PEOPLE v. KENNEDY (1980)

OPINION

STATEMENT OF THE CASE

Appellant stands convicted following a jury trial of robbery and conspiracy to commit robbery.   A key prosecution witness, Johnson, testified over objection concerning a statement made to him by appellant's alleged accomplice Alan Caples.   Although appellant had been charged jointly with Caples, appellant was tried separately after arguing that a joint trial would violate People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.¹  It was stipulated that Caples would not be available to testify at appellant's trial since he would claim the privilege against self-incrimination.   Caples' statement which implicated both Caples and appellant in the robbery was admitted under an exception to the hearsay rule as a declaration against penal interest as authorized by Evidence Code section 1230.

Appellant contends on appeal that the admission of Caples' hearsay statement violated his right to confront the witnesses against him as guaranteed by the Sixth Amendment to the federal Constitution and article I, section 15 of our state Constitution.   We agree and reverse the conviction.

FACTS

Donna Bohrer, a cashier for Southern California Edison Company, testified that during the month of July 1977 one of her duties was to carry the company receipts to a nearby bank where the money was deposited.   Each workday, between about 1:30 and 3 p. m., Ms. Bohrer walked about two blocks to the United California Bank;  she carried the company receipts in a leather pouch in her shoulder bag.   The receipts normally amounted to between $10,000 and $15,000 in cash and checks.   Ms. Bohrer testified that she occasionally deposited the receipts with a bank teller by the name of Karen Hamilton.

Karen Hamilton was appellant's paramour during the time period before the robbery.   Appellant sometimes visited Karen at the bank where she worked.   Although Karen denied at trial that she had ever discussed Donna Bohrer with appellant, Karen was impeached with prior inconsistent statements she made to police officers indicating that Karen had told appellant where Donna worked and that she came to the bank regularly to make large deposits for the Edison Company.

On July 15, 1977, at about 1:40 p. m., Donna Bohrer was on her way to the bank to deposit about $3,600 in cash and about $4,000 in checks.   As Ms. Bohrer approached an intersection near the bank, she sensed something behind her.   She glanced back and saw a tall black man approaching.   She quickened her step and crossed the street against the light.   Just as she reached the other side of the intersection, she was accosted by the man who had been following her.   The man grabbed her shoulder bag and jerked it from her shoulder, breaking the metal ring which held the shoulder strap to the purse.   Donna fell to the ground from the force of the assault.

The robber then fled down the street with the purse, pursued by several passersby.   A witness to the robbery, Lowell Cordas, followed the fleeing robber to a nearby parking lot, where Cordas saw the robber throw the purse into a car occupied by another black man whom Cordas was unable to identify.   The car pulled out of the parking lot, but Cordas was able to observe and memorize the license plate number.   Later investigation revealed that number was registered to appellant's girl friend Karen Hamilton.

Ms. Bohrer later selected a photograph of Alan Caples as the man who had robbed her.

Although there was no eyewitness who was able to positively identify appellant as the driver of the getaway car, appellant was linked to the robbery by the following evidence.   Appellant's former girl friend, Karen Hamilton, made statements implicating appellant to police officers during the month after the robbery occurred.   Evidence of these statements was admitted to impeach Ms. Hamilton's trial testimony which was inconsistent with her earlier statements.   Officer John Sanders testified that Ms. Hamilton gave him the following statement.   She loaned her car to appellant on the day of the robbery.   Several days later she was questioned by police about the involvement of her car in the robbery and Ms. Hamilton thereafter confronted appellant about the robbery.   Appellant initially told Ms. Hamilton he knew nothing about the robbery but later admitted to her that he had participated in both the planning and execution of the robbery.   Appellant told her that he had contacted “Al” (Caples) and asked for help with staging the robbery.   It was agreed between the men that Caples would snatch the victim's purse while appellant waited in a nearby parking lot.   Appellant told her that they had proceeded according to this plan and that after the two men left the scene, they split the proceeds.

