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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Danny DUARTE, Defendant and Appellant.

No. B104672.

Decided: January 13, 1998

Maureen DeMaio, under appointment by the Court of Appeal, Santa Barbara, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert Carl Schneider, Peggie J. Bradford, Deputy Attorneys General, for Plaintiff and Respondent.

Danny Duarte appeals from a judgment following conviction by jury of shooting at an inhabited dwelling (Pen.Code, § 246),1 assault with a firearm (§ 245, subd. (a)(2)), and conspiracy to shoot at an inhabited dwelling (§§ 182, subd. (a)(1), 246).   He was also found to have personally used a firearm. (§ 12022.5, subd. (a)(1).)   The trial court sentenced him to state prison for a total of nine years.   Appellant contends that the introduction of a codefendant accomplice's confession violated his constitutional rights to confrontation, even though the statement was redacted to exclude reference to anyone other than the declarant and the codefendant was tried separately.   We hold that the confrontation clause is violated when hearsay statements of a codefendant which implicate the defendant are admitted against the defendant as evidence of his guilt, and reverse.


At approximately 10:30 p.m.   on the evening of October 18, 1994, Leslie Sullivan was working in her Newbury Park home.   Her two young children were asleep.   Suddenly, a barrage of bullets hit the house.   As Ms. Sullivan was running toward her children's room, she was struck in the upper thigh with a bullet which was apparently fired from an assault rifle.   Ms. Sullivan called the police, and was transported to the hospital.   Ventura County Sheriff's deputies recovered numerous shell casings and spent rounds from a 9 millimeter weapon and a 7.62 millimeter assault rifle from the front of the residence.

Search warrants were eventually served at the residences of Eran Knox, William Morris and appellant.   At appellant's residence, officers located a .22 caliber revolver, a 12-gauge shotgun, various caliber ammunition, gun cleaning kits, photographs of handguns.   None of the firearms or ammunition matched those used on the attack on the Sullivan home.   Appellant refused to talk to the officers and he was arrested.

No evidence was recovered at Knox's residence, but he was handcuffed and transported to the police station to be interviewed.   There, he told the officers that on October 18, 1994, he, Morris and appellant went to Newbury Park where they met several friends, smoked marijuana and drank rum.   Appellant suggested that the group shoot at the residence of Tam Nguyen in retaliation for a shooting several months earlier.   Knox and Morris initially refused to go, but appellant eventually persuaded Morris to join him.   They left in Morris's car, joined by Gilberto Lopez.   Knox stayed behind.   A short time later, Knox heard gunshots and telephoned his brothers to pick him up at the park.   As he was waiting for his ride, he saw appellant, Morris and Lopez return.   Knox said that he had previously seen a Tec-9 and an SKS automatic rifle at appellant's house, along with ammunition for both weapons.

At Morris's residence, officers recovered ammunition for a 9 millimeter weapon and a 7.62 millimeter weapon and paraphernalia for an SKS assault rifle.   Several 7.62 millimeter casings found in Morris's backpack were made the same year and by the same manufacturer as those found outside the Sullivan residence.   Morris was arrested, waived his Miranda rights(Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and spoke to the officers.   During the interview, he incriminated himself and appellant, and said that after hearing news accounts of the shooting, they realized they had shot at the wrong house.

Appellant and Morris were charged together in the information but were tried separately.   Morris was convicted at his trial.   Appellant's first trial ended in a mistrial after the jury was unable to reach a verdict.   Apparently, several jurors were concerned about the reliability of Knox's testimony, which was impeached by the defense with his prior inconsistent statements.

After establishing that Morris was unavailable to testify at appellant's second trial, the prosecution was permitted, over defense objection, to introduce the inculpatory statement provided by Morris, which was generally consistent with Knox's version of the events on October 18, 1994.   The trial court ruled the statement-redacted to omit any reference to the names of Morris's companions and all pronouns-was admissible as a declaration against Morris's penal interest, relevant to corroborate Knox's testimony.   The statement was admitted and appellant was convicted.


