October 2021 Update
Summarized below are some of the more important developments included in this update since publication of the October 2020 Update.
Certain procedures and deadlines may be affected by the California Rules of Court Emergency Rules Related to COVID-19, such as Rule 3 (“Use of Technology for Remote Appearances”) and Rule 5 (“Personal Appearance Waivers of Defendants During Health Emergency”). The latest version of the Emergency Rules can be viewed at https://www.courts.ca.gov/43820.htm.
Drawings and a list of names found on a writing tablet in defendant’s house were deemed authentic based on location, content, and circumstantial evidence. See People v Wilson (2021) 11 C5th 259. See also §11.18.
Character: Specific Acts
One court has allowed a defendant to introduce evidence of a prior act of child abuse as propensity evidence under Evid C §1109 against a codefendant. See People v Thomas (2021) 63 CA5th 612. See also §16.18.
Declarations Against Interest
There is currently a split of authority regarding admissibility of spontaneous hearsay statements at probation revocation proceedings. Compare People v Gray (2021) (review granted July 15, 2021, S269237; opinion at 63 CA5th 947 to remain published and precedential until further order) (admitting bodycam video containing victim’s excited utterance at revocation hearing on theory that right to cross-examine at revocation proceedings is governed by due process, not confrontation clause) with People v Liggins (2020) 53 CA5th 55 (requiring showing of unavailability or good cause as to admit spontaneous statements of out-of-court declarant at revocation hearing). See People v Stanphill (2009) 170 CA4th 61. See also §§20.20C, 49.4, 49.11.
In Issakhani v Shadow Glen Homeowners Ass’n (2021) 63 CA5th 917, 934, the court ruled that an expert’s opinion interpreting the meaning and purpose of a city ordinance is an inadmissible legal conclusion. Rather, the matter is a question of law for the court. See §24.3.
In People v Presley (2021) 65 CA5th 1131, where a court trial was held to determine sexually violent predator status, the court was presumed to ignore inadmissible case-specific facts when the expert’s opinion was not solely based on such facts. See §24.25.
In People v Turner (2020) 10 C5th 786, the admissibility of DNA evidence based on the product rule in a cold hit case was held to be a question of relevance, not scientific acceptance, thus obviating the need for a Kelly inquiry. See §24.25.
Prior Convictions: To Impeach in Criminal Trials
Because substantial prejudicial effect is inherent in evidence of uncharged acts, such acts are admissible under Evid C §352 only if they have substantial probative value, which depends on the degree of relevancy (the extent to which the evidence tends to prove an issue by logic and reasonable inference), materiality (the importance of the issue to the case), and necessity (the need to prove the issue by means of the uncharged act). See People v Dryden (2021) 60 CA5th 1007, 1018. See also §27.12.
In County of Los Angeles v Superior Court (2021) 65 CA5th 621, the court took judicial notice of court proceedings and other judicial records, while in People v Bankers Ins. Co. (2021) 65 CA5th 350, 356, a reviewing court took judicial notice of court records showing the absence of a summary judgment. See §31.3.
Parol Evidence Rule
In RMR Equip. Rental, Inc. v Residential Fund (2021) 65 CA5th 383, 392, an express termination clause in a requirements contract meant it was not terminable at will, and the court declined to so find. See §37.3.
Privileges and Confidential Communications
Disclosing a specific reason for seeking legal advice will invariably disclose the content of communications with an attorney, resulting in an unlawful circumvention of the attorney-client privilege. See Carroll v Commission on Teacher Credentialing (2020) 56 CA5th 365, 382 (while reason itself may not be protected communication, attorney’s inquiry into intention of witness for seeking legal advice will either disclose contents of communication or at least result in jury inferring that communication dealt with disciplining whistleblower). See also §§43.4, 43.8.
Despite the Evid C §351.4 prohibition on using evidence of a person’s immigration status in a criminal case, immigration status was deemed relevant to motive for murder in People v Casillas (2021) 65 CA5th 135. See §45.3.
In People v Clotfelter (2021) 65 CA5th 30, 62, voluminous inflammatory evidence about defendant’s prior sex crimes was deemed prejudicial as it went well beyond underlying facts of the prior crimes. See §45.3.