Filed 2/10/98

THIRD APPELLATE DISTRICT

(Sacramento)

----

APPEAL from a judgment of the Superior Court of Sacramento County. W. J. Harpham, Judge. Reversed in part and affirmed in part.

Linda A. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Roger E. Venturi and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Clifford Bradley Thompson, using various aliases, applied for and obtained employment at several group homes for children. As part of the application process, defendant stated

under penalty of perjury he had no prior criminal convictions.

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* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, III, IV and V.

In fact, defendant had five felony convictions and three misdemeanor convictions. A jury found defendant guilty of six counts of perjury. (Pen. Code, § 118, subd. (a).) After finding two prior prison term allegations true (Pen. Code, § 667.5, subd. (d)) the court sentenced defendant to eleven years and imposed a restitution fine of $4,400 (Pen. Code, §§ 1202.4 and 1202.45). On appeal defendant contends: (1) the court erred in denying defendant's motion to suppress, since evidence admitted at trial was the fruit of an illegal search; (2) the increase in defendant's sentence after retrial violates due process and the prohibition against double jeopardy; (3) the court improperly allowed amendment of the information after defendant waived his right to a jury trial; (4) the fine imposed must be stricken under the ex post facto doctrine; (5) the court erred in permitting the conditional examination of a witness; and (6) several exhibits were inadmissible hearsay. In the published portion of this opinion we conclude the increase in defendant's term of confinement following retrial violates the double jeopardy clause of the California Constitution. We modify defendant's sentence to reduce the unstayed prison term and direct the trial court to reduce the restitution fine. We reject his remaining contentions in the unpublished portions of this opinion.

Between 1991 and 1993 defendant, using a variety of aliases, applied for employment at five group homes for children. On each employment application, defendant stated, under penalty of perjury, that he had no criminal convictions. In reality, defendant had five felony convictions and three misdemeanor convictions. In each case, the group home employer considered the criminal history information to be crucial and material to employment. Defendant submitted his fingerprints with each application.

Each of the five group homes hired, and eventually fired, defendant. The group homes, with one exception, would not have hired defendant with the knowledge of his use of aliases and prior convictions.

Defendant also filled out an application for a taxi cab permit under an alias. On the application, under penalty of perjury, defendant stated he had never been convicted of a crime. In addition, defendant submitted fingerprints. Ultimately, a taxicab permit was issued to defendant. The permit would not have been issued had authorities known defendant used a false name and had five felony and three misdemeanor convictions. Information regarding defendant's misrepresentations came to the attention of authorities after defendant's landlord contacted police. The landlord claimed defendant had burglarized his residence. When the police responded, the landlord reported defendant assaulted him after he complained to defendant about nocturnal visits from teenage boys who climbed through defendant's window.

The police arrested defendant and, without a warrant, searched his apartment. The search yielded pictures of children engaged in sexual activity, false birth certificates, and other information. Following the search, police contacted the Department of Social Services who conducted an investigation and obtained falsified employment applications at various group homes.

An information charged defendant with two counts of lewd conduct with a minor under 14 years of age (Pen. Code, § 288, subd. (a)) and six counts of perjury (Pen. Code, § 118, subd. (a)). Two prior prison terms were alleged under Penal code section 667.5, subdivision (d). The trial court bifurcated the child molestation counts from the perjury counts.

A jury trial followed. The jury convicted defendant of six perjury counts. The prosecution dismissed the second prior conviction in the interests of justice. The court found the other prior prison term allegation true.

The court sentenced defendant to ten years for the six perjury convictions and the prior prison term. We reversed defendant's conviction following his first trial in People v. Thompson (1996) 43 Cal.App.4th 1265. In the unpublished portion of the opinion we reversed the six counts of perjury due to instructional error. In the published portion of the decision we determined an issue of standing.

On remand, following an evidentiary hearing, the court denied defendant's motion to suppress under Penal Code section 1538 to suppress evidence. A second jury trial followed.

At trial, a Sacramento sheriff compared defendant's fingerprints to the fingerprints submitted by defendant with each application. The officer found the fingerprints matched.

