PEOPLE v. BAKER

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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Orlando BAKER et al., Defendants and Appellants.

A028296.

Decided: October 31, 1986

Kyle Gee, Henriksen & Gee, Oakland, Thomas A. Seaton, Berkeley, for defendants and appellants. John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellants Orlando Baker and David Lee Beams were each charged with two counts of forcible rape while acting in concert (counts 1, 4—Pen.Code, §§ 261, subd. (2), 264.1),1 two counts of forcible oral copulation while acting in concert (counts 2, 3—§ 288a), and one count of kidnapping (count 9—§ 207).   Baker was charged with two additional counts of forcible rape (counts 5, 7—§ 261, subd. (2)), two counts of forcible oral copulation (counts 6, 8—§ 288a), and one count of robbery (count 10—§ 211).   Baker and Beams were convicted, as charged, of the sex offenses and of the lesser included offense of false imprisonment on count 9.   Baker was convicted of the lesser included offense of grand theft from the person on count 10.   Baker was sentenced to state prison for fourteen years and eight months, and Beams was sentenced to state prison for five years.2  Timely notices of appeal were filed.

I. FACTS

During the summer of 1983, 17–year-old Leslie A. met appellant Orlando “Danny” Baker on a bus.   They exchanged telephone numbers and several months later, they agreed to date on November 3, 1983.   Although it was a school night, Leslie arranged for Baker to pick her up at 9 p.m., at her house in Burlingame.

When Baker arrived, he was accompanied by appellant David “Cowboy” Beams.   Because Beams also wanted a date, they drove around looking for one of Leslie's friends, but none were home.   They then stopped at a store in San Francisco and bought some beer and other items.

With Beams driving and Baker in the back seat with Leslie, the three then drove onto the freeway towards downtown San Francisco and the Bay Bridge.   When Leslie asked where they were going, Baker replied, “Bitch, you think I'm taking you out?”   He refused to take her home or let her out, telling her to “Shut up.”   Leslie started to cry.

In Oakland, the three stopped at a gas station so Leslie could go to the bathroom.   Baker warned her not to “try anything funny,” bragging that “they had killed cops before and that they would kill me and my family if I tried anything funny.”   Baker stood outside while Leslie visited the restroom.   She testified she did not ask for help from the station attendant because she was crying and scared.

Beams then drove up to the Oakland hills, parking on an isolated dirt road.   After awhile, Beams said, “Let's do some drug and stuff,” offering Leslie what he described as “speed ball,” a combination of heroin and cocaine.   Leslie snorted some of that, smoked marijuana, and had a beer.   She testified that she hoped the drugs and beer would calm her down and relax her.

When Leslie again had to go to the bathroom, Baker told Beams to get out of the car with her.   Afterwards, Leslie was reluctant to get back into the car, stating she wanted to go home.   But Baker got out of the car and tried to kiss and hug her.   She insisted on going home.   When Baker agreed to take her, Leslie got back into the car.   But Baker then ordered Beams to lock the car doors, telling Leslie “I ain't taking you no where.”   Baker threatened to kill Leslie and her family unless she cooperated, and ordered Beams to “get the gun.”   Scared, Leslie took off her pants.

Then, first Baker and thereafter Beams forced Leslie to orally copulate them.   Each, in turn, then had intercourse with her.   Each act took from 15 minutes to an hour and a half.   During that time, Baker and Beams made continual threats and Leslie repeatedly asked them to stop.

When they were finished, Baker said, “Let's go make some money.”   He told her, “You are going to be my hoe [sic ], bitch.” 3  They eventually went to an apartment.   Before entering, Baker slapped Leslie and ordered her to “act like you are my woman” and to call him “T-Daddy.”   Inside, she was introduced to two people called “Sue” and “Ronnie.” 4  The group shared cocaine before Leslie fell asleep.

When Leslie awoke at about 6:30 or 7 a.m., Baker let her go to the store with Sue.   Leslie testified she was so afraid of Sue and Baker that she made no attempt to escape at this time.

When Leslie returned to the apartment, Baker said “I want some more.”   They went into the bathroom, where Baker forced her to commit, alternatively, two more acts each of oral copulation and sexual intercourse.   When he was through, Baker left the bathroom and said to Beams, “It is your turn.”