Officer Sanders indicated that Ms. Hamilton was reluctant when she gave him the foregoing information, but Sanders was able to procure a written statement from her implicating appellant.   That statement was introduced into evidence.   At trial, Ms. Hamilton testified that most of the statement she had given officers was untrue;  she testified appellant had never admitted participating in the robbery.

The other major piece of evidence linking appellant to the robbery was the testimony of Tommy Johnson, who had been a cellmate of Alan Caples in the county jail before Caples was charged with this particular robbery.   Johnson testified that Caples had confided in him and told him about the “Edison robbery” which he had committed with “D. K.”  (Appellant was known in the jail as “D. K.”)   The essence of Johnson's testimony is as follows:

“[The prosecutor] Now exactly what statement did Mr. Caples make to you?

“[Johnson] He said in the afternoon, Friday, July 13 [sic ], him and D. K. was in Tulare together and they drove over in separate cars.   He was driving his car and D. K. was driving his girl friend's car.   And after they got to Visalia, they was a little later than he intended to be.   And the lady that he intended to rob got in front of him.  ․ ․ ․   And after the light changed and she stepped off the curb, he stated he grabbed her purse and snatched on it, and one of the rings off her purse came loose.   And she threw up her arms to hold the strap and he snatched it again and the other ring gave.   And he ran down side the bank through the parking lot.   He threw the purse in the car where D. K. was parked and he went a block or so, got in his car, drove to 198 and went towards Goshen Avenue, 200 and something.

“ ․ ․ ․

“And about 30 minutes or so after he got back to Tulare, D. K. came.   And he had $3300 or $3400 and about $5500 in checks and that they split the money equally and threw the checks away.

“[The prosecutor] Did he tell you where he had got the information to use in robbing the bank?

“[Johnson] He said he got the information from D. K.”  (Emphasis added.)

DEFENSE EVIDENCE

Appellant denied any participation in the robbery and presented an alibi defense.   He testified that he left Visalia for Fresno in his own car at about 9 or 10 a. m. on the morning of the robbery.   Appellant said he took his Datsun to Joe Santiago's Body Shop that morning to have work done on the vinyl top in preparation for trading the Datsun in on a Lincoln Continental.   That afternoon appellant said he went to the house of a friend, George Bowen, where he cleaned a carpet for Bowen.   Appellant testified he left Bowen's around 2 or 3 p. m.;   then, after making stops at his mother's house and the body shop, appellant left Fresno for Tulare in the late afternoon.   Appellant said he then picked up Karen Hamilton's car and drove it to the bank where he picked Karen up after work at about 5 or 6 p. m.

George Bowen, an alibi witness for the defense, testified that appellant had cleaned a carpet for him in Fresno at about 1 p. m. on the day of the robbery.²  Joe Santiago, the other defense alibi witness, testified that appellant had been in his body shop on July 15, the day of the robbery, to have the vinyl top on his Datsun redyed in the original off-white color because it was dirty.   This testimony was impeached by prosecution rebuttal witness Jay Dixon, the used car manager for an agency in Visalia.   Dixon testified that he had appraised appellant's Datsun before July 15 and purchased that car just after the 15th.   Dixon said the condition of the vinyl top had been “good” before the 15th and that he noticed no change in the condition of the top when he took possession of the car after the trade-in.

Based on the foregoing evidence, the jury found appellant guilty of robbery and conspiracy to commit robbery;  the jury deliberated about two hours and twenty minutes.

CAPLES' HEARSAY STATEMENTS IMPLICATING APPELLANT QUALIFIED AS DECLARATIONS AGAINST PENAL INTEREST UNDER EVIDENCE CODE SECTION 1230

We begin our analysis of the confrontation question by pointing out that whether Caples' statement properly qualified for admission as a declaration against penal interest under Evidence Code section 1230 does not necessarily determine whether its admission violated the confrontation clause.   As stated by the United States Supreme Court in Dutton v. Evans (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, quoting from California v. Green (1969) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489:

“ ‘While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.   Our decisions have never established such a congruence;  indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception.   The converse is equally true:  merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.’ ”  (Dutton v. Evans, supra, 400 U.S. at pp. 81–82, 91 S.Ct. at p. 216).

