Filed 3/17/14 In re Andre B. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re ANDRE B., a Person Coming Under
the Juvenile Court Law.
                                                                 D063509
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. JCM227937)

         v.

ANDRE B.,

         Defendant and Appellant.


         APPEAL from a true finding of the Superior Court of San Diego County,

Carlos O. Armour, Judge. Reversed.

         Elizabeth Garfinkle, 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, Melissa Mandel and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
       A petition was filed pursuant to Welfare and Institutions Code section 602 alleging

that Andre B. (the Minor) was in violation of a previous grant of probation following a

true finding that the Minor had committed a violation of Penal Code section 288,

subdivision (a).

       Following an adjudication hearing the court found the allegation of probation

violation to be true. The court thereafter removed the Minor from the custody of his

parents and placed him under the care, custody and control of the probation department.

       The Minor filed a timely notice of appeal.

       The Minor appeals contending the trial court erred in admitting a portion of a

previous probation report in order to prove prior acts of sexual misconduct pursuant to

Evidence Code sections 1101 and 1108. The People have responded claiming the issue

was waived by failure to object. However, the People make no effort to defend the trial

court's decision on the merits. Based on our review of the record we are satisfied defense

counsel adequately raised hearsay and confrontation clause objections to the proposed

evidence and that the trial court erroneously overruled such objections. Accordingly, we

will find the Minor's Sixth Amendment right to confrontation was violated and therefore

reverse the true finding.

                               STATEMENT OF FACTS

       The Minor's summary of the facts presented at trial is concise and accurate and we

adopt it here.

       Sandy V. and her family lived in the same apartment complex, next door to the

Minor, who would play with her four-year-old daughter, A. On October 5, 2012, the

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Minor was playing with A. and her two-year-old brother, while the two children were

inside the child gate in the doorway of the apartment, and the Minor was outside the gate.

A. was wearing a shirt and underpants. Playing peek-a-boo with a little bunny doll in his

hand, the Minor would hide and then say "boo" and make the kids laugh. Ms. V. stepped

out from her room into the hallway and noticed the Minor, who was on the outside of the

gate from the children and about 15 feet away from Ms. V., had his hand momentarily on

the crotch area on the outside of her daughter's underpants. Ms. V. then explained that

she did not actually see the Minor's hand touching her daughter, whose back was to her.

She did not know if his fingers or his palm touched her, or how or where the Minor

touched her, but she did see him pull his hand away from her daughter, and she was

"pretty certain" he touched her.

       Ms. V. screamed and said, "A.," closed the front door and told A. to go to her

room. A. was upset about not playing anymore and began to cry. After speaking to her

husband, Ms. V. called the police.

                                      DISCUSSION

       At the adjudication hearing the prosecution sought to introduce the Minor's prior

adjudications under Penal Code sections 288, subdivision (a) and 647.6 as evidence of

sexual propensity under Evidence Code sections 1101 and 1108. The Minor objected to

the admission of the details of such adjudications based on prejudice (Evid. Code, § 352)

and on the grounds the contents of the previous social study were hearsay and violated

the Minor's confrontation rights. The trial court overruled the objections based upon its

conclusion that since the Minor had confronted witnesses at the previous adjudication,

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confrontation was satisfied. The court also observed that while the rules of evidence

apply to juvenile proceedings the court had more latitude to admit a broader range of

evidence.

       After its ruling the court adjourned to review the file for the purposes of making

its Evidence Code section 352 analysis. Following an unrecorded conference with

counsel, the parties agreed the portion of the previous social study that would be admitted

was: "As far as the PC 288(a) conviction is concerned, the facts presented to the court

were that Andre was convicted of digitally penetrating a two-year-old victim's vagina,

which caused a laceration."

                               A. Hearsay and Confrontation

       As a general proposition, out-of-court statements offered by its proponent to prove

what it states is hearsay and, unless subject to some exception "should be excluded upon

timely and proper objection." (In re Miranda (2008) 43 Cal.4th 541, 574.) The trial

court did not offer any analysis of the hearsay objection. The prosecution offered only a

reference to a case cited as "Westin" without any record citation. Perhaps the prosecution

was referring to People v. Wesson (2006) 138 Cal.App.4th 959 (Wesson), which deals

with proof of prior conviction by means of the abstract of judgment to prove not only the

fact of the conviction but the commission of the underlying offense. (Id. at p. 968.)

       Wesson, supra, 138 Cal.App.4th 959 does not address the issue presented here. In

this case, the court determined it would take material out of a previous social study to

establish not only that the Minor had a true finding for the offense, but also the details of

the offense. The social study contains the probation officer's statements about what had

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been proved. It was not prior recorded testimony or an abstract of judgment. As such it

was hearsay, and no established exception has been presented by the prosecution, the

court or the People on appeal. Although the trial court could take judicial notice of the

existence of the social study, it could not take judicial notice of the truth of the statements

of the probation officer who wrote the study. (In re Tanya F. (1980) 111 Cal.App.3d

436, 440.)

       Regarding confrontation, the court simply observed: "I understand. He already

had a right to confront those witnesses in those cases already, so the confrontation issue

has been satisfied. And, I think that the court can employ alternative means to get the

same information. I don't think we have to call, the court has to hear from those victims

again."

