Tag Archives: Hearsay

Appellate Principles, Duty of the court, Evidence, Racial Justice Act, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 001094

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s oral motion for relief under the Racial Justice Act (RJA).

First Holding:

It is a violation of the RJA for the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or a juror to exhibit bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin or, during the defendant’s trial, in court and during the proceedings, to use racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibit bias or animus toward the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

A defendant may file a motion alleging a violation of subdivision (a). If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing, at which the defendant bears the burden of proving an RJA violation by a preponderance of the evidence.

Subject to exceptions inapplicable in this case, if the court finds an RJA violation by a preponderance of evidence, the court shall impose an enumerated remedy specific to the violation. If judgment has yet to be entered, one remedy is to reduce one or more charges. After judgment has been entered, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a).

Authority:

PEN 745

Second Holding:

The defendant argues that the trial court erred to the extent it denied his RJA motion because it was brought orally rather than by written, noticed motion. Addressing this issue of statutory interpretation de novo, we conclude the RJA does not preclude the possibility of making an oral motion. Accordingly, the court erred to the extent it denied the motion for being brought orally.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 41

Third Holding:

In interpreting a statute, our goal is to ascertain the Legislature’s intent to effectuate the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. If the language is unambiguous, the plain meaning controls. The words, however, must be construed in context, so we look to the entire section as well as the statutory framework as a whole in deciding what a word or provision means, and we attempt to harmonize terms where possible. We may reject a literal construction that is contrary to the legislative intent apparent in the statute or that would lead to absurd results.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Murphy (2001) 25 Cal.4th 136, 142

Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 519

Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230

Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27

Fourth Holding:

The statutory language here is ambiguous. Section 745 does not say a defendant “must file” a motion; instead, it is permissive. But nor does the statute say that a defendant “may make” an oral motion. We therefore look to legislative findings made in support of the RJA to discern the Legislature’s intent.

When statutory language is ambiguous, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, and contemporaneous administrative construction. Because uncodified findings of legislative intent are voted upon by the entire legislative body, enrolled and signed by the Governor, they may be entitled to somewhat greater weight than traditional legislative history materials.

(Gary note: Regarding the reference to “uncodified findings” in the last sentence above, Assembly Bill 2542 (2019-2020 legislative session), which enacted the Racial Justice Act, contains a few sections in the bill that were not codified, meaning they do not appear in any of California’s codes, such as the Penal Code.

(Depending on the wording, the uncodified language may or may not have the force of law. For example, section 7 of the bill directs that certain portions of the bill are effective only if a different specified bill is enacted and becomes effective by a specified date. Section 7 thus carries the force of law.

(But section 2 of the bill contains 10 findings made by the Legislature that led to its passage of the RJA. In roughly 1,329 words. Some of the findings relate the existence and effects of racism–intentional or otherwise–and others state something like “It is the intent of the Legislature that ….” Those findings and statements of intent probably do not technically carry the force of law, but may be considered by the courts in interpreting the statutes that were enacted.

(The trial court then discussed the various aspects of the findings that led it to conclude that “Given the expansiveness of the Legislature’s purpose in enacting the RJA, it is appropriate to construe the legislation liberally in favor of affording defendants an opportunity to raise potential RJA violations through an oral motion.” It cautioned, however, that it may not be the best practice to raise the motion orally, as it may create confusion over what, exactly, is being asserted.)

Authority:

People v. Woodhead (1987) 43 Cal.3d 1002, 1008

Young v. Superior Court (2022) 79 Cal.App.5th 138, 157

Fifth Holding:

In the course of the hearing, counsel appeared to concur that the proper standard was proof by preponderance of the evidence, rather than the much lower standard at the prima facie stage. Though it is not clear what standard the court applied, it erred in excluding hearsay evidence. Hearsay is not per se excludable under the RJA. The court should have considered whether the proffered hearsay “trustworthy and reliable” before excluding it.

By concluding the evidence before it was double hearsay, the court failed to consider the totality of the proffered facts in assessing whether the defendant made a prima facie showing. On this record, we conclude the defendant made such a sufficient showing at the prima facie stage. We thus reverse and remand with instructions to hold an evidentiary hearing under the RJA.

Authority:

PEN 745(c)(1)

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Sixth Holding:

The people argue that application of the higher standard was invited error, as counsel concurred. The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at defense counsel’s behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.

