Recent Family Law Cases

People v. Lozano
04/10/24 CA 1/3: A165646 – J. Tucher
https://www.courts.ca.gov/opinions/documents/A165646.PDF

In this partially published case, the Court of Appeal reversed a conviction because key evidence was inadmissible under the hearsay rule. Specifically, the trial court abused its discretion in concluding that the out-of-court statement fell under the spontaneous statement exception to the hearsay rule.

Doe 1 reported to her mother that the defendant had been molesting her since she was 11 years old. As she relayed this to her mother, Doe 1 exhibited significant stress. Both Doe 1 and her mother died before trial.

Evidence Code section 1240 provides that “[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and

(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

In determining whether the statement is admissible under this rule the court must consider 1) The immediacy of the statement relative to the event it describes. 2) Whether the statement was made under the stress of excitement without time to reflect and 3) Whether the statement pertains directly to the event witnessed.

The Court of Appeal concluded that Doe 1’s statement to her mother did not meet the criteria for a spontaneous statement. The Court of Appeal focused on the fact that Doe 1’s statement described events over several years, which undermines the requirement that the statement be closely tied to the immediate circumstances of a startling event. Additionally, the statements Doe 1 made to the police reflected on her decision to disclose the abuse to her mother. This tended to show that she was not under the immediate stress of excitement when speaking to her mother. The Court of Appeal reiterated that for a statement to be admitted as spontaneous, it must be made in an unreflective and unplanned manner. Since Doe 1 had considered her situation and planned her disclosure, this did not align with the requirements of a spontaneous statement.

BR.C. v. BE.C.
04/05/24 CA 3: C097015 – J. Krause
https://www.courts.ca.gov/opinions/documents/C097015.PDF

In this case, the Court of Appeal affirmed the trial court’s denial of father’s motion in limine seeking to exclude secret recordings incident to a domestic violence restraining order request.

Preservation of the Issue for Appeal

The Court of Appeal first addressed whether the appeal of the in limine ruling was adequately preserved, given that at the time of the hearing father did not object to the admission of the challenged recordings. A motion in limine “preserves an objection [for appeal] where (1) a specific legal ground for exclusion was advanced through an in limine motion and subsequently raised on appeal; (2) the in limine motion was directed to a particular, identifiable body of evidence; and (3) the in limine motion was made at a time, either before or during trial, when the trial judge could determine the evidentiary question in its appropriate context.” Since father “filed a motion to exclude the recordings as impermissible on the same grounds he now asserts on appeal, and he obtained an express ruling from the trial court denying the motion,” he adequately preserved the issue for appeal.

Penal Code Section 633.6 does not Require a Restraining Order Request to be on File for Secret Recordings to be Admissible

Generally, under Family Code section 2022 and Penal Code section 632, evidence collected from a recording is inadmissible “without the consent or knowledge of all parties.” There are exceptions. Penal Code section 633.6, subdivision (b) provides that “a victim of domestic violence who is seeking a domestic violence restraining order from a court, and who reasonably believes that a confidential communication made to him or her by the perpetrator may contain evidence germane to that restraining order, may record that communication for the exclusive purpose and use of providing that evidence to the court.”

Father argued that the recordings do not come within the ambit of the exception because the recordings were made prior to the filing of a DVRO request.

The Court held that “a victim [of domestic violence]” is permitted ”to record confidential communications, so long as he or she intends to request a DVRO and reasonably believes that the communication may contain evidence germane to that request, regardless of whether a petition has yet been filed with a court.”

Not only did the plain language of the statute support this interpretation, but the legislature’s intent “to aid domestic violence victims, by permitting them to submit relevant evidence in support of a restraining order without fear of legal retribution, and…to aid courts in making credibility determinations in difficult he-said, she-said scenarios, where direct evidence is often scarce,” required this construction.

Sufficiency of the Evidence

Father argued that substantial evidence did not support the granting of a DVRO. The Court of Appeal disagreed. Here, father “threatened and harassed [mother], at times placing [mother] in apprehension of imminent serious bodily harm.” Further, “[mother] testified that on numerous occasions, [father] would yell and curse at her and call her names.” Father would also “slam and throw objects on a daily basis during the children’s bedtime,” including one occasion where “he threw a bag of cheese at [mother] and threw hot soup, splashing his daughter.”  The recordings also showed that father repeatedly lost his temper at mother, insulted her, angrily ranted, and refused to let her out of a vehicle despite her numerous pleas.