15 Chap. L. Rev. 725 (No PDF)
Chapman Law Review
Winter 2012
Case Digests [tippy title=”*” header=”off”]Chapman Law Review selected these cases primarily for their legal significance. These cases are not exhaustive of the cases decided by the California Supreme Court during this period.[/tippy]
DIGEST: PEOPLE V. SKILES
Rebecca J. Kipper
Copyright (c) 2012 Chapman Law Review; Rebecca J. Kipper
Opinion by Chin, J., with Cantil-Sakauye, C.J., Kennard, J., Baxter, J., Werdegar, J., Corrigan, J., and Elia, J., concurring. [tippy title=”1″ header=”off”]People v. Skiles, 253 P.3d 546, 546 n.* (Cal. 2011) (“Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution .”).[/tippy]
Issue
Does the secondary evidence rule provide a method for authenticating noncertified, faxed copies of certified court documents? [tippy title=”2″ header=”off”]Id. at 548.[/tippy]
Facts
Danny Skiles was convicted of one count of residential burglary. [tippy title=”3″ header=”off”]Id.[/tippy] Because he had previously been convicted of manslaughter in Alabama, [tippy title=”4″ header=”off”]Id. at 549.[/tippy] the court held a trial to determine whether he would be sentenced as a second-strike offender under California’s Three Strikes law. [tippy title=”5″ header=”off”]Id. at 548.[/tippy] Under the Three Strikes law, a prior out-of-state felony conviction is a strike in California if it qualifies as a serious felony conviction. [tippy title=”6″ header=”off”]Id. (citing Cal. Penal Code §667 (West 2010)).[/tippy] One method of showing that a conviction is a serious felony conviction is to establish that the defendant “personally inflicted great bodily injury on a person other than an accomplice.” [tippy title=”7″ header=”off”]Id. at 549 (citing Penal §1192.7(c)(8)). Under section 1192.7(c)(1) of the California Penal Code , voluntary manslaughter is automatically a serious felony, but involuntary manslaughter is not. Penal §1192.7(c)(8). Since Skiles’ Alabama manslaughter conviction stemmed from reckless driving, which is more like involuntary manslaughter, it is not a per se serious felony conviction. Id.[/tippy] During trial, the prosecutor presented, and the trial court admitted, two packets of documents relating to the Alabama conviction. [tippy title=”8″ header=”off”]Id. at 548-49.[/tippy] People’s exhibit No. 16 consisted of certified copies of the minute order, plea agreement, and grand jury documents. [tippy title=”9″ header=”off”]Id.[/tippy] People’s exhibit No. 17 contained certified copies of the booking documents. [tippy title=”10″ header=”off”]Id. at 549.[/tippy] These documents showed that Skiles was charged with, and pled guilty to, manslaughter. [tippy title=”11″ header=”off”]Id. The documents also showed that Skiles was charged with driving under the influence of alcohol and vehicular homicide, but those charges were dismissed as part of the plea agreement. Id.[/tippy] However, the court noted that none of the records included a factual description of the manslaughter charge, which was necessary in order to establish that it was a serious felony conviction under California law. [tippy title=”12″ header=”off”]Id.[/tippy] The prosecutor had a clerk of the court in Alabama fax a certified copy of the first page of the indictment. [tippy title=”13″ header=”off”]Id. This first page had been left out of the grand jury documents introduced in exhibit No. 16. Id.[/tippy] This page, introduced as People’s exhibit No. 18, was a faxed copy of a certified copy that was stamped and signed by a court clerk stating that the copy “is a true and correct copy of the original on file in this office.” [tippy title=”14″ header=”off”]Id. at 550.[/tippy] The indictment page contained a factual description of the manslaughter charge. [tippy title=”15″ header=”off”]Id. at 549. The indictment alleged that Skiles ran a red light, drove his vehicle into the victim’s car, and recklessly caused the victim’s death. Id.[/tippy] The defense objected to the admission of this document “on ‘foundational grounds’ because it was a ‘photocopy.”’ [tippy title=”16″ header=”off”]Id.[/tippy] The trial court overruled the objection. [tippy title=”17″ header=”off”]Id.[/tippy] At sentencing, the court held that there was enough evidence to show that Skiles “had personally inflicted great bodily injury on a person other than an accomplice” and that, therefore, his prior manslaughter conviction qualified as a strike in California. [tippy title=”18″ header=”off”]Id.[/tippy] He was sentenced to a prison term of nine years. [tippy title=”19″ header=”off”]Id.[/tippy]