 When one of several codefendants has confessed to a crime and implicates another defendant, admission of that confession against the silent defendant implicates that defendant's constitutional right to be confronted with and cross-examine the witnesses against him.  (People v. Fletcher (1996) 13 Cal.4th 451, 455, 53 Cal.Rptr.2d 572, 917 P.2d 187.)

In a joint trial of the two defendants, the confession may be admitted if the declarant testifies and is subject to cross-examination.  (Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476;  People v. Boyd (1990) 222 Cal.App.3d 541, 562, 271 Cal.Rptr. 738.)   But in a joint trial where the declarant does not testify, his confession is only admissible if the court excises any reference to the other defendant and instructs the jury that it may consider the confession only against the confessing defendant.   (People v. Fletcher, supra, 13 Cal.4th at pp. 455, 467, 53 Cal.Rptr.2d 572, 917 P.2d 187;  Richardson v. Marsh (1987) 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176.)   In other words, if Duarte and Morris had been tried together, Morris's statement might have been admissible against him, but only after all references to Duarte were redacted.   The jury would also have to be instructed not to consider the evidence against Duarte.

The issue presented here is whether the redaction procedure alone provides adequate constitutional protection to the nondeclaring defendant when he is tried separately and the confession of the codefendant is introduced without an opportunity for cross-examination and without a limiting instruction.   It is not.

Respondent contends that Morris's statements were admissible pursuant to the statutory exception to the hearsay rule for declarations against penal interest (Evid.Code, § 1230), and it necessarily follows that no constitutional violation occurred.   That argument ignores long-standing concerns about the reliability of post-arrest statements of a codefendant.   These concerns have prevailed since the inception of the confrontation clause, and the propriety of admission of such statements must be determined on a case-by-case basis.  (People v. Fletcher, supra, 13 Cal.4th at pp. 465-467, 53 Cal.Rptr.2d 572, 917 P.2d 187;  Dutton v. Evans (1970) 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213.)

Although hearsay is generally prohibited at trial (Evid.Code, § 1200), Evidence Code section 1230 provides that “a statement ․ is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ․ so far subjected him to the risk of ․ criminal liability ․ that a reasonable man in his position would not have made the statement unless he believed it to be true.”   The proponent of such a statement must establish that the declarant is unavailable, that the statement is against his penal interest, “and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.”   (People v. Cudjo (1993) 6 Cal.4th 585, 607, 25 Cal.Rptr.2d 390, 863 P.2d 635.)

“A trial court determining whether the proffered evidence is sufficiently reliable ‘ “may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.” ’  [Citation.]”  (People v. Lucas (1995) 12 Cal.4th 415, 462, 48 Cal.Rptr.2d 525, 907 P.2d 373.)

Here, Morris made his statement after he had been arrested for the shooting, and he had a significant incentive to cooperate with the police.   He also had incentive to shift the responsibility for the crime to another, or at least to share culpability.   The dissent justifies admission of the statement on the basis that “people do not admit to crimes that they have not committed.”   Not so.   When thieves fall out, one may well try to fasten guilt on the other while trying to minimize his own culpability.   Such statements, while inculpatory, have sufficient exculpatory character to render them inadmissible as declarations against interest.  (People v. Coble (1976) 65 Cal.App.3d 187, 191-192, 135 Cal.Rptr. 199;  People v. Campa (1984) 36 Cal.3d 870, 885, 206 Cal.Rptr. 114, 686 P.2d 634;  People v. Leach (1975) 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296.)   A person in Morris's position might well have made untrue statements to the police.   The statement does not satisfy the reliability requirement of Evidence Code section 1230.  (See U.S. v. Beydler (9th Cir.1997) 120 F.3d 985, 988.)

 Even if the statement was otherwise reliable, our inquiry does not end there.   We must determine whether the statement satisfies the confrontation clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment.  (Pointer v. Texas (1965) 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-1069, 13 L.Ed.2d 923, 925-927.)   Although hearsay rules and the confrontation clause are generally designed to protect similar values and “stem from the same roots” (Dutton v. Evans, supra, 400 U.S. at p. 86, 91 S.Ct. at p. 218, fn. omitted), they do not converge, and a statement admissible under an exception to the hearsay rule may be prohibited from introduction into evidence by the confrontation clause.  (People v. Rios (1985) 163 Cal.App.3d 852, 863, 210 Cal.Rptr. 271;  Ohio v. Roberts (1980) 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597.)