A senior special investigator for the California Department of Developmental Services testified regarding the investigation of licensing violations by defendant. According to the investigator, defendant made no requests for exceptions to licensing requirements.

The second jury found defendant guilty of six counts of perjury. Defendant waived his right to a jury trial as to the two prior prison terms.

The court allowed amendment of the information as to one of the charged priors. The court found the two prior prison term allegations to be true.

The court sentenced defendant to 11 years and imposed restitution fines under Penal Code sections 1202.4 and 1202.45. Defendant filed a timely notice of appeal.

I. Motion to Suppress

A. Factual Background

In November 1993 a Sacramento sheriff's detective received information from landlord Ragland that his tenant, defendant, had burglarized Ragland's residence. Ragland contacted the detective, informing the detective he had leased a room to defendant. Ragland also told the detective defendant assaulted and threatened him. Ragland had ordered defendant off the premises and obtained a restraining order against defendant.

Ragland told the detective he wanted the detective to enter the premises to get defendant out. According to Ragland, defendant told him he was a parolee and homosexual. Subsequently, Ragland witnessed teenage boys climbing into defendant's bedroom window at night. After Ragland questioned these nocturnal visits, defendant assaulted him.

Ragland told the detective he believed defendant had been hired and fired from several group homes. Defendant's employment concerned Ragland because of his sexual orientation and teenage visitors.

The detective went to Ragland's rental property and found and arrested defendant. The detective, without an arrest or search warrant, searched the apartment. A search of defendant yielded methamphetamine. A search of the apartment yielded an album of photos of children engaged in sexual activity, and falsified college degrees, birth certificates and other identification. The detective also found employment applications for group homes.

Following the search, the detective contacted Robin Braafladt, a Department of Social Services investigator who oversees group homes. The detective told Braafladt defendant might have worked in group homes and related the incident of teenage boys visiting defendant at night. During the hearing on defendant's motion to suppress, the detective testified that, even absent the search and the unearthed false documents, he would have contacted the sexual assault unit within the department based on Ragland's reports of defendant's contact with teenage boys. According to the detective, the sexual assault unit would have contacted Braafladt.

Braafladt testified she conducted an investigation based on the information provided by the detective. She obtained the names of the group homes where defendant had worked by entering defendant's name and aliases into the computer. The computer data base provided the names of the group homes. Braafladt contacted the group homes and obtained defendant's employment applications. Although she testified she might have seen some of the documents the detective unearthed in the search, any exposure would have no effect on her investigation. During direct examination, the prosecution posed a hypothetical question: If a private citizen called her and said he knew of someone who worked in group homes who had been visited by teenage boys at night, would she have conducted an identical investigation? Braafladt answered yes.

During cross-examination, Braafladt stated the detective had given her the names of five of the group homes defendant was involved with. The detective also told her the investigation had expanded from an abuse case to a case involving fraudulent documents.

Defendant brought a motion to dismiss, arguing the applications were seized during an illegal, warrantless search. The prosecution argued an exception to the exclusionary rule, the doctrine of inevitable discovery. The court denied the motion finding the central issue was whether the evidence unearthed by Braafladt had its genesis in the evidence seized by the detective. The court concluded: "[T]hat's why I think it's important to ask Officer Parker what he would have done with the information that he had obtained from his telephone interview with Ragland. [¶]  He indicated that with that information alone, which was the defendant's name -- he had been called a, quote, homosexual by Ragland. Ragland had said he'd seen young boys climbing through the window and that the defendant had been employed at and for unknown reasons terminated at several group homes. With that alone he would have phoned Robin [Braafladt] to make a complaint and suggest that a [sic] investigation ought to be conducted. [¶]  And I gather from her testimony that with that information alone she would have commenced a [sic] investigation. And with that information alone she would have put the defendant's name in the computer. And with the defendant's name alone with the computer data base would have generated the care facilities in which he worked. And with that information she was able to and did obtain the employment applications from the various group homes, those which are going to be offered in evidence in this case. [¶]  That to me shows that if there was something wrong with the original search that any causation has been broken. To use the language that the cases require it was not obtained by exploitation of any illegal search."

