The Right to Confrontation and Testimonial Pre-Trial Statements
Robert C. Phillips
DDA, Retired
August, 2019
There are few situations in life more unfair and frustrating than being accused of something that, whether or not true, may be detrimental to one’s career, personal relationships, or future in general, and then being denied the opportunity to confront the accuser. In some cases, you might not even be told who your accuser is. Self-serving denials of culpability tend to do little to offset the damage that can be done by such accusations. Absent the opportunity to challenge the veracity of those accusations through a face-to-face verbal confrontation with the accuser, the truth or falsity of such accusations often become largely irrelevant. The damage has been done.
Such is the plight of the criminal defendant who, at trial, might be faced with incriminating evidence in the form of hearsay statements,[1] testified to by a witness who alleges that he or she heard the statements as they were uttered by another—the other person commonly referred to as the “declarant”—with the witness now testifying to what he or she heard come from the declarant’s mouth. Even if the identity of that declarant is known, there is little to offset the inherent unfairness of not being allowed to confront the declarant and test before a trier of fact his or her recollection, credibility, motives, and/or the general accuracy of the information.
The Confrontation Clause:
Our Forefathers recognized the importance of being allowed to confront one’s accusers when they attached the Bill of Rights to the U.S. Constitution, including within those rights the Sixth Amendment’s guarantee that “(i)n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Often referred to as the Constitution’s “Confrontation Clause,” this right has predictably been the subject of innumerable case decisions.
Recognizing, however, that the protections provided for in the Bill of Rights are seldom, if ever, absolute, the United States Supreme Court saw fit to carve out some limited exceptions to the right to confrontation. For instance, it has been held that the Confrontation Clause is not always violated just because a witness is permitted to testify to someone else’s out-of-court hearsay statements. For instance, long standing precedent has established the rule that the evidence of an out-of-court statement might still be admissible if it can be shown that the statement in issue “bear(s) ‘adequate indicia of reliability.’” To meet this test, the rule for years has been that the evidence must come within either a “firmly rooted hearsay exception” or otherwise bear “particularized guarantees of trustworthiness.”[2]
Crawford v. Washington:
Fifteen years ago, however, the Supreme Court finally decided that merely having some “indicia of reliability” was just not enough to provide sufficient weight to the Sixth Amendment’s confrontation clause. Finding the above rule to be “too broad,” the High Court announced a new rule in the landmark case decision of Crawford v. Washington.[3]
In Crawford, the Court held that a declarant’s out-of-court statements to police (or others) are inadmissible at trial, despite an applicable exception to the hearsay rule, unless it is proved that the declarant is both (1) now unavailable to testify and (2) the defendant has yet to have an opportunity to confront and cross-examine the declarant.[4]
The Testimonial Requirement:
But there is more. If the Crawford rule were only so simple, we would have nothing left to write about. Adding to the necessary analysis, the Court in Crawford held that for this new rule to apply, it must also be found that the out-of-court statements at issue were “testimonial” in nature.[5]
If the out-of-court statement at issue in any particular case is found to be non-testimonial hearsay, then the traditional “adequate indicia of reliability” test, as noted above, still applies, leaving the states to use their own hearsay rules so long as they comport with prior Supreme Court authority on the issue.[6] The problem is, however, that the Supreme Court in Crawford declined to define “testimonial,” at least in any detail. As stated by the Court: “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”[7]
If you’re confused at this point, it might help to describe the facts in Crawford and how the new rules were applied to that particular situation.
Michael Crawford stabbed a man who allegedly tried to rape his wife; Sylvia. The defendant Crawford claimed self-defense, alleging that his victim was reaching for a knife when he confronted him about the alleged rape. Sylvia was present at the scene of the stabbing, viewing the entire incident, and later provided the police with a tape-recorded description of what she saw. Contrary to Crawford’s assertions, however, Sylvia told police she did not see the stabbing victim in possession of any sort of weapon.
