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Tuesday, November 2, 2021


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C.A. Broadly Construes Words ‘Sexual Conduct’ in Statutes

Justice Hoffstadt Says Evidence Code Sections Allowing Evidence of Plaintiff’s ‘Conduct’ For Impeachment Only Extends to Sexual Acts in Which Participation Was Involuntary


By a MetNews Staff Writer


Two statutes which limit possible admission of evidence in a civil case concerning a plaintiff’s “sexual conduct” to use for impeachment purposes apply where that conduct was not volitional, the Court of Appeal for this district held yesterday, defining “conduct” in terms of experience rather than behavior.

Justice Brian M. Hoffstadt of Div. Two authored the opinion which declares that Los Angeles Superior Court Judge Mary Ann Murphy erred in finding that “conduct” on the part of the plaintiff includes sexual acts that were forced on her. However, Hoffstadt said that Murphy did not abuse her discretion in going on to find that the probative value of the evidence outweighs the prejudice.

The plaintiff, denominated “Jane Doe,” is suing the Mountain View School District in El Monte over the sexual molestation of her by her fourth grade teacher, Joseph Baldenebro, in 2010 and 2011. The district seeks to show sexual abuse of the plaintiff by someone else in 2013 so that the totality of her emotion distress will not be ascribed to Baldenebro’s acts.

Evidence Code Section

Evidence Code §1106 provides:

“In any civil action alleging conduct which constitutes…sexual battery…, evidence of specific instances of the plaintiff’s sexual conduct…is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff….”

It goes on to say: “This section shall not be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff as provided in Section 783.”

Evidence Code §783 sets forth the procedure by which the court is to determine whether use of “evidence of sexual conduct of the plaintiff” for impeachment purposes would be admissible under §352, which provides:

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

Murphy’s Ruling

Murphy denied Doe’s motion to exclude evidence of sexual abuse by someone other than Baldenebro, saying that the “conduct at issue is not sexual conduct within the meaning of” the Evidence Code. She cited two cases interpreting §782, the analogue of §783 applicable to criminal cases.

People v. Franklin, decided by the Sixth District Court of Appeal on May 26, 1994, says that “sexual conduct,” as used in the statute, “encompasses any behavior that reflects the actor’s or speaker’s willingness to engage in sexual activity.”

In People v. Casas, handed down on May 29, 1986 by the Sixth District, it was found that a man’s expressed “willingness to engage in sexual intercourse” constituted sexual conduct.

Murphy said in her July 28 ruling: “Evidence of sexual molestation of plaintiff by a family friend in 2013-2016, after the sexual molestation by the teacher employed by Defendant in 2010 and 2011 is relevant on damages. The District has admitted negligence in the only remaining cause of action, negligent supervision. In the exercise of its discretion, the Court finds that the probative value of the evidence is not substantially outweighed by the probability that its admission will necessitate undue consumption of time, create a danger of undue prejudice, confuse the issues or mislead the jury. Evidence Code 352.

“Plaintiff’s request to exclude the evidence is denied.”

Hoffstadt’s Opinion

Disagreeing with Murphy’s view, Hoffstadt wrote:

“[W]e must decide whether a ‘plaintiff’s sexual conduct’ within the meaning of section 1106 includes sexual conduct that was inflicted upon the plaintiff involuntarily—that is, does it apply to sexual abuse? We hold that it does, and do so for three reasons.”

The first reason, he said, is that such an interpretation “is most consonant with legislative intent.” Hoffstadt explained that the Legislature’s desire to safeguard privacy “applies with equal force to sexual conduct whether it is voluntarily undertaken or involuntarily inflicted.”

His second reason was that persons under the age of 14 are deemed incapable of consenting to a sexual and sexual “excluding involuntary conduct from the ambit of section 1106 would allow for the admission of evidence of all sexual conduct of a person under the age of 14 (subject to the other rules of evidence, of course)” which would “appear to be an absurd result we cannot sanction.”

He added:

“Third, interpreting ‘plaintiff’s sexual conduct’ to exclude involuntary sexual conduct would also be against the weight of precedent both here in California and in our sister states.”

A writ, sought by Doe, was denied, however because Hoffstadt and his colleagues agreed with Murphy’s §352 analysis.

On July 29, Doe sought a writ in the Court of Appeal, which was denied the next day, a Friday. The following Monday, the parties made opening statements to the jury.

The attorney for the district said that Doe’s emotional distress was caused “by the...2013 sexual abuse incident and by Baldenebro.”

On Aug. 3, the California Supreme Court ordered a stay, and on Aug. 9, it granted review and bounced the case back to the Court of Appeal, directing it to issue an order to the Superior Court to show cause why a writ should not be granted.

In yesterday’s decision, Hoffstadt said: “Upon remand, and if the previously selected jury is still constituted, the trial court is to assess whether any prejudice resulted from the District’s discussion of the 2013 molestation during opening statement for purposes beyond impeachment, and to take appropriate action, if necessary, to eliminate that prejudice.”

The jurors have not been released. On Aug. 12, an order to them was issued, advising:   “This case has been stayed and the stay will remain in place until at least October 28, 2021 and possibly for several weeks after October 28, 2021. You are still jurors in this case.

“The Court is not in a position to predict when this trial will resume.”

The case is Doe v. Mountain View School District, B313874.

Arguing for Doe were Luis A. Carrillo, Michael S. Carrillo, and Laura M. Jimenez of the Carrillo Law Firm, Ronald T. Labriola of The Senators (Ret.) Firm, and Stuart B. Esner and Holly N. Boyer of Esner, Chang & Boyer. Jeffry A. Miller, Lann G. McIntyre, Dana Alden Fox, Gregory M. Ryan, Edward E. Ward Jr., and Wendy S. Dowse of Lewis Brisbois Bisgaard & Smith represented the district.

Baldenebro in 2018 was sentenced to eight years in prison for molesting five students.


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