Leslie begged Beams that he not molest her again.   He agreed and, instead, brought her a telephone and let her call her brother, Dale.   Frightened and crying, she at first told her brother she was in Oakland where two men had hurt her.   When Beams admonished her, however, she said to her brother, “I mean someone hurt my feelings.”   Beams then got on the phone and told Dale that Leslie was “all right” and would “be home.”   Dale assumed that “everything was okay.”

After she came out of the bathroom, Leslie saw Beams first with a handgun and then a sawed-off shotgun.   At some point, Beams looked at Leslie, twirled the guns “like in the cowboy movies” and said to her, “You think I'm playing around?”

Sometime that afternoon, Baker and Beams took Leslie to MacArthur Blvd., where Baker told her again, “You are going to hoe [sic ] for me.”   They let her out of the car, but stayed nearby as she walked along the street.   She rejected two propositions before going into a store to buy cigarettes and gum.   When she came out, appellants told her to give them all of her money.   They went through her pockets and took approximately $18 from her.   The three then returned to the apartment.

After awhile, Baker fell asleep.   Leslie went outside, and Beams followed her towards a neighborhood store.   Leslie asked Beams to let her go and then ran away.   Eventually, she walked into a bank and called the police.   When the police responded, Leslie reported what had happened, and then led the police back to the apartment where Baker and Beams were arrested.

II. DISCUSSION

A. Editing of Beams' Statement

Appellants contend that the trial court erred by admitting an edited version of a statement made by Beams to police after his arrest, in violation of People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.   In its original form, the statement gave a full account of the activities of both appellants while they were with Leslie.   Pursuant to Aranda, an attempt was made to delete all references to Baker from the statement so that, as edited, it would relate solely to Beams' involvement with Leslie.   Before it was read to the jury, the jury was admonished that the statement was “being admitted against the defendant, David Beams only” and could not be considered “in any way against the defendant Orlando Baker.”

In People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, it was held that when the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of three procedures:  (1) sever the trial;   (2) exclude the statement at a joint trial;  or (3) “It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant.”  (Id., at pp. 530–531, 47 Cal.Rptr. 353, 407 P.2d 265.)   The purpose of the Aranda rules is to protect the confrontation rights of the nondeclarant codefendant, by prohibiting the admission of incriminating statements which he cannot challenge through cross-examination.  (See People v. Epps (1973) 34 Cal.App.3d 146, 154–156, 109 Cal.Rptr. 733;  see also Bruton v. United States (1968) 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476.)

 Each appellant contends that the deletions that were made in Beams' statement were not “effective” in removing the prejudice against him, as set forth in Aranda.   As concerns Beams, the statement, as edited, suggested that any acts that may have occurred between Beams and Leslie were voluntary on her part.   Beams admitted his sexual involvement with her, but implied that no force was used and he denied threatening her.   In this circumstance, use of Beams' own statement against him did not violate any confrontation rights sought to be protected by Aranda, and his statement was clearly admissible against him as an admission.   He thus has no standing to complain of any Aranda error.

 Baker also complains the deletions were ineffective.   He contends that excluding direct references to him as the third party did not render the statement admissible.   In particular, he complains of several places where the edited statement by Beams used the plural “we,” rather than the singular “I.”   But within the context of the edited statement, Beams' use of “we” clearly referred to himself and Leslie, and did not directly inculpate Baker.

 Baker goes on to contend that those references as well as other portions of Beams' statement constituted indirect incriminating references to him in violation of Aranda.   He emphasizes comments by Beams that Leslie was scared and crying, that Beams never threatened her, and that Beams told Leslie he was probably the reason she was alive.   By implication, Baker argues, the statement as edited effectively turns Beams' statement into a condemnation of Baker.