B. Discussion

Defendant argues the court erred in denying the motion to suppress. According to defendant, the investigation into the group home applications and the resulting perjury charges were triggered by the evidence seized during the warrantless search.

In reviewing a ruling on a motion to suppress, we defer to the trial court's express and implied factual findings, if supported by substantial evidence. However, we exercise our independent judgment in determining whether, on the facts determined by the trial court, a search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

The Fourth Amendment protects against unreasonable searches and seizures. As a means of enforcing this right, the exclusionary rule prevents the introduction of illegally seized evidence or the fruits of such evidence. However, as declared by the Supreme Court in Wong Sun v. United States (1963) 371 U.S. 471, 487-488: "We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'"

The inevitable discovery exception allows admission of evidence where the court finds that challenged evidence would have been secured through legal means regardless of improper police conduct. The test is not one of certainty, but rather of reasonably strong probability. The prosecution bears the burden of establishing its admissibility, but the trial court necessarily has broad discretion based on the facts of each case to apply or withhold application of the inevitable discovery exception. (Nix v. Williams (1984) 467 U.S. 431, 441; People v. Tye (1984) 160 Cal.App.3d 796, 800-801.)

The People contend the inevitable discovery exception applies in the present case. We agree and find the factual scenario in the present case similar to that encountered in Hernandez v. Superior Court (1980) 110 Cal.App.3d 355. In Hernandez, defendant, charged with murder, brought a motion to suppress evidence found during an illegal detention. The evidence consisted of a copy of a Texaco credit card receipt which placed defendant in town the day of the homicide. (Id. at pp. 359-360.) The trial court denied the motion finding a reasonably strong probability the receipt would have been discovered by legal means. The court emphasized Sacramento police had begun an investigation independent of the unlawful conduct by the other police department. Sacramento police were aware of the Texaco credit card before the illegal vehicle stop. (Id. at p. 361.)

We affirmed the trial court. Finding a reasonably strong probability that the evidence would have been discovered by legal means, we noted: "Prior to the receipt by the Sacramento police of the illegally seized Texaco soft copy, Steed [Sacramento police officer] was aware through information from defendant

. . . of the Texaco credit card and its significance to his investigation." (Id. at p. 364.) In the present case, prior to the warrantless search of defendant's apartment, the detective in charge had information regarding defendant's questionable activities with young boys and his employment at various group homes. As the detective testified, this information would have led to an investigation by the sexual assault division.

In addition to the group home employment applications, the detective also found an application for a taxicab permit. This application forms the basis for one of the perjury charges. Again, we find the application would have been found during any investigation separate from the warrantless search. The detective testified, prior to the search, he had information that defendant had a taxicab. As the People note, since authorities knew of defendant's cab, a check on his permit would follow the discovery of the perjured group home applications. Accordingly, we find the court's denial of defendant's motion to suppress supported by substantial evidence.

II. Double Jeopardy

Defendant argues the increase in his sentence after retrial violates the constitutional guarantee against double jeopardy.

A. Factual Background

The original information charged defendant with two prior prison terms, a 1985 perjury conviction and a 1984 non-sufficient funds conviction. After the jury convicted defendant of the six perjury counts during the first trial, defendant waived jury trial on the prior prison term allegations. The court granted the prosecution's motion to dismiss one of the prior prison terms. The court sentenced defendant to ten years: nine years on the perjury counts, plus one year for the prior prison term enhancement. The court also imposed a $2,000 restitution fine pursuant to former Government Code section 13967.

We reversed the judgment based on instructional error. (People v. Thompson (1996) 43 Cal.App.4th 1265, 1267.) The matter was remanded for retrial. Defendant entered a plea of not guilty to the original information which contained the two prior prison term allegations. Following his conviction by the jury in the second trial, defendant again waived jury trial on the prior prison term allegations.

During the court trial on the prior prison terms, the prosecution notified the court that the two charged priors involved concurrent prison time. The prosecution moved to amend the perjury prior to a second degree burglary. The court granted the motion.

