Brief Bank # B-970 (Re: F 2.71.5d [Adoptive Admissions Must Be Viewed With Caution].)
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Date Of Brief: 8/28/2003
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
SUPPLEMENTAL APPELLANT’S OPENING BRIEF
Appeal from Final Judgment of Conviction
Superior Court, County of San Mateo
The Honorable Judith Whitmer Kozloski
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Conrad Petermann (SBN 51907)
8306 Wilshire Blvd. Suite 797
Beverly Hills CA 90211
Tel.: (805) 653-4779
Fax: (805) 653-2579
Counsel for Appellant John Doe
Under Appointment by the Supreme Court
V. A Portion Of Argument X Of Appellant’s Briefing, On CALJIC No. 2.71.5, Was Rejected By This Court In A Recent Opinion; However, Argument X Is Operative As To CALJIC 2.71
A. CALJIC 2.71.5
Appellant’s Argument X contended that in the jury competency hearing, the trial court erred in failing to give CALJIC No. 2.71 and 2.71.5 sua sponte as to alleged oral admissions and adoptive admissions.(AOB 323-328; ARB 103-111.)
After the reply brief was filed, this Court held in People v. Carter (June 19, 2003) 30 Cal.4th 1166 that an instruction on foundational requirements for adoptive admissions, such as CALJIC No. 2.71.5, generally need not be given sua sponte. (Id. at pp. 1197-1198.) Carter reasoned that it is cumbersome to expect trial courts to ferret out and specify foundational facts on possible adoptive admissions against the defendant, CALJIC 2.71.5 is largely common sense, and such an instruction might cause the jury to place undue emphasis on fragments that a defendant might not want the jury to be piecing together. (Ibid.) Thus, although numerous Court of Appeal opinions had found CALJIC 2.71.5 required sua sponte, and this Court may have previously hinted at such a requirement (though only in the context of an instruction to view admissions with caution [see also post, section (B)]), this Court held in Carter that CALJIC 2.71.5 need not be given sua sponte.
Appellant is unaware of any basis for him to argue that this holding of Carter should not be applied retroactively to this case. Accordingly, appellant does not contest applying Carter to any portion of Argument X which rests on a claimed sua sponte requirement for CALJIC 2.71.5.
B. CALJIC 2.71
1. As Applied To Evidence Of Oral Admissions
Nothing in Carter purports to apply to the cautionary instruction on admissions in CALJIC 2.71 (also referred to as the “cautionary admissions instruction”). Thus, CALJIC 2.71 applies to all portions of Argument X involving evidence of alleged oral admissions by appellant.
There would be no basis to apply Carter‘s holding to a cautionary admissions instruction such as CALJIC 2.71, particularly since (a) CALJIC 2.71 wasn’t at issue in Carter (see, e.g., People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [opinions are not authority for propositions not considered]), and (b) this Court very recently reiterated the different body of law governing CALJIC 2.71 on which appellant relies here (see post, p. __). Although CALJIC 2.71 and 2.71.5 are close numerically, and are in the same general area of admissions, they are very different instructions.
CALJIC 2.71.5 sets forth the foundational requirements for treating as an admission statements, actions or silence which evince ratification of an accusation, known as “adoptive admissions”; and cautions the jury that unless it finds such foundational requirements are met–e.g., accusation heard and understood, opportunity to reply, type of accusation an ordinary person would deny, etc.–it should disregard the accusation. As this Court held in Carter, “[t]he instruction is largely a matter of common sense–silence in the face of an accusation is meaningful, and hence may be considered, only when [the foundational requirements are met by the evidence, i.e.,] the defendant has heard and understood the accusation and had an opportunity to reply.” (Id. at p. 1197 [boldface added].) This Court thus concluded in Carter that there wasn’t a good reason to require sua sponte an instruction stating foundational principles that jurors already know as common sense. (Accord People v. Lewis (2001) 26 Cal.4th 334, 362.)
By contrast, CALJIC 2.71–particularly the cautionary portion, “Evidence of an oral admission of the defendant should be viewed with caution”–doesn’t deal with foundational evidentiary matters. It serves a wholly different function from CALJIC 2.71.5, a function which isn’t a matter of lay common sense as described in Carter for CALJIC 2.71.5.