But for the doctrine to apply, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In cases involving an action affirmatively taken by defense counsel, courts have found a clearly implied tactical purpose to be sufficient to invoke the doctrine.

It is not sufficiently clear on this record that counsel had a tactical purpose. It supports the conclusion that counsel simply misunderstood certain details of the RJA when he brought the oral motion. For example, he characterized the motion as a post-judgment motion. But it was prejudgment, though it was presented after the jury verdict. In a criminal case, judgment is rendered when the trial court orally pronounces sentence. Here, the sentencing had not yet happened when the RJA motion was made, so no judgment had been entered.

In light of counsel’s apparent misunderstandings, we conclude that the invited error doctrine is inapplicable. In any event, its application is discretionary, not automatic.

Authority:

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2025) para. 8:248.13

Seventh Holding:

We review de novo a determination that an RJA movant has failed to make a prima facie showing. A defendant makes a prima facie showing if the defendant produces facts that, if true, establish that there is a substantial likelihood that an RJA violation] occurred.

A substantial likelihood requires more than a mere possibility, but less than a standard of more likely than not. The court should should not make credibility determinations at the prima facie stage. It should accept the truth of the defendant’s allegations unless they are conclusory, unsupported by the evidence presented in support of the claim, or demonstrably contradicted by the court’s own records.

On this record—with these principles in mind and considering the totality of the proffered facts—we conclude that there is more than a mere possibility that an RJA violation occurred. The defendant has therefore made a prima facie showing of one or more RJA violations and is entitled to an evidentiary hearing.

Authority:

PEN 745(h)(2)

PEN 745(c)

People v. Howard (2024) 104 Cal.App.5th 625, 650

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Fifth Amendment, Standard of review

Case 000858

Posted on by Gary McCurdy

Error and/or relief

We hold that the officers’ un-Mirandized questioning of the defendant was a custodial interrogation and reverse the judgment.

First Holding:

When reviewing issues under Miranda, we accept the trial court’s findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was custodial. Where, as here, an interview is recorded, the facts surrounding the admission are undisputed and subject to our independent review.

Authority:

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161

People v. Torres (2018) 25 Cal.App.5th 162, 172

Second Holding:

To give force to the Constitution’s Fifth Amendment protection against compelled self-incrimination, a custodial interrogation must be preceded by Miranda warnings and the suspect’s voluntary, knowing, and intelligent waiver of Miranda rights.

Persons in custody thus must be warned that they have the right to remain silent, any statement made may be used as evidence against them, and they have the right to an attorney.

For Miranda purposes, interrogation means express questioning or words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Authority:

Florida v. Powell (2010) 559 U.S. 50, 59

People v. Elizalde (2015) 61 Cal.4th 523, 530–531

Miranda v. Arizona (1966) 384 U.S. 436, 244

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Third Holding:

The protections provided by Miranda apply only to custodial interrogations. The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Volunteered statements, for instance, that were not made in response to police questioning are not the product of an interrogation and thus not inadmissible under Miranda even when the statements were made while in custody.

Where a defendant seeks to exclude statements made in the absence of a Miranda advisement, they must therefore establish both that the police questioning was an interrogation and that it occurred while the individual was in custody.

Authority:

People v. Zapata (2026) 118 Cal.App.5th 529, 538

Rhode Island v. Innis (1980) 446 U.S. 291, 301

People v. Mickey (1991) 54 Cal.3d 612, 648

Fourth Holding:

A custodial interrogation occurs when a reasonable person in the defendant’s position would feel that their freedom has been deprived in any significant way; for example, a formal arrest or a restraint of movement of the degree associated with formal arrest.

When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood their situation. All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present.

Whether a person is in custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.

Authority:

California v. Beheler (1983) 463 U.S. 1121, 1125

People v. Caro (2019) 7 Cal.5th 463, 491

People v. Moore (2011) 51 Cal.4th 386, 395

People v. Torres (2018) 25 Cal.App.5th 162, 172

Fifth Holding:

When the court considers whether an individual was in custody during their questioning, it looks at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest. The courts have articulated a number of non-exhaustive factors to consider when conducting this analysis.

