People v. Vasquez
D069298A
| Cal. Ct. App. | Sep 6, 2017Background
- Defendant Michael Vasquez was convicted at a second jury trial of eight counts of lewd and lascivious acts on two children (E.C. and P.C.); a prior trial with similar evidence but without the timeline had resulted in a mistrial (hung jury).
- During redirect of victim P.C., the prosecutor displayed an approximately 20-foot timeline that P.C. and her therapist prepared before the first trial; it contained dated, descriptive statements about abuse and photographs of P.C.
- The trial court allowed the timeline to be published to the jury as a demonstrative exhibit and permitted P.C. (and the prosecutor) to read and explain statements written on it; the timeline was not formally admitted into evidence.
- Defense objected that the timeline contained hearsay and was being used improperly to refresh memory and to bolster credibility; the court nonetheless allowed publication to the jury.
- The prosecutor relied heavily on the timeline in rebuttal argument, urging the jury to treat the timeline as showing the victim’s account in writing; the Court of Appeal reversed the convictions and ordered a new trial.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Vasquez) | Held |
|---|---|---|---|
| Whether the timeline could be shown to the jury as a writing used to refresh a witness’s recollection | The timeline refreshed P.C.’s memory and, practically, had to be shown due to size; it was not being admitted as substantive evidence | Displaying the writing to the jury is improper; writings used to refresh memory cannot be published to the jury | Court: Error — writings used to refresh a witness’ recollection may not be published to the jury; display circumvented the prohibition against showing such writings |
| Whether the timeline qualified as demonstrative evidence | Timeline is a demonstrative aid akin to a chart/diagram that illustrates testimony and assists jurors visually | Timeline is based on out-of-court statements (therapist’s handwriting and content) and thus is not a neutral demonstrative chart but hearsay used substantively | Court: Error — timeline was not a proper demonstrative exhibit because it embodied out-of-court statements and was used substantively to bolster credibility |
| Whether allowing P.C. and the prosecutor to read statements from the timeline was admissible | Publication and explanation were proper because the court had authorized demonstrative use and P.C. needed to clarify testimony | Reading the timeline aloud and letting jury see it introduced hearsay and improperly rehabilitated P.C.; defense preserved the objection | Court: Error — reading the timeline and letting jurors see its substantive statements admitted inadmissible hearsay and impermissibly bolstered the witness |
| Whether the evidentiary error was harmless | People: Victim testified to substantially the same matters before timeline; evidence otherwise strong | Vasquez: The timeline materially affected jurors; prior hung jury and credibility issues show prejudice | Court: Not harmless — reasonably probable different outcome without the timeline; reversal and remand for new trial ordered |
Key Cases Cited
- People v. Duenas, 55 Cal.4th 1 (2012) (distinguishing demonstrative evidence from substantive evidence; animations and similar aids are not substantive)
- People v. Mills, 48 Cal.4th 158 (2010) (examples of demonstrative evidence include maps, charts, diagrams that illustrate testimony)
- People v. Parks, 4 Cal.3d 955 (1971) (writings used to refresh memory should not be read aloud before the jury)
- Estate of Packer, 164 Cal. 525 (1912) (party using a writing to refresh a witness’s recollection may not show it to the jury)
- People v. Lee, 219 Cal.App.3d 829 (1990) (writing used to refresh a witness has no independent evidentiary value)
- People v. Diaz, 227 Cal.App.4th 362 (2014) (prosecutor’s references to improperly presented evidence increase prejudice)
- People v. Jones, 51 Cal.3d 294 (1990) (unanimity instruction guidance where multiple unseparated acts are alleged)
- People v. Soojian, 190 Cal.App.4th 491 (2010) (prior hung jury can support a finding of prejudice under Watson standard)
- People v. Burroughs, 6 Cal.App.5th 378 (2016) (inflammatory documentary hearsay can be prejudicial)
- People v. Watson, 46 Cal.2d 818 (1956) (standard for reversal: reasonably probable more favorable outcome absent the error)