We find no error occurred here.   In People v. Epps, supra, 34 Cal.App.3d 146, 157, 109 Cal.Rptr. 733, Division One of this court discussed the problem of a statement which, when combined with other evidence, could show involvement by a second person.  (See People v. Young (1978) 85 Cal.App.3d 594, 606, 149 Cal.Rptr. 524.)   The Epps court stated:  “None of the cases reviewed in this opinion suggest that it is Bruton or Aranda error to admit in evidence the admission or confession of one defendant, which reflects his commission of a crime that is revealed by the physical evidence, because it might reflect on the issue of whether or not a crime was actually committed by not only the declarant but also by another, whom evidence, other than the confession, links to the declarant's activities.   In fact Aranda suggests the contrary.   It suggests that if references to the participation of anyone else, whether directly or indirectly identified or not, are nonexistent, or are deleted, the trial may be joint, and the extrajudicial statement may be received as against the declarant (63 Cal.2d at p. 530 [47 Cal.Rptr. 353, 407 P.2d 265] ).”  (Id., at p. 157, 109 Cal.Rptr. 733;  accord, People v. Dominguez (1981) 121 Cal.App.3d 481, 506, 175 Cal.Rptr. 445;  People v. Cornejo (1979) 92 Cal.App.3d 637, 653, 155 Cal.Rptr. 238;  People v. Young, supra, 85 Cal.App.3d at pp. 606–607, 149 Cal.Rptr. 524;  People v. Manson (1976) 61 Cal.App.3d 102, 150–151, 132 Cal.Rptr. 265.)

Beams' statement here gives no indication that more than one person was criminally involved with Leslie.   The tie-in with appellant Baker was made by Leslie, Sue Howard and Roland Robinson, the other persons present at the apartment.   To paraphrase Presiding Justice White, writing for Division Three of this court:  “It is not [Beams'] statements, but the independent evidence, which implicates appellant [Baker].”  (See People v. Young, supra, 85 Cal.App.3d at p. 607, 132 Cal.Rptr. 265.)

Baker attempts to discount Epps, relying instead on People v. Fulks (1980) 110 Cal.App.3d 609, 168 Cal.Rptr. 203.   But Fulks is distinguishable on its facts.  (People v. Dominguez, supra, 121 Cal.App.3d at pp. 506–507, fn. 27, 175 Cal.Rptr. 445.)   In Fulks, the three defendants made separate statements, each of which was described by the court as a “hastily contrived fabrication.”  (People v. Fulks, supra, 110 Cal.App.3d at p. 617, 168 Cal.Rptr. 203.)   The Fulks court distinguished its situation from that in Epps:  “Here the statements were not offered for the purpose of being added to otherwise admissible evidence, but for the sole purpose of being improperly played off against each other so as to demonstrate the collective consciousness of guilt of the three defendants.   In effect, each of the declarants accused the other two of lying.   Since none of the three codefendants testified, none was afforded the constitutionally guaranteed opportunity to confront his accusers.”  (At p. 617, 168 Cal.Rptr. 203.)

Following Epps, Young and similar cases, we conclude there was no Aranda or Bruton error in this case.  “Because [Beams'] admission was edited to delete any explicit reference to anyone other than the declarant, [it was not] made inadmissible by reason of circumstantial implications that might be drawn by the jury.”  (People v. Manson, supra, 61 Cal.App.3d 102, 151, 132 Cal.Rptr. 265.)

B. Responses by Court to Jurors' Inquiries

 Baker also complains of statements made by the trial court in response to inquiries from the jury.   During the course of its deliberations, the jury asked several questions concerning the legal status of Beams' statement.   The next day, the jury asked questions about the editing process, and where deletions had been made.   The jury expressed difficulty in following the temporal context of Beams' statement without knowing where deletions had been made.   After consultations with counsel, the court, over objections by the defense, had the entire statement reread to the jury, noting where deletions had been made in the statement.   After the statement was reread, the trial court admonished:  “At this point, you realize this evidence that you asked to have reread and reread it applies to David Beams only?”   The jury foreperson responded, “Correct.”

Without passing on the wisdom of the trial court's full and frank disclosures regarding the editorial deletions required by Aranda, its comments were in direct response to specific and discerning inquiries by the jury.   There is no question that after the jury has retired for deliberation, if there is any disagreement between jurors as to the testimony, or if they desire to be informed on any point of law arising in the case, they are entitled to receive such information in open court.  (§ 1138.)   It would be highly improper to deny the jury this statutory right to have testimony read or further instructions given.  (Witkin, Cal.Criminal Procedure, § 519, pp. 529–530, citing People v. De La Roi (1944) 23 Cal.2d 692, 701, 146 P.2d 225.)   Although the court below might have exercised its discretion not to comment further on the statement, but simply have it reread, the comments it did make were accurate and not misleading.   Further, the court repeated its admonition that the statement which had been reread applied only to Beams, and the foreperson affirmatively indicated that that limitation was understood.   We conclude that no prejudicial error took place.