Evidence of oral admissions is probably the most damaging form of evidence against a defendant; “it carries a persuasion which nothing else does, because a fundamental instinct of human nature teaches each one of us its significance.” (People v. Williams (1957) 151 Cal.App.2d 173, 190; People v. LaRue (1923) 62 Cal.App. 276, 280 [both quoting Wigmore on Evidence].) It is all the more so because often, the only person who could contradict it (if anyone) is the defendant, whose testimony (if any) may naturally be portrayed as self-serving and biased. (Blank v. Coffin (1942) 20 Cal.2d 457, 462; Hannah v. Pogue (1944) 23 Cal.2d 849, 859; see, e.g., People v. Bunyard (1988) 45 Cal.3d 1189, 1223-1224 [rejecting defense claim that such an argument by prosecutor is misconduct]; People v. Jenkins (1974) 40 Cal.App.3d 1054, 1057 [same].)
At the same time, our legal system’s experience–which lay jurors obviously wouldn’t know–is that “no weaker kind of testimony could be produced.” (Estate of Emerson (1917) 175 Cal. 724, 728.) “The courts have long recognized the dangers and abuses inherent in evidence of verbal admissions.” (People v. Frye (1998) 18 Cal.4th 894, 959.) That is why we require cautionary instructions on evidence of oral admissions; as Dean Wigmore put it, “[T]he great possibilities of error in trusting to recollection–testimony of oral utterances, supposed to have been heard, have never been ignored; but an antidote is constantly given by an instruction to the jury against trusting overmuch to the accuracy of such testimony.” (People v. Henry (1972) 22 Cal.App.3d 951, 958 [quoting Wigmore on Evidence].)
As this Court explained, in another case where the alleged admissions were based on testimony of prosecution witnesses:
It is a familiar rule that verbal admissions should be received with caution and subjected to careful scrutiny, as no class of evidence is more subject to error or abuse. Witnesses having the best motives are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used. No other class of testimony affords such temptations or opportunities for unscrupulous witnesses to torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.
(People v. Bemis (1949) 33 Cal.2d 395, 398-399 [quoted with approval in People v. Frye, supra, 18 Cal.4th at p. 959].) Similarly, as this Court has also held:
In most cases it is impossible, however honest the witness may be, for him to give the exact words in which the declaration of admission was made. Sometimes even the transposition of the words of a party may give a meaning entirely different from that which was intended to be conveyed. The slightest mistake or failure of recollection may totally affect the declaration or admission.
(Smellie v. Southern Pacific Co. (1931) 212 Cal. 540, 560.) These are matters far outside the common experience of lay jurors, since they deal with the collective experience of our legal system itself. This Court in Bemis thus rejected the People’s claim that this cautionary instruction merely states a matter within the common knowledge of lay jurors. (Id. at p. 400.)
This Court recently reiterated that “[w]hen evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) (As discussed in appellant’s reply brief and in Slaughter, that only applies to evidence of oral admissions which would be detrimental to the defendant.) Nothing in Carter purports to address that, or to undermine the vitality of Slaughter and the long-established authority preceding it.
Thus, appellant’s Argument X applies to evidence of oral admissions to the extent it is based on CALJIC 2.71, rather than CALJIC 2.71.5. However, under Carter, it no longer can be based on CALJIC 2.71.5.
2. As Applied To Evidence Of Alleged Adoptive Admissions
As well as being legal common sense, the point in this section follows this Court’s opinions in People v. Fauber, supra, 2 Cal.4th at p. 853, People v. Bemis, supra, 33 Cal.2d at pp. 398-399, as well as People v. Pensinger (1991) 52 Cal.3d 1210, 1268-1269 and Court of Appeal opinions, none of which are contradicted by any other opinion: The cautionary admissions instruction in CALJIC 2.71 applies to evidence of all forms of oral admissions. It thus applies to evidence of adoptive oral admissions of the defendant, as much as it does to evidence of direct oral admissions.
In light of this Court’s recent Carter opinion, appellant can no longer base any part of Argument X on the failure to give CALJIC 2.71.5. However, the discussion in Carter –pointing out this Court’s prior caselaw–also makes clear why Argument X may still be founded on the trial court’s failure to give CALJIC 2.71 (not 2.71.5) sua sponte, based on the various matters alleged by the prosecution to constitute adoptive admissions by appellant.
