# People v. Love > California Court of Appeal · December 15, 1977 · 75 Cal. App. 3d 928 URL: https://www.frixlaw.com/law-library/cases/9730635 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. EMMETT LOVE, JR., Defendant and Appellant - **Court:** California Court of Appeal - **Decided:** December 15, 1977 - **Citations:** 75 Cal. App. 3d 928; 142 Cal. Rptr. 532; 1977 Cal. App. LEXIS 2070 - **Precedential status:** Published - **Opinion:** Concurrence by Feinberg - **Judges:** King - **Cited by:** 21 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/9730635 ## Opinion text *942 FEINBERG, J. I concur with the decision of the majority affirming the conviction of appellant. I disagree, however, with the conclusion of the majority that the trial court did not commit error in excluding the testimony of Stanley Nichols and Ray Guidiy proffered by the defense. The evidence' in question was proffered -pursuant to Evidence Code section 1235. 1 The-proffered evidence was rejected by the trial court pursuant to section 352. The majority states that “[i]t would have been helpful in considering this appeal if the trial judge had fully expressed on the record the basis for excluding the offered evidence, rather than simply stating that he excluded it pursuant to Evidence Code section 352. “However, this is not required if the judge weighed the conflicting factors. (See People v. Holt (1972) 28 Cal.App.3d 343, 353 [ 104 Cal.Rptr. 572 ].)” (At p. 939.) I must confess that I do not perceive the thrust of the argument. If the trial court said only that the proffered evidence was excluded under section 352, how do we, as a reviewing court, know that the trial court did, in fact, weigh the conflicting factors? People v. Holt, supra, cited by the majority, holds only, and I have no disagreement therewith, that when an objection is made to proffered evidence other than on section 352 grounds, the trial court has no duty, sua sponté, to make an affirmative finding as to the relative weight of the probative value of the evidence as against its prejudicial effect. The Holt court goes on to say that if the objection is made upon section 352 grounds, then the record must reflect that the trial judge did weigh the conflicting factors “so that the reviewing court can determine whether [the trial court’s] discretion was properly exercised.” (People v. Holt, supra, at p. 353 .) Here, of course, the objection was-made on section 352 grounds. In effect, the majority has reviewed the evidence and sustained the exercise of the trial court’s discretion without knowing what factors the trial court considered in exercising its discretion. Thus, the weighing process being wanting, the majority supplies it by performing the weighing process itself. I do not conceive this to be our function. *943 But the trial court did, though somewhat obliquely, advert to the reasons for its rulings. After the trial court had excluded the testimony of Nichols, defense counsel proffered the testimony of Guidiy. The trial court stated, “if you have anything positive in connection with this [the proffer of Guidry’s testimony], I will consider it. But if it isn’t stronger and more reliable and it will have to be on the central issue and not on a collateral issue.” It is clear from the record that the trial court was saying that if the proffered testimony of Guidry was not “stronger,” “more reliable” than Nichols’ proffered testimony and not collateral as Nichols’ was, then it would suffer the same fate, i.e., exclusion. Certainly, the proffered evidence was not collateral. It bore directly upon a fundamental issue, namely, was it Fulmer who got out of the car and committed a robbery at gun point? May a prior inconsistent statement of a witness, which purports to show that the witness committed the crime with which the defendant is charged, be excluded as unreliable as an exercise of discretion under section 352? The majority opinion reasoning seems to be as follows: The prior inconsistent statement is admissible under section 1235. However, the trial court, pursuant to section 403, can make a determination of the preliminary fact of reliability. If the trial court determines that the proffered evidence is unreliable, it can then exclude that evidence as an exercise of its discretion under section 352. I disagree with this reasoning. First, if the proffered evidence is unreliable, it is inadmissible by the terms of section 403, hence, any reference to section 352 is gratuitous. Second, and more important, the preliminary fact of reliability where the proffered evidence is a prior inconsistent statement of a witness is not the credibility of the proposed witnesses to the prior inconsistent statement. The preliminary fact is the identity of the