C. Compelled Production of Defense Interview Notes **

D. References to Witness as a “Working Girl” **

E. Exclusion of Portion of Beams' Statement to Police **

Judgments affirmed.

I concur fully in the opinion affirming the judgment of conviction as to David Beams;  I respectfully dissent, however, insofar as the opinion affirms the conviction of Orlando Baker.   In my view, responses of the trial court to jurors' inquiries concerning Beams' edited statement constituted prejudicial error under People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

The unmistakable rule of Aranda is that an extrajudicial statement of a defendant that inculpates a codefendant may be introduced into evidence at a joint trial only if “all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant.”  (People v. Aranda, supra, 63 Cal.2d at p. 530, 47 Cal.Rptr. 353, 407 P.2d 265.)   In Bruton v. United States, supra, 391 U.S. at pages 135–136, 88 S.Ct. at pages 1627–1628, the United States Supreme Court made clear that the admission of a defendant's extrajudicial statement implicating a codefendant violates the codefendant's Sixth Amendment right to confrontation even though the statement was for use against the declarant only.  (See also Roberts v. Russell (1968) 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 [Bruton principles are constitutionally compelled in state prosecutions as well].)

To determine when editing of such a statement is sufficient, the Aranda court suggested a case-by-case review dependent on evidence linking the defendants together before and after the crime, and on the actual statements made by the declarant defendant.  (Id., 63 Cal.2d at p. 530, fn. 10, 47 Cal.Rptr. 353, 407 P.2d 265.)   At a minimum, the deletions must remove “not only direct and indirect identifications of codefendants, but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established.”  (At p. 530, fn. omitted, 47 Cal.Rptr. 353, 407 P.2d 265.)

In the case at hand the trial court's attempt at editing does not come close to meeting the standards demanded in Aranda.   First the trial court acknowledged to the jurors that Beams' statement had been edited,1 and then went on to underline exactly how by spelling out that references to crimes committed in concert had not been removed, thereby linking Baker directly to the crimes described in the statement:  “THE COURT:  First place, you realize it was an edited statement.   It was edited.   So you only heard that which applied to the defendant Beams.   Any other references to any other party about what any other party did or didn't do is not included in the statement because that would be hearsay as to the other party and there is no way that anybody can ask Beams about what he was talking about.

“JUROR NO. 10:  Can you take that as testimony?

“THE COURT:  What?

“JUROR NO. 10:  The statement, portions of the statement that we heard that we learned.

“THE COURT:  You can that [sic ] that as an admission by Beams of what he told Moschetti on that occasion.   And I told you about—in fact, if you look up there you have an instruction about confessions and admissions and you turn around and if you believe what he told Moschetti was true you believe it and use it for whatever purpose you want to use it.   If you don't believe it was true—Now there was a question here someplace.   Okay.  So it is testimony of Moschetti that that's what Beams told him.

“THE FOREPERSON:  In reference to charges being in concert, in other words, the charges are made directly to Beams but the charges are [sic ] concert, would all references because of the fact that Baker is involved in those concert charges, would all references to concert crimes be removed from that statement also?

“THE COURT:  It tells you what he did.   You heard the testimony of the victim Miss Armstrong as to what happened.   If you believe her testimony, everything was in concert.

“THE FOREPERSON:  Well—

“THE COURT:  Beams tells you what he did.   Now, to be in concert, both people don't have to be exactly present at the same time something is happening.   In other words, if two people are acting together, but while something is going on, one person has removed himself;  that does not remove the concert clause․”

Later the court made explicit that Baker was edited out of the statement by explaining that the plural “we” had been changed to the singular “I” and more remarkably even suggested that such editing had been made on that part of the statement concerning the episode involving the automobile:  “JUROR NO. 3:  I have [a] question.   A deletions [sic ], do they delete everything about another person's conduct or only those statements that you—

“THE COURT:  Everything.   The only thing that's left in there is ‘I’ ‘I’ ‘I’ ‘I’, ‘I did this', ‘I did that’, ‘I did something else’.   That's what is left in.

“JUROR NO. 1:  And he might have said ‘we’ in that reference but you put it ‘I’?

“THE COURT:  ‘I’ referred only to his actual paticipatory [sic ] conduct because ‘we’, he says ‘we’, now that is hearsay as to the other person and there is no way you can cross-examine him on that and the Supreme Court of the United States has said you cannot do that.

