NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Minor L.M. appeals an order adjudicating him a ward of the juvenile court for reckless driving causing bodily injury, a misdemeanor. He contends the juvenile court incorrectly admitted a statement the minor allegedly made to police; without the statement there was insufficient evidence to sustain the petition; and, therefore, his motion to dismiss at the close of the People's case should have been granted. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Except in one important respect, the underlying facts are not much in dispute; accordingly, we set out only those facts necessary to our disposition. Minor argues that, when the People rested, evidence that he was the driver of the car was legally insufficient and the petition then should have been dismissed. Because testimony from a defense witness unquestionably filled any legal pothole in the People's case, we separate the prosecution and defense evidence in our summary.
Prosecution Case
The accident that led up to the filing of the petition took place in the early evening hours of May 17, 2007. According to Daniel Jeffery's eyewitness testimony, Jeffery was on his front porch about 20 feet from the street. He saw two cars, a Mitsubishi Eclipse and a Nissan 350-Z, coming in his direction at a high rate of speed. He characterized the cars as drag racing, side-by-side on a street which was designed for one lane of traffic in each direction. The Eclipse dropped back and then cut around the 350-Z; both were going "really fast." As the Eclipse continued down the street, the driver slammed on the brakes but hit a stationary white car that was waiting to park. Victim Karine B. was in the white car. She, too, saw the Eclipse coming toward her "at a great speed." The impact propelled Karine's car into a tree, where she was trapped and needed emergency assistance to exit her vehicle. Karine suffered serious injuries, including internal bleeding of her kidneys, bruising, and scarring. She was hospitalized for two days.
Officer Guy Pereira was called to the scene a few minutes after the collision. Officer Pereira was a 14-year police veteran, who had been assigned to traffic collision investigations for almost 12 years. In investigating the accident, he used a speed chart, a roll-o-meter measurement of skid marks, a comparison of damage to the victim's car and the Eclipse, and his expertise developed from investigating hundreds of accidents to reach the conclusion that the Eclipse had struck the victim's car, and that prior to the collision the two drag-racing cars were traveling at over 60 miles per hour. The speed limit in the area was 25 miles per hour. Two sets of skid marks confirmed the involvement of two other cars, one of which had fled the accident scene. Officer Pereira testified that the minor was present during the police investigation.
In addition to identifying a written statement that minor gave to the police at the Van Nuys police station ("exhibit 2"), Officer Pereira testified that minor was driving the Eclipse. The officer acknowledged that his testimony was second hand as he did not formally question the minor at the scene and did not witness the accident or see who was driving. Early in his testimony, Officer Pereira stated that other police officers at the scene directed him to the minor "as the driver of one of the vehicles involved." Later, the prosecutor asked him if he had made the determination that the minor was the driver of the Eclipse. Initially, Officer Pereira said, "Not at first." Later he testified that "the subject [minor] was driving" "V2," i.e., the Eclipse. And on a fourth occasion, Officer Pereira stated that the vehicle that minor was "in" was found in an "at-rest position" after the accident.1
Exhibit 2 was received in evidence. Officer Pereira described it as "an investigative action . . . or statement form." It was prepared when Officers Pereira and Lozano met with minor at the Van Nuys police station. The top half of the form, near the caption "officer completing," was in Officer Lozano's handwriting; the middle part contains Miranda2 warnings; and the bottom of the form was in the minor's handwriting. The minor's statement was written in Officer Pereira's presence; Officer Pereira heard Officer Lozano advise the minor of his Miranda rights; and he heard the minor waive those rights. The court read exhibit 2, but not into the record. The exhibit itself is not in the appellate record, and there is no direct evidence whether the minor wrote in exhibit 2 that he was or was not the driver of the Eclipse.
Defense Case
After the denial of minor's motion to dismiss at the close of the prosecution's case, minor's counsel called one witness, Antonio Rodriguez. Rodriguez stated that he was a passenger in the Eclipse driven by the minor when the accident with the white car occurred. He said that another car (presumably the 350-Z) kept trying to get around the Eclipse and eventually did, forcing minor's vehicle into the white car. Although Karine testified her car was stationary, Rodriguez stated her car was pulling out of a driveway at the time of the collision. The minor made no effort to flee and waited for police.
DISCUSSION
Minor raises a single issue in the opening brief, which he phrases thusly:
"The unique question presented in this appeal is whether an officer who does not directly interview, question, evaluate Miranda waivers, or assess the voluntariness of an admission, may authenticate and lay a foundation for the admission of a written statement by appellant?"
We review a trial court's decision as to whether a document has been properly authenticated by the abuse of discretion standard. (See People v. Lucas (1995) 12 Cal.4th 415, 466; Adams v. City of San Jose (1958) 164 Cal.App.2d 665, 667-668.)