Thus, even if Caples' statement qualifies as an admissible declaration against penal interest, we must pass on the confrontation issue.   With this in mind, it is pertinent to address whether the statements were properly admitted as declarations against interest.

In People v. Leach (1975) 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296, the California Supreme Court narrowly defined the scope of the hearsay exception for declarations against penal interest.   In that case, Lorraine Kramer and Donald Leach were jointly tried for the murder of Ms. Kramer's father.   While Leach was in jail and before Ms. Kramer was arrested as a suspect, Leach recruited a fellow inmate named Hagler, soon to be released, to collect from Ms. Kramer money which Leach claimed Ms. Kramer had promised to pay him for killing her father.   Hagler told the police what Leach had said.   A police officer then approached Ms. Kramer in the guise of Leach's jailhouse friend and elicited statements from her indicative of a conspiracy between herself and Leach.  (Id., at pp. 424–427, 124 Cal.Rptr. 752, 541 P.2d 296.)   At trial, the court admitted the extrajudicial statements of both Leach and Ms. Kramer, notwithstanding the statements' hearsay nature, holding that they were made by coconspirators in furtherance of the conspiracy and were therefore admissible under Evidence Code section 1223.  (Id., at p. 428, 124 Cal.Rptr. 752, 541 P.2d 296.)

On appeal, the reviewing court first rejected the lower court's finding that the statements were within the coconspirator exception since they were made after the conspiracy had ended.  (People v. Leach, supra, 15 Cal.3d at pp. 437–438, 124 Cal.Rptr. 752, 541 P.2d 296.)   The court then went on to address the possibility that the statements might nevertheless have been admissible under the declarations against penal interest exception codified in Evidence Code section 1230.  (Id., at pp. 438–442, 124 Cal.Rptr. 752, 541 P.2d 296.)³

Leach specifically considered the admissibility of so-called “collateral assertions” within the declarations against penal interest.   It noted that Professor Morgan, writing in 1928, had favored the admission under this hearsay exception of collateral assertions that incriminated the defendants regardless of their self-serving nature to the declarant.   The declaration against penal interest, however weak, was deemed to evince a trustworthy frame of mind which cloaked the collateral assertions incriminating the defendant with a ring of truth.

However, Leach adopted what it termed the “modern view” first advanced in a 1944 Harvard Law Review article (Jefferson, Declarations Against Interest:  An Exception to the Hearsay Rule (1944) 58 Harv.L.Rev. 1).   This article attacked the view that declarations against interest bespeak the declarants' trustworthy frames of mind and suggested that evidence of any portions of declarations against interest, especially declarations against penal interest, not actually disserving to the declarant, should be inadmissible.   The Leach court quoted with approval the following from Professor Wigmore:

“But when a self-serving statement is made along with a disserving one, it may well be doubted that the declarent [sic ] is in a trustworthy frame of mind when he makes the self-serving statement.   It would appear that a self-serving statement lacks trustworthiness whether it accompanies a disserving statement or not.   The basis of this exception is not that a declarant is in a general trustworthy frame of mind.   The probability of trustworthiness comes from the facts asserted being disserving in character.   Once those fact are left behind the probability of trustworthiness for other statements seems highly speculative and conjectural.   It would seem, therefore, that the courts are not justified in admitting self-serving statements merely because they accompany disserving statements, and a neutral collateral statement should fare no better.”  (People v. Leach, supra, 15 Cal.3d at pp. 439–440, fn. 15, 124 Cal.Rptr. at p. 766, 541 P.2d at p. 310.)

 Leach concluded “In the absence of any legislative declaration to the contrary, we construe the exception to the hearsay rule relating to evidence of declarations against interest set forth in section 1230 of the Evidence Code to be inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.”  (People v. Leach, supra, 15 Cal.3d at p. 441, 124 Cal.Rptr. 752, 767, 541 P.2d 296, 311, emphasis added;  see also People v. Shipe (1975) 49 Cal.App.3d 343, 354, 122 Cal.Rptr. 701, 708, holding that (to satisfy Evid.Code, § 1230 and the confrontation clause) a collateral assertion in a declaration against penal interest must be “ ‘distinctly’ against the declarant's penal interest.”)

