Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 08WF0623, Richard W. Stanford, Jr., Judge.
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found defendant Brian Dale Andrade guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a)). He contends the trial court erred by admitting Department of Motor Vehicles (DMV) and Department of Justice (DOJ) printouts without the proper evidentiary foundation. He also argues the court erred by failing to order a probation report before sentencing him to prison. We find no basis to overturn the conviction, but agree the trial court should have ordered a probation report before imposing sentence. Consequently, we remand for resentencing.
I
FACTUAL AND PROCEDURAL BACKGROUND
A Fountain Valley police officer stopped defendant for driving without a seat belt on April 2, 2008. Asked for his driver’s license and registration, defendant stated his license had been suspended. The officer found a wallet inside the car. Defendant subsequently admitted a small bindle of methamphetamine stored in the wallet had been given to him by a friend.
Following a trial in December 2008, a jury found defendant guilty of the offenses listed above. The court found defendant had previously served two separate prison terms for prior convictions within the meaning of Penal Code section 667.5 subdivision (b), and in January 2009, the trial court sentenced him to a three-year prison term.
II
DISCUSSION
A. Trial Court Did Not Abuse Its Discretion Admitting DOJ and DMV Printouts
Defendant contends the trial court abused its discretion when it admitted computer printouts referred to at trial as a “Soundex” (Exhibit 3) and “CLETS” (the Department of Justice computer system designated as the California Law Enforcement Telecommunications System) (Exhibit 4) into evidence over his hearsay objection.
After the conclusion of the prosecution’s testimonial presentation — the only two witnesses were the arresting officer and a county forensic scientist who testified about the methamphetamine — the prosecutor moved to admit exhibits 3 and 4. Exhibit 3, referred to as a “Soundex,” had the words “Department of Motor Vehicles Image Record,” printed at the top of the document. Below in bold type was the following: “Pending photo – card not yet issues on this image(11).” Below this was the number “N4596376,” and the notation “DRIVER LICENSE CLASS: EXP DATE,” with defendant’s name directly underneath. Below the name is a date of birth of August 22, 1958. A “photo date” of September 10, 2008 is noted. There is a picture, a thumbprint and a signature of defendant’s last name. At the bottom of the document, the following statement appears: “This photograph is a true copy of the photograph that is contained on the Department of Motor Vehicles photo database and delivered over the Department of Justice communications network.” Under this statement is a date of September 15, 2008 and the signature of “Elena M. Perez.”
Exhibit 4 is a computer printout containing various DMV and criminal record information. It has a date and time stamp from the afternoon of September 15, 2008. The document contains defendant’s name, a Huntington Beach address, the same driver’s license/id number (N4596376) contained on the soundex, identifying information (height, weight etc.). It also provides, “LICENSE STATUS: EXPIRED* SURRENDERED BY SUBJECT* DEPARTMENTAL ACTIONS: DRV LIC SUSPENDED *EFF: 12-24-03*ORDER MAILED: 11-24-03*AUTH: 16004A* REASON: ACCIDENT.... CONVICTIONS: VIOL/DT 10-25-04 CONV/DT 12-16-04 SEC/VIOL 146011 VC....” A stamp on the document provides: “OFFICIAL CERTIFIED RECORD THIS IS TO CERTIFY THAT THIS IS A TRUE AND ORIGINAL DOCUMENT RECEIVED FROM THE CALIFORNIA LAW ENFORCEMENT TELECOMMUNICATIONS SYSTEM, BY THE OFFICE OF THE DISTRICT ATTORNEY, COUNTY OF ORANGE TONY RACKAUCKAS, DISTRICT ATTORNEY BY (signed by Elena M. Perez, I.A.)....”
The defense objected to the exhibits “coming in for lack of foundation, speculation, multiple levels of hearsay. [¶] People versus Crawford, I think there has to be – to lay foundation as to these computer printouts....” Counsel also complained the prejudicial effect of the evidence outweighed its probative value and therefore the court should exclude it.
The trial court noted a police officer or DMV employee typically testifies how the records are compiled or maintained “but... the record should show these are both certified copies....” The court therefore overruled defendant’s objection. The prosecutor later argued defendant “fully admitted” to driving without a license, and the exhibits corroborated his admission.
We conclude the documents were admissible under the public records hearsay exception. (Evid. Code, § 1280; hereafter section 1280). Section 1280 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 in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” As the Supreme Court explains, “a trial court has broad discretion in determining whether a party has established these foundational requirements. [Citation.] Its ruling on admissibility ‘implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. (Evid.Code, § 402, subd. (c).)’ [Citation.] A reviewing court may overturn the trial court’s exercise of discretion ‘“only upon a clear showing of abuse.”’ [Citations.]” (People v. Martinez (2000) 22 Cal.4th 106, 119-120 (Martinez).)
