Selected Developments
September 2022
Obtaining a Ruling
The court may conclude, under the particular circumstances, that a tentative ruling is sufficiently final that the objecting party has preserved its objection. Paige v Safeway, Inc. (2022) 74 CA5th 1108. See §4.20.
Business Records and Lack of Personal Knowledge
In Chambers v Crown Asset Mgmt., LLC (2021) 71 CA5th 583, 601, records of a credit card account agreement with an arbitration clause were not business records because the accompanying affidavit lacked information about its preparation and the affiant lacked personal knowledge. In People v Orey (2021) 63 CA5th 529, 551, it was clarified that a court must separately analyze the admissibility of the business record as a whole and the admissibility of the statements contained within it. See §19.26.
Expert Generally Must Rely on Admissible Matter
In People v Valencia (2021) 11 C5th 818, 826, facts concerning particular events and participants alleged to be involved in “predicate offenses” to establish existence of gang are “case-specific”; the commission of these offenses must be proved by independently admissible evidence, not solely by the testimony of an expert who has no personal knowledge of the facts of the case. See §20.9.
Parol Evidence Rule
In RMR Equip. Rental, Inc. v Residential Fund (2021) 65 CA5th 383, 400, undisputed extrinsic evidence of parties’ original intent contradicted the proposed interpretation of a requirements contract. See §25.7.
Misconduct During Argument
In the recent case of People v Parker (2022) 13 C5th 1, the court found no misconduct in a capital murder case when the prosecutor referred to sexually graphic images and sexual fantasies the defendant created of the victim and that the victim was “drained of blood” at closing argument. See §29.7.
Standards of Conduct
As soon as the selection of the jury has been completed, each juror takes an oath to render a true verdict according to the evidence and the instructions of the court. A juror may be excused for cause if bias or sympathy would prevent or substantially impair the performance of those duties. For a recent case on challenges for cause and judicial discretion, see People v Henderson (2022) 78 CA5th 530, 545–47. See §29.34.
Unduly Inflammatory
In People v Clotfelter (2021) 65 CA5th 30, 62, voluminous inflammatory evidence about the defendant’s prior sex crimes was deemed prejudicial as it went well beyond underlying facts of the prior crimes. See §30.2.
In People v Johnsen (2021) 10 C5th 1116, 1176, presenting autopsy photos of injuries was upsetting, but only three photos out of nearly 100 were selected, and these were not likely to evoke a visceral reaction disproportionate to the murder charge. See §§30.2, 30.4, 31.12.
Court’s Balancing of Factors Under Evid C §352
In People v Lund (2021) 64 CA5th 1119, 1153, the trial court did not abuse its discretion in allowing a prosecutor to display multiple videos and images of child pornography under §352. See §31.12.
Waiver of Work Product
Jury selection notes were deemed subject to an implied waiver of work product protection when the prosecution referred to them in a postconviction proceeding, describing their use in a rating system for jurors. People v Superior Court (Jones) (2021) 12 C5th 348. See §35.8.
Waiver of Psychotherapist-Patient Privilege
Waiver of the psychotherapist-patient privilege did not extend beyond the narrow issue for which the records were proffered; the trial court abused its discretion in disclosing unrelated psychological records to the prosecution and allowing their use at trial. People v Yang (2021) 67 CA5th 1, 49. In the recent matter of People v Nieves (2021) 11 C5th 404, 432, a parent’s request to a psychotherapist to submit a letter in connection with dependency proceedings did not waive the privilege. See §§37.5, 37.17.
Privilege Not to Testify Against Spouse
In People v Barefield (2021) 68 CA5th 890, 901, although the defendant’s marriage was no longer viable, it had yet to be terminated by a final judgment of dissolution; thus, the claim of marital privilege was lawfully asserted. See §41.2.
Evidence Code §1045 Amendments
In recent amendments to Evid C §1045, the previous restriction on information consisting of complaints concerning conduct occurring more than 5 years before the event has been removed by the legislature. See Stats 2021, ch 402 (SB 16). See §43.15.
Trade Secrets: Procedure
Alternatively, the court in its discretion may order the exclusion of the adverse party from the courtroom during the portion of testimony discussing trade secret information. See Multiversal Enters.-Mammoth Props., LLC v Yelp, Inc. (2022) 74 CA5th 890. See §45.6.
Nature and Constitutional Basis of Privilege Against Self-Incrimination
The California Supreme Court recently disapproved Conservatorship of Bryan S. (2019) 42 CA5th 190, 194, and found that persons found not guilty by reason of insanity (NGIs) and traditional LPS conservatees “are sufficiently similar to bring into play equal protection principles that require a court to determine ‘whether distinctions between the two groups justify the unequal treatment’” (citing People v Hofsheier (2006) 37 C4th 1185 and In re Marriage Cases (2008) 43 C4th 757, 831 n54). However, the high court declined to rule as to what level of scrutiny was appropriate or whether disparate treatment of conservatees was constitutionally justified. Public Guardian v Eric B. (2022) 12 C5th 1085, 1106. See §46.2.
Journalist’s Immunity From Contempt
In criminal cases, certain procedural and substantive standards govern efforts by defendants to compel journalists’ testimony and claims for immunity under the California Constitution in criminal trials, consisting of a four-factor balancing test to determine whether there is a reasonable possibility the information will materially assist with the defense. See People v Parker, 13 C5th at 33. See §48.11.
Motion for Continuance of a Criminal Trial
In People v Breceda (2022) 76 CA5th 71, the court found a global health emergency brought on by the COVID-19 pandemic constituted good cause to continue a criminal trial already in progress. See §54.3.
