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Akers v. Miller12/28/1998
mmatory." (Italics added.)
Furthermore, we have reviewed the excluded autopsy photographs in the context of the evidence and testimony adduced at trial. The error (if any) was harmless because it is not reasonably probable a jury that maintained its objectivity would have reached a different result had the photographs been admitted. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516; Evid. Code, § 354; Cal. Const., art. VI, § 13.) The trial turned on whether the bedsore was irremediable. As one defense doctor testified, "My opinion is that, given this entire complex of her chronic illnesse[s,] her debilitated state, which we've gone over, her bedridden state, her ulcers in my opinion could not be healed."
The jury heard conflicting expert evidence on this issue, and decided for the defense. The admission or rejection of the autopsy photographs would not have made any difference. There was no miscarriage of Justice.
III.
Akers argues more relaxed rules of admissibility should apply in elder abuse cases because, as the Legislature has declared, "few civil cases are brought in connection with this abuse due to problems of proof . . . ." (Welf. & Inst. Code, § 15600, subd. (h).) Yet the same legislation adopted a higher standard of fault (recklessness) and a heavier burden of proof (clear and convincing evidence) before enhanced damages like attorney fees may be imposed. Ultimately, as one court concluded, " he statutes in issue here . . . do not make a `substantial change in this state's traditional tort law doctrine ' . . . ." (ARA Living Centers - Pacific, Inc., supra, 18 Cal.App.4th at p. 1561.)
In short, we do not find any legislative intent to reduce the trial court's discretion under Evidence Code section 352 to admit or exclude evidence based on its probative value and prejudicial effect.
Judgment affirmed. Costs on appeal are awarded to defendant.
CROSBY, ACTING P.J.
WE CONCUR:
RYLAARSDAM, J.
BEDSWORTH, J.
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