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Name: People v. Bingham (2023) 95 Cal.App.5th 1072
Case #: A163112
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/26/2023

The erroneous exclusion of impeachment evidence, pursuant to Evidence Code section 1202, of a key declarant does not require reversal unless the record as a whole shows the error caused a miscarriage of justice. Defendant was convicted of inflicting corporal injury on a romantic partner. The victim did not testify at trial, but her 911 call was admitted into evidence. The trial court excluded the victim’s prior convictions and inconsistent statements made after her 911 call, which defendant offered for impeachment (Evid. Code, § 1202). Defendant appealed. Held: Affirmed on this point but remanded for resentencing. The parties agreed that the trial court erred in not admitting the impeachment evidence. The trial court appeared to believe that the evidence was not admissible unless the victim testified, but under section 1202, “when a hearsay statement by a declarant who is not a witness is admitted into evidence by the prosecution, an inconsistent hearsay statement by the same person offered by the defense is admissible to attack the declarant’s credibility.” Because the trial court admitted the 911 call containing the victim’s statements, her subsequent inconsistent statements were admissible for impeachment. However, the erroneous exclusion of evidence does not require reversal unless the error caused a miscarriage of justice. (Evid. Code, § 354.) The applicable prejudice test is whether there is a reasonable probability defendant would have obtained a more favorable result had the impeachment evidence been admitted. Here, there was strong evidence of guilt and the jury heard other impeachment evidence related to the victim. Based on the entire record, it is not reasonably probable that the jury would have acquitted defendant if it had learned of the victim’s prior convictions and that she recanted what she said on the 911 call after defendant was arrested and had apologized to her. [Editor’s Notes: (1) The court declined to follow the prejudice analysis in People v. Corella (2004) 122 Cal.App.4th 461, on which defendant relied, noting Corella was factually similar but did not appear to consider the entire record in finding prejudicial error. (2) In a footnote, the court concluded the evidentiary error did not rise to the level of a constitutional error requiring application of the Chapman standard of prejudice. (3) The court agreed with the parties that remand for resentencing was warranted for retroactive application of the amendments to Penal Code section 1170, which limited the trial court’s ability to impose an upper term sentence. The court also directed the trial court to vacate the $250 probation investigation fee under former section 1203.1l, which was repealed as of July 1, 2021.]