Defense counsel objected, arguing defendant had not waived his right to a jury trial on the burglary prior. The court denied defendant's motion to strike the burglary prior.

At sentencing, defendant again moved to strike the burglary prior. Defense counsel specifically did not request a new trial, stating a new trial would not be in his client's best interests. The prosecution informed the court the information incorrectly alleged two prior convictions which did not result in separate prison terms. In addition, the prosecution stated the error had been discovered following trial. The court denied the motion finding defendant suffered no prejudice as a result of the amendment and defendant's waiver of a jury trial was valid.

The court sentenced defendant to 11 years including two separate one-year terms for the prior prison term enhancements. The court also imposed two restitution fines of $2,200 each, one under Penal Code section 1202.4 and one under Penal Code section 1202.45. Payment of the fine imposed under Penal Code section

1202.45 was suspended unless and until defendant's parole, if granted, is revoked. The court also imposed $168 in fines pursuant to Government Code section 29550.2.

B. Discussion

Following defendant's first trial, the trial court sentenced him to ten years: nine years on the perjury counts and one year for the prior prison term enhancement. Following the second trial, the court sentenced defendant to eleven years: nine years on the perjury counts and two one-year terms for the prior prison term enhancements. Unquestionably, the court imposed a more severe penalty following the second trial.

Citing People v. Henderson (1963) 60 Cal.2d 482, defendant contends the increase in both the sentence and fines imposed violates the double jeopardy clause of the California Constitution. The Supreme Court in Henderson held that under the double jeopardy clause of the California Constitution, a defendant sentenced to life imprisonment at his or her first trial cannot receive the death penalty upon retrial after a successful appeal. (Id. at p. 497.) "The Henderson holding was not confined to invalidation of a death sentence after reversal of a judgment imposing a life sentence; it was applied to any case in which a more severe sentence is sought to be imposed on a retrial." (1 Witkin, Cal. Criminal Law (2d ed. 1988) § 316, p. 365); People v. Harris (1990) 217 Cal.App.3d 1332, 1336.)

Recently, in People v. Monge (1997) 16 Cal.4th 826, the Supreme Court reaffirmed its stance in Henderson, supra, 60 Cal.2d 482, noting "when a defendant successfully challenges his conviction, the state double jeopardy clause prohibits imposition of a greater sentence following retrial, thus preventing an 'unreasonabl[e] impair[ment]' of [a] 'defendant's right of appeal from an erroneous judgment.' [Citations.]" (Id. at p. 843.) Other cases have applied this rule, protecting defendants from receiving a greater sentence if reconvicted after a successful appeal. (See People v. Collins (1978) 21 Cal.3d 208; People v. Hood (1969) 1 Cal.3d 444, 459; People v. Ali (1967) 66 Cal.2d 277, 281.) Consistent with Henderson and its progeny, we conclude the increase in defendant's term of confinement following retrial violates the double jeopardy clause of the California Constitution. Therefore, we shall modify defendant's sentence to stay one of the one-year enhancements, reducing the unstayed prison term to ten years.

The fines imposed following the second trial present a different question. Following the first trial the court imposed a $2,000 fine. Following the second trial the court imposed $4,400 in fines, a $135 booking fee and a $33 main jail classification fee. (Govt. Code, § 29550.2.)

In People v. Jones, supra, 24 Cal.App.4th 1780, after defendant's conviction was reversed and remanded, he was found guilty in a second trial. The trial court sentenced defendant and imposed a restitution fine of $5,000 although it had imposed a fine of $1,000 in the original proceeding. (Id. at pp. 1781-1783.) The appellate court modified the judgment to reduce the fine from $5,000 to $1,000. The court held under the double jeopardy provisions of the California Constitution a more severe sentence may not be imposed following retrial. Therefore, the monetary portion of a sentence on remand from a successful appeal may not exceed the monetary portion of the sentence originally imposed, absent some express agreement by the defendant to the contrary. (Id. at p. 1785.)

