Filed 6/9/17 (opn. on remand from Supreme Court)



                                 CERTIFIED FOR PUBLICATION

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                            DIVISION ONE

                                      STATE OF CALIFORNIA



THE PEOPLE,                                          D069445

        Plaintiff and Respondent,

        v.                                           (Super. Ct. No. FSB1301449)

KIESHA RENEE SMITH et al.,

        Defendants and Appellants.



        APPEAL from judgments of the Superior Court of San Bernardino County,

R. Glenn Yabuno, Judge. Reversed in part and affirmed in part.

        Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant

and Appellant Kiesha Renee Smith.

        David M. McKinney, under appointment by the Court of Appeal, for Defendant

and Appellant Michael Mitchell.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher

P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       Defendants Kiesha Renee Smith and Michael Mitchell appeal from their

judgments of conviction for the murder of Josephine Kelley. In a prior opinion, we

reversed both defendants' convictions due to prejudicial error in the joint trial before

separate juries.1 Thereafter, the People petitioned for review by the Supreme Court with

respect to our reversal of defendant Mitchell's conviction on the grounds the trial court

erred in admitting against Mitchell, as statements against interest, hearsay evidence of

statements made by codefendant Smith in which she inculpated Mitchell in the murder.

The Supreme Court granted review on this issue and transferred the case to our court for

reconsideration in light of its recent decision in People v. Grimes (2016) 1 Cal.5th 698

(Grimes).

       After reconsideration in light of Grimes, we find no error in the admission of

evidence of statements Smith made which inculpate Mitchell. We also reject the other

issues Mitchell raises on appeal. Accordingly, we once again reverse Smith's conviction

but now affirm Mitchell's conviction.2




1       Although a joint trial was held, the defendants had separate juries. The evidence
that the two juries heard differed in some respects.

2      In briefing submitted after the Supreme Court's remand of the case to this court,
the parties agree that the Supreme Court's grant of review had no effect on the portion of
our opinion regarding Smith's appeal.
                                              2
                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

       A. Factual background

       1. September 2005

       Josephine Kelley was 90 years old in 2005. She lived with her daughter Susan

Hassett, her son-in-law Dennis Hassett, and her grandson Derrick Hassett.3

       Derrick was unemployed. While living with his parents and grandmother, Derrick

sold drugs and often accepted electronic devices and other goods as payment in exchange

for drugs.

       Sherry Beck used drugs, including marijuana and methamphetamine, and was one

of Derrick's customers. She would sometimes pay Derrick money for the drugs, but other

times would trade items, such as "cell phones, DVD players, different things," for drugs,

and occasionally she used methamphetamine with Derrick.

       2. The day of the murder

       On September 15, 2005, Beck drove to Derrick's house and tried to trade a CD

player or power tools for drugs. Derrick was in the garage of the home, and he and Beck

met there. Derrick did not have any drugs to give Beck.

       While Beck was talking to Derrick, Smith approached the house on foot and

pretended to be looking for a lost kitten. According to Derrick, Beck and Smith "started

arguing" about "their cat or something." At some point, while Beck was present,

Derrick's friend Christopher Mahan showed up to "smoke . . . some dope" with Derrick.



3      We refer to the Hassetts by their first names when necessary for clarity.
                                             3
Beck then left the Hassett home.

        According to Mahan, Derrick and Mahan "smoke[d] . . . some dope" at the Hassett

home; Derrick then "got all paranoid" and decided that they needed to leave the house.

Derrick and Mahan went inside to close and check or lock all of the windows and doors.

As they were leaving, Derrick said, " 'Bye grandma, love you.' " Mahan heard no

response. The two then left to go to a store to get beer. After they got some beer, Mahan

dropped Derrick off at a friend's house near the Hassett home, and Mahan went back to

work.

        Susan Hassett returned home from work later that afternoon sometime after 3:30

p.m. Upon entering her home, she saw "[her] mother's purse open, laying on the floor,

and everything spread out around it from the contents of her purse." Susan began to call

out for her mother. Susan immediately went to her mother's bedroom and found Kelley

on her bed. There was a pillowcase over Kelley's head. Susan took the pillowcase off

her mother's head, tried to wake her up and called 911.

        3. 2005 Investigation

        A postmortem examination determined Kelley had died from homicidal asphyxia.

Her legs and arms had been bound with wires used "for hooking up televisions, monitors

or computer monitors." The medical examiner testified that he "felt that the primary

method or mode of asphyxiation here was smothering," but that "[t]he position she was in

[i.e., the way 'she was lying'] might have contributed to her death."

        Later in the evening of September 15, Mahan returned to the house where he had

dropped Derrick off earlier; Derrick was still there, and Mahan told Derrick police were

at Derrick's house. Mahan had been contacted by police, and, at their request, he took

                                             4
Derrick to the police station. In 2005, the investigation of Kelley's murder centered on

Derrick.

       Beck learned from the television news the following morning that Kelley had died

and saw Derrick "in a[n] orange jumpsuit." Beck herself was interviewed by police a

number of times, beginning shortly after Kelley's death. During her first interview, Beck

told officers that she thought Smith might have been involved in Kelley's murder and that

she was surprised Derrick was in custody. When Beck was interviewed about the crime

by police investigators, she did not refer to Smith by name but instead referred to her as

"Rhonda's daughter." Beck told a detective that she did not know Smith's name. Beck

also said that she did not know Mitchell's name and that she only knew that he was

Smith's boyfriend.

       The District Attorney's office ultimately declined to prosecute Derrick for the

crime. However, within a month after Kelley's death, police went to the home of

Mitchell's mother, Theresa Johns, looking for Smith. Officers found Smith hiding in a

closet. While at the residence, police found a number of items that had been taken from

the Hassett residence. It also became clear that Smith and Mitchell had pawned, within

days of the burglary, some, but not all, of the items of value that had been stolen from the

Hassett residence. Many of the stolen items found in Johns's residence were identifiable

as having been taken during the burglary of the Hassett residence, including jewelry and

watches, some of which had personalized engravings. Police also found foreign currency

and many coins, including coin collections.

       Police searched a Chevy Blazer that was parked at Johns's house. Inside the

Blazer, a detective found a small safe and a pink tackle box, which officers suspected

                                              5
were also connected to the burglary of the Hassett residence. Inside the safe, an officer

found collectible coin books containing collections of coins and currency from different

countries; officers found jewelry and money inside the tackle box.

        Mitchell was arrested and charged with receiving and possessing stolen goods;

however, he was later released. When Mitchell was released in October 2005, he went

back to his mother's home and brought with him police reports that had been provided to

his attorney with respect to the stolen property charges he was facing.

        Smith was held during the fall of 2005 on unrelated charges with or near another

jail inmate, Amay Lott. At some point shortly after or near the time Smith was released

from custody, Lott approached law enforcement officials and told them she overheard

Smith and Smith's friend Kesha Williams talking. According to Lott, Smith told

Williams she had been involved in a burglary during which someone had accidentally

died.

        4. 2013 Investigation

        As of 2013, Kelley's death remained "unsolved." However, in January 2013, a

television news program broadcast a report about Kelley's death. Mitchell's mother,

Theresa Johns, watched the program. As part of the news story, the police invited

members of the community to come forward with any information they might have about

the crime.

        After viewing the news story, Johns contacted police with information she

believed was relevant to the Kelley murder. Johns was interviewed twice by police

investigators: the first time on January 10, 2013; and the second time on January 30,

2013. Johns told the investigators that, until she saw the news story, Johns had been

                                             6
under the impression the victim's grandson had been arrested for her murder. Although

police had not released to the general public the fact that Kelley had been found with a

pillowcase over her head, Johns told police that she knew that Kelley had had a

pillowcase placed over her head.

       Johns told the police during the January 10, 2013 interview that she had overheard

a conversation between Smith and Williams. The conversation occurred while Williams

was not in custody and had been living with Johns. According to Johns, Smith told

Williams that she and Mitchell had burglarized a home and that they had to subdue an

elderly woman by tying her up. Further, Smith admitted that she and Mitchell had put a

pillowcase on the woman's head, and Mitchell had hit the woman to get her to stop

screaming.

       During the January 30, 2013 interview, Johns said that before police searched her

home in 2005, she heard Mitchell talking with Michael Spinks, Johns's common law

husband, in the garage of Johns's home. According to Johns, Mitchell told Spinks "how

he hit the lady and she didn't cry no more." He indicated that "Kiesha couldn't keep her

quiet." According to Johns, after she heard Smith talking to Williams, she realized that

Mitchell had been talking to Spinks about the same incident.

       B. Trial court proceedings

       1. Pretrial proceedings

       Later in 2013, the San Bernardino County District Attorney filed an amended

information charging Smith, Mitchell and Beck with one count of first degree murder.




                                             7
(Pen. Code,4 § 187, subd. (a); count 1.) The amended information also alleged two

special circumstances: (1) that the murder was committed in the course of a robbery,

within the meaning of section 190.2, subdivision (a)(17)(A); and (2) that the murder was

committed in the course of a second degree burglary, within the meaning of section

190.2, subdivision (a)(17)(G).

      Prior to trial, Beck withdrew her plea of not guilty and entered guilty pleas to

multiple offenses, including voluntary manslaughter and elder abuse; pursuant to a

negotiated plea agreement, Beck would receive a sentence of 17 years in state prison.

Smith's and Mitchell's trials began on February 6, 2014; separate juries were empaneled

for each defendant.