At Crawford’s trial, Sylvia did not testify because of Washington State’s marital privilege, generally baring a spouse from testifying without the defendant spouse’s consent,[8] made her legally unavailable for Crawford to cross-examine. Although she did not testify, however, her tape-recorded statement was played for the jury, the trial court having ruled in pretrial motions that her statement was arguably against her penal interest (meeting the state’s hearsay exception requirement[9]), and that it bore “adequate indicia or reliability” in that it bore “particularized guarantees of trustworthiness.” The prosecution played the audiotape for the jury, emphasizing its importance in closing argument, telling the jury that it was “damning evidence, . . . completely refute(ing) (defendant’s) claim of self-defense.”[10]
The Washington Supreme Court upheld Crawford’s conviction and he appealed. The result was the U.S. Supreme Court’s Crawford decision establishing the new rules as discussed here.
In its decision, the U.S. Supreme Court, although not giving us a comprehensive definition of the term “testimonial,” at least attempted to provide some guidance on the issue of what types of prior hearsay statements might come within the general category of “testimonial.” Crawford identifies three proposed alternate “formulations” for identifying a testimonial statement:
- Ex parte in-court testimony or its equivalent; i.e., material such as affidavits, custodial examinations, prior testimony where the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.
- Extrajudicial statements contained in formalized testimonial materials, such as an affidavit, deposition, prior testimony, or confessions.
- And Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.[11]
In an attempt to provide a little more specificity, the Crawford Court told us that “testimonial” includes (but is not necessarily limited to) prior testimony at a preliminary hearing, a grand jury hearing, and a former trial. “Testimonial” may also include statements contained in affidavits and depositions. Of importance in any criminal case, it also includes statements made during police interrogations (or interviews) of co-suspects and/or witnesses.[12]
Not surprisingly, there has been a plethora of relevant case law since Crawford, attempting to enlighten legal scholars on when and how the rule of Crawford is to be applied, and to put some further meaning to this word “testimonial.” For instance:
The U.S. Supreme Court itself later expanded upon the definition of a testimonial statement in the context of a 9-1-1 domestic violence call to police for assistance in Davis v. Washington:[13] Per the Court in Davis, a recording of a domestic violence victim’s 9-1-1 telephone call, requesting help in an on-going situation, was found to be non-testimonial, at least where the following circumstances existed:
- The victim was speaking of events as they were actually happening.
- The victim was facing an on-going emergency.
- The statements elicited from the victim were necessary to enable the police to resolve the present emergency rather than simple to learn what had happened in the past.
- The formality of the situation was less than where a victim is interviewed about a past event.
In comparison, however, the statements of a domestic violence victim obtained during an interview by police officers responding to a 9-1-1 call for assistance about an event that although recent, was for all intents and purposes over, with the victim and suspect separated, were held to be testimonial, and thus inadmissible, because:
- The interview of the victim was part of an investigation into possible past criminal conduct.
- There was no emergency in progress.
- The purposes of the interview was to determine not what was happening, but rather what had happened.
- The primary, if not sole, purpose of the interview was to investigate a possible crime.
The Supreme Court in Davis v. Washington further provided the following summary of the difference between “testimonial” and “non-testimonial” statements:
- “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
- “They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”[14]
Further, the Court in Davis added that the term “interrogation” is not to be taken literally, and may include what might more often be referred to as a “witness interview.”[15] And lastly, the Court noted that what may be considered a non-testimonial statement at the beginning of a communication between a police officer and a victim or a witness, may very well “devolve” into a testimonial statement at that point when the emergency is over and the police move onto an effort to obtain information concerning a crime that is no longer occurring.[16]
The California Supreme Court has also weighed in, giving us its interpretation of the new rules under Crawford and what is meant by the term “testimonial.” As noted by California’s High Court: “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.”[17]
Case by case, the courts are passing down new decisions applying the Crawford “testimonial” rules. For example, the following illustrate what statements are testimonial and inadmissible in evidence absent the defendant having had an opportunity to cross-examine the witness:
Statements made by a child abuse victim (e.g., four years old) to a police officer and, separately, a professionally trained child interviewer, after the child was ruled to be incompetent to testify due to her age, such statements thus meeting the hearsay rule exception requirements of Evid. Code § 1360 (Statements of a child under the age of 12, describing an act of child abuse), were held to be “testimonial” and thus inadmissible as a violation of the defendant’s Sixth Amendment right to confrontation.[18]
A police videotaped interview of a “dependent adult”[19] in an elder and dependent adult financial abuse case was held to be inadmissible where the victim dies a few days later.[20]
The interviews of a slashing victim conducted by a police officer, both in the hospital emergency room and later at the police station, are clearly testimonial, although the victim’s statements to the emergency room doctor, asked for the purpose of determining treatment that was to be given, was held to not be testimonial.[21]
A witness’s testimony in front a grand jury is testimonial. Where defendant is precluded from cross-examining the witness at trial on her grand jury testimony, after she had been questioned on it in the Government’s case-in-chief during which she disavowed what she had told the grand jury under oath, and thereafter made herself “unavailable” by invoking her Fifth Amendment right against self-incrimination, the defendant was held to have been deprived of his Sixth Amendment right to confrontation under Crawford.[22]
A declaration previously sworn to by a homicide victim in her application for a restraining order is testimonial, and not admissible against the defendant in his later murder prosecution.[23]
Tape-recorded statements of two witnesses to defendant’s crime were held to be inadmissible hearsay statements, and violated defendant’s Sixth Amendment confrontation rights when admitted into evidence.[24]
The statements to a police detective by defendant’s six-year-old step-daughter about defendant molesting her, where the victim was unable to reiterate her prior account made to the detective, were held to be testimonial and thus inadmissible.[25]
Admission into evidence of non-testifying co-defendant’s statement to an investigator implicating the other defendants in a jail assault, where the declarant did not testify and was therefore not subject to cross-examination, violated the rule of Crawford.[26]
The statements by a robbery victim given to one of the initial officers at the scene of the suspect’s arrest after it was already clear that a robbery had occurred, was found to be testimonial and inadmissible.[27]
An interview of an elder adult by a law enforcement officer after any exigencies had expired, and where most of the interview consisted of questions pertaining to the defendant’s conduct, the victim’s deteriorating opinion of him, and her desire that he not inherit any of her property, resulted in testimonial, and inadmissible, hearsay statements.[28]
A sexual assault victim’s statements made to a nurse during a sexual assault examination which was done for the purpose of documenting and collecting evidence, are testimonial and inadmissible.[29]
Allowing a postal inspector to testify to a postal supervisor’s out-of-court statements was held to be error where the inspector had telephoned the supervisor who confirmed defendant’s presence in the post office and gave mailing information regarding the defendant’s parcel (later determined to contain marijuana), including a tracking number, that the defendant had dropped off. The inspector’s testimony violated the Confrontation Clause because it conveyed out-of-court statements that were “testimonial,” and that were offered for their truth. The postal supervisor did not testify himself and there was no evidence that he was unavailable and that the defendant had had the opportunity to cross-examine him at any point.[30]
Prior Opportunity to Cross-Examine:
Remember, however, that a defendant having had the opportunity to confront and cross-examine the hearsay declarant will thwart any argument that the evidence being offered of the declarant’s out-of-court statements in issue, testimonial or not, are inadmissible.[31] And while the opportunity to cross-examine the witness most often occurs during the trial itself, the case law tells us that rule is much broader than that.
For instance, having had the opportunity to question a victim at the pre-trial preliminary examination has been held to be sufficient to allow into evidence that victim’s preliminary hearing testimony, although testimonial, when she later refused to testify at trial.[32]
It has even been held that “a witness’s failure to remember, whether real or feigned, generally does not deny the defendant an opportunity for effective cross-examination” and “a witness’s difficulty in communicating is insufficient to establish a constitutional violation, even if it limits the types of questions that the cross-examiner may ask, . . .” However, the appellate court that considered this issue also noted that a “defendant’s ‘opportunity [to cross-examine] may be denied if the witness refuses to answer questions.’” In deciding the case, the appellate court also held that; “the right to an opportunity for effective cross-examination is more likely violated as the number of relevant questions that go unanswered increases.”[33]
So what if a witness denies making the prior out-of-court statement, or claims that he does not remember having made them? Is the defendant’s confrontation right compromised by his inability to effectively cross-examine that witness about a statement the witness either denies making or feigns being unable to remember making?
