# People v. Livaditis

> California Supreme Court · June 18, 1992 · 2 Cal. 4th 759

URL: https://www.frixlaw.com/law-library/cases/9620226

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. STEVEN LIVADITIS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 18, 1992
- **Citations:** 2 Cal. 4th 759; 9 Cal. Rptr. 2d 72; 92 Daily Journal DAR 8217; 831 P.2d 297; 92 Cal. Daily Op. Serv. 5236; 1992 Cal. LEXIS 2585
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Arabian, Mosk
- **Cited by:** 119 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9620226

## How later opinions describe it (automated extraction)

- finding that defendant satisfied the contemporaneous objection rule by making general objections that were overruled
- finding rule satisfied when defendant's general objections to evidence were overruled

## Opinion text

MOSK, J.
I concur in the judgment. After review, I have found no reversible error or other defect.
I also generally concur in the majority opinion. On most matters, its reasoning is persuasive and its result correct.
*788 I write separately because, unlike the majority, I believe that the trial court erred by failing to instruct the jury, sua sponte, that they should view the evidence of defendant’s oral admissions with caution.
In 1872, the Legislature enacted the Code of Civil Procedure. In pertinent part, section 2061 of that code required trial courts to give certain cautionary instructions “on all proper occasions,” in both civil and criminal cases. Its source was the common law. (Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) p. 358.) Among the specified admonitions was this: “That... the evidence of the oral admissions of a party [ought to be viewed] with caution . . . .” (Code Civ. Proc., § 2061, subd. 4 (1872).) As relevant here, section 1870 of the same code effectively defined “admission” as a statement adverse to the party’s interest at trial. (Id., subd. 2.) Its source, too, was the common law. (See Hall v. Bark ‘‘Emily Banning” (1867) 33 Cal. 522, 523-524 [impliedly recognizing substantially the same definition under the common law].)
The reason for requiring a cautionary instruction on oral admissions is virtually self-evident.
“. . . The dangers inherent in the use of [evidence of oral admissions] are well recognized by courts and text writers. ‘It is a familiar rule that verbal admissions should be received with caution and subjected to careful scrutiny, as no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used. No other class of testimony affords such temptations or opportunities for unscrupulous witnesses to torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.’ It was undoubtedly such considerations that led the Legislature to make the admitting of extrajudicial admissions into evidence conditional on the giving of a cautionary instruction.” (People v. Bemis (1949) 33 Cal.2d 395, 398-399 [ 202 P.2d 82 ], italics in original and citation omitted; accord, e.g., Smellie v. Southern Pacific Co. (1931) 212 Cal. 540, 560 [ 299 P. 529 ]; see Smith v. Whittier (1892) 95 Cal. 279, 297 [ 30 P. 529 ] [stating that “[a]dmissions are generally regarded as weak evidence for the proof of a fact, and are never conclusive of the facts stated, or of the inference to be drawn therefrom”]; Monsen v. Monsen (1916) 174 Cal. 97, 103 [ 162 P. 90 ] [quoting Smith with approval].)
In 1965, the Legislature enacted the Evidence Code. (Stats. 1965, ch. 299, § 2, pp. 1297-1356.) In the same measure, it repealed Code of Civil Procedure section 2061. (Stats. 1965, ch. 299, § 127, p. 1366.) It plainly intended *789 its action to have “no effect on the giving of the [cautionary] instructions contained in” that provision, including the admonition on oral admissions. (Recommendation Proposing an Evidence Code, supra, 7 Cal. Law Revision Com. Rep. at p. 358.) Also in the same measure, it repealed Code of Civil Procedure section 1870. (Stats. 1965, ch. 299, § 58, p. 1360.) That provision’s definition of “admission,” however, was substantially recodified in section 1220 of the just-enacted Evidence Code. (Stats. 1965, ch. 299, § 2, p. 1339.)
It is, accordingly, settled that the trial court commits error when it fails to give a cautionary instruction on oral admissions, even without a request, so long as the evidence warrants. We have so held both before (People v. Ford (1964) 60 Cal.2d 772, 799 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ]) and after (People v. Pensinger (1991) 52 Cal.3d 1210, 1268 [ 278 Cal.Rptr. 640 , 805 P.2d 899 ]) the repeal of Code of Civil Procedure section 2061.