      2. Trial testimony

      a. Beck

      At trial, Beck testified that, in September 2005, she was upset with Derrick. She

believed that he had not been giving her quantities of drugs commensurate with the value

of the items she was bringing him.

      Beck, who had been convicted of burglarizing her own mother's home, spent time

with other people who used drugs and stole things. Beck would sometimes pawn stolen

items at pawn shops for other people. Beck knew Smith because they had lived in the

same apartment complex, which was not far from the Hassett home. Beck sometimes

gave Smith rides in Beck's car. One day in September 2005, Beck drove Smith and

Mitchell to a pawn shop. As she, Smith and Mitchell drove by Derrick's house, Beck



4     Further statutory references are to the Penal Code unless otherwise indicated.
                                            8
pointed out the Hassett residence to Mitchell and Smith and told them that they could

probably acquire a lot of items from the home because Derrick was frequently getting

items of value, such as electronics, in exchange for drugs. Shortly thereafter, Smith and

Mitchell developed a plan in which Beck would go to the Hassett home and convince

Derrick to leave so that Smith and Mitchell could burglarize it.

       On September 15, 2005 Beck went to the Hassett home and did attempt to get

Derrick to leave. After leaving the Hassett home, Beck saw Smith, Mitchell, and another

man in a car. Beck told the occupants of the other car she did not want to have anything

to do with burglarizing the Hassett home. Beck told Smith and Mitchell that Derrick's

grandmother was at home and that she did not want them to burglarize the house. Smith

and Mitchell did not say anything in response. Beck told Smith, Mitchell and the other

man that she did not want any of the money or property that they might get from the

Hassett house and that her only goal was to get even with Derrick. Beck then returned to

the apartment complex where Smith lived. Although Beck was not living at the complex

at that time, Beck still had friends there.

       According to Beck, on the day after the burglary of the Hassett home, Smith,

Mitchell and the other man who had been in the car with them the previous day

approached Beck in front of the hotel where she was staying. They told Beck that she

"needed to keep [her] mouth shut." They were in an SUV, and one of them had a

weapon, which he pointed at Beck.

       b. Johns

       At trial, Johns recanted the statements that she had made during her interviews

with detectives. She explained that, at the time she made the statements, she was angry

                                              9
with Mitchell, and she knew what the investigators wanted to hear. Johns said that she

had known certain details about the crime because she had access to police reports, which

Mitchell had obtained when he was arrested for possessing stolen property from the

Hassett home in 2005. Mitchell had left the police reports with Johns. Johns also said

that she had researched the case on the internet.

       On cross-examination, Johns conceded that she was not able to locate the

documents she claims she saw in 2005. The prosecution also presented evidence that, in

2005, Smith and Mitchell were only being held for possible prosecution related to their

possession of stolen property and that it was unlikely any law enforcement documents

provided to them would have included details about Kelley's death.

       c. Williams

       Williams testified at trial. In September 2005, she was living with Johns in Rialto,

California. Williams was present when police searched the house; however, she left

immediately after the search to visit her mother in Texas.

       Williams acknowledged that, after returning to Rialto, she got into a heated, and

physical, confrontation with Johns, which resulted in Williams being arrested. Williams

was in local custody for several days and was housed in the same area where Smith was

incarcerated after being found with items stolen from the Hassett home. While Williams

and Smith were in jail together, Williams overheard Smith tell others that she and her

boyfriend had been robbing houses and that their last robbery "went bad."

       Williams testified that she had been threatened in an attempt to discourage her

from testifying against Mitchell and Smith. Although she did not feel that Smith had

threatened her, Williams said that Smith had relayed threats from Johns. Williams

                                             10
understood Johns to be "erratic" and "[d]estructive," and thought she would do "crazy

things sometimes" and could be a "spiteful person."

       However, Williams denied Smith told her details about the burglary of the Hassett

home while at Johns's residence, as Johns had told investigators. According to Williams,

if Johns asserted that she overheard such a conversation between Williams and Smith,

that assertion would be false because Williams and Smith "never had a discussion"

regarding a burglary that ended in a death. Williams testified that if she had learned such

information, she would not have remained living in Johns's house.

       d. Lott

       Lott also testified at the 2014 trial. She testified that, when she was in jail with

Smith in 2005, she had engaged in conversations with Smith, and that, during some of

these conversations, Smith told Lott about a burglary in which an elderly woman had

been in the home. According to Lott, Smith told her that the elderly woman was not

supposed to have been at home, and Smith had told "them" to "just leave her alone" and

said, "[L]et's go, let's go." But, "[t]hey put a pillowcase over her head, and the boys

proceeded to beat her." Lott testified that Smith said "she was trying to get them to stop."

       According to Lott, Smith said that they took coins, a "water bottle with coins," a

safe, and jewelry from the residence. Lott admitted that she had been convicted of

numerous crimes, including making a false financial statement, grand theft, perjury,

possession of forged checks, commercial burglary, and receiving stolen property. Lott

testified that she had not received any favorable treatment or other benefit as a result of

coming forward with her statements against Smith.



                                              11
       e. Mitchell

       Smith did not testify at trial, but Mitchell did. Mitchell said that, in 2005, he was

selling drugs and living with his mother in Rialto. Smith was his girlfriend and was

living with him at his mother's house "off and on." Other people also lived in the house

at the time.

       Mitchell did not discuss criminal activity with his mother. However, after he was

released from jail in 2005, she told him to stop whatever he was doing.

       Mitchell explained that he met Beck through Smith. Mitchell gave Beck drugs in

exchange for property (as opposed to money) on one occasion. Mitchell met Beck at his

mother's house. Beck brought a "big camping tent bag" that was "full of anything you

can think of" to trade for drugs. The bag had coins in it, including foreign currency

coins. Mitchell knew that the items were stolen property because he had "been selling

drugs for a long time" and had learned that exchanging stolen items was "what most

people do that wants drugs from a person like [him]." In exchange for the items, Mitchell

provided Beck with approximately $350 worth of drugs.

       Mitchell testified that although he was aware that the items Beck had given him

were stolen, he was unaware that the items had been taken from the scene of a homicide.

If he had known this, he would not have taken the items, or he would have tried to sell

them to someone else. Mitchell admitted that he attempted to pawn some of the items

that Beck had given him in exchange for drugs.

       According to Mitchell, Smith was not involved in his drug transaction with Beck.

Mitchell was the one who handled most of the items that Beck had given him, although

he might have given Smith a bag "to go put . . . somewhere." For the most part, he was

                                             12
the one who had placed the items in different locations in his mother's house and in

Smith's car.

       Mitchell testified that sometime between 2005 and 2013, his mother had wanted

custody of his children, and he had not been willing to agree to let her have the children.

His relationship with his mother during that time period was "[l]ike cats and dogs.

Sometimes we're cool, and sometimes we're like absolutely not at all." After Mitchell

was arrested for Kelley's murder, Johns told him that she had gotten the story she told

police "from [Mitchell's] old discovery."

       Both juries found the defendants guilty of first degree murder and found true both

of the special circumstance allegations.

       The trial court sentenced both Smith and Mitchell to sentences of life in prison

without the possibility of parole.

       Both defendants filed timely notices of appeal.

       As we indicated at the outset, after we issued our prior opinion in this case

reversing both defendants' convictions, the Supreme Court granted the People's petition

for review and transferred the matter to this court for reconsideration in light of Grimes,

supra, 1 Cal.5th 698. At our request, the parties submitted further briefing with respect

to the Supreme Court's transfer order.

                                            III.

                                      DISCUSSION

       A. Smith's appeal

       Smith raises two contentions on appeal. She first argues that the trial court

prejudicially erred in instructing her jury that any testimony from an accomplice requires

                                             13
corroborating evidence before the jury may accept it as true. As Smith correctly notes,

the actual rule is that a jury may not convict a defendant of an offense based on

accomplice testimony without corroborating evidence. There is no corroboration

requirement with respect to exculpatory accomplice testimony. According to Smith,

because Mitchell provided testimony that tended to exculpate her, the court's instruction

erroneously told the jury that there had to be evidence to corroborate his exculpatory

testimony before the jury could accept it as true.

       Smith's second contention is that the trial court prejudicially erred in discharging

Juror No. 8 during the jury's deliberations. She asserts that no valid grounds for

discharging this juror are apparent from the record, and further contends that the court's

removal of this juror—the only juror who was leaning toward acquittal—violated her

right to an impartial jury and to a unanimous verdict under the Sixth and Fourteenth

Amendments.

       1. The trial court's instruction on accomplice testimony prejudiced Smith

       Smith argues that the trial court erred in providing the jury with an instruction

based on CALCRIM No. 301 that informed the jury that any accomplice testimony must

be supported by corroborating evidence. We agree that the court's instruction was

erroneous, and conclude that the error was prejudicial.5

5       The People maintain that Smith has forfeited this argument by failing to request a
correction of the instruction that she challenges on appeal. The People note that a court is
"not obliged to instruct on theories that lack substantial evidentiary support," and suggest
that the trial court was not obliged to instruct the jury correctly with respect to
accomplice testimony, because, the People argue, there was not substantial evidence of
accomplice testimony that exonerated Smith. The People are incorrect with respect to the
state of the evidence. Mitchell clearly provided testimony that tended to exonerate Smith
(as we further address in part III.A.1.b.). The People's legal analysis is also incorrect.
                                             14
       a. The court provided an erroneous instruction regarding accomplice testimony

       Section 1111 places a limitation on the use of "accomplice" testimony to convict a

defendant: "A conviction can not [sic] be had upon the testimony of an accomplice

unless it be corroborated by such other evidence as shall tend to connect the defendant

with the commission of the offense; and the corroboration is not sufficient if it merely

shows the commission of the offense or the circumstances thereof. [¶] An accomplice is

hereby defined as one who is liable to prosecution for the identical offense charged

against the defendant on trial in the cause in which the testimony of the accomplice is

given." (Italics added.)