In Martinez, the court held uncertified computer printouts from CLETS were admissible as evidence under section 1280, explaining that law enforcement agencies and courts have statutory duties to timely report criminal history information to the DOJ, and the DOJ has a statutory duty to collect the reported information and make it available through CLETS within a short period of time. (Martinez, supra, 22 Cal.4th at pp. 127-128.) Because it is presumed under Evidence Code section 664 these official duties are regularly performed, the court concluded section 1280’s foundational requirements had been met.
Statutes also impose duties on the DMV to collect and record driver license information including a thumbprint and photograph. (See Veh. Code, §§ 12800, 12800.5, 12811.)
Defendant argues the “foundation required to allow documents into evidence under [section 1280] must be laid either by the testimony of a public employee concerning the manner in which information is entered into the computer; or the court may take judicial notice of the pertinent statutes that require a public employee to enter data in a certain manner. [Citation.] Here, there was no foundation testimony, the prosecution did not request judicial notice, and there is no indication the trial court took judicial notice sua sponte of any statutes regarding public records.”
We disagree. As noted above, the trial court’s ruling on admissibility “‘implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary.’” (Martinez, supra, 22 Cal.4th at p. 120.) We infer the trial court here judicially noticed the various statutes that establish the foundational basis for admitting CLETS printouts under section 1280. In People v. Dunlap (1993) 18 Cal.App.4th 1468 (Dunlap), a case cited favorably and relied on by the Supreme Court in Martinez, the appellate court noted the trial “court did not make any express findings that the foundational requirements were met, [fn. omitted] but the findings may be inferred from the court’s ruling admitting the printout.... The question, then, is whether the implied findings are supported by matters outside the record but properly subject to judicial notice and/or the presumption that official duty was regularly performed,” stating the “trial court was required to take judicial notice of those statutes” dealing with the recording and reporting of a person’s criminal history. (Dunlap, supra, at pp. 1477-1478; see Evid. Code, § 451, subd. (a).)
Defendant attempts to distinguish Martinez: “First, the high court limited its decision to the record of the case.... More importantly, the Martinez court specifically relied on the facts that the documents were accompanied by testimony from the paralegal in the district attorney’s office that generated the printout and the testimony from a Los Angeles County deputy sheriff who had questioned the defendant about his criminal history and to whom the defendant had made admissions consistent with the computer printout. [Citation.] Here, there was no testimony or other evidence concerning the preparation or provenance of either of these documents.”
Nothing in Martinez suggests its holding and rationale applies only under its unique facts. Although a paralegal generating the printouts testified in Martinez, the court did not hold that testimony was required. In Dunlap, as here, “the prosecution did not present any evidence, independent of the CLETS rap sheet itself, bearing on the foundational requirements.” (Dunlap, supra, 18 Cal.App.4th at p. 1477).
Dunlap described the exhibit this way: “It consisted of a seven-page computer printout, was labeled ‘CLETS Data Base Response for JTC Kern County Sheriff,’ and was dated August 18, 1992. The first page was stamped as follows: [¶] ‘District Attorney’s Office’ [¶] ‘County of Kern Bakersfield, California’ [¶] ‘This is to certify that the above is a true and original document received from the California Law Enforcement Telecommunications System, by the District Attorney’s Discovery Unit.’ Directly under the preceding paragraph were spaces for the date and a clerk’s name; hand-written into these spaces was the date ‘8-18-92’ and an illegible name or set of initials.” (Dunlap, supra, 18 Cal.App.4th at p. 1472.)
Citing Evidence Code section 1530, defendant argues for the first time in his reply brief the certifications on the documents were inadequate because they were not made by the “legal custodian” of the writings. He asserts the “DA’s office does not have legal custody of the information contained in these documents – the Department of Motor Vehicles does. Thus, to comply with the statutory requirement, any certifications would have been made by an employee of the DMV.”
Section 1530 provides, “(a) A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if: [¶] (1) The copy purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept; [¶] (2) The office in which the writing is kept is within the United States or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, and the copy is attested or certified as a correct copy of the writing or entry by a public employee, or a deputy of a public employee, having the legal custody of the writing.... [¶] (b) The presumptions established by this section are presumptions affecting the burden of producing evidence.” (Italics added.)
The flaw in defendant’s argument is that Evidence Code section 1530 applies by its terms to purported copies of writings, and the computer printouts at issue here were originals. “‘Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” (Evid. Code, § 250.) Data stored in computers are considered “writings.” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769.) “‘Original’ means the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. An ‘original’ of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’” (Evid. Code, § 255, italics added.)
