Saturday, August 23, 2014

Trial Court Error 2 - Lack of 352 analysis before admitting prior

Prior convictions are not automatically admissable as either intent or propensity evidence. They are subject to exclusion under Evidence Code Section 352.

As the Supreme Court stated in People v Falsetta 21 Cal.4th 903,  "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense."

In ruling, the court stated: "Well, if it's an objection, overrule it. If it's a motion to suppress that evidence, that would be
denied because the Court concludes that the probative value is not outweighed by the prejudicial effect."

That was the only analysis that was done.

Later, at sentencing, the Court also makes a statement that sounds like he believes all priors are admissible if there was a guilty plea.

"THE COURT: All right. In this motion, you're asking me to conclude that I committed error
by allowing the testimony in. We had the same argument pretrial, and I'm -- I am certainly the first to admit when I make mistakes. But I don't believe I made a mistake here.

I didn't create Evidence Code Section 1109; the state legislature did.

(Again he misquotes the section. It's 1108)

It's a highly prejudicial piece of legislation, in terms of being a criminal defendant charged with this type of crime, but it's there.

It's been declared constitutional by the highest court in the state. It is -- Sure, there's that catch-all language in there "except as
otherwise provided by law," specifically meaning Section 352 of the Evidence Code.

(That "catch all" language is what is supposed to protect people from being wrongfully convicted)


THE COURT: This stuff comes in. And on its face, it says "propensity evidence."

That's what the instruction says. You know, I may not like it
personally, but that's not my job. My job is to follow the law, and I took an oath to do that.

As painful as it is with defendants charged with these types of crimes, it is the law.

But more troubling is that your argument once again in the testimony of this attorney Yanuck
would somehow provided exculpatory evidence for the
defendant, it's absolutely wrong. I can't put it any stronger than that.

There's just no ignoring the fact that Mr. Duffett pleaded guilty to the charge in federal court in Nevada.

And, what, in essence, you wanted to do was try to litigate that to show that in fact he was

(Again, it was absolutely not what he was trying to do)

He pleaded guilty. That's
what came in. You didn't
represent him. I wasn't there. He was represented by counsel.
He was sentenced to six-and-a-half years in federal prison, which he served -- or at least most of it until he was paroled.

But there's no getting around that. He pleaded guilty to that offense. And the testimony of Yanuck, or anyone else, is irrelevant. He pleaded guilty. That's how the conviction came about.

So the Court, in examining the record, I find no statutory or nonstatutory basis to support the granting of a motion for a new trial, and the motion would be denied"

The court admitted the prior based solely on the fact he was convicted.

This would have been a perfect time for his attorney to whip out People v. Callahan.