       The trial court instructed Smith's jury with an instruction (Instruction No. 12),

regarding the testimony of a single witness, which also commented on how the jury was

to treat accomplice testimony: "The testimony of only one witness can prove any fact.

Before you conclude that the testimony of one witness proves a fact, you should carefully

review all the evidence. However, the testimony of Sherry Beck, Amay Lott, and

portions of Kesha Williams require supporting evidence. The testimony of any other

person you determine to be an accomplice also requires supporting evidence." (Italics

added.)6

Once the court determined that it would instruct the jury with respect to accomplice
testimony, it was obligated to provide instructions that correctly stated the law. (See
People v. Castillo (1997) 16 Cal.4th 1009, 1015 [court has a duty to give legally correct
instructions].)

6      The current standard instruction suffers from the same erroneous statement as the
instruction given by the trial court in this case: "[Except for the testimony of
__________ <insert witness's name>, which requires supporting evidence [if you decide
(he/she) is an accomplice],] (the/The) testimony of only one witness can prove any fact.
Before you conclude that the testimony of one witness proves a fact, you should carefully
                                             15
       The trial court also instructed the jury with an instruction based on CALCRIM No.

334, which informs the jury regarding how to decide whether a witness is an accomplice

and, if the jury determines that the witness is an accomplice, instructs the jury that it may

not use an accomplice's testimony to convict a defendant without some corroborating

evidence. The court instructed Smith's jury as follows, in relevant part, based on

CALCRIM No. 334 (Instruction No. 20): "Before you may consider the statement or

testimony of Kiesha Smith, Michael Mitchell, Kesha Williams, Theresa Johns, Michael

Spinks, Derrick Hassett or Christopher Mahan as evidence against the defendants Kiesha

Smith or Michael Mitchell, you must decide whether Kiesha Smith, Michael Mitchell,

Kesha Williams, Theresa Johns, Michael Spinks, Derrick Hassett or Christopher Mahan

were an accomplices [sic] to those crimes.[7] A person is an accomplice if he or she is

subject to prosecution for the identical crime charged against the defendant. Someone is

subject to prosecution if: [¶] 1. He or she personally committed the crime; [¶] OR [¶] 2.

He or she knew of the criminal purpose of the person who committed the crime; [¶] AND

[¶] 3. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or

instigate the commission of the crime; or participate in a criminal conspiracy to commit


review all the evidence." (CALCRIM No. 301, boldface omitted.) The bench notes to
this instruction provide: "The following constitutional provisions and statutes require
evidence that corroborates a witness's testimony: Cal. Const., art. I, § 18 [treason]; Pen.
Code, §§ 1111 [accomplice testimony]; 1111.5 [in-custody informant]; 653f [solicitation
of felony]; 118 [perjury]; 1108 [abortion and seduction of minor]; 532 [obtaining
property by false pretenses]. [¶] Give the bracketed phrase 'if you decide (he/she) is an
accomplice' and CALCRIM No. 334 if the jury must determine whether a witness is an
accomplice."

7     The instruction did not inform the jury of the "crimes" to which the phrase "those
crimes" referred.
                                              16
the crime. [¶] . . . [¶] If you decide that a declarant or witness was an accomplice, then

you may not convict the defendant of felony murder based on his or her statement or

testimony alone. You may use the statement or testimony of an accomplice to convict the

defendant only if: [¶] 1. The accomplice's statement or testimony is supported by other

evidence that you believe; [¶] 2. That supporting evidence is independent of the

accomplice's statement or testimony; [¶] AND [¶] 3. That supporting evidence tends to

connect the defendant to the commission of the crime. [¶] . . . [¶] Any statement or

testimony of an accomplice that tends to incriminate the defendant should be viewed with

caution. You may not, however, arbitrarily disregard it. You should give that statement

or testimony the weight you think it deserves after examining it with care and caution and

in the light of all the other evidence."

       Since Mitchell was being prosecuted for the very same crime with which Smith

was charged, he necessarily met the definition of an accomplice. At trial, Mitchell

provided exculpatory testimony, not only as to himself, but also as to Smith—i.e., he

provided testimony that was not properly subject to the rule requiring corroboration.

Section 1111 provides in part that "[a] conviction can not [sic] be had upon the testimony

of an accomplice unless it be corroborated." Exculpatory testimony, by definition, cannot

be said to support a conviction and, thus, need not be corroborated.

       Instruction No. 20 properly instructed the jury that it could "not convict the

defendant of felony murder based on [an accomplice's] statement or testimony alone," but

that such statements must be supported by independent corroborating evidence tending to

connect the defendant to the crime. (Italics added.) However, the jury was given this

instruction only after having been instructed with Instruction No. 12 that "[t]he testimony

                                             17
of any other person you determine to be an accomplice also requires supporting

evidence," without further explanation that this instruction applies only when such

testimony is being used to determine a fact used to convict a defendant.

       Instruction No. 12 was erroneous because it instructed the jury that if it determined

that Mitchell was "subject to prosecution for the identical crime charged against [Smith]"

then all of Mitchell's testimony, including the exculpatory testimony pertaining to Smith,

required corroborating evidence before the jury could accept it as true. Instruction No. 12

improperly informed the jury that there must be corroborating evidence to support an

accomplice's testimony that is either neutral or exonerating.

       b. The instructional error was prejudicial

       The People maintain that the trial court's instructions, including Instruction No. 12

and Instruction No. 20, were proper and correct, and suggest that this is so because

Mitchell's testimony was not exculpatory as to Smith. Apparently convinced of the

correctness of this position, the People provide no analysis with respect to the prejudice

that may have resulted if the trial court's instructions were, in fact, erroneous. We

therefore undertake a prejudice analysis without the benefit of the People's position.

       Smith does not contend that the trial court's instructional error is subject to the

harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, but rather that

harmlessness review under the standard announced in People v. Watson (1956) 46 Cal.2d

818 (Watson) is appropriate. We need not decide which standard of review applies

because we conclude that even under the Watson standard, reversal is required.

       "Under the Watson standard, prejudicial error is shown where ' " 'after an

examination of the entire cause, including the evidence,' [the reviewing court] is of the

                                              18
'opinion' that it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error." [Citation.] "We have made clear

that a 'probability' in this context does not mean more likely than not, but merely a

reasonable chance, more than an abstract possibility." ' " (Richardson v. Superior Court

(2008) 43 Cal.4th 1040, 1050.)

       There is more than an abstract possibility that the instructional error affected the

verdict in this case. The record demonstrates that Instruction No. 12 became a point of

disagreement between a lone hold-out juror and the other 11 jurors, and that the hold-out

juror was ultimately dismissed, in part because the other jurors believed that this juror

was unwilling to follow the court's erroneous instruction regarding the need for

corroboration of any accomplice testimony, regardless of whether that testimony was

inculpatory or exculpatory.

       First, contrary to the People's contention on appeal, it is clear that Mitchell's

testimony did exculpate Smith. Mitchell testified that he obtained the items that were

taken from the Hassett home when Beck exchanged those items with him for drugs. He

further testified that Smith was not involved in the drug transaction with Beck, and

specifically stated that Smith had not even really handled any of the items he had

obtained from Beck, although he may have asked her to put an item or two somewhere

for him. Although Mitchell acknowledged that he had been introduced to Beck through

Smith, nothing about Mitchell's testimony expressly or implicitly implicated Smith in the

burglary of the Hassett home, or in Kelley's death. Mitchell's testimony was exculpatory




                                              19
as to himself and also had the effect of exculpating Smith.8

       Smith's jury clearly considered whether it could accept Mitchell's testimony as

true, without corroboration from an additional source. The jury began deliberating on

April 2, 2014. During the first few days of deliberations, the jury requested read-backs of

testimony, including Mitchell's. On April 8, 2014, in the afternoon, the foreperson sent a

note to the judge indicating that she had concerns about one juror who she said had

"repeatedly refused to deliberate further, to verbalize his doubt, and to follow some jury

instructions." The foreperson's note indicated that the jurors were in agreement except

for this one juror.

       After receiving the note, the judge spoke with the foreperson on the record. The

foreperson explained: "We've had — we've had a very intense several days. And we

certainly have not had for days consensus except for one person. So we've — we've

done, I think a lot of review of the evidence and really looking at the doubts that, you

know, we might have about the situation. . . . [¶] So yesterday we began the process of

determining kind of where we were. Okay. So we took an anonymous sample vote. And

we had several people who were still undecided, and so we spent the rest of the morning

deliberating and again talking over the evidence and reviewing the jury instructions. For

example, regarding Michael Mitchell's testimony and if — that he, being considered an

accomplice, there would need corroborating testimony. In order to use his testimony as,


8      The People suggest that Mitchell could not be viewed as an accomplice if his
testimony exculpating himself was to be believed. However, the Penal Code defines an
accomplice as "one who is liable to prosecution for the identical offense charged against
the defendant on trial in the cause in which the testimony of the accomplice is given."
(§ 1111.) Mitchell was therefore, by definition, an accomplice since he was being
prosecuted for the identical offense with which Smith was charged.
                                             20
you know, as truth. So that was helpful in going back to the jury instructions to several

people who were like, well, that's right actually. And it pulled things together for several

of the other jurors. [¶] . . . [¶] You know, one thing [Juror No. 8] talks about a lot is

Michael's testimony, which we've — I mean, hours we spent talking about Michael's

testimony and how, because he is an accomplice, we would need corroborating evidence.

