v. Lugashi (1988)
205 Cal.App.3d 632 (Lugashi), is misplaced. That court considered the admissibility of
bank records and rejected a new test for computer-generated business records proposed
by the criminal defendant. The Lugashi court determined it was not necessary to require
the proponent of computer evidence automatically inputted at the bank to introduce

                                             8
testimony on the reliability and acceptability of hardware, software, and internal
maintenance and accuracy checks as a prerequisite to admission of that computer data.
(Id. at pp. 643-644.) The court noted other California courts, the majority of other state
courts, and some federal courts had all rejected similar claims. (Ibid.) It reasoned,
defendant’s “proposed test incorrectly presumes computer data to be unreliable, and,
unlike any other business record, requires its proponent to disprove the possibility of
error, not to convince the trier of fact to accept it, but merely to meet the minimal
showing required for admission. If applied to conventional hand entered accounting
records, appellant’s proposal would require not only the testimony of the bookkeeper
records custodian, but that of an expert in accounting theory that the particular system
employed, if properly applied, would yield accurate and relevant information.” (Id. at
p. 640.)
              In the Lugashi case, the prosecution sought to introduce microfiche copies
of computer tapes containing credit card account information because it related to an
allegation of grand theft. (Lugashi, supra, 205 Cal.App.3d at p. 636.) The court
determined there was no issue as to the authentication of these records because the bank
statements were prepared in the regular course of banking business and in accordance
with banking regulations, and therefore were in a different category than ordinary
business records of a private enterprise. (Id. at p. 642.) The Lugashi court determined
the proposed presumption of unreliability was particularly inapplicable where the records
consisted of retrieval of computer-generated data rather than data stemming from
manually input, human-generated data. (Ibid.)
              In addition, the Lugashi court held an experienced credit card fraud
investigator familiar with merchant authorization terminals, counterfeit cards, credit card
sales, and the manner in which sales are records, could testify to the contents of computer
entries of merchant queries and system responses. (Lugashi, supra, 205 Cal.App.3d at
pp. 641-642.) Defendant argued the investigator was neither the official custodian of the

                                              9
records or a computer expert able to explain or evaluate the bank’s hardware or software
and should not be permitted to rely on hearsay when testifying. (Ibid.) The court
disagreed, stating the experienced investigator “personally produced the printed records
from the microfiche. Although she did not do the ‘dump’ or physically convert the
resulting tape into microfiche, she worked and spoke with those who did. She understood
the records and interpreted them in great detail. She assembled the bank copies of the
actual charges and compared them with the computer records. That some of her
knowledge came from ‘hearsay’ discussions with fellow workers employed and trained
by the bank and its computer component suppliers no more renders her testimony
incompetent than if it resulted from reading ‘hearsay’ information manuals from the
hardware or software manufacturers or Wells Fargo computer management. If
[defendant] were correct, only the original hardware and software designers could testify
since everyone else necessarily could understand the system only through hearsay.”
(Ibid.)
              The case before us is not about the reliability of the electronic business
records. The question raised on appeal is whether Estevez is a “qualified witness” under
section 1271, to testify about the trustworthiness of ordinary business records of a private
enterprise. Unlike the Lugashi case, the data in question here consists of more than the
retrieval of automatic data inputs. The data here was photographic images, framed and
created by Bonanza employees by using cameras contained on their telephones. R.H. is
not challenging the hardware or software design of the TAGGER database.
              The other cases cited by the Attorney General are inapt because they are
factually distinguishable. In Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d
1394, 1404 (Zuckerman) (overruled by statute on other grounds as stated in Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 530), the court considered admissibility of a
declaration filed in support of a summary judgment motion. The court determined the
declarant was a “competent expert” because he was the loan service department manager