The relevant factors include: (1) whether contact was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; (2) whether the express purpose of the interview was to question the person as a witness or a suspect; (3) location of the interview; (4) whether police informed the person they were under arrest or in custody; (5) whether they informed the person they were free to terminate the interview and leave at any time; (6) whether there were restrictions on the person’s freedom of movement during the interview; (7) length of the interrogation; (8) how many police officers participated; (9) whether they dominated and controlled the course of the interrogation; (10) whether they manifested a belief that the person was culpable and they had evidence to prove it; (11) whether the police were aggressive, confrontational, and/or accusatory; (12) whether the police used interrogation techniques to pressure the suspect; and 13) whether the person was arrested at the end of the interrogation.

Authority:

People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162

Sixth Holding:

The circumstances are less likely to suggest to an individual that they are unable to leave or end the questioning when they voluntarily subject themselves to such an examination.

Authority:

People v. Potter (2021) 66 Cal.App.5th 528, 541 [holding that the defendant was not in custody when he voluntarily came to the police station for an interview]

People v. Torres (2018) 25 Cal.App.5th 162, 173 [defendant’s agreement to be voluntarily interviewed in unmarked police car weighed against a custodial finding]

Seventh Holding:

A custodial interrogation does not occur where an officer detains a suspect for investigation and limits questioning to the purpose of identification or obtaining sufficient information to confirm or dispel the officer’s suspicions that a crime has occurred.

Authority:

People v. Farnam (2002) 28 Cal.4th 107, 180

People v. Clair (1992) 2 Cal.4th 629, 679–680

Eighth Holding:

The mere fact that an individual is a suspect is not enough to foster a custodial environment; the officers’ suspicion must also be communicated to that person for it to factor into the custody determination.

The awareness of the person being questioned by an officer that the police have ample cause to arrest him, may well lead him to conclude, as a reasonable person, that he is not free to leave, and that he has been significantly deprived of his freedom.

Authority:

People v. Vasquez (1993) 14 Cal.App.4th 1158, 1163—1164

People v. Torres (2018) 25 Cal.App.5th 162, 176 [holding that officers’ expressed belief that the defendant was culpable and they had evidence to prove it weighed in favor of custody determination]

Ninth Holding:

An interview that takes place in public within view of any passersby reduces the ability of an unscrupulous officer to use illegitimate means to elicit incriminating responses and should lessen a suspect’s fear of abuse should they not cooperate.

Authority:

Berkemer v. McCarty (1984) 468 U.S. 420, 438

Tenth Holding:

The longer the period of questioning, the more likely it will be found to be coercive and custodial, although even one question may be enough in the proper circumstances.

Authority:

People v. Herdan (1974) 42 Cal.App.3d 300, 307, fn. 12

Eleventh Holding:

If the court finds that the statement was admitted in violation of Miranda, the court must determine whether the error was harmless beyond a reasonable doubt and did not impact the jury’s guilty verdict, such that the jury would not have reached a different result had the trial court excluded the challenged statements.  

The court assesses whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21–22

People v. Caro (2019) 7 Cal.5th 463, 495

Chapman v. California (1967) 386 U.S. 18, 24

Twelfth Holding:

A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. On the record in this case, we cannot find that the admission of the defendant’s statements was harmless error.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296.

People v. Torres (2018) 25 Cal.App.5th 162, 181 [finding prejudice where there were no witnesses or physical evidence and defendant’s non-Mirandized statements was primary evidence]

Evidence, Sentencing, Sufficiency of and substantial evidence

Case 000061

Posted on by Gary McCurdy

Error and/or relief

We vacate the robbery-murder special circumstance finding for lack of sufficient evidence. We otherwise affirm the judgment.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. These same standards apply to challenges to the evidence underlying a true finding on a special circumstance.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 804

Second Holding:

The only admissible evidence that the four defendants agreed to rob the victim is the second codefendant’s testimony to that effect. And the only admissible evidence that a robbery actually occurred comes from that second codefendant’s testimony that some of the codefendants eventually took the victim’s wallet from him, scanned it for valuables, and kept it. However, it is well-settled that because of the reliability questions posed by accomplice testimony, such testimony by itself is insufficient as a matter of law to support a conviction.

Authority:

People v. Romero and Self (2015) 62 Cal.4th 1, 32

Third Holding:

The only other evidence of a conspiracy to robbery are those of a third and fourth codefendants made during a Perkins operation. Such evidence cannot corroborate the second codefendant’s testimony, because the required corroboration must come from a source other than another accomplice.