And that got worked out for most people. And he said, 'Well, I'm not going to follow

that. I don't think that is true and I'm not going to follow that.' I clarified with him, 'Let

me reread this jury instruction. Are you saying that you are not going to follow that jury

instruction?' And he said, 'Yep, I can't — can't do that.' "

       The trial court then interviewed Juror No. 8, and inquired of him as to how the

deliberations were going. Juror No. 8 told the court, "Well, you know, to finalize and

make it easier, I, in good conscience — and it was argued that I wasn't listening to the

law. And I said, 'No, I feel like I am.' So in good conscience the verdict that I picked, I

can't change it. And we've rehashed it over and over. With all due respect to the court, I

just cannot change it. I've done this, went over and over and kind of got heated. But I

just said, 'No, I really do in good conscience believe what I believe. And so I don't know

what else to say.' "

       After asking Juror No. 8 a few more questions, the court said, "There was a

concern that at least as to one jury instruction that you indicated that you couldn't follow

that particular instruction."9 Juror No. 8 replied that he had never said such a thing. The


9      There were five jury instructions that referenced accomplice testimony
(Instruction Nos. 12, 20, 21, 41 & 42). Instruction Nos. 21 and 42 specifically referred to
Sherry Beck being an accomplice if the jury made certain other findings, and then
repeated the directions on the use of accomplice testimony provided in Instruction
                                              21
court then asked whether Juror No. 8 knew which instruction the court was referring to,

and Juror No. 8 responded, "It was just mentioned. And I said that is not what I'm doing.

I believe I'm following the law." The court then asked, "And in particular the instruction

that we were apprised or I was just apprised of was the instruction regarding accomplice

testimony requiring corroboration. Has that been discussed?" Juror No. 8 responded that

it had been discussed several times, and he believed that he had expressed his opinion.

       The following day, the court inquired of the other members of the jury. Some,

although not all, of the other jurors expressed a concern that at least one juror had

indicated an unwillingness to "follow the law or the jury instructions."

       For example, when asked whether Juror No. 8 had made any comment pertaining

to the "instruction regarding accomplice testimony requiring corroboration," Juror No. 5

stated: "He — he did believe one testimony of an accomplice. However, when we were

discussing and when we were trying to evaluate that testimony, we, as a jury, didn't find

anything to corroborate that evidence. However, Juror No. 8 still believed that that

evidence was true regardless, that there was no corroborating evidence to prove that."

       Upon inquiry from the court, other jurors made similar statements about the jury's




No. 20. However, the court, foreperson, and other jurors never specified which
instruction regarding accomplice testimony was being referenced during all of these
discussions, and the court consistently spoke of a single jury instruction that Juror No. 8
was being accused of failing to follow. As we have already pointed out, however, the
instruction referring to accomplice testimony corroboration in Instruction No. 12 was in
conflict with the instruction referring to accomplice testimony corroboration in
Instruction No. 20 (and repeated in Instruction Nos. 21, 41 & 42), with respect to the
requirement of corroboration for exculpatory accomplice testimony.

                                             22
discussions regarding the instruction on accomplice testimony.10

       The trial court eventually had a second discussion with Juror No. 8. During that

discussion, the court again raised the issue of the "jury instruction [that] had to do with

accomplice testimony requiring corroboration." Juror No. 8 again told the court that he

believed that he was following the court's instruction, and that he felt as if he had "been

cut off" by other jurors when he tried to express his views.

       The trial court ultimately dismissed Juror No. 8, and provided two reasons for the

dismissal: (1) that the juror failed to disclose a 1999 misdemeanor conviction in

Riverside County, and (2) "that Juror No. 8, in his own opinion, is unable to continue as a

juror in this case." The court also mentioned a possible third reason, i.e., "what the court

perceives as a potential failure to properly deliberate." After the court replaced Juror

No. 8 with an alternate juror, the jury unanimously convicted Smith of the charged

offense, and found the special circumstances true.

       The record demonstrates that the members of the jury, other than Juror No. 8, were

applying the corroboration requirement to Mitchell's exculpatory testimony. This is

made clear by the foreperson's comments, and is further supported by the comments


10      The trial court and the jurors appear to have repeatedly assumed either that there
was a single instruction regarding the need for corroboration of accomplice testimony, or
that the instructions all said the same thing, when, in fact, the two most significant
instructions provided by the court regarding accomplice testimony were not the same,
and indeed, were in conflict with respect to whether exculpatory testimony of an
accomplice had to be corroborated. In fact, the way that the court discussed the issue, by
repeatedly referring to the instruction as a single one providing that accomplice testimony
"requires" corroboration, suggests that the court was also under the misimpression that all
accomplice testimony, and not only inculpatory accomplice testimony, required
corroboration. As we have already explained, the law does not require that exculpatory
accomplice testimony be corroborated.
                                             23
made by a number of other jurors. Because Mitchell's testimony was clearly exculpatory

as to Smith, no corroboration of his testimony was required if a juror wanted to accept his

testimony as true, as Juror No. 8 apparently did. Yet Juror No. 8 was repeatedly told by

other members of the jury that the instructions provided that the jurors could not accept

that testimony as true without corroboration from another source. It is thus clear that the

jury not only understood the trial court's instruction in Instruction No. 12 as requiring

corroboration for any accomplice testimony, whether inculpatory or exculpatory, but that

the jury believed that Mitchell fit the definition of an accomplice (a correct

determination), and that his exculpatory testimony could not be believed because it was

uncorroborated.

       Juror No. 8 was attempting to apply the law correctly—i.e., to accept Mitchell's

exculpatory testimony as true without requiring corroboration, and for this reason, was

held out to the court by the other jurors as being unwilling to follow the court's

instruction. It is clear from the record that the rift that emerged in the jury with respect to

court's instructions pertaining to the requirement of corroboration of accomplice

testimony is what ultimately led to Juror No. 8's dismissal from the jury, even if the

reasons given for Juror No. 8's dismissal were not specifically that Juror No. 8 refused to

apply the instructions provided by the court. Given this record, we can reach no

conclusion other than that the trial court's erroneous instruction regarding the requirement

that an accomplice's testimony be corroborated, irrespective of the nature of that

testimony as inculpatory or exculpatory, affected Smith's verdict. In our view, it is at

least reasonably probable that Smith would have obtained a more favorable result if the

jury had not been erroneously instructed with respect to accomplice testimony. (See

                                              24
People v. Sanchez (2014) 228 Cal.App.4th 1517, 1535 [a hung jury is considered more

favorable than a guilty verdict].)

       2. Smith's other contention on appeal

       Because we reverse Smith's first degree murder conviction on the ground that the

trial court's erroneous instruction concerning accomplice testimony prejudiced Smith, we

need not address her additional contention that the trial court erred in discharging Juror

No. 8 during deliberations.

       B. Mitchell's appeal

       1. Admission of statements that Smith made to acquaintances

       Mitchell raises a number of legal claims challenging the trial court's admission of

evidence regarding statements that Smith purportedly made to acquaintances, which

inculpated both Smith and Mitchell in the burglary of the Hassett home and Kelley's

murder. We disagree with Mitchell's contention that the admission of these statements

violated his Sixth Amendment right to confront witnesses against him. We also conclude

the evidence of Smith's statements were properly admitted against Mitchell as statements

against her penal interest under Evidence Code section 1230.

       a. The admission of the statements did not violate the confrontation clause

because the statements are not testimonial

       Mitchell's first challenge to the admission of hearsay evidence regarding Smith's

statements to Williams, as overheard by Johns, and Smith's statements to Lott, is that the

admission of these statements violated his right to confront witnesses because he was

denied an opportunity to cross-examine Smith. This contention is without merit because

the challenged statements are not testimonial. Mitchell's confrontation rights were

                                             25
therefore not implicated by their admission.

       Prior to the United States Supreme Court's decision in Crawford v. Washington

(2004) 541 U.S. 36 (Crawford), the Court had interpreted the Sixth Amendment to permit

the admission of out-of-court statements by an unavailable witness, as long as the

statements bore "adequate 'indicia of reliability.' " (Ohio v. Roberts (1980) 448 U.S. 56,

66 (Roberts).) Such indicia existed if "the evidence falls within a firmly rooted hearsay

exception" or bears "particularized guarantees of trustworthiness." (Ibid.) In Crawford,

the Court "adopted a different approach" to the Sixth Amendment's concerns. (Ohio v.

Clark (2015) ___ U.S. ___ [135 S.Ct. 2173, 2179] (Clark).) The Crawford opinion

"explained that 'witnesses,' under the Confrontation Clause, are those 'who bear

testimony,' and . . . defined 'testimony' as 'a solemn declaration or affirmation made for

the purpose of establishing or proving some fact.' " (Clark, at p. 2179, quoting Crawford,

at p. 51.)