Indeed, the cautionary admission instruction in CALJIC 2.71 — and not anything dealing with CALJIC 2.71.5 — is what this Court actually discussed in the portion of in People v. Pensinger, supra, to which it briefly adverted in footnote 8 of Carter (30 Cal.4th at p. 1197, fn. 8). The sole issue addressed in this portion of Pensinger was “that the court’s failure to instruct the jury to view his admissions and adoptive admissions with caution was reversible error.” (Id., 52 Cal.3d at p. 1268; see also id. at p. 1269 [last sentence].) An instruction that admissions should be viewed with caution is part of CALJIC 2.71; it is found nowhere in CALJIC 2.71.5.
As appellant will discuss herein and consistent with other opinions of this Court and other courts, this Court got it right in Pensinger, as the People did in conceding the issue. (52 Cal.3d at p. 1268; see also People v. Jaspal (1991) 234 Cal.App.3d 1446, 1462.) Carter doesn’t purport to overrule, disapprove, or take any other negative action with respect to the cautionary admission discussion on CALJIC 2.71 in Pensinger. And as will be discussed later, the People’s concession in Pensinger merely echoes what this Court had held in Bemis and would later hold again in Fauber, and what Courts of Appeal had already held as well.
Appellant thus maintains that his Argument X is correct with respect to the trial court’s failure to give CALJIC 2.71 sua sponte, as to all evidence of purported admissions by appellant, whether direct or adoptive in nature.
b. This Argument At Least Applies To Evidence Of Oral Statements By A Defendant Used As Evidence Of The Defendant Manifesting Assent To Statements Of A Third Party, And Thus As Evidence Of Oral Adoptive Admissions By The Defendant
In the alternative, and at the very least, Argument X applies to all evidence of purported adoptive admissions by appellant that rely on evidence of anything appellant said. Just as much as evidence of oral direct admissions, such evidence of a defendant orally making adoptive admissions is still “evidence of . . . an oral admission of the defendant.” Indeed, anything the defendant says which is used against him — even if it has no truth value and thus is not admitted as a hearsay exception — is considered an “admission” of the defendant, irrespective of whether a further context needs to be supplied. (See post, p. __, fn. __.) There would be no reasonable basis to hold these types of oral admissions different from any other on the subject discussed in this Part.
c. This Argument Also Applies To Evidence Of Any Oral Statement By A Third Party To Which The Defendant Was Claimed To Have Manifested Assent, And Thus As Evidence Of A Defendant’s Adoptive Admission Of The Third Party’s Oral Statements
However, as appellant also argues, there is no basis for so limiting the applicability of CALJIC 2.71. The instruction applies as much to evidence of oral statements by a third party, to which the defendant allegedly manifests assent by acts which may be either nonverbal or verbal. Because such evidence is intended to show the defendant manifested his assent to the third party’s statement, thus “adopting” that statement as his own, the third party’s statement — as adopted by the defendant — becomes the defendant’s own admission. (See discussion post, pp. __.)
In California, admissions and adoptive admissions are hearsay exceptions, under Evidence Code §§ 1220 and 1221.) Those statutes are construed harmoniously because they were enacted in the same act (the 1965 Evidence Code) and concern the same subject matter, and thus are in pari materia. (City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 468; Estate of Stevens (1945) 27 Cal.2d 108, 118-119; Uhl v. Badaracco (1926) 199 Cal. 270, 282.) That they are contained in statutes on the same subject immediately next to each other in the same code further shows a strong connection, and requirement of harmonious construction, between them. (See, e.g., People v. Godlewski (1943) 22 Cal.2d 677, 680-681; In re Petraeus (1939) 12 Cal.2d 579, 582; see also City of Huntington Beach v. Board of Administration, supra, 4 Cal.4th at p. 468.) (They are also immediately next to each other within the same rule in the Federal Rules of Evidence [Fed. R. Evid. 801, subds. (d)(2)(A) and (B)].)