The People acknowledge Jones, but urge us to reject its holding. The People argue restitution fines pursuant to Penal Code sections 1202.4 and 1202.45 are not punishment but merely serve the societal interest of compensating crime victims. We are not persuaded. Such societal interest may be among the reasons for imposing such fines, but fines have historically been considered part of the punishment for double jeopardy purposes. (Jeffers v. United States (1977) 432 U.S. 137, 154-155.) In addition, Penal Code section 15 defines a fine as one of the punishments which may be imposed for conviction of a crime. The People also argue the Government Code section 29550.2 fines totaling $168 are nonpunitive, "remedial" assessments to reimburse for jail related costs. Again, reimbursement may be part of the rationale underlying the fine, but its effect is punitive. We see no reason to depart from the holding in Jones, supra, 24 Cal.App.4th 1780. Accordingly, we shall direct the trial court to reduce the restitution fine to $2,000 under Penal Code section 1202.4, the amount originally assessed.

Defendant argues the amendment of the information to substitute the 1975 prison term for burglary after defendant waived his right to a jury trial on the prior prison term allegations violated due process. As noted supra, the court allowed amendment of the information under Penal Code section 969a to replace the perjury prior with the burglary prior.

The People contend defendant has waived any due process argument by failing to object. We disagree. Defendant objected strenuously to the amendment.

The Supreme Court in People v. Valladoli (1996) 13 Cal.4th 590 held Penal Code section 969a permitted the prosecution to amend an information to include three prior felony conviction enhancement allegations after the jury rendered a verdict on the substantive crimes, but before the jury was discharged. The court found: "Section 969a expressly gives discretion to our trial judges to permit or deny the amendment (see, ante, at p. 606, fn. 3), and we rely in such matters on the prudent exercise of that discretion to ensure the due process rights of criminal defendants are adequately protected. In exercising such discretion, courts should scrutinize (i) the reason for the late amendment, (ii) whether the defendant is surprised by the belated attempt to amend, (iii) whether the prosecution's initial failure to allege the prior convictions affected the defendant's decisions during plea bargaining, if any, (iv) whether other prior felony convictions had been charged originally, and (v) whether the jury has already been discharged (see § 1025). This list, of course, is intended to be illustrative rather than exhaustive, and we reiterate the matter is best left to the discretion of our trial judges." (Id. at pp. 607-608, fn. omitted.)

After applying the factors enunciated in Valladoli, we cannot find the court abused its discretion in allowing amendment. Here, the prosecution explained that the original priors had been charged in error and the error had only recently been discovered. Nor is there any evidence the prosecution intentionally held back the prior to gain a tactical advantage. The prosecution stated that the defense had been provided with documentation regarding the burglary prior. Defense counsel stated he did not have the documents in court. The trial court found no surprise on the part of the defense noting: "I don't think [defendant was] subverted [into waiving a jury trial], I really don't. I think the priors were all available before we discussed a lot of them." Defendant concedes the initial failure to allege the prior burglary did not affect any plea bargaining. All of these factors militate towards permitting the amendment.

However, defendant seizes on only one factor -- whether the jury has already been discharged -- and pronounces it paramount. The court in Valladoli listed this element as one of six elements to consider -- not as the determinative factor.

Defendant also contends he was denied a jury trial on the prior burglary allegation in violation of the federal due process clause. Defendant was not denied a jury trial. During discussions over the amendment to allege the burglary prior, defense counsel specifically declined a new trial on the new prior. Defense counsel stated he did not believe a new trial would be in his client's best interests. Defendant has therefore waived the claim that he should have received a jury trial on the truth of the prior.

In a related argument, defendant contends the amendment violated due process since it was the result of prosecutorial vindictiveness. Due process prohibits vindictive prosecution. Under both federal and state law a presumption of vindictiveness arises where the prosecution increases the charges against the defendant after he or she has successfully asserted his right to a new trial. (Blackledge v. Perry (1974) 417 U.S. 21, 28-29; In re Bower (1985) 38 Cal.3d 865, 878.)

The presumption of prosecutorial vindictiveness can be rebutted by an explanation that adequately eliminates actual vindictiveness or proof that the more severe charge was justified by independent reasons which dispute the appearance of vindictiveness. (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 374; United States v. Griffin (9th Cir. 1980) 617 F.2d 1342, 1347.)