       Crawford held that the Sixth Amendment "prohibits the introduction of

testimonial statements by a nontestifying witness, unless the witness is 'unavailable to

testify, and the defendant had had a prior opportunity for cross-examination.' " (Clark,

supra, 135 S.Ct. at p. 2179, quoting Crawford, supra, 541 U.S. at p. 54, italics added.)

       United States Supreme Court decisions after Crawford have attempted to explain

what types of statements are "testimonial" for purposes of the Sixth Amendment, since

Crawford "did not offer an exhaustive definition of 'testimonial' statements." (Clark,

supra, 135 S.Ct. at p. 2179.) For example, in Davis v. Washington (Davis) and Hammon

v. Indiana (Hammon) (2006) 547 U.S. 813, which were decided together, the Court

considered statements given to law enforcement officers. The victim in Davis made

                                               26
statements to a 911 emergency operator during and immediately after an attack. (Id. at

pp. 817-819.) In Hammon, after the victim was isolated from her abusive husband, she

made statements to police that were memorialized in something called a " 'battery

affidavit.' " (Id. at pp. 819-820.) The United States Supreme Court held that the

statements at issue in Hammon were testimonial, but that the statements at issue in Davis

were not. The court offered the following test for determining whether a statement is

testimonial: "Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They are

testimonial when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution." (Id. at p. 822.) However,

because both Hammon and Davis involved statements made to law enforcement officers,

the Court reserved the question whether similar statements to individuals other than law

enforcement officers would raise issues under the Confrontation Clause. (Id. at p. 823,

fn. 2.)

          In 2011, the United States Supreme Court further elucidated the "primary purpose"

test, explaining that a court must consider "all of the relevant circumstances." (Michigan

v. Bryant (2011) 562 U.S. 344, 369.) Specifically, "there may be other circumstances,

aside from ongoing emergencies, when a statement is not procured with a primary

purpose of creating an out-of-court substitute for trial testimony." (Id. at p. 358.) "[T]he

existence vel non of an ongoing emergency is not the touchstone of the testimonial

inquiry." (Id. at p. 374, first italics in original, second italics added.) Instead, "whether

                                              27
an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry

regarding the 'primary purpose' of an interrogation." (Id. at p. 366.) Another factor a

court is to consider is "the informality of the situation and the interrogation." (Id. at

p. 377.) "A 'formal station-house interrogation,' like the questioning in Crawford, is

more likely to provoke testimonial statements, while less formal questioning is less likely

to reflect a primary purpose aimed at obtaining testimonial evidence against the accused."

(Clark, supra, 135 S.Ct. at p. 2180.) Another factor a court is to consider is to whom the

statements were made. Although the United States Supreme Court has declined to adopt

a categorical rule excluding statements made to individuals who are not law enforcement

officers from the Sixth Amendment's reach, the Court has noted that "such statements are

much less likely to be testimonial than statements to law enforcement officers." (Id. at p.

2181.)

         Ultimately, the question that a court must answer in determining whether a

statement falls within the ambit of the Confrontation Clause is whether, in light of all the

circumstances and when viewed objectively, "the 'primary purpose' of the conversation

was to 'creat[e] an out-of-court substitute for trial testimony.' " (Clark, supra, 135 S.Ct.

at p. 2180.)11

         Given the circumstances surrounding the statements at issue, the statements are



11      We reject Mitchell's contention, based on Lilly v. Virginia (1999) 527 U.S. 116
(Lilly), that the Sixth Amendment "appear[s] to come into play even where hearsay
evidence is viewed as non-testimonial." Lilly relied on Roberts, supra, 448 U.S. 56 for
its holding, but Roberts was effectively overruled in Crawford, supra, 541 U.S. at page
51. Thus, as courts have repeatedly expressed, "[o]nly the admission of testimonial
hearsay statements violates the confrontation clause." (People v. Gutierrez (2009) 45
Cal.4th 789, 812.)
                                              28
not "testimonial" under the "primary purpose" test. The challenged statements are

alleged to have been made to acquaintances, not to law enforcement officers. They were

not made during an interrogation, and there is not a single circumstance that would lead

one to conclude that the conversations occurred to establish past events for the purpose of

a future criminal prosecution. Any conversations that Smith had with either Williams (as

overheard by Johns) or Lott were not had for the primary purpose of creating an out-of-

court substitute for testimony. We therefore conclude that Mitchell's claim that his right

to confront witnesses was violated by the admission of these statements is without merit.

However, that does not end our inquiry. We must also consider whether the statements

were properly admitted under the hearsay exception for statements against the declarant's

interest.

       b. The evidence of Smith's statements was properly admitted under the hearsay

exception for statements against penal interest

       Mitchell's second challenge to the admission of hearsay evidence of Smith's

statements to Williams and Lott is that the statements do not qualify as statements against

interest and, therefore, were not admissible against him under Evidence Code 1230. In

particular, he contends that Smith's statements were not inculpatory because they tend to

cast more responsibility for Kelley's death on him than on her.

       i. Grimes

       Because we have been directed to reconsider our opinion in light of Grimes, we

begin there.

       In Grimes, a death penalty case, the defendant was charged with participating in

the burglary, robbery and murder of a 98-year-old victim who was found in her home

                                            29
with blunt force trauma to her head, ligature strangulation and stab wounds. The actual

killer was apprehended shortly after the murder and committed suicide before trial. The

defendant offered, as statements against penal interest, statements the killer made to third

parties before and after his apprehension in which he stated that the defendant and

another participant in the burglary had not taken part in the killing; according to the

defendant's offer of proof, the killer told one of the third parties that, after he killed the

victim, the other two looked at him " 'as if they were saying, what in the hell are you

doing, dude.' " (Grimes, supra, 1 Cal.5th at p. 710.) The trial court excluded the

exculpatory portions of the third party statements because it concluded that they were not

declarations against the killer's interest.

       On direct appeal, the Supreme Court found that the statements did qualify as

declarations against interest. However, the Supreme Court found that the failure to admit

the statements did not prejudice the guilty verdict or the jury's finding of a special

circumstance; rather, the court found the error only prejudiced the jury's separate verdict

of death.

       In finding the statements should have been admitted, the court stated: "[T]he

nature and purpose of the against-interest exception does not require courts to sever and

excise any and all portions of an otherwise inculpatory statement that do not 'further

incriminate' the declarant. Ultimately, courts must consider each statement in context in

order to answer the ultimate question under Evidence Code section 1230: Whether the

statement, even if not independently inculpatory of the declarant, is nevertheless against

the declarant's interest, such that 'a reasonable man in [the declarant's] position would not

have made the statement unless he believed it to be true.' " (Grimes, supra, 1 Cal.5th at

                                               30
p. 716.) Importantly, the court found that a statement is not "automatically inadmissible

merely because it does not render the declarant more culpable than the other portions of

his confession—or because, as the trial court put it in this case, the statement does not

'significantly enhance the personal detriment' to a person who has already confessed

responsibility for the crime." (Id. at p. 717.)

       The court recognized, "[a] rule that permitted admission of no more of a

declarant's statement than was necessary to expose him to criminal liability, requiring

courts to mechanically sever and excise the rest, certainly might be easier to apply. But

as the concurring and dissenting opinion itself appears to recognize, this is not the rule we

have: Under the law as it has developed in California, as in the federal system, context

matters in determining whether a statement or portion thereof is admissible under the

against-interest exception. This contextual approach accords with the rationales

underlying the modern expansion of the rule governing the admission of statements

against interest." (Grimes, supra, 1 Cal.5th at p. 717.) Grimes instructs that courts may

consider whether the portion of a confession that tends to exculpate the declarant

nonetheless may be admitted "in view of surrounding circumstances, even though the

exculpatory portion of the statement is not independently disserving of the declarant's

interests." (Id. at p. 715.)

       The opinion in Grimes was subject to a concurring and dissenting opinion

prepared by the Chief Justice and joined by two of her colleagues. The concurring and

dissenting opinion argued that the portion of the killer's statements that exculpated the

defendant were entirely collateral to the portions that inculpated the killer and, as a matter

of logic, could easily be separated from the remainder of his statements. "Unlike

                                              31
situations in which a contextual fact is 'inextricably tied to and part of' a specifically

disserving statement [citation], in which case stripping the contextual fact would require

alteration of the incriminating statement itself, [the killer's] statement describing the

looks he received was readily separable from his admissions that he had strangled and

stabbed the victim. It takes no great leap of imagination to appreciate how [the witness]

could have testified fully and coherently to [the killer's] statements about strangling and

stabbing [the victim] without also testifying to [the killer's] collateral statement about the

looks he received from defendant . . . afterward." (Grimes, supra, 1 Cal.5th at p. 744

(conc. & dis. opn. of Cantil-Sakauye, C.J.).) Because the arguably exculpating portions

were collateral and did not disserve the killer's interest, the Chief Justice found that they

were not admissible under Evidence Code section 1230. (Id. at pp. 744-745.)

       ii. Samuels, Gordon, Wilson, and Greenberger

       On the very issue presented here—the admission of statements that cast the

defendant in a harsher light than the declarant—it is of some import that in Grimes, both

the majority opinion and the Chief Justice's concurring and dissenting opinion, cited with

approval the court's prior opinion in People v. Samuels (2005) 36 Cal.4th 96 (Samuels).