“Now you—if we severed the two cases and each was on trial alone, then you have no problems about what a person says about what he and somebody else did, if you were trying them separately.   But when you put them together, it just can't be done that way.

“THE FOREPERSON:  You didn't edit statements that were ‘we’ and made them ‘I’, did you?

“THE COURT:  Could have, as far as like the automobile is concerned.

“THE FOREPERSON:  In other words—

“THE COURT:  ‘I drove over.   I was with her in the car.’

“THE FOREPERSON:  So you the Court did exercise revision.

“THE COURT:  It is inadmissible:  ‘He was over there in the car’ or ‘drove over in the car with her’ but when you put ‘we’, now if the ‘we’ can refer to another person, then the Court says that can't come in.”

Next the court had the statement read to the jurors a second time and indicated for them where each deletion had occurred.

To sum up this rare collection of Aranda-Bruton errors:  the court read Beams' edited statement to the jury, told the jury that the statement had been edited to delete references to other persons and then showed the jury exactly where the changes had been made.

The majority opinion declares that the court's actions did not constitute error under Aranda-Bruton but were instead appropriate responses to specific jury inquiries during deliberations.  (See majority opn., ante, p. 258.)   I cannot agree.   While the jury is certainly entitled to receive further information on both points of law and disagreements concerning a witness' testimony (Pen.Code, § 1138), the jury is not entitled to receive constitutionally inadmissible evidence under the guise of court clarification.   Such reasoning would render the guidelines of Aranda meaningless.

Statements subject to the rules of Aranda-Bruton become inculpatory as soon as the jury is made aware that names have been deleted and based on other evidence, can then infer that omitted names may include the codefendants.   (United States v. Danzey (2d Cir.1979) 594 F.2d 905, 917–918, cert. den., 441 U.S. 951.)   In Hodges v. Rose (6th Cir.1978) 570 F.2d 643, for example, the Sixth Circuit found a Bruton violation where there were only two defendants on trial and the extrajudicial statement of one was edited so that all references to his codefendant were replaced with the word “ ‘blank.’ ”  (Hodges v. Rose, supra, 570 F.2d at p. 647.)   The court found that “the circumstances of the case and other evidence admitted virtually compel the inference that ‘blank’ is [the codefendant].”  (Ibid.)

Similarly, in United States v. Pickett (6th Cir.1984) 746 F.2d 1129, 1132–1133 (cert. den., Pickett v. United States (1985) 469 U.S. 1226, 105 S.Ct. 1222, 84 L.Ed.2d 362), the Sixth Circuit found that substituting the words “ ‘the individual’ ” for all mention of the codefendant was inadequate to avoid a Bruton violation and created a “ ‘substantial risk’ ” that the jury considered the confession in determining the codefendant's guilt.  (Cf. In re D.L. (1975) 46 Cal.App.3d 65, 71–72, 120 Cal.Rptr. 276 [use of three blanks in place of three codefendants' names].)

In the instant case the trial court's commentary was blatantly more improper than the use of blanks or words like “the individual.”   Moreover, once the court expressly tied a third party to the statement, additional portions of the statement became implicit references to Baker.   For example, comments by Beams that Leslie Armstrong was scared and crying even though he had never threatened her and that he was the only reason she was probably still alive clearly incriminated Baker.

The majority argues, however, that a statement showing involvement by a second person when combined with other evidence does not necessarily constitute error under Aranda-Bruton.  (See majority opn., ante, pp. 257–258, citing People v. Epps (1973) 34 Cal.App.3d 146, 156–158, 109 Cal.Rptr. 733.)   In Epps, the defendant was convicted of second degree burglary of a chemical warehouse in a joint trial with Freeland.   The prosecution introduced evidence of an out-of-court statement that Freeland had made to a police officer while being transported to the police station following his apprehension.   In this statement, Freeland referred to the other person apprehended at the scene of the crime by asking:  “ ‘What about the other guy?’ ”   Freeland later named Epps as the “other guy” and admitted having been engaged in criminal activity when police apprehended him at the warehouse.  (People v. Epps, supra, 34 Cal.App.3d at pp. 150, 153, 109 Cal.Rptr. 733.)