Here, the record rebuts any presumption of vindictiveness. The prosecution did not file more serious charges on retrial than those originally filed. The original information alleged two prior prison terms. The amendment by the prosecutor substituted the burglary prior for a perjury prior. After the amendment, defendant was charged with the same number of prior prison term allegations. The prosecution explained to the court that the amendment was necessitated by recently discovered error. The court accepted the explanation and granted the amendment request. Defendant never claimed prosecutorial vindictiveness during discussions concerning the amendment. We find any presumption of vindictiveness rebutted by the record.

IV. Conditional Examination

Defendant argues the court erred in admitting into evidence the testimony of Ilse Rollin. Prior to trial, counsel conducted a conditional examination of Rollin. Rollin planned to be on vacation in Hawaii at the time of trial.

Rollin received a subpoena to testify approximately two weeks before trial. She contacted the deputy district attorney and told him of her prearranged trip. The prosecution requested a conditional examination. (Pen. Code, § 1340-1344.) Defense counsel objected to the procedure and requested that the court make findings of the witnesses' unavailability and due diligence on the part of the prosecution. The court declined to make such finding, but instead found Rollin would be on an out-of-state vacation.

Rollin's testimony was read into evidence at trial. She served as custodian of records at one of the group homes and identified defendant's employment application. Rollin testified defendant would not have been hired had the organization known of his prior criminal record. She testified under oath, and defense counsel conducted a cross-examination. Prior to the admission of Rollin's testimony, defendant objected on the grounds that the trial court failed to find Rollin unavailable to testify at trial.

Penal Code sections 1335-1345 govern conditional examinations. Section 1336 states, in part: "(a) When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, the defendant or the people may apply for an order that the witness be examined conditionally." (Emphasis added.) The party requesting the conditional examination must submit an affidavit stating, among other things, that "the witness is about to leave the state, or is so sick or infirm

. . . ." (Pen. Code, § 1337, subd. (4), emphasis added.) In addition, "If at the time and place so designated, it is shown to the satisfaction of the magistrate that the witness is not about to leave the state . . . the examination cannot take place." (Pen. Code, § 1341, emphasis added.) During the conditional examination the defendant has the right to be present with counsel. (Pen. Code, § 1340.)

Defendant argues the trial court erred in allowing the conditional examination of Rollins absent a finding of due diligence. In support, defendant relies on Dalton v. Superior Court (1993) 19 Cal.App.4th 1506. In Dalton, the appellate court held that the People are not entitled to a conditional examination in capital cases. In dicta, in a footnote, the Dalton court observed that the transcript of a conditional examination "may be read into evidence by either party at trial if the witness is unavailable within the meaning of section 240 of the Evidence Code." (Id. at p. 1508, fn. 2, citing Pen. Code, § 1345.) As defendant points out, Evidence Code section 240, subdivision (a)(5) defines an unavailable witness as one who is "absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process."

When enacted, Penal Code section 1345 stated: "The deposition, or certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness, or infirmity, or of his continued absence from the State. Upon reading the deposition in evidence, the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in Court." In People v. Means (1960) 179 Cal.App.2d 72, the appellate court, construing section 1345 as originally enacted, found the trial court did not err in allowing the reading of an out-of-state witness. The witness had been willing to return for the trial, and defendant argued the requirement of section 1345 cannot be met by a mere showing that the witness was absent from the state. (Id. at pp. 82-83.) The appellate court found no requirement of due diligence, noting "We do not think that the statute requires that the witness be both out of the state and unwilling to attend the trial, or that the other party pay for the transportation of an out-of-state witness." (Id. at p. 83.)

In 1965 Penal Code section 1345 was revised "so that the conditions for admitting the deposition of a witness that has been taken in the same action are consistent with the conditions for admitting the testimony of a witness in another action or proceeding under Evidence Code Sections 1290 to 1292." (See Cal. Law Revision Comm. com., Pen. Code, § 1345.) The revision added the reference to Evidence Code section 240.