declarant. Thus, if there is evidence sufficient to make a finding that Walton, the witness at trial, was the declarant who made the prior inconsistent statement, the prior inconsistent statement should have been admitted and the credibility of the witnesses, Nichols and Guidry, left to the jury. 2 *944 The majority relies in some measure on the case of People v. Chapman (1975) 50 Cal.App.3d 872 [ 123 Cal.Rptr. 862 ], Chapman involved the admissibility of a declaration against penal interest with the declarant, of course, unavailable as a witness. There, the record strongly suggested that the declarant’s exculpatory statements were fabricated either willingly or through coercion. No such evidence was adduced here. Chapman involved, as the majority noted, a declaration against penal interest under section 1230, not a prior inconsistent statement under section 1235. The inherent problem of unreliability posed by the admissibility of hearsay is virtually nonexistent with regard to a prior inconsistent 3 Was the proffered evidence reliable? Assuming that a trial court may, in the interplay of sections 352, 403 and 1235, exclude a prior inconsistent statement on the basis of unreliability, there is nothing inherently incredible in the proffered testimony. Nichols’ testimony is simple and direct. Walton told him that he, Walton, had committed the robbery with which appellant was charged. With regard to Guidry, the proffered testimony was similar and though that testimony did go on to elaborate a matter that might strain one’s credibility, I cannot say that it passed beyond the bounds. *945 Nor did the examination of Nichols, outside the presence of the jury, in any way suggest that Nichols was an unreliable witness. As for Guidry, we have no indicia as to his reliability since he was never examined. I conclude, therefore, that the trial court committed error. In so concluding, I, too, am mindful of the strictures under which trial courts operate but I take it that it is not our function to gloss over error because of the adversities under which trial courts must conduct their business. Should the error result in a reversal of the judgment below? Even if the error was of constitutional magnitude, in that it arguably deprived the defense of due process of law, as the majority discusses, I am of the view that the record discloses that the error, as to appellant, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) As the case went to the jury, appellant was the driver of the car; Fulmer was the man who got out of the car and held up, at gun point, the gasoline station attendant. In the posture of the case, it could not have made any difference as to appellant’s guilt whether two men had been in the car and Fulmer got out and used the gun or three men had been in the car and Walton got out and used the gun. True, it could have made a considerable difference to Fulmer since he was found to have used the gun in violation of Penal Code section 12022.5, thereby adding five years to his sentence. But Fulmer is not the appellant here, Love is. A fortiori, if by the most stringent rule on appeal, the error is not reversible, then it is not reversible by any lesser standard. Accordingly, I concur in the decision affirming the judgment. Hereafter, all references to sections are to California Evidence Code sections. “Prior inconsistent statements . . . [are] relevant and probative if the witnesses to the statements are -credible. The credibility of the witnesses testifying to these statements *944 should be decided finally by the jury. Moreover, the only preliminary fact subject to dispute insofar as alleged inconsistent statements are concerned is the identity of the declarant. Hence, evidence is admitted under these sections upon the introduction of evidence sufficient to sustain a finding of the preliminary fact.” (See Legis. Committee com.. West’s Ann. Evid. Code, § 403 (1966 ed.) pp. 269-270 [Deering’s Ann. Evid. Code, § 403 (1966 ed.) pp. 407-408].) “Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court.” (See Legis. Committee com.. West’s Ann. Evid. Code, § 1235 (1966 ed.) p. 221 [Deering’s Ann. Evid. Code, § 1235 (1966 ed.) p. 162]; the Supreme Court has held that a prior inconsistent statement of a witness is admissible only if it is offered in the very proceeding at which the witness testified. (People v. Williams (1976) 16 Cal.3d 663 [ 128 Cal.Rptr. 888 , 547 P.2d 1000 ], overruling People v. Bynum (1971) 4 Cal.3d 589 [ 94 Cal.Rptr. 241 , 483 P.2d 1193 ].) Parenthetically, under the new Federal Rules of Evidence, a prior inconsistent statement is not hearsay at all. (See Fed. Rules Evid., rule 801(d)(1), 28 U.S.C.A.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730635. Public record. Not legal advice.