Delinquency Case Law

In re Kentron D. (Sept. 12, 2002) 101 Cal.App.4th 1381 [125 Cal.Rptr.2d 260]. Court of Appeal, Second District, Division 2.

The juvenile court found the child to have violated the conditions of his probation following a contested hearing held upon the filing of a Welfare and Institutions Code section 777 notice of probation violation.
The youth had been placed in a camp community placement program under certain conditions, including that he obey all laws, orders, and instructions of the probation officer and camp staff and not participate in any type of gang activity. The notice reported five counts of the minor's failure to abide by these conditions. The reports of the violations contained both descriptions of the incidents from several probation officers as well as extrajudicial statements made by the minor. When the section 777 notice was filed and the matter set for a hearing, defense counsel objected to the admission of the report in evidence and requested that all of the probation officers be present in court at the hearing. At the hearing, the prosecutor stated that she would "submit for the violation on the report" and that she had four probation officers from the camp "available for cross on the issues in the report." Defense counsel objected on the grounds that the contents of the section 777 notice constituted inadmissible hearsay and that admission of the report into evidence would deny the minor his federal and state constitutional right to cross-examine the witnesses testifying against him under People v. Arreola (1994) 7 Cal.4th 1144 (Arreola). He claimed that the youth did not have the burden of calling witnesses to cross-examine them and refused to do so. After he informed the court that he would not call any witnesses, the court overruled his objection and admitted the report into evidence. No other evidence was offered by the prosecution. On appeal, the youth contended that he was denied his due process right to confront and cross-examine witnesses because the allegations in the section 777 notice were admitted in lieu of the live testimony of percipient witnesses and there was no showing that the probation officers who allegedly observed the misconduct were unavailable. He further argued that because these extrajudicial statements were the only evidence offered by the prosecution, reversal of the order finding him in violation of probation was required.

The Court of Appeal reversed the decision of the juvenile court and concluded that the evidence admitted failed to satisfy the requirements of section 777(c). That section, as amended by Proposition 21 effective March 8, 2000, provides in part that "the court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown, 215 Cal.App.3d [452] (1989) and any other relevant provision of law." In Brown, the court concluded that the testimony of a police officer, which concerned findings in the chemist's report that the substance recovered from the defendant was cocaine, was admissible evidence despite defendant's claim that it violated his right to cross-examine a witness and to have only reliable, nonhearsay testimony adduced against him. The appellate court, however, distinguished Brown from the present case on the basis of the California Supreme Court's finding in Arreola that the principles governing the admissibility of hearsay that takes the place of live testimony is different from those governing hearsay that consists of documents such as laboratory reports, invoices, or receipts, where the witness's demeanor is not a significant factor.
In Arreola, the Supreme Court considered the admissibility of the defendant's preliminary hearing transcript upon which the probation violation charges were based. Relying on decisions from both the U.S. Supreme Court and its own previous decisions, the appellate court concluded that a defendant at a probation revocation hearing has the right to confront and cross-examine adverse witnesses and that due process requires a showing of unavailability or other good cause before hearsay in the form of prior testimony could be admitted. Applying these principles, the appellate court determined that the admission of the hearsay allegations constituted an abuse of discretion as there was no showing of unavailability or other good cause sufficient to dispense with the right to confrontation. To do so denied the youth, as well as the trier of fact, the opportunity to observe the demeanor of his accusers, one of the essential components of the right to confrontation. The appellate court further rejected the People's argument that three of the percipient witnesses were available because they were in court during the hearing and were willing to be cross-examined had defense counsel not refused. The appellate court explained that there was nothing on which to cross-examine since no witness had given testimony either establishing a foundation for the hearsay evidence or accusing appellant of any misconduct. The court acknowledged defense counsel's argument that the youth should not have been required to call witnesses against him to the stand when the prosecution did not. The court therefore reversed the juvenile court's decision, concluding that because the hearsay evidence was the sole evidence on which the finding of violation was based, it could not be found beyond a reasonable doubt that the error did not contribute to the finding of violation.