Thus, Leach requires that neutral and self-serving assertions incriminatory of a nondeclarant defendant be excluded from the purview of section 1230.   The typical statement, “I was there but I didn't do it—defendant did it” would fall within the Leach prohibition because of its self-serving nature to the declarant.   On the other hand, the statement, “We [defendant and I] did it together” is disserving to both the declarant and to the defendant and should qualify for admission under the Leach rationale.

Two Court of Appeal cases illustrate the workings of the Leach rule.   In People v. Coble (1976) 65 Cal.App.3d 187, 135 Cal.Rptr. 199, this court held inadmissible a self-serving statement in a facially disserving declaration by an alleged accomplice to a robbery.   The statement involved the declarations of the alleged “wheel-man” in the robbery who drove defendant to the 7-Eleven store.   The declarant told the police within two hours after the robbery that although he knew the defendant had a gun, he (the declarant) did not know that the defendant was going to rob the store.   He first learned of the robbery when the defendant came out of the store and said, “Let's get the hell out of here, I just pulled a robbery.”   The statement included several other exculpatory declarations that the declarant did not know the defendant was going to pull a robbery and concluded with a declaration, “I didn't do it.   That's it.”  (Id., at pp. 190–191, 135 Cal.Rptr. at p. 201.)   Recognizing the usual propensity of thieves who have fallen out to blame each other for the crime, this court concluded that the driver's statement insofar as it incriminated the defendant was self-serving to the declarant and hence did not satisfy the requirements of Evidence Code section 1230 (id., at pp. 191–193, 135 Cal.Rptr. 199).

In People v. Bullard (1977) 75 Cal.App.3d 764, 142 Cal.Rptr. 473, the defendant was charged with inflicting unjustifiable pain and suffering on a child under circumstances likely to produce great bodily harm or death in violation of Penal Code section 273a, subdivision (1).   The trial court admitted evidence of hearsay statements by the child's mother to another resident of the duplex where the defendant, the mother and child lived.   The mother was charged with a related offense and refused to answer questions on the grounds that the answers might tend to incriminate her.   The other resident testified the mother had told her that the defendant had slapped the child more than once and that the witness could not see the child or take her to the hospital because the mother was afraid that she and the defendant might get into trouble.  (Id., at p. 769, 142 Cal.Rptr. 473.)   Noting that the hearsay statements of the mother were an “inseparable combination of exculpatory and inculpatory matter,” the reviewing court held it was Leach error to admit the evidence as an exception to the hearsay rule.   The statements which incriminated the defendant (he had slapped the child more than once) were not “specifically disserving” of the mother's penal interest so as to cloak them with an aura of trustworthiness.

 Applying the Leach restrictions to Caples' hearsay statements in the present case, it is quite clear they qualify as declarations against penal interest.   Every portion of Caples' statement rationally can be said to implicate Caples in the robbery.   There are no self-serving or exculpatory statements by Caples.   The particular portions of Caples' statement which implicated appellant are the following:

“ ․ ․ ․  [appellant] was driving his girl friend's car [on the day of the robbery].”

“ ․ ․ ․  He [Caples] threw the purse in the car where [appellant] was parked  ․ ․ ․ .”

“ ․ ․ ․  they [Caples and appellant] split the money equally  ․ ․ ․ .”

“He [Caples] said he got the information [to use in robbing the bank] from [appellant].”

Viewing each statement in isolation, with the exception of the first statement, they all implicate Caples.   The statements are not the type of exculpatory, self-serving or neutral statements which were before the courts in Leach, Coble and Bullard.   Other than the facially neutral “ ․ ․ ․  [appellant] was driving his girl friend's car,” the statements are just as damaging to Caples' penal interest as to appellant's.   Furthermore, when the asserted fact that appellant was driving his girl friend's car on the day of the robbery is coupled with the statement that Caples threw the purse into the car in furtherance of the robbery, Caples is directly implicated in the use of the car with appellant.   In essence, Caples' declaration is a “we did it” rather than a “he did it” type of statement.   Thus, we conclude that Caples' statements were correctly admitted as declarations against his penal interest.