Section 1280 does not by its terms require a certification to admit original writings. Also, “a printed representation of computer information or a computer program is presumed to be an accurate representation of the computer information or computer program that it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of computer information or computer program is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the computer information or computer program that it purports to represent.” (Evid. Code, § 1552, subd. (a); cf. § 1552, subd. (b) [subdivision (a) “shall not apply to computer-generated official records certified in accordance with Section 452.5 or 1530.”].) Here, defendant introduced no evidence the computer information was inaccurate or unreliable. Thus, assuming defendant’s foundation objection preserved the claim he now makes, the trial court did not abuse its discretion by admitting the printouts.
Defendant also argues the “error in admitting these records over defense objection is one of constitutional dimension, because it interfered with [his] right to confrontation under the Sixth Amendment... by denying him the right to cross-examine the proper foundational witness. Accordingly, prejudice must be evaluated under the rule of Chapman v. California (1967) 386 U.S. 18, 24.”
Because there was no error, we need not evaluate prejudice. To the extent defendant argues the trial court admitted the exhibits in violation of his Sixth Amendment confrontation right (which is a separate issue from whether the exhibits were correctly admitted under section 1280), defendant has forfeited the claim by only mentioning it in a heading without analysis or citation to legal authority. In any event, the claim has been resolved against him. (People v. Morris (2008) 166 Cal.App.4th 363, 370 [admission of a CLETS rap sheet under the public records exception to the hearsay rule does not violate Sixth Amendment because statements are nontestimonial, i.e., not obtained for the purpose of potential use in a criminal trial].)
B. Failure to Order and Consider a Probation Report
Defendant also contends the trial court erred by failing to order and consider a probation report before sentencing him. The court declined at the sentencing hearing to order a probation report, “not feeling that it needed one.”
The Attorney General concedes the court erred (Pen. Code, § 1203, subd. (b)(1), (4)) but argues defendant suffered no prejudice because his criminal history made him presumptively ineligible for probation and because this was not an unusual case warranting probation and it is likely “the trial court would still have sentenced [him] to state prison for at least the midterm, in any event.” The Attorney General notes that while there was no probation report, the prosecutor did supply the trial court with a brief before trial describing the “essential aspects of [defendant’s] background,” including a summary of his prior criminal cases “replete with multiple terminations of Penal Code 1000 programs, multiple opportunities to enroll [in] and complete a Penal Code section 1210 program, multiple probation violations, a parole violation, and two state prison commitments for two years apiece, on two different cases.”
Where a probation report is required, the right is considered fundamental and its abridgment is generally treated as reversible error. (Pen. Code, § 1203, subd. (b)(1); People v. Mariano (1983) 144 Cal.App.3d 814, 824-825.) The Attorney General’s reliance on People v. Ware (1966) 241 Cal.App.2d 143 is unavailing. In Ware, the court rejected the defendant’s contention the trial court erred in failing to obtain a current probation report after reversal and remand for resentencing. The appellate court noted the defendant was statutorily ineligible for probation because he had used a gun in committing a robbery unless the trial court determined defendant’s case was so unusual the interest required a grant of probation. More importantly, the trial court there had the original probation report, and nothing new had transpired in the interim. As the appellate court explained, “The sentencing judge, having tried the case, was familiar with the circumstances of the crime, and he was familiar with the background of the defendant as shown by the probation report prepared immediately after the trial. The court knew defendant had been in the custody of the Director of Corrections ever since the first sentence had been pronounced. A new probation report could have added nothing except to tell how defendant was getting along in prison. We do not think that such additional information, had it been obtained, would have been of any significance in the trial court’s determination as to whether this was an ‘unusual’ case. If a literal reading of section 1203 required a further reference to the probation department in this case, lack of it did not prejudice this defendant.” (Id. at p. 146, italics added.)
The Attorney General cites no authority to affirm a judgment under the current circumstances, nor have we found any authority to support the Attorney General’s position. Notwithstanding defendant’s criminal history and previous failures on probation, we decline to excuse as harmless the trial court’s clear error in failing to refer the matter to the probation department. Although a probation grant is unlikely, a probation report may support the imposition of a lesser sentence.
Finally, the Attorney General states it is reasonable to infer defendant did not request a probation report because he knew it would not benefit him, “there is no doubt that a probation report would have recommended state prison and set forth circumstances in aggravation which substantially outweighed any circumstances in mitigation — exposing [defendant] to the upper term, not the midterm which was imposed.” Nothing we have said precludes defendant on remand from waiving a probation referral and new sentencing hearing.
III
DISPOSITION
The judgment is reversed and the cause is remanded for a new sentencing hearing.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.