As the name suggests, an “adoptive admission” is still a form of admission. “The analytical basis for this [hearsay] exception is that the adopting party makes the statement his own by admitting its truth. The statement or conduct of the adopting party thus expresses the same statement made by the declarant.” (People v. Castille (2003) 108 Cal.App.4th 469, 479 [underscoring added]; accord, e.g., People v. Hayes (1999) 21 Cal.4th 1211, 1257-1258; Durbin v. K-K-M Corp. (1974) 54 Mich.App. 38, 50 [220 N.W.2d 110, 117].) “[O]nce the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions . . . .” (People v. Turner (1994) 8 Cal.4th 137, 190 [italics in original].) An express adoptive admission might be, for example, express agreement with what an accuser or other third party said. (People v. Castille, supra, 108 Cal.App.4th at p. 480.) An implied adoptive admission might be, for example, a defendant’s silence in the face of an accusation during a voluntary conversation; the silence-qua-adoptive admission turns the accusations against the defendant into “his statements.” (People v. Trotter (1984) 160 Cal.App.3d 1217, 1225 [italics omitted].) All of the above concords with the relevant definition of the word “adopt,” which is “[t]o make that one’s own (property or act) which was not so originally.” (Black’s Law Dictionary (6th ed. 1991), p. 49.)
In other words, as the above shows, both the law and the policy rationale underlying “adoptive admissions” of a defendant is that they are the admissions of the defendant. (See also, e.g., People v. Castille, supra, 108 Cal.App.4th at pp. 479-480 [adoptive admissions of the defendant satisfy Confrontation Clause requirements for hearsay exceptions in the same manner as admissions of the defendant, for the reason that adoptive admissions of the defendant are admissions of the defendant].) They are thus as much subject to CALJIC 2.71 as any other admission.
In cases where the evidence is not conclusive that a defendant made a statement which is offered as evidence of an oral admission, CALJIC 2.71 is a “principle of law commonly or closely and openly connected with the facts of the case,” the basis of a sua sponte instructional requirement. (People v. Beyea (1974) 38 Cal.App.3d 176, 199-200; People v. Stewart (1973) 34 Cal.App.3d 244, 249; People v. Henry, supra, 22 Cal.App.3d at pp. 957-958.) As discussed above, the cautionary admission instruction is required sua sponte in such cases.
However, a cautionary admissions instruction is not required–or even properly given–merely because the defendant has made an oral admission. “[T]he cautionary instruction [CALJIC 2.71] is intended to help the jury to determine whether the statement attributed to the defendant was in fact made. . . .” (People v. Pensinger, supra, 52 Cal.3d at p. 1268.) For that reason, although the instruction refers generically to “oral admissions of a defendant,” the instructional requirement doesn’t apply to all such oral admissions. For example, it doesn’t apply to evidence of a defendant’s admissions which is taped and played to the jury (People v. Slaughter, supra, 27 Cal.4th at p. 1200), or which the defendant admits making (People v. Sanderson (1961) 190 Cal.App.2d 720, 722-723). In these situations, there is no reasonable dispute on whether “the statement was in fact made,” so the cautionary instruction is not required sua sponte, or at all.
Conversely, however, the concerns over “whether the statement attributed to the defendant was in fact made” apply as much, or more, to evidence of oral adoptive admissions as they do to evidence of oral direct admissions. Those concerns, as expressed in cases such as Bemis and Smellie quoted above, are: (i) Well-meaning witnesses might easily err on any portion of what was said, in a way that changes its meaning; (ii) Less scrupulous witnesses can easily take advantage of the fact that the alleged admission is unrecorded; and (iii) Both are dangerous situations, because with either, it is often true that either no one or only the defendant–whose evidence often is dismissed as biased, or who might not testify–would be in a position to contradict the allegation at trial. All of these considerations were applicable to appellant’s Argument X, which deals with competency trial evidence of several claimed admissions by appellant in the presence of only one other person. Consideration (iii) was even more pronounced here than in a typical criminal case; for here, the hearing was on the issue of whether appellant was competent to assist in his own criminal trial, which derivatively presented a real-life question of whether he was competent to contradict evidence of the alleged oral admissions in the hearing.
(This last consideration is also a further reason why the People erred in their Respondent’s Brief in claiming that a court’s obligation to give CALJIC 2.71 sua sponte in trials in criminal cases (other than capital penalty phases) does not apply to trials of a person’s competency in a criminal case. (See ARB 103-108.))
