October 2018 Update
Summarized below are some of the more important developments included in this update since publication of the November 2017 Update.
Hospital records may be admissible as business records if a custodian of records or an affidavit provides proper authentication to meet the foundational requirements of the hearsay exception for business records; however, in People v McVey (2018) 24 CA5th 405, 414, the hospital records were not authenticated in any way. See §11.18.
Character: Specific Acts Evidence
To determine whether the probative value of the prior conviction outweighs the prejudice, the “prominent factors” are whether the prior conviction “(1) reflects on honesty and (2) is near in time.” People v Brooks (2017) 3 C5th 1, 52. See People v Mireles (2018) 21 CA5th 237, 247 (applying Brooks, defendant’s convictions for similar crimes occurring 3 and 5 years before trial are “neither remote in time nor unduly prejudicial,” but witness’ 20-year-old conviction was properly excluded), discussed in §26.3.
In People v Garton (2018) 4 C5th 485, 501, the court of appeal stated that a witness’ demeanor can include “everything from facial expressions and hand gestures to tone and attire,” possibly even including the wearing of a wedding ring in some cases. See §19.2.
Declarations Against Interest
The court in People v Gallardo (2017) 18 CA5th 51, 70, quoting People v Duarte (2000) 24 C4th 603, 611, held that jailhouse statements to informants identifying codefendants as the shooter and the driver of car from which shots were fired were too “‘self-serving and unreliable’” to qualify as declarations against penal interest. See §20.18.
Viewed in context, the jailhouse statements by the codefendant were disserving to the codefendant’s penal interest and thus admissible under the exception to the hearsay rule. See People v Almeda (2018) 19 CA5th 346, 362, in §20.19.
Electronic and Social Media Evidence
In People v Perez (2017) 18 CA5th 598, 619, the witness identified an exhibit depicting screen shots of text messages on his phone. The court held that there was no abuse of discretion in admitting the text messages for the jury to ultimately decide on their authenticity. See §§54.11, 54.19.
The court in Apple, Inc. v Superior Court (2018) 19 CA5th 1101, 1118, held that the gatekeeping analysis in Sargon Enters., Inc. v University of S. Cal. (2012) 55 C4th 747 must be applied to expert testimony offered at class certification. See §24.25.
The scope of permissible cross-examination of an expert witness is broad, but it does not extend to the admission of case-specific testimonial hearsay in violation of a defendant’s right of confrontation. See People v Malik (2017) 16 CA5th 587, 597, in §24.31.
In People v Jo (2017) 15 CA5th 1128, 1176, the court held that the expert testimony did not usurp the jury’s fact-finding role because the expert provided an overview of the statute but did not express her opinion as to whether it applied to the facts of the case. See §24.3.
The court in People v Veamatahau (May 31, 2018, A150689) 2018 Cal App Lexis 513, *7, found that the expert’s testimony that he relied on a database to compare the appearance and thus identify the pills that were taken from defendant was admissible. The court expressly disagreed with the contrary ruling in People v Stamps (2016) 3 CA5th 988. See §24.25.
In People v Pettie (2017) 16 CA5th 23, 63, the court of appeal held that the admission of testimonial hearsay statements by the prosecution’s gang expert violated the defendants’ right to confrontation. By contrast, the court in People v Mooring (2018) 15 CA5th 928, 942, found no confrontation clause violation because the challenged hearsay, a pharmaceutical identification website, is not testimonial. See §20.20B.
In People v Martinez (2018) 19 CA5th 853, 859, the trial court erred in admitting a gang expert’s case-specific hearsay testimony; the error was prejudicial. See §24.25.
Summons letters prepared by a Russian court were properly admitted under the public records exception to the hearsay rule. See AO Alfa-Bank v Yakovlev (2018) 21 CA5th 189, 205, in §36.2.
In Candelore v Tinder, Inc. (2018) 19 CA5th 1138, 1156 n9, the court denied the request for judicial notice because group data sought to be judicially noticed is insufficient to justify alleged discrimination at issue. See §31.3.
California Supreme Court found that it was prohibited from taking judicial notice of an unpublished decision in Hernandez v Restoration Hardware, Inc. (2018) 4 C5th 260, 269 n2. See §31.2.
The court in Medical Bd. v Superior Court (2018) 19 CA5th 1, 8 n6 took judicial notice of the legislative history and supporting documentation concerning the enactment of Bus & P C §492. See §31.13.
An out-of-court statement is offered for nonhearsay purpose when it is used to corroborate other evidence. See People v Henriquez (2017) 4 C5th 1, 30 (out-of-court statement that defendant was “into heavy stuff” was not offered to prove truth of statement but to corroborate other evidence that provided motive for murder), in §35.2.
In People v Rodriguez (2017) 16 CA5th 355, 375, the court found that the computer-generated report of the GPS data generated by defendant’s ankle monitor did not consist of statements of a person, and thus did not constitute hearsay. Similarly, photographs and X rays do not constitute hearsay because hearsay may only include nonverbal conduct of a person. People v Garton (2018) 4 C5th 485, 506. See §35.1A.
In IIG Wireless, Inc. v Yi (2018) 22 CA5th 630, 643, the court held that parol evidence was admissible to prove the parties’ different understandings of the agreement based on fraudulent misrepresentations. See §37.2. By contrast, the court in Doyle v Fireman’s Fund Ins. Co. (2018) 21 CA5th 33, 40 did not consider the insured’s expectations at the time of contracting based on extrinsic parol evidence because the contract terms were unambiguous. See §37.3.
Privileges and Confidential Communications
Evidence Code §956 is amended to provide that the crime-fraud exception to the attorney-client privilege does not apply to legal services rendered in compliance with state and local laws on medicinal cannabis or adult-use cannabis, and confidential communications provided for the purpose of rendering those services are confidential communications between client and lawyer as long as the lawyer also advises the client on conflicts with respect to federal law. See §43.11.
In Wilson v Southern Cal. Edison Co. (2018) 21 CA5th 786, 806, the court found that the evidence of stray voltage incidents at other houses and at plaintiff’s house before she bought it was not relevant to plaintiff’s nuisance claim, which must be based on interference with plaintiff’s use and enjoyment of her property. See §45.3.
Evidence Code §§351.3 and 351.4 were added in May 2018 to prohibit, in criminal actions and civil actions for personal injury or wrongful death, evidence of a person’s immigration status. For other civil actions, immigration status must not be disclosed in open court unless the evidence has first been deemed admissible after an in camera hearing. See §45.3.