Skiles appealed his sentence arguing that the prosecution had not property authenticated the faxed copy of the certified copy of the indictment page (exhibit No. 18), which rendered it inadmissible. [tippy title=”20″ header=”off”]Id.[/tippy] Therefore, the trial court had insufficient evidence to find that he committed a serious felony in Alabama. [tippy title=”21″ header=”off”]Id.[/tippy] The Court of Appeal affirmed the trial court and held that under section 1521 of the California Evidence Code, the Secondary Evidence Rule, a copy of a certified copy of an official document is admissible “unless there is a genuine dispute concerning its terms and justice requires exclusion of the copy, or admission of the copy would be unfair.” [tippy title=”22″ header=”off”]Id.; see also Cal. Evid. Code §1521(a)(1)-(2) (West 1995).[/tippy] The Court of Appeal found that there was no such dispute as to the authenticity of the document. [tippy title=”23″ header=”off”]Skiles, 253 P.3d at 549 .[/tippy] However, it went on to examine exhibit No. 18 for authenticity, [tippy title=”24″ header=”off”]Id.[/tippy] and determined that the faxed copy of the “indictment page was an authentic representation of the actual charges in the Alabama case” [tippy title=”25″ header=”off”]Id. at 548.[/tippy] because it was consistent with the certified court records in exhibit No. 16, which were unquestionably authentic. [tippy title=”26″ header=”off”]Id. at 549-50. The court based this determination on the fact that the document in exhibit No. 18 “showed the same court, bore the same date, and was certified by the same clerk as exhibit No. 16.” Id. at 550.[/tippy] Therefore, the court held that the indictment page was properly admitted under the Secondary Evidence Rule. [tippy title=”27″ header=”off”]Id. at 550.[/tippy] The defendant appealed to the Supreme Court of California. [tippy title=”28″ header=”off”]Id.[/tippy]
Analysis
The court examined the various statutes that govern the admissibility of copies of official documents in order to determine whether the faxed copy of the certified copy of the indictment page was properly admitted into evidence. [tippy title=”29″ header=”off”]Id.[/tippy] First, section 452.5 of the California Evidence Code [tippy title=”30″ header=”off”]Id. Unless otherwise indicated, all further statutory references are to the Evidence Code.[/tippy] provides that an official record of a conviction is admissible to prove the commission of the underlying offense, the conviction itself, or any other “act, condition, or event recorded by the record” if it is certified in accordance with section 1530. [tippy title=”31″ header=”off”]Id. (citing Cal. Evid. Code §452.5(b) (West 1995)).[/tippy] Section 1530 states that a copy of an official writing “is prima facie evidence of the existence and content of such writing,” if the copy purports to be authorized by the public entity with custody of the document, the document is kept within the United States, and “the copy is attested or certified as a correct copy of the writing . . . by a public employee . . . having the legal custody of the writing.” [tippy title=”32″ header=”off”]Evid. §1530. Under section 1531, this attestation or certification must “state in substance that the copy is a correct copy of the original.” Skiles, 253 P.3d at 550 (quoting Evid. §1531). In addition, section 1530 only requires certification by signature. Id. (citing Ambriz v. Kelegian, 53 Cal. Rptr. 3d 700, 707 (Cal. Ct. App. 2007) ).[/tippy] The Defendant argued that a faxed copy of a certified copy of an official document is never admissible because it cannot be certified under section 1530. [tippy title=”33″ header=”off”]Skiles, 253 P.3d at 550 .[/tippy] Under defendant’s theory, a faxed copy does not bear an original attestation as required by section 1530, but rather bears a copied attestation. [tippy title=”34″ header=”off”]Id. at 551.[/tippy] Unlike the original certification that is attached to the certified copy that is faxed, which defendant concedes would meet the requirements of section 1530 in this case, [tippy title=”35″ header=”off”]Id. (“Defendant posits that the original copy would have been admissible under section 1530 because it contained an original certification affixed to the precise copy that the custodian was certifying as genuine, accurate, and complete.”). The certification stated, “I certify that the above is a true and correct copy of the original on file in this office.” Id. at 550. The court also agreed that the certificate comported with sections 1530 and 1531 in other aspects. Id.[/tippy] the copied certification on a faxed copy no longer conveys the required message that the court clerk “had seen and was vouching for the authenticity of the faxed copy.” [tippy title=”36″ header=”off”]Id. at 551.[/tippy] The court agreed with this analysis and held that “[b]ecause the public official did not examine and compare the faxed copy with the original, with a certificate of its correctness, we agree that the faxed copy did not meet the requirements of section 1530.” [tippy title=”37″ header=”off”]Id.[/tippy]