       Basic to the Sixth Amendment right to confrontation is the literal ability to

confront and cross-examine the witness at the time the witness is giving his or her

testimony. That is an essential part of the process of testing the reliability of the

witnesses' testimony and cannot be foreclosed for convenience. (Lilly v. Virginia (1999)

527 U.S. 116, 123-124; California v. Green (1970) 399 U.S. 149, 157.)

       The problem with the trial court's analysis is that the prior recorded testimony of

the witnesses was not offered under some exception to the hearsay rule. In such case it is

possible that the court could rely on the Minor's previous opportunity to cross-examine

those witnesses. That is not what was to be admitted here. Rather, the court determined

it could use a probation officer's summary of the facts of the previous true finding for the

truth of the officer's statement. Plainly, the Minor did not have the opportunity to cross-

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examine the officer, nor was there a valid exception to the hearsay rule offered to or

considered by the court. On this record, the juvenile court should not have admitted the

contents of the officer's statements. Further, it is clear the court relied heavily on the

"facts" of the previous adjudication to show propensity to commit the current offense.

       We are satisfied the error was not harmless. The evidence of the current conduct

was weak, in that the victim's mother was unable to observe exactly what the Minor was

doing, and the victim was too young to testify. In the court's decision it relied heavily on

the facts of the prior adjudication, such that we cannot say the error was harmless.

                                           B. Waiver

       The People's only response to the appeal is that the issues of hearsay and

confrontation have been waived. Although the record plainly shows defense counsel

objected to the evidence on the grounds of relevance, prejudice, hearsay and

confrontation, all of which were overruled, the People contend the issues were waived

when counsel agreed to the content of the statement to be introduced. Respectfully there

is no basis for application of the waiver or forfeiture doctrine in this record.

First, defense counsel objected stating:

           "Your Honor, if I may, I would object to that. I believe that that's
           violative of my client's constitutional rights to confrontation. I think
           it's hearsay. [¶] I think if the people wanted to bring the facts in that
           case there's other ways to do it such as bringing in the prior victim to
           testify, which I think is proper; but I don't think that getting into the
           facts is appropriate. I think it would be violative of the confrontation
           clause and hearsay. [¶] I mean, 1101 would potentially allow them
           to bring in that evidence, but I don't think we can get around the
           hearsay or confrontation clause about juries (sic) by using that."

       The juvenile court acknowledged the objection and overruled it, stating:

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          "I understand. He had a right to confront those witnesses in those
          cases already, so the confrontation issue has been satisfied. And, I
          think that the court can employ alternative means to get the same
          information. I don't think we have to call, the court has to hear from
          those victims again. [¶] I think the fact that there is a true finding or
          a conviction is sufficient for the court to accept the validity of the
          elements of those offenses. [¶] . . . [¶] . . . Now, I can look at the file
          myself, which I think I have a right to do now, and see what
          information is there and just cull out the information that I think is
          appropriate and disregard the information in the prior record which I
          think isn't appropriate for me to consider.

       Trial counsel then renewed her objection:

          "I disagree. . . . I don't think the court can look -- it would be just as
          if we were giving a file to the jury that's reviewing it, 'Well, okay,
          here, look at whatever you want to look at to make your
          determination.' [¶] I still think we're bound by the rules of evidence
          and I think we're bound by the prosecution presenting that evidence
          to the court in somewhat of a fashion that doesn't violate the
          confrontation clause. And I don't think the prosecution synopsis of
          what happened is enough. We would never do that in a jury trial.
          So, I think whatever needs to be done, it's not that."

       The juvenile court then indicated that it was overruling trial counsel's objection as

to the admissibility of the evidence stating:

          "The offer was made that the minor prior record does exist in the
          court file. And what I indicated was that I can take judicial notice of
          that record. [¶] I think its admissibility has been shown and
          demonstrated. The only issue is the 352 exercise that I have to go
          through, and I can't go through that exercise in the blind. I have to
          see what, what there is. And then I'll come on the record and state
          what I'm considering on the basis of what I've read and what I'm not
          going to consider." (Italics added.)

       After the trial court made clear the material would be admitted over objection, it

appears some effort was made by counsel to agree on what portion would be admitted

after the court's Evidence Code section 352 analysis had been completed. We are


                                                7
satisfied the defense never gave up its objections, rather simply agreed that if the hearsay

statements in the social study were to be admitted, that the proposed statements from the

study would suffice.

       The case before us is quite different than those where the defense should have

offered its objection "at the time the evidence is introduced" (People v. Demetrulias

(2006) 39 Cal.4th 1, 22), or where the objection was not timely made (People v. Alvarez

(1996) 14 Cal.4th 155, 186). Here the defense timely and vigorously objected on specific

grounds, all of which were overruled by the court. However, the court was still pursuing

the least prejudicial means of admitting the evidence. Counsel realistically had no choice

but to continue to minimize the impact of the trial court's error. No forfeiture can be

implied by defense counsel's action.

                                       DISPOSITION

       The true finding on the petition is reversed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



                  McDONALD, J.


                   McINTYRE, J.




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