A. The Record and Preservation of the Issue on Appeal
The record, at best, is confusing as to the contents of exhibit 2, the minor's written statement to the police. We set out much of the testimony on the subject in the margin.3 We have these observations: First, neither exhibit 2 nor the substance of the statement is in the record on appeal. Although Officer Pereira purported to lay the foundation for the exhibit, he did not testify as to its contents. Accordingly, there is nothing before us that sets out the minor's exact words. Second, minor's counsel repeatedly interposed hearsay and lack-of-foundation objections to Officer Pereira's testimony about exhibit 2. The trial court generally overruled those objections subject to a motion to strike. Third, at the close of the People's case, before the minor's motion to dismiss was argued, this colloquy occurred:
"THE COURT: Can we get to the exhibits first[?]
[DEFENSE COUNSEL]: As far as exhibits --
THE COURT: Before they rest. People's 1 and 2.
[DEFENSE COUNSEL]: No objection to those exhibits, your honor."
Arguably, minor has not preserved the issue of the admissibility of exhibit 2 on appeal for two reasons: one, at the time of its admission, his counsel affirmatively stated she did not object to exhibit 2 (Evid. Code, § 353); and two, minor has not designated exhibit 2 as part of the appellate record (Cal. Rules of Court, rule 8.224 [counsel's obligation to designate exhibits]; see Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 ["Without the proper record, we cannot evaluate issues requiring a factual analysis"]).
We choose, nevertheless, to address the merits of the argument. From the many objections that minor's counsel made throughout the hearing, it is clear that counsel argued that Officer Pereira's testimony about exhibit 2 was inadmissible. During the course of the prosecutor's effort to authenticate exhibit 2 through Officer Pereira, defense counsel stated: "I'm going to renew my objection at this point as hearsay. Also lack of foundation. He wasn't present -- he was present, but he doesn't know what was written by the minor." A few seconds later, the court asked the prosecutor whether she intended at some point to introduce exhibit 2. After the prosecutor said "yes," the court stated: "Okay[,] then it's overruled. I mean what you're going to is not admissibility. It's the weight. He saw the minor write it out." Under these circumstances, further objection to the receipt of exhibit 2 would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820), and the fairest reading of counsel's statement at the close of the prosecution case is that she was not objecting to exhibit 2 on any grounds not already in the record.
Finally, although neither exhibit 2 nor its substance is in the record, we accept what the parties assume on appeal: in his written statement to the police, the minor admitted he was the driver of the Eclipse. For example, appellant's opening brief acknowledges the "juvenile court utilized appellant's written statement to find appellant was the driver of the car causing the accident." And, "but for appellant's written statement which the court reviewed, there was no evidence appellant was the driver of the vehicle." Respondent's brief refers to exhibit 2 as a "confession" which by law encompasses "all elements of the crime" (People v. Thompson (1990) 50 Cal.3d 134, 162, fn. 10), including, in this case, that minor was the driver. Appellant's reply brief states that without exhibit 2 there would have been insufficient evidence to sustain the petition, a final acknowledgement that minor admitted in the written statement that he was the driver.
B. The Trial Court Properly Admitted Exhibit 2; the Evidence Was Sufficient at the Close of the People's Case
We begin our analysis with accepted principles:
* In delinquency proceedings, if the People fail to introduce legally sufficient evidence at the close of their case, the petition is to be dismissed. (Welf. & Inst. Code, § 701.1; Pen. Code, § 1118; In re Anthony J. (2004) 117 Cal.App.4th 718, 727.)
* An out-of-court statement made by a minor in a delinquency case is admissible when offered by the People under the admission of a party opponent exception to the hearsay rule. (Evid. Code, § 1220; Welf. & Inst. Code, § 701; see In re Michael V. (1986) 178 Cal.App.3d 159, 169.)
* A writing must be authenticated before it is received in evidence. (Evid. Code, § 1401.)
In order to authenticate a writing, the proponent must either introduce "evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is," or establish "such facts by any means provided by law." (Id., § 1400) By law, a writing may be authenticated in a variety of ways, including evidence of the making of the writing, a witness's testimony that the handwriting is genuinely that of the maker, evidence of the content of the writing, and other reasonable methods of proving the genuineness of the writing. (Id., §§ 1410, 1413, 1415, 1421.) "Circumstantial evidence, content and location are all valid means of authentication." (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
Minor's complaint is that since Officer Pereira did not interview or question the minor or evaluate the Miranda warnings or the voluntariness of the confession, he is unable to authenticate exhibit 2. We disagree.
First, minor does not argue that the statement constituted an involuntary confession or was made without proper Miranda advisements. Nor does minor develop into a cogent argument the bald statement in his brief that a police officer must evaluate Miranda warnings and the voluntariness of a confession before authenticating a related writing. These points are, therefore, waived. (Landry, supra, 39 Cal.App.4th at pp. 699-700.) We are then left with minor's argument that Officer Pereira may not authenticate exhibit 2 because he did not "directly interview" or "question" minor. Minor complains that since Officer Pereira did not see the actual words that the minor wrote, Officer Pereira cannot authenticate exhibit 2. Minor submits no authority for such a proposition, and such a rule would make little sense.