In fact, the above considerations [(i)-(iii)] apply with even greater force to adoptive admissions, as compared with direct admissions. By definition, within the context of types of admissions for which CALJIC 2.71 is mandatory (i.e., admissions that aren’t relied on by the defendant or recorded), evidence of an adoptive admission would require at least two separate pieces of evidence–evidence of either (a) two oral statements (one by a third party, and one by the defendant manifesting his adoption of it), or (b) one oral statement by the third party plus one nonverbal act of the defendant manifesting his assent to it.
In other words, such a witness giving evidence of a defendant’s adoptive admission generally must provide evidence of two separate acts. By contrast, such a witness giving evidence of a defendant’s direct admission usually must provide evidence of only one act, the admission itself. A witness who must provide evidence of two acts (evidence of adoptive admission) generally has twice as many opportunities to get the evidence wrong, as compared with a witness who must provide evidence of only one act (evidence of direct admission), and certainly has no fewer opportunities.
Consequently, the concerns this Court expressed in cases such as Bemis and Smellie, quoted above, apply with even greater force to evidence of adoptive admissions, as compared with evidence of direct admissions.
Furthermore, the phrase “oral admission,” as used in CALJIC 2.71, applies just as much to evidence of adoptive oral admissions as it does to evidence of direct oral admissions. As discussed above, the legal and policy rationale for our laws governing adoptive admissions is that they are exactly that–adoptive admissions, i.e., that the defendant by words or conduct adopts someone else’s statement as his own. (See ante, pp. ___.) Put a little differently, as it was phrased in this Court’s Pensinger opinion, evidence of admissions–whether direct or adoptive–is evidence of “statement[s] attributed to the defendant.” (People v. Pensinger, supra, 52 Cal.3d at p. 1268 [underscoring added]; see also, e.g., People v. Jaspal, supra, 234 Cal.App.3d at pp. 1462-1463 [use as adoptive admission attributes third-party declarant’s statement to the defendant]; People v. Lopez (1975) 47 Cal.App.3d 8, 12 [similar].)
When there is evidence the defendant orally said something which constituted an express or implied manifestation of assent to a statement by a third party, that is evidence of a defendant making an “oral statement” by which he adopts the third party’s statement “as his own”; i.e., by the defendant’s own “oral statement,” the third party’s statement is “attributed to” him as an admission. That constitutes evidence of an “oral statement” by the defendant as much as any other. Indeed, it is literally and directly evidence of an “oral statement” by the defendant; the statement merely requires the context of the third party’s statement to provide its full meaning, as is common with matters of evidence. Evidence of an oral statement need not have any truth value by itself (or at all) to be admitted against the defendant as an admission. (See, e.g., cases cited in footnote , p. ___, ante.)
The above by itself establishes appellant’s alternative argument (see ante, p. ___ [subsection (b)]).
Moreover, based on the authorities above, the full argument (see ante, p. ___ [subsection (c)] necessarily follows. When there is evidence a third party made an oral statement to which the defendant manifested assent in any form, that too is evidence of a defendant adopting the third party’s oral statement as his own, i.e., that the oral statement is attributed to the defendant. (See ante, pp. ___, and authorities cited.) Evidence of a defendant making someone else’s oral statement “his own” is evidence of an “oral statement” of the defendant, as much as evidence of any other statement of the defendant. CALJIC 2.71 thus applies on its face.
Given all of this, it would be an irrational distinction, in violation of common sense as well as the federal and state due process and equal protection clauses, to devise an arbitrary rule that the principles of CALJIC No. 2.71 require sua sponte instruction as to evidence of oral direct admissions, but not as to evidence of oral adoptive admissions. Nor does CALJIC 2.71 make such a distinction. Nor has this Court ever made such a distinction, in Carter or anywhere else. Carter‘s footnote 8 referred merely to what this Court suggested in Pensinger about CALJIC 2.71.5. That isn’t at issue here.
However, what this Court suggested in Pensinger about CALJIC 2.71–with no decimal after–is correct, and is what appellant argues here.