On appeal, Epps claimed that the admission of Freeland's statement implicating him was a violation of Bruton and a denial of his Sixth Amendment right to cross-examine Freeland.  (At p. 150, 109 Cal.Rptr. 733.)   The Court of Appeal declined to find error under Aranda-Bruton, holding instead that Freeland's extrajudicial statement “was not a material factor linking the defendants together” since the defendants were linked together by other evidence.  (At p. 156, 109 Cal.Rptr. 733.)   Thus, the references to Epps in Freeland's statement constituted merely cumulative evidence that was not the decisive factor in convicting him.  (Ibid.)  Epps is inapposite.2  In the case at hand the trial court itself during its improper commentary directly linked Baker to the statement;  the error is patent.

Nor may the giving of limiting instructions be the miracle cure of Aranda error.   That has been made plain by the Court of Appeal in People v. Laursen (1968) 264 Cal.App.2d 932, 938, 71 Cal.Rptr. 71:  “The matrix of Aranda is that jurors are unable to comply with an admonition to disregard information revealed through inadmissible evidence even when such admonition comes from the judge and is directed at specific evidence at the moment it comes in.”  (Accord People v. Barajas (1983) 145 Cal.App.3d 804, 810, fn. 10, 193 Cal.Rptr. 750.)   In even stronger terms the same point has been stressed by the United States Supreme Court:  statements by one defendant incriminating a codefendant are so suspect and devastating that the jury cannot be expected to follow court instructions to disregard the statement as to the codefendant.  (Bruton v. United States, supra, 391 U.S. at p. 136, 88 S.Ct. at 1628;  accord Lee v. Illinois (1986) ––– U.S. ––––, ––––, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514.)

Because the Aranda-Bruton violation in the instant case denied Baker his Sixth Amendment right to cross-examine Beams about the statement (see Bruton v. United States, supra, 391 U.S. at pp. 135–136, 88 S.Ct. at 1627) the error must be evaluated in light of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705;  that is, the judgment may be affirmed only when the error is shown to be harmless beyond a reasonable doubt.

The mechanics for testing the harmfulness of an error under Aranda-Bruton are set forth in Schneble v. Florida (1972) 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340.   The reviewing court must examine the trial record to determine whether the other properly admitted evidence of guilt is overwhelming (id., at p. 430, 92 S.Ct. at 1058) and must also determine the probable impact of the error “ ‘on the minds of an average jury.’ ”  (Id., at p. 432, 92 S.Ct. at 1059, citing Harrington v. California (1968) 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284;  see also People v. Hosner (1975) 15 Cal.3d 60, 69, 123 Cal.Rptr. 381, 538 P.2d 1141;  People v. Leach (1975) 15 Cal.3d 419, 446–447, 124 Cal.Rptr. 752, 541 P.2d 296, cert. den., 424 U.S. 926, 96 S.Ct. 1137, 47 L.Ed.2d 335.)   Reversal is required if there is “a reasonable possibility that the improperly admitted evidence contributed to the conviction․”  (Schneble v. Florida, supra, 405 U.S. at p. 432, 92 S.Ct. at 1059, citing Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at 828;  accord United States v. Vissars (9th Cir.1979) 596 F.2d 400, 403–404;  United States v. Drebin (9th Cir.1977) 557 F.2d 1316, 1323, cert. den., 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401.)

A review of the record in this case reveals no overwhelming extrinsic evidence of guilt;  the case was very close.   Thus, a small degree of error must be adjudged sufficient to have influenced the jury to convict Baker wrongfully.   (See People v. Wagner (1975) 13 Cal.3d 612, 621, 119 Cal.Rptr. 457, 532 P.2d 105;  People v. Collins (1968) 68 Cal.2d 319, 332, 66 Cal.Rptr. 497, 438 P.2d 33.)

First, there was a close contest of credibility between the defense and prosecution cases.   Appellants admitted to having had sexual relations with Armstrong and based their defenses alternatively on consent by Armstrong or exaggeration on her part.   Armstrong had met Baker prior to the incident;  spoken with him several times by telephone;  agreed to date him;  and voluntarily entered the car in which he and Beams were riding.   Further, there were no eyewitnesses to the alleged rape, and the medical report could not furnish proof of either forcible rape or even intercourse.