(See Grimes, supra, 1 Cal.5th at p. 716; see also Grimes, at p. 744 (conc. & dis. opn. of

Cantil-Sakauye, C.J.).)

       In Samuels, a paid murderer told his friend that he had killed the victim, that the

defendant had paid him and that he had paid some of the money to a third person who

helped him. The court rejected the defendant's contention that those portions of the

murderer's statements that implicated her were collateral and did not directly disserve the

murderer's interest. The court stated: "Under the totality of the circumstances presented

                                              32
here, we do not regard the reference to defendant incorporated within this admission as

itself constituting a collateral assertion that should have been purged from [the friend's]

recollection of [the murderer's] precise comments to him. Instead, the reference was

inextricably tied to and part of a specific statement against penal interest." (Samuels,

supra, 36 Cal.4th at p. 121, italics added.)

       Thus, the contextual approach set forth in Samuels and reiterated in Grimes does

not permit a mechanical analysis of statements offered under Evidence Code section

1230. This approach is not by any means novel. In People v. Gordon (1990) 50 Cal.3d

1223 (Gordon), the Supreme Court considered statements made by an accessory, Rauch,

who told law enforcement officers that he had provided the defendant, his nephew, with

shelter and medical care after the defendant had been wounded in a robbery. Although

the statement minimized the declarant uncle's role and portrayed his nephew in a much

harsher light, the court found the statement admissible: "The court could have reasonably

concluded that at the time it was made, Rauch's statement so far subjected him to the risk

of criminal liability that a reasonable person in his position would not have made it unless

he believed it to be true. This is because Rauch all but confessed that he was an

accessory to the crimes committed in the Riverside K mart incident . . . . To be sure,

Rauch did not expressly admit either intent or knowledge. But he impliedly admitted

both by his suspicious conduct throughout the incident in question. [¶] Defendant argues

to the contrary. He claims Rauch's statement should be considered untrustworthy in view

of its substance. He says it must be characterized as neutral or exculpatory, and therefore

unreliable, because it admits no more than it does. We cannot so characterize the

statement. To be sure, the criminal liability that the statement risks is not the highest.

                                               33
But it is significant nonetheless." (Id. at p. 1252, second italics added.)

       The court in People v. Wilson (1993) 17 Cal.App.4th 271 (Wilson) relied on

Gordon. In Wilson, the defendant was convicted of two counts of attempted voluntary

manslaughter based, in part, on statements his wife made to police in which she stated

that, following the attempted homicides, her husband instructed her to retrieve from a tree

near their residence the gun he had used in the attempted homicides and take it to her

mother's house; the wife further stated she had done as instructed. Although the

statement implicated the defendant in a far more serious offense, the court found the

statement specifically disserved the wife's interest because it showed she was an

accessory to the offense as defined by section 32. (Wilson, at pp. 275–277.) "The fact

that the statement is also disserving to [the nondeclarant] does not render the statement

unreliable and inadmissible." (Id. at p. 276.)

       The court reached a similar result in People v. Greenberger (1997) 58 Cal.App.4th

298 (Greenberger). In Greenberger, a declarant had been the driver in a kidnapping and

murder for hire in which his codefendant had been a principal actor. Although the

declarant's statements described his role as only the driver and smaller than his

codefendant's, the statements were nonetheless sufficiently disserving of the declarant's

penal interest that "a reasonable person in [the declarant's] position would not have made

them unless he believed them to be true." (Id. at p. 337.)

       iii. Trustworthiness

       While statements that are specifically a disservice to the declarant may be

admitted, the statements must also be made under circumstances that demonstrate they

are trustworthy. (See People v. Duarte (2000) 24 Cal.4th 603, 612-614 (Duarte); see also

                                              34
Greenberger, supra, 58 Cal.App.4th at p. 337.) Stated another way, even when

statements are disserving to the declarant, they may still be excluded if nonetheless they

have been made under circumstances that undermine their reliability. This requirement

arises as a means of satisfying the confrontation clause of the Sixth Amendment to the

United States Constitution. (See Greenberger, at pp. 334-332; see also Wilson, supra, 17

Cal.App.4th at p. 277.) In determining trustworthiness, "the trial court must look to the

totality of the circumstances in which the statement was made, whether the declarant

spoke from personal knowledge, the possible motivation of the declarant, what was

actually said by the declarant and anything else relevant to the inquiry." (Greenberger, at

p. 334.) The least reliable circumstance is one in which the declarant has been arrested

and attempts to improve his situation with the police by deflecting criminal responsibility

onto others. " 'Once partners in crime recognize that the "jig is up," they tend to lose any

identity of interest and immediately become antagonists, rather than accomplices.'

[Citation.] However, the most reliable circumstance is one in which the conversation

occurs between friends in a noncoercive setting that fosters uninhibited disclosures." (Id.

at p. 335.)

       In Greenberger, even though the driver/declarant's statement minimized his own

role and attributed to his codefendant a murder in which other defendants shot the victim

13 times, because the statements were made in an informal setting in which the

driver/declarant had been drinking with an undercover police informant, the court found

that the "circumstances of the conversation provided sufficient indicia of reliability to

ensure that the statements were trustworthy." (Greenberger, supra, 58 Cal.App.4th at

p. 337.)

                                             35
       The cases that have considered Evidence Code section 1230 make it clear that the

fact a hearsay statement portrays the declarant as a more minimal participant in a crime

by itself does not require exclusion or end our analysis. The statements at issue in

Gordon, Wilson and Greenberger each portrayed a defendant as far more culpable than

the respective declarants; nonetheless, in each instance, the trial court concluded the

statements both specifically disserved the declarant's interest and were made under

circumstances that suggested they were reliable, and, in each instance, the trial court's

determination was upheld. (See Gordon, supra, 50 Cal.3d at pp. 1252-1253;

Greenberger, supra, 58 Cal.App.4th at p. 337; Wilson, supra, 17 Cal.App.4th at pp. 276-

277.) Only when there is both blame shifting by the declarant and other circumstances

suggest some improper motive for the blame shifting have courts found admission of a

hearsay statement error. (See Duarte, supra, 24 Cal.4th at pp. 612-614.)

       iv. Application

       The statements Smith made to Williams, which Johns told police she overheard,

clearly disserved Smith's penal interest. The statements put her at the scene of a burglary,

robbery and murder. In particular, the references Smith made to Mitchell in the statement

plainly disserved her penal interest because they showed she was not only at the scene of

the crimes, but that she was there to assist Mitchell and was willing to follow his

directions. Given the facts that Smith related in Johns's presence, although they

portrayed her as the more passive participant, they disserved her penal interest in a

manner indistinguishable from the statements considered in Gordon, Wilson and

Greenberger. In those cases, as here, the declarants' respective inculpatory statements

about themselves were inextricably intertwined with statements that placed more

                                             36
responsibility on the nondeclarant defendants and were, therefore, nonetheless

admissible.

       In this regard, we note Smith's statement in Johns's presence meets even the

stricter standard adopted by the dissenters in Grimes. In implicating Mitchell in Kelley's

death, Smith necessarily placed herself at the scene of the burglary and homicide and,

consequently, implicated herself in the murder as well. Thus, unlike the circumstances

discussed in Grimes, here there is no credible basis upon which to argue that Smith's

statements were in any sense collateral. Rather, as in Gordon, Wilson and Greenberger,

those portions of Smith's statements that implicated her in the murder were inextricably

intertwined with the portions that implicated Mitchell. There was simply no way in

which her statements about being at the scene of the burglary, robbery and murder in

which she was a relatively lesser participant would make any sense without reference to

the major actors and, in particular, her boyfriend.

       Admittedly, the reliability of the statements Johns overheard is worthy of careful

analysis. Looking only at the version Johns initially provided police, the circumstances

of Smith's statements give the statements a great deal of reliability. The statements were

informal and made in the presence of friends in a setting in which there was no apparent

reason to dissemble or exaggerate.

       The circumstances—which, of course, call Johns's initial version of Smith's

statements into question—are Johns's later recantation and Williams's contradiction of

Johns's initial version. Here, we must rely on the trial court's resolution of this

evidentiary conflict. At the time the police took the statement from Johns, it had very

powerful indicia of reliability: The statement implicated Johns's son in a homicide, Johns

                                              37
provided the statement in apparent spontaneous reaction to a news story, and the

statement included details that the police had not previously disclosed. The trial court,

and eventually the jury, could easily discount Johns's later recantation as motivated by

her reconsideration of the seriousness of her son's situation and Williams's memory of

one conversation about the crime and not another to both passage of time and animosity

toward Johns. In short, on this record, while a finding that Johns's initial version was

unreliable would certainly have been rational, so was the trial court's finding of

reliability.

        The circumstances here are in marked contrast to the statements considered in

Duarte. There, the declarant, was being questioned by police and made statements about

the defendant that did not directly inculpate the declarant. Statements that did not

disserve the declarant and were made in a context in which the declarant had obvious

motives to shift blame to the nondeclarant do not fall within Evidence Code section 1230.

However, because the record in Duarte is so different from the record here, it does not, in

any sense, undermine the trial court's admission of evidence of statements made in

Johns's presence.