However, the court found the defendant’s argument that faxed copies of certified documents are inadmissible per se to be unpersuasive because it presumes, wrongly, that section 1530’s certification scheme prohibits the authentication of documents by other methods. [tippy title=”38″ header=”off”]Id.[/tippy] The court explained that section 1530 “only establishes a presumption of authenticity.” [tippy title=”39″ header=”off”]Id.[/tippy] If a copy of a court record is properly certified under section 1530, then that copy is presumed authentic, and “standing alone may be sufficient to prove a prior felony conviction” [tippy title=”40″ header=”off”]Id.[/tippy] unless the other party can overcome that presumption with contrary evidence. [tippy title=”41″ header=”off”]Id. (citing Ambriz v. Kelegian, 53 Cal. Rptr. 3d 700, 707-08 (Cal. Ct. App. 2007) ; People v. Delgado, 183 P.3d 1226, 1231 (Cal. 2008) ).[/tippy] Moreover, the court inferred from section 1530 that a noncertified copy, like the faxed copy at issue here, cannot stand alone and is not reliable enough, on its own, to be self-authenticating. [tippy title=”42″ header=”off”]Id.[/tippy] But, certification is not an indispensible condition in the admissibility of official documents. [tippy title=”43″ header=”off”]Id.[/tippy] There is nothing in section 1530 that bars the authentication by means other than certification. [tippy title=”44″ header=”off”]Id.[/tippy] Therefore, while it is true that faxed copies of certified copies cannot be properly certified under section 1530, and thus are not admissible under section 452.5, nothing prevents them from being authenticated and deemed admissible by another method. [tippy title=”45″ header=”off”]Id. (“Other evidence may establish that a faxed copy of a certified copy of an official writing is authentic and reliable. When considered together, the evidence may suffice to prove a prior felony conviction.”).[/tippy]
The Attorney General argued that the faxed copy at issue here was admissible under the Secondary Evidence Rule. [tippy title=”46″ header=”off”]Id. The Secondary Evidence rule is contained in sections 1520-1523. Id.[/tippy] The Secondary Evidence Rule states that “[t]he content of a writing may be proved by otherwise admissible secondary evidence.” [tippy title=”47″ header=”off”]Cal. Evid. Code §1521(a) (West 1995).[/tippy] However, in order to be “otherwise admissible,” the secondary evidence must itself be authenticated. [tippy title=”48″ header=”off”]Skiles, 253 P.3d at 551 (citing Evid. §1521(a) ).[/tippy] Thus, for the faxed copy of the indictment page to be admissible as secondary evidence of the content of the original document, it must be authenticated. Under section 1400, a writing can be authenticated by either the “introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or . . . the establishment of such facts by any other means provided by law.” [tippy title=”49″ header=”off”]Evid. §1400. The court explained that the certification process outlined in section 1530 is one of the “means provided by law” of establishing the authenticity of an official writing. Skiles, 253 P.3d at 552 (citing Evid. §1400).[/tippy] The proponent of the evidence is not limited to the authentication methods enumerated in the Evidence Code. [tippy title=”50″ header=”off”]Skiles, 253 P.3d at 552 (citing Evid. §1410).[/tippy] The court pointed out that documents had even been “authenticated by circumstantial evidence and by [their] contents.” [tippy title=”51″ header=”off”]Id.[/tippy] The court analyzed the evidence that was introduced at trial to determine whether, under section 1400, it was sufficient enough to sustain a finding that the faxed copy of the indictment page was authentic (for example that the indictment page in exhibit No. 18 was the first page of the indictment in exhibit No. 16 and a true representation of the charges). [tippy title=”52″ header=”off”]Id.[/tippy] The court found that “[t]he indictment page in exhibit No. 18 is similar to, and consistent with, the indictment page in exhibit No. 16, which is of unquestioned authenticity.” [tippy title=”53″ header=”off”]Id. The court based this finding on the fact that the two pages have consecutive page numbers, are from the same Alabama court and county, have the same date, and are certified by the same clerk. Id. The court dismissed the defendant’s contention that the documents are not sufficiently similar because the certification in No. 18 had a different set of initials than the other certified documents in No. 16. Id.[/tippy] In addition, both indictment pages concern the same charges listed in the grand jury’s true bill (also a document of unquestioned authenticity). [tippy title=”54″ header=”off”]Id.[/tippy] The court concluded, “the contents of the documents in exhibit Nos. 16 and 18 support a determination that the document in exhibit No. 18 was an accurate representation of a court document in the same Alabama case and an authentic representation of counts 1 and 2 of the indictment.” [tippy title=”55″ header=”off”]Id.[/tippy] Thus, “the prosecution introduced other ‘evidence sufficient to sustain a finding [of authenticity].”’ [tippy title=”56″ header=”off”]Id. at 553 (quoting Cal. Evid. Code §1400 (West 1995)).[/tippy]