The prosecution therefore relied chiefly on Armstrong's testimony.   To support her version of the facts, the prosecution called Dale Armstrong, her brother, who testified she had called him the day after Beams and Baker picked her up near her home and that she sounded frightened and was crying.   On cross-examination, the prosecution also elicited from defense witness, Sue Howard, that Armstrong told her that the appellants had raped her.

The defense presented evidence that directly attacked Armstrong's credibility and lessened the impact of the testimony of Dale Armstrong and Howard regarding the rape.   For example, three witnesses who either had been or else were currently serving as Armstrong's juvenile probation officers testified that she did not have a reputation for truthfulness.   The defense also established that Armstrong was a juvenile probationer who faced a potentially stiff penalty for a violation of her curfew.   Hence, Armstrong had a motive to testify falsely about her outing with Baker and Beams.

In addition Beams allowed Armstrong to telephone her brother who agreed to give her a ride home.   Armstrong never asked her brother to summon the police nor did she ask Sue Howard for any help.   The record indicates instead that Armstrong made no attempt to escape or have aid summoned on more than one occasion when she was away from Baker and Beams.

This lack of overwhelming extrinsic evidence supporting appellants' guilt magnified the effect of the Aranda-Bruton error.   The admission of Beams' statement, coupled with the trial court's repeated improper commentary, tended to discredit Baker's defense while corroborating the prosecution's case-in-chief.   As a result the error must be considered especially prejudicial.   (See People v. St. Andrew (1980) 101 Cal.App.3d 450, 465, 161 Cal.Rptr. 634.)

Moreover, the impact of the error-tainted statement on the minds of the jury was probably great.  (See Schneble v. Florida, supra, 405 U.S. at p. 430, 92 S.Ct. at 1058;  Harrington v. California, supra, 395 U.S. at p. 254, 89 S.Ct. at 1728;  People v. Hosner, supra, 15 Cal.3d at p. 69, 123 Cal.Rptr. 381, 538 P.2d 1141;  People v. Leach, supra, 15 Cal.3d at pp. 446–447, 124 Cal.Rptr. 752, 541 P.2d 296.)   Deliberations lasted five and one half days, suggesting the jury had a difficult time reaching a verdict.  (Cf. People v. Rucker (1980) 26 Cal.3d 368, 391, 162 Cal.Rptr. 13, 605 P.2d 843 [nine hours];  People v. Bennett (1969) 276 Cal.App.2d 172, 176, 80 Cal.Rptr. 706 [ten hours].)

In the middle of deliberations, the jury requested two separate rereadings of the statement and reached a verdict the day after the second rereading was completed.   As this court has noted, a quick return of a verdict following a rereading of a statement during deliberations at the jury's request has been held to signal that the case was close and the rereading central to the decision.  (People v. Williams (1971) 22 Cal.App.3d 34, 38–40, 99 Cal.Rptr. 103.)   The jurors in the instant case posed several questions to the court concerning the editing technique, another indication of the importance they gave the statement.  (See People v. Markus (1978) 82 Cal.App.3d 477, 480, 147 Cal.Rptr. 151.)

Most striking, however, is that the error went to the heart of the chief weakness in the prosecution's case:  the lack of evidence corroborating Armstrong's version of the events.   Aside from Armstrong's own testimony, Beams' statement offered the only other explicit indication that she had any reason to fear for her life.   The impact of an error going to the heart of the chief weakness in the prosecution's case is particularly prejudicial to the defense, as this court has noted.  (See People v. Roberts (1967) 256 Cal.App.2d 488, 491–492, 64 Cal.Rptr. 70.)

In conclusion, my review of the record does not demonstrate the existence of overwhelming extrinsic evidence of Baker's guilt.   Instead, the record shows a close case making it probable that the statement tainted by Aranda error tipped the scales in favor of the prosecution.   For this reason, I cannot find that the Aranda-Bruton error was harmless beyond a reasonable doubt.   I would therefore reverse the judgment of conviction as to appellant Baker.

APPENDIX A

“THE WITNESS:  ․ [¶] ‘I drove to Burlingame to pick her up and when I got there she was standing outside on the sidewalk.

‘We drove around to two of her friends' places in Burlingame trying to find one of her friends to go out with us.

‘None of her friends could go with us and then we drove to Hunters Point in San Francisco.   We checked for another one of her friends who wasn't there and then drove to a store.   We bought two quarts of Old English and some gum.