Authority:

People v. Price (1991) 1 Cal.4th 324, 444, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161

Fourth Holding:

In a “Perkins operation,” a suspect is placed in a cell with an undercover law enforcement agent, and their conversation is audio recorded.

Authority:

Illinois v. Perkins (1990) 496 U.S. 292

AppellateAdvisor Updates

Case 000032

Posted on by Gary McCurdy

Error and/or relief

Because the trial court improperly admitted hearsay testimony, the order revoking the defendant’s Post-Release Community Supervision (PRCS) is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

First Holding:

A preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause.

Authority:

People v. Winson (1981) 29 Cal.3d 711

People v. Arreola (1994) 7 Cal.4th 1144

Second Holding:

A trial court’s decision to admit or exclude evidence in a revocation hearing will not be disturbed on appeal absent an abuse of discretion.

Authority:

People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198

Third Holding:

The court reviews rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion.

Authority:

People v. Abrams (2007) 158 Cal.App.4th 396, 400

Fourth Holding:

Before a defendant’s probation or parole may be revoked, the prosecution must prove a violation by a preponderance of the evidence.

Authority:

People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066

Fifth Holding:

Probation and parole revocations are not part of a criminal prosecution; as such, the full panoply of rights due a defendant in a criminal proceeding does not apply.

Authority:

People v. Gray (2023) 15 Cal.5th 152, 163

Sixth Holding:

The Sixth Amendment’s right of confrontation does not apply to probation violation hearings; rather, a defendant’s right to cross-examine and confront witnesses at a violation hearing stems from the due process clause of the Fourteenth Amendment. This right to confrontation, however, is not absolute and the parole revocation process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

Authority:

People v. Abrams (2007) 158 Cal.App.4th 396, 400

People v. Winson (1981) 29 Cal.3d 711, 716, 719

Seventh Holding:

In considering the admissibility of hearsay evidence at a parole or probation revocation hearing, a case-by-case consideration is necessary because under a due process analysis, the importance of a defendant’s confrontation right will vary with the circumstances.

Authority:

People v. Liggins (2020) 53 Cal.App.5th 55, 66-67

Eighth Holding:

The California Supreme Court has has established two separate standards for admitting hearsay evidence depending on whether the hearsay is testimonial or documentary in nature. With respect to testimonial evidence, a preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause. The broad standard of good cause is met (1) when the declarant is unavailable under the traditional hearsay standard, (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.

Authority:

People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199

People v. Winson (1981) 29 Cal.3d 711, 713-714

People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160

Ninth Holding:

First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. Statements which merely record objective facts or observations of fact are generally not testimonial in nature. Nor are official records which serve purposes other than to aid a criminal investigation.

Authority:

People v. Dungo (2012) 55 Cal.4th 608, 619-621

People v. Lopez (2012) 55 Cal.4th 569, 582

Tenth Holding:

In contrast to the good cause standard for testimonial hearsay, documentary hearsay evidence may be admitted at a probation or parole revocation proceeding if there are sufficient indicia of reliability regarding the proffered material. The right of confrontation is not absolute; revocation proceedings should be flexible enough to allow for conventional substitutes for live testimony (including affidavits, depositions, and documentary evidence); and various federal courts had demonstrated a willingness to consider inadmissible hearsay evidence when it is accompanied by a reasonable indica of reliability.

Authority:

People v. Maki (1985) 39 Cal.3d 707, 709

Eleventh Holding:

Whereas the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor, the witness’s demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts. This is because, often, the purpose of such foundational testimony is simply to authenticate the document, and the author, signator or custodian of the document may not even be able to recall from memory the specific contents of the writing.

Authority:

People v. Arreola (1994) 7 Cal.4th 1144, 1157

Twelfth Holding:

In determining whether the erroneous admission of hearsay evidence prejudiced a defendant, we apply the “harmless-beyond-a-reasonable-doubt” standard as the error is of federal constitutional dimension.

Authority:

People v. Arreola (1994) 7 Cal.4th 1144, 1161

Thirteenth Holding:

Post-Release Community Supervision (PRCS) was created by the Legislature in 2011 as an alternative to parole for non-serious, nonviolent felonies. It is similar, but not identical to parole.

Authority:

People v. Gutierrez (2016) 245 Cal.App.4th 393, 399