 Respondent contends that the hearsay exception for declarations against penal interest rests on “such solid foundations that admission of virtually any evidence within [it] comports with the ‘substance of the constitutional protection.’ ”  (Ohio v. Roberts, supra, 448 U.S. at p. 66, 100 S.Ct. at p. 2539.)   If a proffered statement falls within such a “firmly rooted exception” to the hearsay rule, reliability may be inferred and the confrontation clause is satisfied.  (White v. Illinois (1992) 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848.)

Respondent relies upon People v. Wilson (1993) 17 Cal.App.4th 271, 21 Cal.Rptr.2d 420.   There, the defendant challenged admission of hearsay statements made by his wife to two police detectives, repeating incriminating statements he made to her on the telephone from jail.   When the wife refused to testify at trial, the court admitted her statements to the police as a declaration against her penal interest because she admitted disposing of a weapon and therefore incriminated herself as an accessory after the fact.   (Id., at pp. 274, 275, 21 Cal.Rptr.2d 420.)

The Court of Appeal agreed and rejected the defendant's contention that admission of the statements violated his constitutional rights to confrontation, finding that the statements were inherently reliable, satisfying both the statutory and constitutional requirements.  (People v. Wilson, supra, 17 Cal.App.4th at pp. 277-278, 21 Cal.Rptr.2d 420.)   We agree with the Court of Appeal's general discussion about the hearsay exception for declarations against interest.   We also agree that the wife's statements were sufficiently trustworthy to satisfy the concerns of the confrontation clause.   She had not been arrested, was not an accomplice of her husband's crimes, and had no reason to exculpate herself at her husband's expense when she talked to the police.  (Id., at p. 276, 21 Cal.Rptr.2d 420.)

 However, we disagree with Wilson to the extent it holds that Evidence Code section 1230 is such a firmly rooted exception to the hearsay rule that no confrontation clause analysis is ever required for any statement that falls within its ambit.   For that holding, the Wilson court cites only to 1 Witkin, California Evidence (3d ed.   1986) The Hearsay Rule, section 688, page 675, and “sources cited therein.”   But neither Witkin nor the cited cases support such a rule.2  Because the statement admitted in Wilson was not of a codefendant, the Court of Appeal never discussed any of the issues presented when a confessing codefendant implicates a nonconfessing codefendant.  (See People v. Fletcher, supra, 13 Cal.4th 451, 53 Cal.Rptr.2d 572, 917 P.2d 187.)   But where the prosecutor seeks to admit post-arrest statements of a codefendant, the constitutional issues must be addressed.

Statements of a codefendant have traditionally been viewed with suspicion, and the “truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination.”   (Lee v. Illinois (1986) 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514, 526;  Bruton v. United States, supra, 391 U.S. 123, 88 S.Ct. 1620.)

 Here, the trial court attempted to protect the defendant's confrontation rights by following the redaction and instruction procedure prescribed in People v. Fletcher, supra, 13 Cal.4th 451, 53 Cal.Rptr.2d 572, 917 P.2d 187, and Richardson v. Marsh, supra, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176, and carefully omitted any reference to appellant in Morris's statements.   Because the jury was explicitly asked to consider that evidence against appellant (as opposed to being instructed not to consider it), however, the redaction was meaningless.   An instruction advising the jury not to consider the statement against appellant would have been absurd because the statement was admitted for the sole purpose of doing that which has always been prohibited and which the redaction procedure was designed to protect against-incriminate the nondeclaring defendant.   Morris's statement provided the bulk of the prosecution's case against appellant.   His implication of appellant, made when he had great incentive to cooperate with the police to minimize his own punitive consequences, was self-serving and unreliable.   Admission of Morris's statement in any form was error as violation of the confrontation clause.