THE ADMISSION OF CAPLES' HEARSAY STATEMENTS IMPLICATING APPELLANT IN THE ROBBERY VIOLATED APPELLANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM

As we noted above, the admissibility of the hearsay statements of Alan Caples under Evidence Code section 1230 does not end the inquiry on the confrontation question.   Although Leach did not directly confront the constitutional question but only alluded to it in footnote 17 (People v. Leach, supra, 15 Cal.3d at pp. 441–442, 124 Cal.Rptr. 752, 541 P.2d 296), the Aranda rule (see fn. 1, ante ) was “constitutionalized” in decisions of the United States Supreme Court, including Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.   In Bruton, the admission of a codefendant's confession implicating the defendant was held to violate the defendant's confrontation rights where the declarant codefendant did not take the stand.   This court has also found a violation of the right to confrontation in a situation analogous to the present case in People v. Coble, supra, 65 Cal.App.3d 187, 135 Cal.Rptr. 199.  Coble relied on Bruton in determining the evidence was constitutionally inadmissible as well as inadmissible under Leach.  (Id., at p. 193, 135 Cal.Rptr. 199.)

Respondent argues the confrontation issue has been answered by the United States Supreme Court in Dutton v. Evans, supra, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213.   In that case, the defendant and two accomplices were charged with the brutal murder of three police officers.   The trial court admitted evidence of an extrajudicial statement made by an alleged accomplice to a cellmate.   The statement was, “If it hadn't been for [the defendant] we wouldn't be in this now.”  (Id., at p. 77, 91 S.Ct. at p. 214.)   The evidence was admitted under Georgia's broad coconspirator exception to the hearsay rule (id., at p. 78, 91 S.Ct. at p. 214).   The lead opinion in Dutton (four justices) held that under the circumstances, admission of the hearsay evidence did not violate the defendant's right of confrontation because the particular statement was not “crucial” or ”devastating” (id., at p. 87, 91 S.Ct. at p. 219), and because there were sufficient “indicia of reliability” to warrant admission of the evidence (id., at pp. 88–89, 91 S.Ct. at pp. 219–220).   The concurring opinion by Justice Harlan concurred in the result (an affirmance of the conviction) but said the issue was one of due process rather than confrontation.   Four justices dissented, arguing the defendant's confrontation rights had been violated.

The lead opinion in Dutton gave the following reasons why the evidence in question was sufficiently reliable to be admissible without cross-examination:

“First, the statement contained no express assertion about past fact, and consequently it carried on its face a warning to the jury against giving the statement undue weight.   Second, [the declarant's] personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by [other evidence].   It is inconceivable that cross-examination could have shown that [the declarant] was not in a position to know whether or not [the defendant] was involved in the murder.   Third, the possibility that [the declarant's] statement was founded on faulty recollection is remote in the extreme.   Fourth, the circumstances under which [the declarant] made the statement were such as to give reason to suppose that [he] did not misrepresent [the defendant's] involvement in the crime.”  (Dutton v. Evans, supra, 400 U.S. at pp. 88–89, 91 S.Ct. at p. 219.)

 Respondent seeks to apply the Dutton principles to the present case by arguing (1) as in Dutton, Caples' personal knowledge of the identity and role of appellant in the crime is sufficiently established by other evidence, i. e., statements by appellant's former girl friend to the police that appellant admitted he had planned the robbery with Caples;  (2) the possibility that Caples' statement was founded on faulty recollection is remote in the present case, as it was in Dutton, since the statement was made to Johnson while Caples was in jail before charges had been filed against Caples;  and (3) the circumstances under which Caples made the statement led to the conclusion that he did not misrepresent appellant's involvement in the crime because the statement was spontaneous and made to a jailhouse confidant with no discernible aura of police authority and there was no other motive to falsify the conversation.   However, respondent has overlooked in its argument the first point made in Dutton —that the statement there contained no express assertion about past fact, and consequently it carried on its face a warning to the jury against giving the statement undue weight.   In the present case, Caples' hearsay declaration constituted in its entirety assertions of past facts—his and appellant's involvement in the robbery.   Thus, there was nothing inherent in the statement which would warn the jury as to its relative unimportance in the truth finding process.