        Like the statements Johns overheard, the statements Smith made to Lott herself

were plainly disserving to Smith's interest. Again, they put Smith at the scene of the

burglary, robbery and murder, helping Mitchell. The fact that, in the statements, Smith

describes her attempts to dissuade Mitchell and a third person from putting a bag over

Kelley's head and beating her does not make the references to Mitchell less reliable or

inadmissible; the portions that make Mitchell more aggressive were, like the statements

Johns heard, inextricably intertwined with the fact that, in admitting that she witnessed

                                             38
the crime and helped the other perpetrators, Smith was inculpating herself. (See Samuels,

supra, 36 Cal.4th at p. 121.) As in Greenberger, a reasonable person in Smith's position

would not have made the statements unless she believed them to be true. (See

Greenberger, supra, 58 Cal.App.4th at p. 337.)

       When Lott heard Smith's statements, Lott was in no position to either coerce Smith

or reward her for divulging information about herself or Mitchell. In that context, Smith

had no very real motive to exaggerate Mitchell's role in the burglary and murder. Also,

there does not appear to be anything in the record that suggests Lott had any motive for

inventing the statement or embellishing it in a manner in which Mitchell's role in the

crime was amplified.

       Thus, as in the case of the statements Johns overheard, there is no basis on which

to find the trial court abused its discretion in admitting Lott's testimony in which she

related her recollection of Smith's statements.

       v. Prejudice

       Although the trial court did not abuse its discretion in admitting Smith's

statements, even if there was an abuse of discretion, reversal of Mitchell's conviction

would not be warranted.

       In this regard, the court's discussion of prejudice in Grimes is particularly telling.

Even though the court in Grimes found that it was error to exclude the killer's statement,

with respect to the jury's finding the defendant acted with reckless indifference to human

life and was therefore eligible for the death penalty, the court found that the error was not

prejudicial.

       Although the defendant conceded that the statements would not have had any

                                              39
impact on the jury's verdict of guilt, he argued it did affect the jury's special circumstance

finding. The court reviewed the special circumstance finding under the familiar standard

set forth in Watson, supra, 46 Cal.2d at page 836 and found that, in light of the entire

record, no reasonable jury could have determined that he was not a major participant who

acted with reckless indifference, particularly in light of the fact there was no dispute he

handed the killer a gun and heard the killer express his intention to kill the victim.

(Grimes, supra, 1 Cal.5th at p. 721.) However, with respect to the jury's verdict of death,

the court applied a higher standard of prejudice, akin to the one used when there has been

an error that violates the federal Constitution. (Id. at p. 722.) Under that standard, the

court found that there was a possibility the jury might have reached a different verdict

and, accordingly, reversed and remanded for a new penalty phase trial. (Id. at p. 723.)

       Here, there is no dispute Kelley died at the hands of another. Moreover, there is

no dispute that Smith and Mitchell pawned items taken from Kelley's house and that

other items taken from the home were found at Johns's home, where Mitchell resided.

These facts alone raise a reasonable inference that Smith and Mitchell participated in the

burglary, robbery and murder. Moreover, there was evidence of what occurred in the

Hassett home: When Derrick and Mahan left the home, they locked it up, and Mahan

recalled Derrick saying good-bye to his grandmother; when Susan came home, her

mother's belongings were strewn around the house, and she found Kelley bound and

gagged. Most importantly, Beck's testimony plainly implicated both Smith and Mitchell

and exculpated Derrick. Beck was going to be serving a substantial term of

imprisonment for her role in Kelly's death and would not have any particular reason to

falsely accuse Smith and Mitchell rather than Derrick. Under these circumstances, even

                                             40
in the absence of Smith's statements, a jury was more likely than not to have rejected

Mitchell's version of events, in which Derrick was the likely killer of his grandmother,

and found Mitchell responsible. No more is required under Watson.

       2. Mitchell's other claims of error

       a. Adoptive admission instruction

       Mitchell contends the trial court erred in failing to sua sponte instruct the jury that

Derrick Hassett's silence in the face of statements made to him by Mahan could have

been construed as an adoptive admission and, in the alternative, that his trial counsel was

ineffective in failing to request such an instruction.

       On the evening of Kelley's murder, when Mahan picked up Derrick at the house

where Mahan had left Derrick earlier in the day, Derrick was "stoned" and nearly

incoherent; according to Mahan, Derrick was not very responsive to him and, in fact, said

nothing when Mahan told him his grandmother had been murdered and that Derrick was

likely to go to prison. Contrary to Mitchell's argument on appeal, these circumstances

did not give rise to any obligation to sua sponte instruct the jury on adoptive admissions

or support a claim of ineffective assistance of counsel.

       In People v. Carter (2003) 30 Cal.4th 1166, 1197-1198, the court expressly held

that, in the absence of a request from the defendant, a trial court should not give CALJIC

No. 2.71.5,12 which instructs the jury with respect to adoptive admissions. "The


12      CALJIC No. 2.71.5 states: "If you should find from the evidence that there was an
occasion when [a] [the] defendant (1) under conditions which reasonably afforded [him]
[her] an opportunity to reply; (2) [failed to make a denial] [or] [made false, evasive or
contradictory statements,] in the face of an accusation, expressed directly to [him] [her]
or in [his] [her] presence, charging [him] [her] with the crime for which this defendant
now is on trial or tending to connect [him] [her] with its commission; and (3) that [he]
                                              41
instruction is largely a matter of common sense—silence in the face of an accusation is

meaningful, and hence may be considered, only when the defendant has heard and

understood the accusation and had an opportunity to reply. Giving the instruction might

cause the jury to place undue significance on bits of testimony that the defendant would

prefer it not examine so closely." (Carter, at p. 1198.) Thus, the trial court plainly had

no sua sponte duty to give CALJIC No. 2.71.5.

       Moreover, counsel's failure to request CALJIC No. 2.71.5, will not support a claim

of ineffective assistance of counsel. In light of Mahan's description of Derrick's fairly

severe intoxication at the time he confronted him, counsel may have simply believed that

it was unlikely the jury would interpret Derrick's intoxicated silence as an admission and,

for that reason, did not believe it was worth emphasizing with CALJIC No. 2.71.5;

counsel may instead have wanted to focus the jury on the undisputed evidence Derrick

dealt in both drugs and electronic goods. We are in no position to question what appear

to be counsel's tactical choices. (See People v. Lopez (2008) 42 Cal.4th 960, 966.)

       b. Beck's plea agreement

       Mitchell also contends the trial court erred in admitting evidence that under the

terms of her plea agreement, Beck was required to testify truthfully; that following the

trial, the trial court would determine if Beck had done so; and that, if Beck had not been



[she] heard the accusation and understood its nature, then the circumstance of [his] [her]
[silence] [and] [conduct] on that occasion may be considered against [him] [her] as
indicating an admission that the accusation was true. Evidence of an accusatory
statement is not received for the purpose of proving its truth, but only as it supplies
meaning to the [silence] [and] [conduct] of the accused in the face of it. Unless you find
that [a] [the] defendant's [silence] [and] [conduct] at the time indicated an admission that
the accusatory statement was true, you must entirely disregard the statement."
                                             42
truthful, she would not be given the benefit of her plea agreement and would face

prosecution for her part in Kelley's murder.

       There is nothing improper in a plea agreement that requires an accomplice to

testify truthfully. (People v. Gurule (2002) 28 Cal.4th 557, 616-617.) Moreover, there is

nothing improper in advising a jury that one condition of a plea agreement is that the

accomplice must testify truthfully and that the plea agreement will not be honored if he or

she does not. (People v. Bonilla (2007) 41 Cal.4th 313, 335.) This is not a case where

the plea agreement either required that an accomplice testify in a certain substantive

manner (see People v. Allen (2002) 28 Cal.4th 557, 615) or the prosecutor in any manner

vouched for the credibility of the accomplice based on information outside the record

(see Bonilla, at p. 337, fn. 9).

       In sum, admission of evidence that Beck's plea agreement included a requirement

that Beck testify truthfully was not erroneous.

       c. Impeachment of Lott

       Next, Mitchell argues that because, contrary to Lott's testimony, there was

documentary evidence which showed that Lott did not share a cell with Smith in 2005,

Mitchell's counsel was ineffective because he did not raise the issue in his argument to

the jury.

       "The decision of how to argue to the jury after presentation of evidence is

inherently tactical." (People v. Freeman (1994) 8 Cal.4th 450, 498.) Here, Mitchell's

counsel, rather than attacking Lott's credibility with respect to a collateral matter that

occurred years earlier, chose to emphasize Lott's criminal record, including her perjury

convictions. Such a tactical choice will not support a claim of ineffective assistance of

                                               43
counsel. (Ibid.)13

      d. Cumulative error

      Having found no error, we find no cumulative error that prejudiced Mitchell.

                                             IV.

                                     DISPOSITION

      The judgment against Smith is reversed and remanded to the trial court for retrial;

the judgment against Mitchell is affirmed.



                                                                               BENKE, J.

I CONCUR:



McCONNELL, P. J.14




13      Parenthetically, we note Smith's counsel did discuss the discrepancy between the
jail records and Lott's recollection that she shared a cell with Smith, and Smith's jury
nonetheless convicted Smith. This circumstance, of course, undermines Mitchell's
contention that his counsel's argument prejudiced him.

14     After this court filed its original opinion in this matter and before the Supreme
Court transferred the cause back to this court, Justice Alex McDonald, who concurred in
our initial disposition of Smith and Mitchell's appeals, died. Presiding Justice Judith
McConnell has been assigned to replace Justice McDonald as a panel member in this
case.
                                             44
AARON, J.