The evidence was that Officer Pereira saw the minor writing on exhibit 2, a standard investigative action report/form utilized by the police. He was familiar with the form and described the top part, which was in Officer Lozano's writing, and the middle part, which contained the Miranda warnings. This testimony came in without objection. He then testified that "to the best of my knowledge" he saw minor write something on exhibit 2. When pressed by minor's counsel on what he meant by "the best of your knowledge," Officer Pereira stated: "I didn't see him write exactly what -- what exactly he wrote, no." This testimony was sufficient to support the trial court's finding that Officer Pereira was present when minor wrote out the statements contained on part of exhibit 2.4
A writing "may be authenticated by anyone who saw the writing made or executed." (Evid. Code, § 1413.) The uncontradicted evidence was that Officer Pereira was in the interview room while Officer Lozano questioned the minor. He saw the minor write on a form with which Officer Pereira was familiar. That he did not see the individual words imprinted on the paper is beside the point. There is no rule that authentication can be made only by someone "who saw the actual words placed on the document." The statute is satisfied if the witness saw the author writing on the document under circumstances that suggest the words in question were the author's. That Officer Pereira himself did not question or interview the minor is not relevant to authentication.
Finally, we observe a writing may be authenticated by circumstantial evidence of its content and location. (People v. Gibson, supra, 90 Cal.App.4th at p. 383.) Here, the minor was in the police station being interviewed by an officer who was investigating a recent reckless driving accident in which the minor was admittedly involved. The interviewing officer was using an official police form as part of this interview. The officer wrote a report on one part of the form, which also contained Miranda warnings. The only other person writing on the form was the minor. These facts are circumstantial evidence as to content and location sufficient to authenticate exhibit 2.
On this record, the trial court did not abuse its discretion in admitting exhibit 2. Exhibit 2 constitutes substantial evidence that minor was the driver of the Eclipse. Accordingly, there was no error in denying the minor's motion to dismiss at the close of the prosecution case for insufficiency of the evidence.
DISPOSITION
The order is affirmed.
WE CONCUR: BIGELOW, J., BENDIX, J.5
1. Defense counsel made a series of objections on hearsay and foundational grounds to Officer Pereira's conclusions that minor was the driver of the Eclipse. The trial court generally overruled these objections, stating that the testimony was relevant to an understanding of Officer Pereira's investigation, that further foundation might have to be laid by the prosecutor, and that the court would later entertain a motion to strike. The record is not clear whether the court actually struck any of this testimony. Minor makes no separate argument on appeal that the trial court erred in its evidentiary rulings on the testimony described in the text. Although the failure to assert the error on appeal means the point is waived (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699- 700 (Landry)), the trial court does not seem to have relied on this testimony in sustaining the petition. Instead, the trial court's focus seems to have been on the written statement that minor gave to a different policeman, Officer Lozano, in which the minor purportedly admitted he was the driver. The parties' principal arguments on appeal deal with the admissibility of that written statement, which we discuss at pages 5 to 10, post. Respondent also argues that any error in admitting the written statement was harmless because of Officer Pereira's testimony that at the scene he concluded minor was the driver. For reasons which we discuss below, we need not address whether Officer Pereira's conclusions were properly admitted or whether any error was harmless.
2. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3. "Q: Okay. Do you recall where that document was prepared? A: I believe, to the best of my recollection, Van Nuys station. Q: Where? A: Third Floor, I believe. Q: Is there some sort of interview room there? A: Yeah. Q: Okay. And you saw my client write something on that piece of paper; is that correct? A: To the best of my recollection, yes. Q: You say to the best of your knowledge. Does that mean you're not sure what he wrote? A: I didn't see him write exactly what -- what exactly he wrote, no. Q: You did not see what he wrote on that piece of paper? A: No, I did not. [DEFENSE COUNSEL]: I'm going to renew my objection at this point as hearsay. Also lack of foundation. He wasn't present -- he was present, but he doesn't know what was written by the minor. THE COURT: It's overruled." "THE COURT: Okay. Then it's overruled. I mean what you're going to is not admissibility. It's the weight. He saw the minor write it out. [DEFENSE COUNSEL]: He just said he didn't see the minor write it out. THE COURT: He said the minor write it out in his presence. [DEFENSE COUNSEL]: The minor wrote something. THE COURT: As to the contents, I think that -- I'm guessing, but I'm guessing that I will be able to read it and figure out from the context who wrote what. [DEFENSE COUNSEL]: Well, I think the court could make a guess as to who wrote what. However, this is a court of law, and it's supposed to be evidence that's admissible, and I'm saying this is not admissible. It's hearsay at this point. [¶] Basically what the court is suggesting is that it's going to use the fact that something is written on there to self-authenticate the document, and that's not how the rules of evidence work."
4. The trial court expressly found: "[Officer Pereira] said the minor wrote it out in his presence."
5. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.