‘She took me to some hills around South San Francisco, just driving around and then headed to Oakland.   I was driving a rental car.

‘Coming across the bridge she said she had to use the bathroom and we stopped at a gas station near the freeway, Market and Grove Streets, but couldn't use the bathroom.

‘We got back on the freeway and drove into the Oakland Hills from 98th Avenue.   I parked the car on the dirt part of the street—’ Excuse me.   Should be:  ‘I parked the car on the dirt part off the street.

‘After parking we snorted some cocaine and smoked a cigarette that had some cocaine in it.

‘I got out and drank two and-a-half cups of Old English for maybe six minutes or so.

‘She was acting scared and I think she was crying at that time.   She didn't say nothing to me.   I guess she thought I was crazy because I had been driving crazy.

‘I got back into the car.   I rubbed her legs and chest.   She sucked me and I had sex with her.

‘We left the hills after about 45 minutes and drove to Ronnie's house on Harrison Street.

‘Ronnie and his woman Sue were asleep when we got there and I woke them up and told him I had brought a white girl with me.   They got up to see and we were all in the living room.

‘Sue went out and got us something to eat and brought it back.   We had something to eat and sat up for a couple of hours talking.

‘I drove her out to MacArthur Boulevard.   I sat in the car while she walked the street.

‘I saw two cars stop for her, one white guy and one black guy.   She didn't trick with either one;  telling me after that she had told them it would cost $50.00.   I drove around keeping an eye on her.

‘When we got back to Ronnie's, her and Sue left together.   They were gone for about ten minutes.   I don't know where they went.   They came back and Sue left.

‘We all went to sleep then.   We woke up at about 2 or 3 p.m.

‘I went into the bathroom I saw that she was upset and crying, shaking and stuff and so I told her to just take a shower and got her some towels.

‘I went back in the living room and then went back into the bathroom after she got out of the shower.   I gave her a thing with some alcohol to take off her makeup and brought her a phone in so she could make a phone call to her brother.

‘I was there when she called her brother and she was crying at first.   I know he was asking her what was wrong but she didn't say nothing.

‘I talked to him and he asked me what was wrong and I didn't answer.   He then asked me to bring her home and I said that I would.

‘I went back into the living room and she came out dressed.   We sat on the couch for about two hours just resting.

‘I put a sheet on her and after a while gave her a pillow.   She at that time sat up and said she was scared.   She said she wanted to go outside and I told her I didn't think she should go out.

‘I finally walked outside with her and she sat on a car in front of the place.

‘I never made any threats to her.

‘I watched her from the drapes for a while and then went out on the balcony and talked with her.   We were talking about what was happening with her.

‘When I looked back out she was walking down the street.   I pulled my jacket and shoes on and went after her.

‘I caught up with her midway down Harrison and we walked to the store.   She was asking me why she couldn't leave.

‘I told her that I was probably the reason she was still alive.

‘She wanted to hitchhike but I told her it was too dangerous.   I had told her that I would take her home but she started flagging at cars, I backed away.   She ran down the street.

‘I looked for her for awhile and then went back to Ronnie's around 5:30 or so.

‘Awhile after that the police came to Ronnie's.   I was going to go out the bedroom window, even opened it a little;  saw the cops out there and changed my mind.   This is a true statement.’ ”

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Penal Code.

2.   A prior conviction as to each defendant was ordered stricken for sentencing purposes.

3.   There are several references in the record to Leslie being a “hoe” for Baker.   By that, Leslie understood that Baker would make her act as a “hooker” or “whore” for him.

4.   They were later identified as Sue Howard and Roland Robinson.

FOOTNOTE.   See footnote *, ante.

1.   See Appendix A, post, at pages 263 to 265 for the complete version of the statement as first read during the trial.

2.   I find the reasoning in Epps unpersuasive.   The rule of Aranda is clear:  To avoid error, all incriminating references to codefendants in an extrajudicial statement must be effectively deleted without prejudice to the declarant.  (People v. Aranda, supra, 63 Cal.2d at p. 530, 47 Cal.Rptr. 353, 407 P.2d 265.)   The additional presence of properly admitted extrinsic evidence incriminating the codefendant does not vitiate error.   At best, it lessens the impact of the error, perhaps rendering it harmless.

CHANNELL, Associate Justice.

SABRAW, J., concurs.