Furthermore, respondent has failed to place Dutton in proper perspective.   Not only was the court closely divided on the confrontation issue, the majority opinion carefully imposed an additional factor in deciding whether the right of confrontation was violated.   The additional requirement is that the controverted hearsay not be “crucial” or “devastating” to the defendant's case.  (Dutton v. Evans, supra, 400 U.S. at p. 87, 91 S.Ct. at p. 219.)   Dutton repeatedly emphasizes the innocuous nature of the accomplice's statement which was before the court.   It pointed out that 19 other prosecution witnesses had testified, 1 of whom (another alleged accomplice) had given eyewitness testimony as to the defendant's direct participation in the murder of the police officers.   These witnesses were subjected to vigorous cross-examination.   The hearsay declaration was really quite insignificant when placed in context with the other evidence against the defendant.

In People v. Coble, supra, 65 Cal.App.3d 187, 135 Cal.Rptr. 199, this court emphasized the necessity under Dutton of evaluating the importance of the hearsay statement to the prosecution's case:

“If the extra-judicial statement is of minor importance or on a collateral issue and it satisfies the requirements of hearsay exceptions established by the rules of evidence, it is admissible, but if the extra-judicial statement goes to the heart of the case, if it is ‘crucial’ or ‘devastating’ to the defendant, then it cannot be admitted unless the defendant's constitutional right of confrontation is satisfied.”  (Id., at p. 195, 135 Cal.Rptr. at p. 204.)

Respondent's argument that this language in Coble is dictum because the court had already concluded that the hearsay statement had been erroneously admitted under Evidence Code section 1230 misses the mark.   As we have already noted, the inadmissibility of the evidence as a declaration against penal interest “does not lead to the automatic conclusion that confrontation rights have been denied.”  (Dutton v. Evans, supra, 400 U.S. at pp. 81–82, 91 S.Ct. at pp. 215–216, quoting from California v. Green, supra, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.)   Thus, the Coble language quoted above was necessary to the decision, and particularly to a determination of the applicable test for harmless error.

Furthermore, Justice Loring's cogent rationale for the “rule of reason” articulated in Coble is particularly appropriate to the present case.   He points out that although a hearsay statement which subjects the declarant to the risk of criminal liability may well be presumed to be true, this does not satisfy the constitutional requirement of confrontation and the right of cross-examination.   He states:

“Truth is only one element of a witness's testimony.   Every witness takes an oath to tell not only the truth, but the whole truth and nothing but the truth.   The great value of cross-examination is that it affords an opportunity for the trier of fact to determine not only that the witness has testified truthfully, but that he has told the whole story and that he has not included anything which is untrue.   Experience teaches every trial judge and trial lawyer that the addition of one omitted fact may well change the complexion of the entire story or the exclusion of one included fact which is untrue or partially misrepresented may likewise change the complexion of the entire story.   The whole truth is sometimes critically different from a partial truth.   The fact that an extra-judicial statement may be given under circumstances (such as being against penal interests) which make it probable that it is true does not for that reason automatically satisfy the constitutional right of confrontation.   Only cross-examination can establish whether a true statement which satisfies the requirements of Evidence Code section 1230 is the whole truth and nothing but the truth.   That, we believe, is the rationale behind the Sixth Amendment.”  (People v. Coble, supra, 65 Cal.App.3d at p. 193, 135 Cal.Rptr. at p. 203, last emphasis added.)

Our state Supreme Court in Leach has expressed its disinclination to widen the constitutional opening made by Dutton in the following excerpt from footnote 17:

“[C]ompare Dutton v. Evans  ․ ․ ․  wherein the court took pains to note, in upholding the facial validity of Georgia's unusually broad coconspirator exception, that this aspect of the Georgia hearsay rule was ‘long-established and well-recognized’ under state law and was ‘hardly unique’ in the nation.   We doubt the court would accord us such deference were we to rule that ever since Spriggs, evidence of conspirators' confessions or admissions also implicating coconspirators has been admissible against those coconspirators as evidence of declarations against interest.”  (People v. Leach, supra, 15 Cal.3d at p. 442, fn. 17, 124 Cal.Rptr. at p. 768, 541 P.2d at p. 312, emphasis added.)

