95 Cal.App.5th 1072
Cal. Ct. App.2023Background
- Defendant Franklin Bingham was charged with corporal injury to a romantic partner (§ 273.5) and second-degree robbery; jury convicted him of the corporal-injury count and acquitted on robbery. After a bifurcated proceeding the court found a prior strike and sentenced him to an upper-term doubled to 8 years.
- The victim (Tracy) did not testify at trial; the prosecution played her 911 call (admitted as an excited utterance) in which she accused defendant of beating her and said he used a heavy metal lock.
- Defense sought to admit Tracy’s later recanting statements (emails/affidavit to the prosecutor) and her prior convictions for impeachment under Evidence Code § 1202; the trial court excluded them as inadmissible hearsay unless Tracy testified.
- Other trial evidence: hotel manager and officer testimony about Tracy’s visible injuries and bloody room, the padlock and women’s rings found in defendant’s car, recorded jail calls/video between defendant and Tracy, and defendant’s testimony denying intent to hurt her.
- On appeal the parties agreed the trial court erred in excluding the § 1202 impeachment evidence; the Court of Appeal held the exclusion was error but harmless under the Watson reasonable-probability standard. The court affirmed the conviction, remanded for resentencing under amended § 1170(b), and directed vacation of a $250 probation investigation fee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of victim’s later inconsistent statements and prior convictions as impeachment under Evid. Code § 1202 | Exclude: inconsistent statements/prior convictions are hearsay or remote and not admissible unless the declarant testifies | Admit: when the prosecution introduces a hearsay statement (the 911 call), § 1202 allows the defense to introduce inconsistent hearsay and prior convictions to attack declarant credibility | Trial court erred: § 1202 admission was proper, but exclusion was harmless (no reasonable probability of a more favorable outcome) |
| Resentencing under amended Penal Code § 1170(b) and vacating probation investigation fee | Apply amended § 1170(b) retroactively; vacate unrecoverable probation investigation fee | Same: request remand for resentencing and vacation of the $250 fee | Remand for resentencing under amended § 1170(b); vacate the $250 probation investigation fee |
Key Cases Cited
- People v. Corella, 122 Cal.App.4th 461 (2004) (inconsistent hearsay admissible under Evid. Code § 1202 when related hearsay statement is introduced)
- People v. Brooks, 3 Cal.5th 1 (2017) (applies Watson reasonable-probability prejudice test to erroneous exclusion under Evid. Code § 1202)
- People v. Richardson, 43 Cal.4th 959 (2008) (reversal required only where error caused a miscarriage of justice)
- People v. Nieves, 11 Cal.5th 404 (2021) (discusses Richardson and statutory supersession on other grounds)
- People v. Watson, 46 Cal.2d 818 (1956) (establishes reasonable-probability prejudice standard)
- Chapman v. California, 386 U.S. 18 (1967) (establishes beyond-a-reasonable-doubt standard for constitutional error)
- People v. Flores, 73 Cal.App.5th 1032 (2022) (amendments to § 1170 are ameliorative and apply retroactively to nonfinal convictions)