I now turn to the case at bar. Evidence of oral admissions by defendant was received at trial. For example, there was testimony on defendant’s postarrest “explanation” to the police for his decision to kill William Smith and Ann Heilperin: he stabbed Smith because he had been “uncooperative and antagonistic”; he shot Heilperin because “he felt that he had to kill another hostage in order to prove that his demands should be taken seriously.” These statements were obviously “oral.” They were just as obviously “admissions.” The fundamental issue material to penalty is the defendant’s personal moral culpability. Here, defendant sought life and the People, death. Defendant’s “explanation” was adverse to his interest at trial: it magnified his blameworthiness. Manifestly, the evidence warranted a cautionary instruction on oral admissions. The trial court, however, failed to deliver such an admonition. Its omission was error.
The majority conclude to the contrary, citing asserted “differences between guilt and penalty trials.” (Maj. opn., ante, at p. 783.) Their analysis is flawed.
Heretofore, trial courts have been required to give a cautionary instruction on oral admissions—to quote Code of Civil Procedure section 2061—“on all proper occasions.” (Italics added.) Such an “occasion” arises in any case, whether civil or criminal, at which evidence of this kind is introduced.
Trial courts have been subjected to this obligation because of the very nature of oral admissions. “[N]o class of evidence is more subject to error or abuse.” (People v. Bemis, supra, 33 Cal.2d at p. 399 , internal quotation marks omitted.)
*790 Any “differences” between the determinations of guilt and penalty are of no consequence for present purposes. The reason is plain. The trial of penalty is indeed a trial. Of that there can be no doubt. In such a proceeding, oral admissions remain problematical: the threat of “error” and “abuse” does not disappear because the question is penalty rather than guilt.
The majority assert that “Whether a particular statement is aggravating or mitigating is often open to interpretation.” (Maj. opn., ante, at p. 783.) That may well be. But what of it? Whether a particular statement is inculpatory or exculpatory is often open to interpretation as well. In People v. Vega (1990) 220 Cal.App.3d 310 [ 269 Cal.Rptr. 413 ], the Court of Appeal expressly recognized as much. It stated that “it is not uncommon that a single statement may tend to prove guilt or innocence . . . .” (Id. at p. 317.) But it was “convinced a jury is capable of discerning whether [and to what extent] an extrajudicial statement is an admission, which they are instructed to view with caution, or whether [and to what extent] the statement is not an admission, to which the cautionary language does not apply.” (Id. at p. 318.) I share that conviction. So long as the term “admission” is properly defined —for example, as simply a statement adverse to the defendant’s interest at trial—the jury will be able to perform its obligations. 1
Although the trial court erred by failing to give a cautionary instruction on oral admissions, no prejudice could have arisen. The harm that an instruction of this sort is intended to prevent, viz., the jury’s crediting of an untrue or inaccurate report of words the party allegedly spoke out of court, was not threatened in this case. It was not disputed at trial that the evidence reported statements defendant had actually made, and reported those statements accurately. Hence, there is no reasonable possibility that the error contributed to the verdict. (People v. Ashmus (1991) 54 Cal.3d 932, 965 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 .)
*791 In conclusion, having found no reversible error or other defect, I concur in the judgment.
Appellant’s petition for a rehearing was denied August 13, 1992.
The majority recognize that CALJIC No. 2.71 (5th ed. 1988 bound vol.) admonishes that “Evidence of an oral admission of [a] [the] defendant should be viewed with caution.” Contrary to their implication, it is immaterial that the instruction defines “admission” narrowly in terms of the question of guilt in a criminal case: “An admission is a statement made by [a] [the] defendant other than at [his] [her] trial which does not by itself acknowledge [his] [her] guilt of the crime(s) for which such defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence." The quoted language, of course, was drafted specifically to cover such a question in such a case.
I note in passing that BAJI No. 2.25 (7th ed. 1992 pocket pt.) defines “admission” more generally as “A statement made by a party before trial which tends to prove or disprove any material fact in this action and which is against such party’s interest is an admission.” It also admonishes that “Evidence of an oral admission not made under oath should be viewed with caution.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9620226. Public record. Not legal advice.