However, under section 1521, even if secondary evidence is deemed authentic, it must still be excluded if the court determines either “‘[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion”’ or “‘[a]dmission of the secondary evidence would be unfair.”’ [tippy title=”57″ header=”off”]Id. at 552 (quoting Evid. §1521(a) ).[/tippy] Although the court agreed with the Court of Appeal that there was no dispute or unfairness that would require the evidence be excluded in this case, it disagreed with the way in which the Court of Appeal construed this section of the statute. [tippy title=”58″ header=”off”]Id. at 552-53.[/tippy] The court explained that the lower court’s “broad proclamation” [tippy title=”59″ header=”off”]Id. at 552.[/tippy] that uncertified copies are admissible “unless there is a genuine dispute concerning its terms . . . or admission of the copy would be unfair” [tippy title=”60″ header=”off”]Id. The Court of Appeal relied on People v. Atkins, 258 Cal. Rptr. 113, 116 (Cal. Ct. App. 1989) in formulating this holding. However, the California Supreme Court pointed out that Atkins was construing the Best Evidence Rule, which was the precursor to the Secondary Evidence Rule. The Secondary Evidence Rule requires independent authentication of evidence, while the Best Evidence Rule did not. Therefore, the court expressly disapproved of Atkins “to the extent it suggests that a copy of a certified copy of an official record is admissible without further authentication by the proponent of the evidence.” Skiles, 253 P.3d at 553 .[/tippy] wrongly shifts the burden of authentication away from the proponent of the evidence. [tippy title=”61″ header=”off”]Skiles, 253 P.3d at 553 (“[A]s noted above, the proponent of a faxed copy of an official writing has the burden of producing evidence of its authenticity.”).[/tippy] But, since the Court of Appeal “correctly determined exhibit No. 18’s authenticity and admissibility by comparing it with the certified documents in exhibit No. 16,” the error was harmless. [tippy title=”62″ header=”off”]Id.[/tippy] Since the faxed copy was properly authenticated under section 1400, it was admissible under the Secondary Evidence Rule. [tippy title=”63″ header=”off”]Id.[/tippy]
The court also dismissed Defendant’s contention that California should adopt a bright-line rule declaring that noncertified copies of certified copies are per se inadmissible. [tippy title=”64″ header=”off”]Id. Although Defendant cited case law from three other states that have such bright line rules–State v. Stotts, 695 P.2d 1110, 1123 (Ariz. 1985) , Kelly v. State, 561 N.E.2d 771, 774-75 (Ind. 1990) , and Commonwealth v. Deramo, 762 N.E.2d 815, 822 (Mass. 2002)–the court distinguished all of these cases on the basis that the courts in those cases were not construing a rule like the Secondary Evidence Rule. Skiles, 253 P.3d at 553 . In addition, there was no additional authenticating evidence in those cases, unlike in this case. Id.[/tippy] The court also rejected Defendant’s claim that the admission of the faxed copy violated his constitutional right to confront and cross-examine the clerk making the certification. [tippy title=”65″ header=”off”]Id.[/tippy] The defendant objected to the evidence only on “foundational grounds” and thus waived his constitutional claim by failing to assert it at the trial. [tippy title=”66″ header=”off”]Id. (citing People v. Tafoya, 164 P.3d 590, 607 (Cal. 2007) ).[/tippy]
Holding
The court affirmed the Court of Appeal. [tippy title=”67″ header=”off”]Id.[/tippy] The court held that a noncertified copy of a certified copy of an official document may be admissible as secondary evidence under section 1521, the Secondary Evidence Rule. [tippy title=”68″ header=”off”]Id. at 551.[/tippy] However, because a noncertified copy is not presumed authentic under section 1530, the proponent of the copy has the burden of presenting additional evidence of its authenticity. [tippy title=”69″ header=”off”]Id. at 552-53.[/tippy] Because the prosecution provided sufficient evidence at trial to sustain an independent finding that the faxed copy of defendant’s indictment was an authentic document from the Alabama court, the trial court properly admitted the document under the Secondary Evidence Rule. [tippy title=”70″ header=”off”]Id. at 553.[/tippy]
Legal Significance
The court’s holding clarifies that a faxed copy of an official writing cannot be admitted under the Secondary Evidence Rule unless it is independently authenticated under section 1400. In the absence of some other admissible evidence of its authenticity, a noncertified, faxed copy of a certified document is not reliable enough to constitute prima facie evidence of the content of the underlying document. In addition, the holding sets out a bright-line rule that the proponent of a noncertified copy of an official record has the burden of proving its authenticity. The opponent of such evidence does not waive the issue of authenticity by failing to raise it. On the other hand, the proponent of an uncertified copy of a certified document is not limited in the method by which the writing is authenticated. Any evidence that is sufficient to show that the document is authentic can be introduced, including circumstantial evidence and the contents of the writing itself.