People v. Hayes

MOSK, J., Concurring and Dissenting.

I concur in the judgment. In the course of its opinion, however, the majority hold that Evidence Code section 795 (hereafter section 795) does not govern the admissibility of prehypnotic evidence that predated its effective date of January 1, 1985, and hence will not apply to a retrial in this case. I write separately to express my disagreement with this point.

I recognize, of course, the principle that a new statute is ordinarily presumed to operate prospectively. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1209 [ 246 Cal.Rptr. 629 , 753 P.2d 585 ].) But I believe a well-settled corollary to that principle applies here, i.e., “procedural changes generally govern pending as well as future cases” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 843, fn. 7 [ 239 Cal.Rptr. 292 , 740 P.2d 404 ]), provided that vested rights are not adversely affected (see Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 394-395 [ 182 P.2d 159 ]). Under this rule our courts have often applied new procedural statutes to causes of action or proceedings arising from events that occurred before the statutes in question took effect. (See, e.g., Vinson v. Superior Court, supra, 43 Cal.3d 833, 843 [statute increasing showing of good cause required for discovery of plaintiff’s sexual conduct in a sexual harassment suit]; Woodland Hills Residents Assn. v. City Council (1979) 23 Cal.3d 917, 930-932 [ 154 Cal.Rptr. 503 , 593 P.2d 200 ] [statute authorizing award of attorney fees on “private attorney general” theory]; Hogan v. Ingold (1952) 38 Cal.2d 802, 812 [ 243 P.2d 1 , 32 A.L.R.2d 834 ] [statute regulating stockholders’ derivative suits]; Lazelle v. Lovelady (1985) 171 Cal.App.3d 34, 43-44 [ 217 Cal.Rptr. 145 ] [statute tolling five-year period for bringing case to trial when plaintiff voluntarily submits to arbitration]; Pacific Coast Medical Enterprises v. Department of Benefit Payments (1983) 140 Cal.App.3d 197, 204-205 [ 189 Cal.Rptr. 558 ] [statute creating remedy for enforcement of reimbursement rights of health care provider]; Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 48-49 [ 165 Cal.Rptr. 552 ] [statute allowing malpractice plaintiff to file certificate of merit at time complaint is served].)

*1276 Section 795 is such a procedural statute, and it does not affect vested rights (compare, e.g., Gutierrez v. De Lara (1987) 188 Cal.App.3d 1575, 1579 [ 234 Cal.Rptr. 158 ]; Perry v. Heavenly Valley (1985) 163 Cal.App.3d 495, 504 [ 209 Cal.Rptr. 771 ]; Collins v. Woods (1984) 158 Cal.App.3d 439 , 444-445' [ 204 Cal.Rptr. 650 ]). Under the foregoing rule, therefore, the statute applies to prehypnotic evidence offered at any trial—or retrial—beginning after its effective date, whether that evidence was developed before or after such date.

More important, section 795 is not merely a procedural statute; it is one of a subclass of procedural statutes that enact rules of evidence, and the foregoing analysis applies a fortiori to such rules. In California, rules for the admission or exclusion of evidence are now codified in the Evidence Code, which is, governed by a special provision on applicability (Evid. Code, § 12). With the exception of the Evidence Code, the basic California codes contain a provision declaring that “No part of [this code] is retroactive, unless expressly so declared.” (Civ. Code, § 3; Code Civ. Proc., § 3; Pen. Code, §3; see ¡ also Lab. Code, §4.) Such provisions codify the common law principle that statutes are presumed to operate prospectively. (Evangelatos v. Superior Court, supra, 44 Cal.3d 1188, 1207-1208 .) But the Legislature included, no such provision in the Evidence Code. On the contrary, Evidence Code section 12 conveyed a very different message: in subdivision (a) of that section the Legislature made the new code applicable to all trials beginning after its effective date (Jan. 1, 1967) even as to causes of action arising from events occurring before that date. And in a further provision particularly relevant here (id., subd. (b)(1)), the Legislature made it plain that a new trial begun after the code’s effective date was governed by the code “even if a previous trial in the same action was commenced prior to that date” (Assem. Committee on Judiciary com., 29B West’s Ann. Evid. Code (1966 ed.) § 12, p. 7.)

The same rule governs statutes, like section 795, added to the Evidence Code after it took effect. For example, in 1982 an appellate court declared the rule that a criminal defendant was entitled to introduce, over objection, evidence of the results of a polygraph test he had taken. (Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24 [ 183 Cal.Rptr. 615 ].) In People v. Seldomridge (1984) 154 Cal.App.3d 362 [ 201 Cal.Rptr. 377 ], another defendant sought to introduce similar evidence, but the trial court excluded it. He appealed from the ensuing conviction, complaining inter alia that the ruling was erroneous under Witherspoon . While the appeal was pending, however, the Legislature changed the law by adding new section 351.1 to the Evidence Code, which declares that evidence of a polygraph test is inadmis *1277 sible unless all parties stipulate to its admission. The Court of Appeal in Seldomridge assumed arguendo that the exclusion of the polygraph evidence was erroneous under the law in effect at the time of trial, but nevertheless affirmed the conviction. It reasoned that the new statute could and would apply in any retrial of the charge, and that the polygraph evidence would then be inadmissible under that statute: “at a new trial appellant would not be permitted to introduce the offered polygraph evidence. Reversal on the ground that the evidence should have been admitted when it would not be available to appellant on a retrial would be a useless and futile act and would be of no benefit to appellant.” (Id. at p. 365.)

Directly in point here is People v. Burroughs (1987) 188 Cal.App.3d 1162 [ 233 Cal.Rptr. 872 ], In my view, Burroughs is correct and should not be disapproved. In that case, as here, the victim was hypnotized by a police officer prior to January 1, 1985; the victim testified against the defendant; the defendant was convicted; and the judgment was reversed under the rule of People v. Shirley (1982) 31 Cal.3d 18 [ 181 Cal.Rptr. 243 , 723 P.2d 1354 ], and People v. Guerra (1984) 37 Cal.3d 385 [ 208 Cal.Rptr. 162 , 690 P.2d 635 ]. On the date set for retrial the defendant again moved to exclude the victim’s testimony on Shirley-Guerra grounds. The trial court granted the motion, then dismissed the prosecution after the People announced they were unable to proceed without the victim’s testimony. The People appealed, contending that at least the victim’s prehypnotic testimony should be admissible in a retrial.

The Court of Appeal affirmed the judgment of dismissal. The court correctly noted that the victim’s prehypnotic testimony would not meet several of the preconditions to admissibility now prescribed by section 795, and turned to the question whether the statute would apply to a retrial. Although the People argued that such application would be “retroactive” and therefore impermissible, the court held otherwise. It relied on the principle that “Generally, the rules of evidence in effect at the time of trial govern the admissibility and exclusion of evidence at that trial,” citing, inter alia, Evidence Code section 12. (188 Cal.App.3d at p. 1167.) Under this principle, the court observed, “It is not uncommon that admissibility of evidence be judged by a standard which was not in effect when the evidence came into being.” (Ibid.) The court concluded that section 795 would apply to a retrial even though the statute had not taken effect until after the victim had been hypnotized: “We conclude section 795 as enacted applies to hypnosis prior to its effective date where the evidence is proffered at a trial beginning after January 1, 1985.” (Id. at p. 1169, italics added.) In my view the reasoning of Burroughs is sound and its result is correct.

*1278 Accordingly, while I agree that we should direct reversal of the judgment, I, would advise the trial court that section 795 will apply to any retrial in this I case.

Broussard, J., concurred.