The revision also created an anomaly: Penal Code sections 1336, 1337 and 1341 provide for a conditional examination when a witness is about to leave the state. None of these sections mentions an unavailability requirement under Evidence Code section 240. Therefore, Penal Code section 1336 allows a party to apply for a conditional examination when a witness is about to leave the state; section 1337 requires an affidavit showing such absence; and section 1341 provides the examination shall not take place if the magistrate is not satisfied the witness will be absent from the state. Yet the transcript of the conditional examination may be read into evidence if the court finds the witness unavailable under Evidence Code section 240, which does not list absence from the state as a form of "unavailability." How then does one reconcile Penal Code section 1345 with the other sections governing conditional examinations?

Recently, the Supreme Court faced a similar dilemma in a slightly different context. In People v. Reed (1996) 13 Cal.4th 217, the Court found preliminary hearing transcripts containing hearsay admissible under the unavailable witness exception of Evidence Code section 1291, subdivision (a). The witnesses were legally unavailable because the prosecution was precluded by judicial rule from presenting any evidence outside the record to prove the circumstances of the prior crime.

In Reed, the defendant had argued the definition of "unavailable as a witness" codified in Evidence Code section 240 makes no mention of a judicial rule precluding testimony. The Court began by explaining the rationale behind the unavailability requirement: "The fundamental purpose of the unavailability requirement is to ensure that prior testimony is substituted for live testimony, the generally preferred form of evidence, only when necessary. '[F]ormer testimony often is only a weaker substitute for live testimony. . . . If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, long-standing principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence. [Citation.] But if the declarant is unavailable, no "better" version of the evidence exists, and the former testimony may be admitted as a substitute for live testimony on the same point.' [Citation.] As this court, quoting Wigmore's treatise, has observed, '"The general principle upon which depositions and former testimony should be resorted to is the simple principle of necessity, -- i.e., the absence of any other means of utilizing the witness' knowledge."' [Citation.]" (Reed, supra, 13 Cal.4th at pp. 225-226.)

The Court acknowledged Evidence Code section 240 did not label as "unavailable" witnesses in the situation at issue in Reed, but the Court noted: "California Courts have not interpreted Evidence Code sections 240 and 1291 so strictly as to preclude unlisted variants of unavailability. Rather, courts have given the statutes a realistic construction consistent with their purpose, i.e., to ensure that certain types of hearsay, including former testimony, are admitted only when no preferable version of the evidence, in the form of live testimony, is legally and physically available." (Id. at pp. 226-227.)

The Court concluded: "In accord with this pragmatic approach to the concept of unavailability in the context of admission of former testimony, we decline to interpret the unavailability requirement of Evidence Code section 1291 strictly as referring exclusively to the kinds of legal unavailability expressly listed in Evidence Code section 240. The terms of subdivision (a) of evidence Code section 240 do not, in our view, state the exclusive or exact circumstances under which a witness may be deemed legally unavailable for purposes of Evidence Code section 1291. Under our rule in Guerrero, the prosecution in this case was as completely barred from calling the Martinezes as if they had been disqualified or their evidence privileged. No reason appears why they should be considered any less 'unavailable' than a disqualified or privileged witness. Moreover, maintaining such a distinction would deprive the trier of fact of testimony that is not available in any other form, and from witnesses whom defendant has already had the opportunity, with similar motive, to cross-examine on the matter at issue. To enforce such a bar, without adequate justification, would be unfair to the People and detrimental to the administration of justice." (Id. at pp. 227-228.)

We believe such a flexible, pragmatic approach is required in the present case. The statutes governing conditional examinations list absence from the state as a reason for a conditional examination. The court found Rollins would be absent from the state during trial and allowed her conditional examination. During trial, the court admitted the examination into evidence. The examination was conducted under oath and included a cross-examination by defense counsel. Even though Evidence Code section 240 does not define an out-of-state witness as unavailable, we believe a reading of Penal Code sections 1335-1345 mandates such a conclusion. Therefore, the court did not err in admitting Rollins's conditional testimony.