It has been ruled in several cases that the defendant is not denied his confrontation rights under such circumstances. Per the appellate courts, out-of-court hearsay statements made to others, whether or not held to be testimonial in nature, are still admissible (assuming a hearsay exception applies and doesn’t violate any other admissibility requirements) so long the persons making such statements were available at trial for cross-examination. Just because those witnesses denied making such statements does not mean that defendant was deprived of his right to cross-examine them on the statements.[34] The jury is still able to evaluate the witness’ demeanor and assess his or her credibility.[35]
Rule of Forfeiture by Wrongdoing:
One avenue for finding admissible one’s testimonial statements is what is sometimes referred to as the equitable principle known as the “Rule of Forfeiture by Wrongdoing.”[36]
For this rule to be applicable, it must be found that the witness’ unavailability was a result of something the defendant himself did. For instance, it has been ruled that statements by a domestic violence victim to the police after defendant had already fled the scene, in one instance, and after he was already arrested in another instance, were testimonial, but nevertheless admissible under the “rule of forfeiture by wrongdoing” principle. This is because the defendant later murdered the victim to keep her from reporting the incidents to the police and from testifying.[37]
The United States Supreme Court recognized this principle in Giles v. California[38] where the Court held that the rule applies when it is shown that the defendant prevented a witness’s testimony, when the witness is “kept back,” “detained” by “means of procurement,” and whenever the defendant’s acts are “designed to prevent the witness from testifying.”[39] Under such circumstances, the defendant will not be able to prevent otherwise admissible (under a hearsay exception) statements of the witness (or victim) from being admitted into evidence.
Even the Ninth Circuit Court of Appeal is on board with this theory, allowing the admission into evidence of a defendant’s wife and seven-year-old son’s hearsay statements under the “forfeiture by wrongdoing” rule, in Carlson v. Attorney General of California. [40] The Court ruled that this was not an unreasonable application of U.S. Supreme Court precedent (citing Giles) because the court could have reasonably inferred on the record before it that defendant directly participated (as opposed to “(s)imple acquiescence”) in securing the absence of his wife and son.[41]
Dying Declarations:
Another example of a “testimonial” statement that may be admitted into evidence either on “equitable principles,” or, in an alternate argument, because of its recognition as a hearsay exception that existed before the establishment of the Sixth Amendment confrontation clause, is what is known as a “dying declaration.” [42]
Because the “dying declaration” exception to the hearsay rule is one that was recognized at common law, and in existence at the time of the establishment of the Sixth Amendment right to confrontation, admitting such hearsay into evidence is not considered by some authorities to be a Sixth Amendment violation. For instance, the California Supreme Court in People v. Monterroso[43] ruled that a robbery victim’s dying declaration was properly admitted into evidence whether or not it was “testimonial.”[44]
The holding in People v. Monterroso was reaffirmed in People v. D’Arcy[45] where the California Supreme Court again held that admission of dying declarations, whether or not testimonial in nature, does not violate a defendant’s Sixth Amendment confrontation rights. “To exclude such evidence as violative of the right to confrontation ‘would not only be contrary to all the precedents in England and here, acquiesced in long since the adoption of these constitutional provisions, but it would be abhorrent to that sense of justice and regard for individual security and public safety which its exclusion in some cases would inevitably set at naught. But dying declarations, made under certain circumstances, were admissible at common law, and that common law was not repudiated by our constitution in the clause referred to, but adopted and cherished.’”[46]
In another case, a murder victim’s dying declaration identifying defendant as the culprit was held to be admissible through the testimony of the officer (and a tape-recording of the interview) who interviewed the witness to the dying declaration who, in recanting his statement to the officer, denied, at trial that the victim had in fact identified defendant. Admission of the dying declaration evidence was specifically held to not violate the rule of Crawford.[47]