 The apparent reason for the concern expressed in Leach%i is that California is one of the few American jurisdictions to recognize evidence of declarations against penal interest as an exception to the hearsay rule.   (People v. Leach, supra, 15 Cal.3d at p. 438, 124 Cal.Rptr. 752, 541 P.2d 296.)   Moreover, under California law, the declarant's mere assertion, as in the present case, of the privilege against self-incrimination satisfies the unavailability requirement of the against-interest exception.  (Ibid.)

There is no question but that Caples' declarations incriminating appellant in the present case were far more devastating to appellant than the evidence under consideration in Dutton.   The accomplice in Dutton only made the vague statement “If it hadn't been for [the defendant], we wouldn't be in this now” (Dutton v. Evans, supra, 400 U.S. at p. 77, 91 S.Ct. at p. 78), whereas Caples' statement in the present case detailed appellant's participation in the planning and execution of the robbery.   Moreover, in Dutton there were 19 other prosecution witnesses, 1 of whom (another alleged accomplice) gave detailed eyewitness testimony of the defendant's participation in the crime (id., at p. 77, 91 S.Ct. at p. 78).   In the present case, there was no other eyewitness who identified appellant as a perpetrator;  the only other evidence linking appellant with the robbery was testimony from a police officer that appellant's former girl friend had given a statement that appellant told her he had participated in the robbery.   Thus, it must be concluded that Caples' statement was a major part of the prosecution case.

THE DENIAL OF APPELLANT'S CONFRONTATION RIGHT WAS PREJUDICIAL

 Where the defendant's right to confront witnesses against him is violated, the conviction must be reversed unless the reviewing court can find the error was “harmless beyond a reasonable doubt.”  (People v. Leach, supra, 15 Cal.3d 419, 446, 124 Cal.Rptr. 752, 541 P.2d 296, quoting from Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705;  see also People v. Coble, supra, 65 Cal.App.3d at p. 197, 135 Cal.Rptr. 199.)   Although a reviewing court may not lightly declare an error harmless under this standard, a conviction nevertheless may be upheld when the offending evidence is “merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury.”  (Id., at p. 198, 135 Cal.Rptr. at p. 206.)

 As we have previously observed, Caples' hearsay declaration was not merely cumulative of other uncontroverted evidence;  it detailed his precise involvement in the robbery.   Although Caples' statement corroborated appellant's asserted admissions to his girl friend shortly after the robbery, his girl friend denied at the trial that appellant had admitted his involvement to her.   Furthermore, we cannot speculate as to what appellant's defense would have been if Caples' statement had not been introduced against him.   Thus, we should not consider the fact that appellant's alibi defense was impeached by prosecution rebuttal witnesses.

The judgment is reversed.

FOOTNOTES

1.   In Aranda, the California Supreme Court held that evidence of a self-incriminating extrajudicial statement by one defendant, although competent against the declarant, is nevertheless inadmissible at a joint trial against the nondeclarant codefendant if it includes any language implicating the latter which cannot be effectively deleted without prejudice to the declarant.

2.   Bowen was impeached on a collateral matter.   Bowen denied that he had ever been in a car in Visalia with Darlene Jones (one of appellant's girl friends).   However, Officer John Sanders testified that he saw Bowen and Jones together in a car in front of a liquor store in Visalia.

3.   Although the court purported to address the applicability of the exception to both the statements of Leach and Ms. Kramer, it is apparent that the exception had application only to the statements of Leach.   A threshold requirement for application of Evidence Code section 1230 is nonavailability of the declarant.   This requirement was satisfied as to Leach who refused to testify, asserting his Fifth Amendment privilege.   Ms. Kramer, on the other hand, was available and did in fact testify.

ZENOVICH, Associate Justice.

GEO. A. BROWN, P. J., and FREDMAN,* J., concur.