Defendant contends the trial court improperly admitted Exhibits 1 through 6, job applications for group homes filled out by defendant and an application for a taxi cab permit. The trial court admitted the exhibits under the business record exception to the hearsay rule.

Evidence Code section 1271 sets forth the business record exception: "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."

The trial court has wide discretion in determining whether sufficient foundation exists to qualify a writing as a business record. We shall overturn the court's exercise of this

discretion only if we find a clear abuse of that discretion. (People v. Beeler (1995) 9 Cal.4th 953, 978.)

Defendant argues the exhibits were inadmissible hearsay because they were not "documents filled out by a person with a business duty to record the facts contained therein." In support, defendant relies on Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532.

In Daniels, supra, 33 Cal.3d 532, the D.M.V. suspended Daniels's license after he failed to report an accident. Daniels requested a hearing at which the referee received into evidence the accident report filled out by the other driver. The report, received over a hearsay objection as a business record, formed the sole basis for the suspension. (Id. at pp. 534-535.) The Supreme Court found the report inadmissible under the business record exception. The court reasoned: "Two of the four requirements of Evidence Code section 1271 are met in this case. The report was made shortly after the accident, and the fact that the report is made under penalty of perjury and pursuant to a legal duty tends to indicate its trustworthiness. However, the D.M.V. as custodian, upon receipt of the form, is in no position to testify to its identity and the mode of its preparation. Most significant, though, is the fact that the report is not made in the regular course of business. [¶]  The D.M.V. argues that the report is made in the regular course of business because it is required by law (§ 16000) and 'it is the regular course of business for the Department of Motor Vehicles to receive such

reports.' This argument, however, misconstrues the nature of the first requirement of the business records exception. Although it may be the regular course of business for the D.M.V. to receive the report, it undoubtedly is not in the regular course of business for the citizen author to make . . . such a report. And, it is this aspect of the report that bears on the trustworthiness factor contemplated by this exception to the hearsay rule. Thus, we conclude that the SR 1 report does not meet the requirements of the business record exception to the hearsay rule." (Id. at pp. 537-538.)

We find Daniels inapplicable. Daniels focused on the reliability of a motorist in filling out an unfamiliar accident report. Here, the custodian of applications from each group home testified they were familiar with the job application process, identified defendant as the person who filled out the application, and stated that such applications were made and kept in the ordinary course of business. This evidence established that each application was made and kept in the ordinary course of business. In Daniels the accident report made by the other driver was not made in the regular course of business; the same cannot be said for an applicant filling out a job application. Job applicants by their very status as job seekers, frequently fill out applications at the business where they seek jobs. In contrast, the average motorist does not routinely fill out accident reports.

Moreover, the business record exception to the hearsay rule does not require that the custodian of records have personal knowledge of the contents of the document. In People v. Beeler, supra, 9 Cal.App.4th 953, an autopsy report was properly admitted into evidence as a business record, although the pathologist who actually performed the autopsy did not testify at trial. (Id. at pp. 978-980.) The court in People v. Lugashi (1988) 205 Cal.App.3d 632 admitted computer-generated bank records as business records and allowed a bank employee with computer experience to explain the records. (Id. at p. 640.)

Here, the custodian of each record did not testify regarding the truth or falsity of defendant's responses on the application. Instead, each custodian identified the document as an employment application required by the group home prior to employment and identified defendant as the job applicant who filled out the application. Defendant's statements in the application were admissible within the hearsay exception for admissions by a party. (Evid. Code, § 1220.) We find no abuse of discretion on the part of the trial court in admitting the documents. (Beeler, supra, 9 Cal.4th at p. 978.)

DISPOSITION

The judgment is modified to stay one of the one year enhancements, to reduce the Penal Code section 1202.4 restitution fine from $2,200 to $2,000 and to strike the Penal Code section 1202.45 fine and Government Code section 29550.2 fine. The superior court is directed to prepare a new abstract of judgment in accordance with our opinion and forward it to the Department of Corrections. In all other respects the judgment is affirmed.

(CERTIFIED FOR PARTIAL PUBLICATION)

RAYE , J.

We concur:

SIMS , Acting P.J.

NICHOLSON , J.