Can the prosecution introduce opinion-based hearsay evidence in a sexual assault case?

Pursuant to section 1102, "[i]t is well established that, '[w]hen a defense witness, other than the defendant himself, has testified to the reputation of the accused, the prosecution may inquire of the witness whether he has heard of acts or conduct by the defendant inconsistent with the witness'[s] testimony.' [Citation.] So long as the People have a good faith belief that the acts or conduct about which they wish to inquire actually took place, they may so inquire. [Citation.]" (People v. Siripongs (1988) 45 Cal.3d 548, 578.) Thus, "[a] defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense." (People v. Tuggles (2009) 178 Cal.App.4th 1106, 1124.) "The prosecution may explore opinion-based hearsay by asking whether the witness has heard of statements at odds with the asserted good character or reputation. 'The rationale allowing the prosecution to ask such questions (in a "have you heard" form) is that they test the witness'[s] knowledge of the defendant's reputation.' [Citations.]" (Id. at p. 1125.)

"When the relevance of proffered evidence depends on the existence of a preliminary fact, the proponent of the evidence has the burden of producing evidence as to the existence of that preliminary fact. [Citation.]" (People v. Bacon (2010) 50 Cal.4th 1082, 1102; see 403, subd. (a)(1).) In such situations, "the proffered evidence is inadmissible unless the trial court determines it 'is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence.' [Citations.]" (People v. Tafoya (2007) 42 Cal.4th 147, 165.) In other words, "there [must] be sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than that it does not. [Citation.]" (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) "We review a trial court's ruling on the sufficiency of the foundational evidence under an abuse of discretion standard. [Citation.]" (People v. Tafoya, supra, at p. 165.) "A ruling

Page 56

on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. [Citation.]" (People v. Kaurish (1990) 52 Cal.3d 648, 693.)