Chapter 8 - §2. Presumptions

• Jurisdiction: United States

§2. Presumptions

§2.1. Overview. A presumption is a procedural device by which the existence of one fact (the presumed fact) is assumed from evidence of the existence of another fact or group of facts (the predicate fact or group of facts). See Evid. C. §600; Presumption, Black's Law Dictionary (11th ed. 2019). Stated differently, a presumption is a conclusion that the law requires or allows the fact-finder to draw, unless rebutted, when some other fact is proved or established. See Evid. C. §601. A presumption is not evidence. Evid. C. §600(a); People v. McCall (2004) 32 Cal.4th 175, 182; Johnson & Johnson v. Superior Ct. (1985) 38 Cal.3d 243, 255 n.8; People v. Brock (1st Dist.2006) 143 Cal.App.4th 1266, 1280; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1084.

§2.2. Types of presumptions. The California Evidence Code recognizes two types of presumptions: conclusive presumptions and rebuttable presumptions. Evid. C. §601. When a presumption is created by statute, it is rebuttable unless otherwise specified by the Legislature. People v. Dubon (2d Dist.2001) 90 Cal.App.4th 944, 952; see Alvarez v. Seaside Transp. Servs. (2d Dist.2017) 13 Cal.App.5th 635, 642; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1085.

1. Conclusive presumptions. Conclusive presumptions are presumptions that cannot be rebutted by an adverse party as a matter of overriding social policy; they require the fact-finder to find the existence of the presumed fact from the existence of the predicate fact or group of facts, regardless of any evidence to the contrary. See Evid. C. §620; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1085. Conclusive presumptions include statutes that state that a fact either "shall be conclusively presumed" or "shall be deemed" to exist. See People v. McCall (2004) 32 Cal.4th 175, 186, 188; People v. Taylor (2d Dist.2018) 19 Cal.App.5th 1195, 1200 n.2; see, e.g., Pen. C. §1016 (D who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at time of offense), §16840 (firearm shall be deemed to have been loaded in certain situations).

2. Rebuttable presumptions. Rebuttable presumptions are presumptions that can be rebutted. See Evid. C. §601. A statute providing that a fact or group of facts is prima facie evidence of another fact creates a rebuttable presumption. Evid. C. §602; Applied Materials v. Workers' Comp. Appeals Bd. (6th Dist.2021) 64 Cal.App.5th 1042, 1095. Rebuttable presumptions can be either permissive presumptions (referred to as inferences by the California Evidence Code) or mandatory presumptions. See Evid. C. §600.

(1) Permissive presumptions or inferences. Permissive presumptions, often referred to as inferences, are deductions of fact that may logically and reasonably be drawn if a predicate fact or group of facts are found or otherwise established. See Evid. C. §600(b); McCall, 32 Cal.4th at 182-83; People v. Massie (3d Dist.2006) 142 Cal. App.4th 365, 373-74. These presumptions must be drawn from evidence and cannot be based solely on suspicion, speculation, or conjecture. People v. Davis (2013) 57 Cal.4th 353, 360; People v. Johnson (4th Dist.2019) 32 Cal.App.5th 26, 58; see People v. Bell (5th Dist.2020) 47 Cal.App.5th 153, 180 (speculation is insufficient basis for inference of fact). In other words, a permissive presumption (or inference) allows a fact-finder to infer the presumed fact from proof of the predicate fact or group of facts without requiring the party against whom the presumption operates to disprove that presumption. See People v. Roder (1983) 33 Cal.3d 491, 497-98; see, e.g., In re S.O. (4th Dist.2020) 48 Cal.App.5th 781, 790 (failure by probation officer to object to recommendation by Children and Family Services to dismiss dependency jurisdiction supported reasonable inference that probation department concurred with recommendation).

(2) Mandatory presumptions. Mandatory presumptions are assumptions of fact required by law to be made if a predicate fact or group of facts are found or otherwise established. See Evid. C. §600(a); McCall, 32 Cal.4th at 182. In other words, a mandatory presumption is a conclusion that must be drawn if the predicate facts are established and not rebutted—that is, unless the adverse party comes forward with some evidence to rebut the presumed connection between the presumed fact and the predicate facts. See McCall, 32 Cal.4th at 182; Roder, 33 Cal.3d at 497-98; People v. Walker (1st Dist.2021) 64 Cal.App.5th 27, 33 n.8; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1084. Mandatory presumptions are generally prohibited in criminal cases. See "Mandatory presumptions prohibited," ch. 8, §2.4.2.

§2.3. Effect of presumptions.

1. Conclusive presumptions. Because a conclusive presumption cannot be rebutted, it is not a presumption at all but is instead classified as a substantive rule of law. See Michael H. v. Gerald D. (1989) 491 U.S. 110, 119; People v. McCall (2004) 32 Cal.4th 175, 185; People v. Dillon (1983) 34 Cal.3d 441, 474; People v. Laughlin (5th Dist.2006) 137 Cal. App.4th 1020, 1025-26; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1093. In criminal cases, a rule of substantive law defines in precise terms conduct that establishes an element of an offense as a matter of law. See Laughlin, 137 Cal. App.4th at 1026.

2. Rebuttable presumptions. The California Evidence Code classifies all rebuttable presumptions as either (1) presumptions affecting the burden of proof or (2) presumptions affecting the burden of production. Evid. C. §601. While most rebuttable presumptions specify whether they affect the burden of proof or the burden of production, courts must determine which burden the presumption affects if the statute or decisional law is silent on the matter or a question arises about its application. To determine which burden is affected, the courts consider the purpose of the presumption and then apply the proper effect.

(1) Affecting burden of proof.

(a) Generally. Presumptions affecting burdens of proof are established to implement a public policy other than merely facilitating the determination of the particular action, such as the policies in favor of establishing a parent-child relationship, the validity of a marriage, the stability of property titles, or the security of those who entrust themselves or their property to the administration of others. Evid. C. §605; see 7 Cal. Law Revision Comm'n Rep. (1965) p. 1090. These presumptions impose the burden of proof about the nonexistence of a presumed fact on the party against whom the presumption operates. Evid. C. §606; Barriga v. 99 Cents Only Stores (4th Dist.2020) 51 Cal.App.5th 299, 334. This means that, once predicate facts giving rise to a presumption are established, the burden shifts to the party against whom the presumption operates to establish that the presumption does not apply. See Evid. C. §606; Carrasco v. State Pers. Bd. (4th Dist.2021) 70 Cal.App.5th 117, 135; Gerwig v. Gordon (4th Dist.2021) 61 Cal. App.5th 59, 66; Delgado v. California Dept. of Motor Vehicles (1st Dist.2020) 50 Cal.App.5th 572, 577; People v. Solorio (4th Dist.2017) 17 Cal.App.5th 398, 409.

(b) Official-duty presumption. The presumption that an official duty is regularly performed, found in Evid. C. §664, is often applicable in criminal cases. For instance, the prosecution bears the burden of proving any enhancements that would increase a defendant's sentencing range beyond what is allowed for the crime...