 We cannot say that this error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)   Without Morris's unchallenged statements, the prosecution's case against appellant was weak.   No physical evidence tied appellant to the Sullivan residence and he made no incriminating statements.   Appellant's roommate testified that he heard appellant at his residence near the time of the shooting.   He also testified that although he had lived with appellant for more than two years, he had never seen an SKS assault weapon in the house.   The only evidence directly implicating appellant was the testimony of Knox, who was impeached in many aspects of his testimony and who, the prosecutor conceded, required corroboration.   In light of those inconsistencies, and Knox's incentive to place blame on someone else, it is impossible to speculate about the degree to which his testimony was improperly corroborated by Morris's statement.

The judgment is reversed.

I respectfully dissent.   We are not writing on a clean slate.   I agree with the opinions in People v. Wilson (1993) 17 Cal.App.4th 271, 275-278, 21 Cal.Rptr.2d 420 and People v. Greenberger (1997) 58 Cal.App.4th 298, 326-336, 68 Cal.Rptr.2d 61, which rely upon United States Supreme Court precedents.   The majority disagree with these two opinions, but also purport to distinguish them factually.  (Maj. opinion at pp. 736-737.)   In my view, William Morris' statements were trustworthy and were properly admitted into evidence.   This did not violate appellant's right to confrontation as construed by decisonal law.

Even if the majority is correct that the Morris statements should not have been admitted, I cannot join in the decision to reverse.   In my view, this was not a weak case as indicated by the majority.  (Opinion, at p. 737.)   The testimony of Eran Knox was credited by the jury, and affords a sufficient basis for the conclusion that any error was harmless beyond a reasonable doubt.

William Morris agreed to participate in the shooting, was arrested, and after advice and waiver of his constitutional rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) confessed his participation in the shooting.   This was a declaration against penal interest and since he was unavailable at appellant's trial, his statements were properly admitted in the sound discretion of the trial court pursuant to Evidence Code section l 230.   Generally speaking, people do not admit to crimes that they have not committed.   There is no reason to believe, based on this record, that the statements were anything other than trustworthy.   The statements were redacted to state only Morris' participation in the shooting.

Here, there was an external measure of trustworthiness which the trial court properly considered.   Morris' statements were consistent with the statements provided by Eran Knox. It must be emphasized that Knox was also solicited to participate in the shooting and declined.   He testified as to the specific circumstances of the solicitation and conspiracy to do the shooting.   After he declined to participate, he heard the shots being fired.   After the shooting, he saw appellant, Morris, and another person return to where the shooting had been planned.   Appellant told Knox, “if he got caught, he'd take care of it.”

In reviewing whether or not a statement is trustworthy and thus admissible pursuant to Evidence Code section l230, we employ the abuse of discretion standard of review.  (People v. Gordon (1990) 50 Cal.3d 1223, 1250-1251, 270 Cal.Rptr. 451.)   I cannot say, as a matter of law that the trial court's finding of trustworthiness was erroneous as a matter of law.  “[T]he ‘particularized guarantees of trustworthiness' required for admission under the Confrontation Clause must ․ be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.”  (Idaho v. Wright (1990) 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638, 656.)

Since I am in agreement with People v. Wilson, supra, 17 Cal.App.4th 271, 21 Cal.Rptr.2d 420, and People v. Greenberger, supra, 58 Cal.App.4th 298, 68 Cal.Rptr.2d 61, there is no violation of the confrontation clause.   Where, as here, there is a sufficient guarantee “․ of reliability to come within a firmly rooted exception to the heresay rule [declaration against penal interest], the Confrontation Clause is satisfied.”  (White v. Illinois (1992) 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859.)   The majority do not adequately explain why the cited case law should not be followed.

The judgment should be affirmed.


1.   All statutory references are to this code unless otherwise stated.

2.   See also People v. Greenberger (1997) 58 Cal.App.4th 298, 329, 68 Cal.Rptr.2d 61, acknowledging the dispute about “whether the California hearsay exception for declarations against penal interest is firmly rooted,” but finding the dispute not to require resolution there.

STEVEN J. STONE, Presiding Justice.

COFFEE, J., concurs.