                                             10
and one of the custodians of the records. (Zuckerman, supra, 187 Cal.App.3d at p. 1404.)
The court reasoned the manager, familiar with his employer’s business practices, had
alleged sufficient facts to show he was competent to testify with respect to documents
showing a contractual relationship between his employer and the plaintiff. (Ibid.) The
court noted the manager was not attempting to testify as a computer expert. (Ibid.) This
case did not address the criteria for a “qualified witness” under the hearsay exception
provided in section 1271.
              In Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324, the court held the
business records were reported by several people, and one employee responsible for
inputting that information into the records was a “qualified witness” under section 1271.
This case does not hold a person not employed by the business, but who has a contractual
relationship with it, is a qualified witness. (Id. at pp. 323-324.)
              In another case cited by the Attorney General, Matthews, supra,
229 Cal.App.3d at page 940, the court determined rap sheets could not be admitted as a
business record due to the lack of a proper foundation. The court ruled the police
department’s fingerprint technician and custodian of records for the police department’s
identification bureau was not a qualified witness because he “neither compiled the
information reflected in the rap sheets nor even described the mode of preparation of
those records. Not only do the rap sheets lack certification, no testimony was adduced
about how they were prepared or the sources of information used for the entries made.
Had [the technician] identified the sources of information and the mode of preparation of
the computer lists, the reliability and trustworthiness of the records would have been
established. [Citations.]” (Ibid.) Estevez, who is not an employee of Bonanza, had no
part in compiling the information reflected in the database, and his source of the
information for its preparation was not firsthand. He was not in a position to establish the
reliability or trustworthiness of the photographs.



                                              11
              Finally, the Attorney General asserts the County of Sonoma v. Grant W.
(1986) 187 Cal.App.3d 1439 (County of Sonoma), is instructive. We agree but conclude
it actually further supports R.H.’s argument. In that case, defendant appealed a paternity
judgment, objecting to the introduction of a blood test report as an admissible business
record. Defendant’s blood samples were drawn and sent to Roche Biomedical
Laboratories (Roche) for analysis and to determine the probability of defendant’s
paternity. (Id. at pp. 1442-1443.) A clinical immunologist, employed as director of the
paternity testing department of the laboratory, was called as a witness regarding the blood
test results. (Id. at pp. 1444-1445.) Defendant objected to admission of the report on the
grounds the director did not personally analyze his blood, but relied on findings
communicated to him by other technicians, making the report untrustworthy. (Id. at
p. 1448.)
              The court in County of Sonoma disagreed, stating, “The report at issue here
meets the requirements of . . . section 1271. It records an act (blood analysis) and is
offered to prove the occurrence of that act. It was made in the regular course of Roche’s
business and was produced at or near the time of the act. A custodian or ‘other qualified
witness’ has testified as to the identity of the report and its mode of preparation, and his
testimony provided substantial evidence of the trustworthiness both of the sources of
information and the procedures employed in preparing the report.” (County of Sonoma,
supra, 187 Cal.App.3d at pp. 1450-1451.) Specifically, the court noted the witness was
qualified because as director of Roche’s paternity testing department, “he had the records
of the actual testing of the blood samples at issue[,] . . . he trained and supervised the
technologists who performed the tests and . . . he reviewed their work . . . . From his
testimony, it could reasonably be inferred that the records in question were prepared in
the usual manner and regular course of Roche’s business.” (Id. at p. 1451.)
              In contrast, Estevez does not directly supervise any Bonanza’s employees
creating the photographic database, he did not train the graffiti cleaners about how to

                                              12
properly take and upload the photographs, and he did not review their work. In essence,
he did not know the usual manner of Bonanza’s business. Estevez’s knowledge is based
on terms of a contract between the City and Bonanza, what he has been told by other
people at the City, and his general sense of what is supposed to be happen before the
graffiti is cleaned up. We conclude Estevez’s testimony did not provide substantial
evidence as to the reliability, accuracy, and trustworthiness of the procedures used by
Bonanza in generating its business records.
              Reversal is required because exhibit 3 was improperly admitted under the
business records exception to the hearsay rule. The documents and photographs
contained in exhibit 3 were primarily relied upon to establish the 23 counts of vandalism.
There were no other witnesses or evidence to support the 23 counts, except for Feely,
who alleged he once saw R.H.’s moniker spray painted on a wall. The error was not
harmless as it is reasonably probable R.H. would have obtained a more favorable result
but for the error. (People v. Watson (1956) 46 Cal.2d 818, 837.)
              Retrial is permitted. “‘[R]eversal for trial error, as distinguished from
evidentiary insufficiency, does not constitute a decision to the effect that the government
has failed to prove its case. As such, it implies nothing with respect to the guilt or
innocence of the defendant. Rather, it is a determination that a defendant has been
convicted through a judicial process which is defective in some fundamental respect, e.g.,
incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial
misconduct. When this occurs, the accused has a strong interest in obtaining a fair
readjudication of his guilt free from error, just as society maintains a valid concern for
insuring that the guilty are punished. [Citation.]’” (People v. McCann (2006)
141 Cal.App.4th 347, 354-355.)




                                              13
                                         III
            The order is reversed and the matter remanded for further proceedings.




                                               O’LEARY, P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




                                         14