The relevant discussion in Pensinger began: “Defendant maintains that the [trial] court’s failure to instruct the jury to view his admissions and adoptive admissions with caution was reversible error. (See CALJIC Nos. 2.71 & 2.71.5.)” (52 Cal.3d at p. 1268.) That reference to CALJIC 2.71.5 was inaccurate, because no part of CALJIC 2.71.5 is relevant to an argument on “failure to instruct the jury to view adoptive admissions with caution.” This Court was correct when it said in Carter: “[O]ur opinion [in Pensinger] spoke only of an obligation to instruct the jury to view a defendant’s admission with caution.” (Carter, 30 Cal.4th at p. 1197, fn. 8.) That obligation is not in CALJIC 2.71.5; it is only in CALJIC 2.71.
This Court has held that CALJIC 2.71 applies to adoptive admissions as much as to any other form. In People v. Fauber, supra, the witness testified that she overheard two men and the defendant talking together about “getting rid of the body,” finding a half-gram of cocaine on the body, and “getting rid of [the victim’s] bicycle,” all of which referred to the murder for which the defendant was being tried. However, the witness couldn’t tell who said what, so it was entirely possible that the defendant never said anything; however, he was involved in the conversation, and he didn’t protest, refuse to participate, or claim lack of knowledge. Under those circumstances, the witness’s testimony was — at most — evidence of adoptive admissions by the defendant, based solely on oral statements by his alleged cohorts plus the defendant’s silence.
In rejecting the defendant’s arguments in Fauber, this Court held: “[T]he [trial] court appropriately instructed the jury on adoptive admissions, warning it to view them with caution.” (Id., 2 Cal.4th at p. 853 [underscoring added].) In a footnote to that holding, this Court approvingly quoted the trial court’s instruction, which was basically CALJIC 2.71 (not 2.71.5) with the words “adopt[ive] admission” used in place of “admission.” (2 Cal.4th at p. 853, fn. 21.)
The reason the instruction was appropriate in Fauber is the same reason CALJIC 2.71 must be given sua sponte when evidence is admitted of oral admissions by the defendant–it assisted the jury “in determining if the statement was in fact made.” (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) It made no difference for those purposes whether the witness was testifying that Fauber made one of the highly inculpatory statements in question, or that the others made the statements but Fauber manifested his assent–i.e., adopted the statements as “his own” (see ante, pp. ___)–by willingly participating in the conversation. The legal system’s concerns over evidence of oral admissions (see ante, pp. ___) would have been at least equally applicable either way (and in fact, would have been even more applicable for evidence of alleged adoptive admissions, see ante, p.___ ).
In other words, what mattered wasn’t whether the witness testified she could or couldn’t specifically identify the things Fauber said in the conversation. What mattered was that the oral contents of entire conversation, plus Fauber’s willing participation, was being offered as an admission against Fauber. Whatever the form of admission, the underlying policy concerns, and the legally mandated results, are the same.
In such circumstances, the cautionary instruction would have been just as much a “general principle of law openly and closely connected with the evidence” for evidence of oral adoptive admissions, as it would be for evidence of oral direct admissions.
That is also what the Court of Appeal held in People v. Henry, supra, another case where the evidence of admissions was limited to evidence of adoptive admissions. (See id., 22 Cal.App.3d at pp. 955-958 [evidence that defendant admitted owning jacket in which marijuana packet was found, and that his denial of owning the packet was not direct].) It is also what the Court of Appeal held in People v. Beyea, supra, another case where the evidence of admissions (as to Beyea) was limited to evidence of adoptive admissions. (See id., 22 Cal.App.3d at pp. 187, 199-200 & fn. 9 [evidence of Beyea participating in co-defendant’s Gilbert’s statements indicating that Gilbert could kill decedent].)
Finally, it is what this Court held in People v. Bemis, supra, 33 Cal.2d 395. In Bemis, this Court first rejected Hudson’s argument that the trial court erred in failing to give an instruction that accomplice testimony is to be viewed with caution, because the officer’s testimony of what was said by the alleged accomplice (Bemis) was admissible only to the extent Hudson admitted their truth. (Id. at p. 398.) However, this meant that such testimony by the officer was evidence of adoptive admissions by Hudson. (Id.) Consequently, this Court held the trial court committed reversible error by not giving the cautionary admission instruction sua sponte, for the reasons appellant has discussed herein. (Id. at pp. 398-400.)
For all the reasons above, notwithstanding this Court’s recent Carter opinion which doesn’t speak to the issue, appellant’s Argument X applies equally to all evidence of oral admissions of the defendant, whether evidence of direct oral admissions, or evidence of adoptive oral admissions.