And most recently, the California Supreme Court again upheld their earlier Monterroso decision in the 2015 case of People v. Johnson,[48] noting that dying declarations are admissible despite the rule of Crawford. The Court also rejected the argument that dying declarations are inherently unreliable, the reliability factor being strengthened by the fact that a dying declaration is admissible only if the statement was made upon “personal knowledge and under a sense of immediately impending death.”[49]
The Rule of Completeness:
Finally, as one more equitable principle justifying the used of testimonial evidence, it has been held that where a defendant is allowed to use evidence of certain statements of a co-principal under the theory that they are being admitted for a non-hearsay purpose (e.g., to support defendant’s claim that he acted in fear for his life), the prosecution must also be allowed to introduce other testimonial statements obtained in the same police interview where necessary to prevent the co-principal’s statements to police from being taken out of context.[50]
Sanchez Error:
One last issue that must be discussed is what is sometimes referred to as “Sanchez Error.” This issue came to the forefront when the California Supreme Court handed down the 2016 decision of People v. Sanchez,[51] ruling that an expert on criminal street gangs cannot testify to “case-specific statements . . . concerning (a) defendant’s gang membership” without violating the defendant’s Sixth Amendment confrontation rights under Crawford. Using such out-of-court statements, recited by an expert as a basis for the expert’s opinion that the defendant is in fact a member of a criminal street gang, presenting them as true statements of fact without the requisite independent proof, may constitute a Sixth Amendment confrontation violation. Stated differently, “What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”[52]
Sanchez Error can rear its ugly head in any number of contexts. For instance, a gang expert testifying to a defendant’s gang membership (which defendant denied) in a recent case, using, among other things, information from Field Interrogation (“F.I.”) cards reflecting instances where defendant was in the company of other admitted gang members, was held to be Sanchez error in the Second District Court of Appeal decision of People v. Iraheta.[53]
Admission of the gang expert’s testimony regarding the FI cards of non-testifying gang members in Iraheta constituted inadmissible testimonial hearsay that was “case-specific” and not just general background information. Their gang membership was offered to help prove that defendant was an active Inglewood 13 gang member.
The FI cards in issue contained various subjects’ admissions regarding their gang membership, monikers, and phone numbers. They were held to be out-of-court statements offered for their truth. None of the Iraheta case FI card subjects testified at trial. Nor was the expert present when the subjects admitted their gang membership, and the officer or officers who prepared the FI cards did not testify. The evidence was not general background information, but included case-specific facts; i.e., that persons found in defendant’s company were self-admitted gang members. Also, the FI cards were prepared in the course of an investigation by multiple officers into the activities of gang members that were conducted during ongoing criminal investigations.
As a result, the appellate court concluded; “they are akin to police reports and therefore testimonial,”[54] thus violating Crawford.
It has also be held that it is Sanchez error for a prosecutor to question an expert in testimony on the contents of police reports from defendant’s criminal history and ask her whether she took those reports into consideration when rendering an opinion in that such a practice violated defendant’s constitutional right to confrontation because the prosecutor’s questions included case-specific, testimonial hearsay.[55]
Although Sanchez is a criminal case, the same rule applies to civil cases—such as a Mentally Disordered Offender (MDO) case—to the extent it addresses the admissibility of expert testimony under Evidence Code §§ 801 & 802.[56]
Conclusion:
Crawford v. Washington is now firmly settled as the law of the land. And whether good or bad, it cannot be argued that its principles do not go far in helping to protect a criminal defendant’s Sixth Amendment confrontation rights. As such, prosecutors and defenses attorneys alike would be well-advised to study Crawford, reading the relevant cases as they come down, and recognizing that this article only touches the tip of the proverbial legal iceberg.
[1] See Evid. Code § 1200
[2] Ohio v. Roberts (1980) 448 U.S. 56, 66.
See also People v. Cervantes (2004) 118 Cal.App.4th 162, 172;
Michigan v. Bryant (2011) 562 U.S. 344 [179 L.Ed.2nd 93].
[3] (2004) 541 U.S. 36 [124 S.Ct. 1354; 158 L.Ed.2nd 177].
[4] Crawford v. Washington, supra, at p. 54;
See also Ohio v. Clark (2015) 135 S.Ct. 2173, 2179; 192 L.Ed.2nd 306,
and People v. Rangel (2016) 62 Cal.4th 1192, 1214.
[5] Crawford v. Washington, supra, at pp. 51, 68-69.
[6] Id., at p. 68.
Ohio v. Clark, supra, 135 S.Ct. at p. 2180.
Michigan v. Bryant, supra, at p. 359.
[7] Ibid.
