Admission of text exchange between defendant and his mother, in which he did not respond to her indirect accusation that he committed a series of robberies, was improperly admitted as an adoptive admission. After soliciting information from the public regarding a series of robberies of retail stores and restaurants in 2014, police received a tip that defendant was a possible suspect. Police obtained a search warrant for defendant’s house and car. They found clothing and other items similar to materials worn by the perpetrator and used in the robberies. A jury found defendant guilty of nine robberies and the trial court found several strike priors true. He received 150 years to life in prison. On appeal defendant challenged the admission of a text message exchange he had with his mother which was used as an adoptive admission. Held: Reversed. Evidence of a statement offered against a party is not inadmissible hearsay if the statement if one of which the party, with knowledge of the content thereof, has by words or conduct manifested his adoption or belief in its truth. (Evid. Code, § 1221.) Thus, when a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the purpose of showing the party’s reaction to it. Silence, evasion, or equivocation may be considered a tacit admission that the statement is true. Here, defendant’s failure to respond to his mother’s text, in which she indirectly accused him of the robberies, was improperly admitted as an adoptive admission because there was an insufficient showing that defendant did not respond by other means, like a phone call. Further, text messages may not be read immediately upon receipt and there may be many reasons the recipient does not respond right away.

Admission of materials found in defendant’s car detailing potentially illegal methods for erasing a criminal record and obtaining a new identity, was error. Prior to trial the prosecution successfully sought to admit documents found in defendant’s car which detailed methods of erasing a criminal past and manufacturing a new identify, to show defendant’s intention to avoid apprehension for the robberies. These documents had little or no relevance to the identity of the person who committed the robberies. Further, there was no evidence as to when defendant acquired these materials, so they did not reasonably reflect on his state of mind regarding the robberies. The material was prejudicial, considering the references to ex-cons and how to clear a criminal record. Even if the data was relevant to show state of mind, it should have been excluded under Evidence Code section 352 as far more prejudicial than probative.

Cumulatively, the erroneous admission of evidence was unduly prejudicial, requiring reversal. Evidentiary errors under state evidence rules are evaluated under the reasonable probability standard of prejudice announced in People v. Watson (1956) 46 Cal.2d 818. Considering the record as a whole, the evidentiary errors in this case were prejudicial, i.e., there is a reasonable chance that had the evidence been excluded, the result of the proceeding would have been more favorable to defendant. The case was entirely circumstantial. None of the witnesses identified defendant as the robber. The surveillance videos did not clearly show the robber’s clothing, undermining the ability to compare them with clothing taken from defendant’s apartment. The jury found the case to be a close one and struggled to reach guilty verdicts on all counts. The erroneously admitted accusation by defendant’s own mother as an adoptive admission, as well as the admission of documents that reflected defendant had a criminal past and was exploring identity fraud, was prejudicial.

The full opinion is available on the court’s website here https://www.courts.ca.gov/opinions/archive/F075749.PDF