[8] See Wash. Rev. Code § 5.60.060(1) (1994)
[9] Wash. Rule Evid. 804(b)(3) (2003)
[10] Crawford v. Washington, supra, at pp. 38-41.
[11] Id., at pp. 51-52
See also In re Fernando R. (2005) 137 Cal.App.4th 148, 161; and
People v. Jefferson (2008) 158 Cal.App.4th 830, 842-844.
[12] Crawford v. Washington, supra, at pp. 51-52, 68.
[13] (2006) 547 U.S. 813 [126 S.Ct. 2266; 165 L.Ed.2nd 224];
Decided along with Hammon v. Indiana in the same decision.
[14] Davis v. Washington, supra, at p. 822.
See also People v. Rangel (2016) 62 Cal.4th 1192, 1214-1215
[15] Davis v. Washington, supra, at fn. 1.
[16] Id., at 822.
[17] People v. Sanchez (2016) 63 Cal.4th 665, 689.
[18] People v. Sisavath (2004) 118 Cal.App.4th 1396.
[19] Per P.C. § 368(h)
[20] People v. Pirwani (2004) 119 Cal.App.4th 770.
[21] People v. Cage (2007) 40 Cal.4th 965.
[22] United States v. Wilmore (9th Cir. 2004) 381 F.3rd 868.
[23] People v. Pantoja (2004) 122 Cal.App.4th 1, 9.
[24] People v. Lee (2004) 124 Cal.App.4th 483, 487-491.
[25] Bockting v. Bayer (9th Cir. 2005) 399 F.3rd 1010, as amended at 408 F.3rd 1127.
[26] People v. Pena et al. (2005) 128 Cal.App.4th 1219.
[27] In re Fernando R. (2005) 137 Cal.App.4th 148.
[28] People v. Cooper (2007) 148 Cal.App.4th 731, 745.
[29] People v. Vargas (2009) 178 Cal.App.4th 647.
[30] United States v. Brooks (9th Cir. 2014) 772 F.3rd 1161, 1168-1171.
[31] Crawford v. Washington, supra, at p. 54;
See also Ohio v. Clark Ohio v. Clark, supra, 135 S.Ct. at p. 2179; and
People v. Rangel, supra., at p. 1214; and
People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6
[32] People v. Price (2004) 120 Cal.App.4th 224.
See also People v. Seijas (2005) 36 Cal.4th 291, 303;
People v. Carter (2005) 36 Cal.4th 1114 1171-1174;
People v. Byron (2009) 170 Cal.App.4th 657, 674; and
People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1546-1553.
[33] People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 961-969.
[34] People v. Butler (2005) 127 Cal.App.4th 49, 59.
[35] People v. Gunder (2007) 151 Cal.App.4th 412, 419-120.
[36] See Evid. Code § 1390
[37] People v. Banos (2009) 178 Cal.App.4th 483, 497-498, 499-504;
See also Davis v. Washington, supra, at pp. 832-834.
[38] (2008) 554 U.S. 353 [171 L.Ed.2nd 488; 128 S.Ct. 2678].
[39] Id. at p. 359.
[40] (9th Cir. 2015) 791 F.3rd 1003.
[41] Id. at pp. 1009-1013.
[42] Evid. Code § 1242
[43] (2004) 34 Cal.4th 743.
[44] Id., at pp. 762-765.
[45] (2010) 48 Cal.4th 257
[46] 288-292; citing (State v. Houser (Mo. 1858) 26 Mo. 431, 438; accord, Mattox v. United States (1895) 156 U.S. 237, 243–244 [39 L.Ed. 409, 15 S.Ct. 337].
[47] People v. Mayo (2006) 140 Cal.App.4th 535
[48] (2015) 61 Cal.4th 734
[49] Id., at pp. 760-763
[50] People v. Parrish (2007) 152 Cal.App.4th 263, 269-276;
See also Evid. Code § 356.
[51] (2016) 63 Cal.4th 665.
[52] Id., at p. 686.
[53] c (2017) 14 Cal.App.5th 1228
[54] Id., at p. 1249.
[55] People v. Malik (2017) 16 Cal.App.4th 587, 596-600.
[56] People v. Bona (2017) 15 Cal.App.5th 511, 519;
See also People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 34.