       I concur in the majority opinion with respect to the reversal of Defendant Smith's

convictions. However, I disagree with the majority's conclusion that statements

purportedly made by Smith in which she placed the majority of the blame for the murder

of the victim on Mitchell were properly admitted against Mitchell as statements against

Smith's penal interest.

       As our Supreme Court recently noted in People v. Grimes (2016) 1 Cal.5th 698,

713 (Grimes), the United States Supreme Court has held that the analogous federal

hearsay exception for statements against penal interest does not authorize the admission

of those portions of a third party's out of court statement that tend to shift the blame to the

defendant. (Id. at pp. 713–714, citing Williamson v. United States (1994) 512 U.S. 594

(Williamson).) "Where . . . 'part of the confession is actually self-exculpatory, the

generalization on which [the hearsay exception] is founded becomes even less applicable.

Self-exculpatory statements are exactly the ones which people are most likely to make

even when they are false; and mere proximity to other, self-inculpatory, statements does

not increase the plausibility of the self-exculpatory statements.' " (Grimes, supra, at

p. 714.)

       The hearsay statements attributed to Smith clearly shift the majority of the blame

to Mitchell and another unidentified man and thus have a "net exculpatory effect."

(People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).) It was therefore error, in my

view, to admit the statements against Mitchell as declarations against Smith's interest. I

would conclude that the admission of these statements prejudiced Mitchell.
      Statements in which the Declarant Places the Majority of the Blame on Others
        are not Admissible Under the Exception for Declarations Against Interest

       In the seminal case of People v. Leach (1975) 15 Cal.3d 419, 441 (Leach), the

Supreme Court first announced the rule that Evidence Code section 1230 is "inapplicable

to evidence of any statement or portion of a statement not itself specifically disserving to

the interests of the declarant." (Fn. omitted, italics added.) In Leach, several defendants

were charged with conspiracy to commit murder. Prior to trial, some of the defendants

made statements describing the conspiracy, in which they inculpated themselves and

other defendants. (Leach, at pp. 438–442.) The Supreme Court concluded that the

exception for admissions against penal interest did not apply to "evidence of any

statement or portion of a statement not itself specifically disserving to the interests of the

declarant," and thus, that the statements had been improperly admitted at trial. (Id. at pp.

441–442, fn. omitted, italics added.) In reaching this conclusion, the Leach court

"explained that those portions of a confession inculpating others are not as inherently

trustworthy as those portions that are actually disserving to the declarant's interests."

(Grimes, supra, 1 Cal.5th at p. 713.) The Leach court further noted that " '[t]his

limitation on the against-interest exception was at least implicit' in decisions of this court

and of the United States Supreme Court that generally forbid the prosecution in a joint

trial of two defendants from introducing those portions of one defendant's confession that

implicate the other defendant." (Ibid., quoting in part Leach, at p. 441.)

       More recently, in Duarte, the defendant and another man were charged with

shooting at a dwelling. (Duarte, supra, 24 Cal.4th at pp. 607–609.) Prior to the


                                               2
defendant's trial, the other man gave police a statement in which he acknowledged his

participation in the crime but minimized his role in it, and implicitly placed greater blame

on the defendant. (Id. at pp. 611–614.) A redacted version of the statement was admitted

at the defendant's trial as an admission against the accomplice's penal interest. (Id. at p.

609.) Included among the statements that were admitted against the defendant were the

declarant's contentions that he had merely shot at the victim's house by mistake, and that

he had " 'shot high, at the roof,' " thereby suggesting that he, the declarant, was not the

shooter responsible for injuring the victim and implicitly suggesting that "others who

were or might become implicated should bear a greater share of the responsibility." (Id.

at p. 613.)

       The Duarte court noted that " 'the precedents in the hearsay area provide a

persuasive reminder that declarations against penal interest may contain self-serving and

unreliable information' and, consequently, 'an approach which would find a declarant's

statement wholly credible solely because it incorporates an admission of criminal

culpability is inadequate.' " (Duarte, supra, 24 Cal.4th at p. 611.) "As scholars have

observed, ' "a self-serving statement lacks trustworthiness whether it accompanies a

disserving statement or not." ' " (Ibid.)

       After considering other authorities, the Duarte court explained: "Under the rule of

Leach, a hearsay statement 'which is in part inculpatory and in part exculpatory (e.g.,

one which admits some complicity but places the major responsibility on others) does not

meet the test of trustworthiness and is thus inadmissible.' " (Duarte, supra, 24 Cal.4th at



                                              3
p. 612, italics added, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.)1 Applying

these rules, the Duarte court concluded that the redacted statement made by the

defendant's accomplice, when viewed in context, was self-serving and thus had been

improperly admitted. (Duarte, at pp. 612–613.)

       The statements at issue in Duarte are similar to those at issue in the present case.

In the statements attributed to Smith, Smith admits some complicity in placing herself at

the scene of the burglary and murder, but clearly places the major responsibility for the

crimes on Mitchell and another unnamed man, maintaining that she stood by, pleading

"[L]et's go, let's go," while "[t]hey" placed a pillowcase over the victim's head, tied her up

and beat her unconscious.

       The majority cites Gordon, Wilson, and Greenberger as support for its conclusion

that statements that are partially exculpatory of the declarant and that inculpate the

defendant are admissible under the declaration against interest exception. However, the

majority fails to note that all three of these cases predate the Supreme Court's elucidation

of the Leach rule in Duarte. In addition, the majority fails to fully discuss Duarte, which

is clearly relevant here, given that it speaks directly to a scenario that is quite similar to

the scenario that exists in this case, in which the declarant inculpates herself but shifts


1       Although the principle animating the declaration against interest exception to the
hearsay rule is a consideration of the trustworthiness of a statement made against one's
interests, California does not provide a hearsay exception for any statement determined to
be generally reliable or trustworthy: "California, unlike federal courts and some state
jurisdictions, does not have a 'residual hearsay' exception that permits any hearsay
statement into evidence as long as it bears sufficient indicia of reliability." (In re
Cindy L. (1997) 17 Cal.4th 15, 27–28; accord, People v. Gonzales (2012) 54 Cal.4th
1234, 1289 & fn. 24.)
                                               4
more blame to the defendant.2 Duarte unequivocally states that statements in which the

context demonstrates that the declarant is attempting to shift the majority of the blame to

a third party are untrustworthy and not properly admissible under the exception for

statements against interest.

       The majority suggests that the fact that the court in Grimes cited with approval

People v. Samuels (2005) 36 Cal.4th 96, 101–106 (Samuels), means that the statements at

issue in the present case were properly admitted. In Samuels, the defendant asked an

accomplice to murder her husband. Once the accomplice had completed the act, the

defendant successfully solicited two other men to murder the original accomplice. At the

defendant's trial, a witness testified that the original accomplice had said, " 'He had done

it and Mike [Silva] had helped him. And that [the defendant] had paid him.' " (Id. at p.

120.) The Samuels court held that this entire statement was properly admitted as a

declaration against penal interest, despite the reference to the defendant: "This



2       The majority attempts to distinguish this case from Duarte, asserting that there, the
declarant "made statements about the defendant that did not directly inculpate the
declarant," and contending that the "record in Duarte is so different from the record
here." (Maj. opn. ante, at p. 38, italics added.) However, the Duarte court described the
statements at issue in the following manner: "[The statements] tended sympathetically to
describe [the declarant's] participation in the shooting of the Sullivan residence, to
minimize his responsibility for the injuries caused thereby and to imply that others who
were or might become implicated should bear a greater share of the responsibility."
(Duarte, supra, 24 Cal.4th at p. 613, italics added.) Clearly the declarant in Duarte
inculpated himself in the crime by his statements, admitting his participation in shooting
at the victim's house. Nevertheless, although the declarant inculpated himself, directly, in
the crime, the Supreme Court concluded that the net effect of his statements was to cast
himself in a more sympathetic light than the defendant. Given the similarities between
the situations in Duarte and in this case, it is clear that Duarte is particularly relevant to
the case at hand.
                                              5
admission, volunteered to an acquaintance, was specifically disserving to [the original

accomplice's] interests in that it intimated he had participated in a contract killing—a

particularly heinous type of murder—and in a conspiracy to commit murder. Under the

totality of the circumstances presented here, we do not regard the reference to [the]

defendant incorporated within this admission as itself constituting a collateral assertion

that should have been purged from [the witness's] recollection of [the original

accomplice's] precise comments to him. Instead, the reference was inextricably tied to

and part of a specific statement against penal interest." (Id. at pp. 101–106, 121.)

       However, unlike in this case, in Samuels, the declarant did not shift blame to the

defendant. Rather, the declarant merely spread the blame by equally inculpating himself

as having solicited two men to murder the original accomplice and admitting that he had

done so, but also stating that the defendant had paid him to do it. Further, unlike in

Samuels, many, if not all of Smith's statements inculpating Mitchell are not "inextricably

tied to and part of" a specific statement against her penal interest. Rather, the statements

concerning Mitchell's alleged actions are, for the most part, entirely separate from

statements describing Smith's own actions.

       Most recently, in Grimes, the Supreme Court reiterated that courts are to take a

contextual approach when evaluating statements that are offered under the declaration

against interest exception. In that case, the trial court allowed in evidence an

accomplice's statement that he had murdered the victim. (Grimes, supra, 1 Cal.5th at p.

710.) However, the trial court excluded the portion of the accomplice's statement in

which he stated that the defendant had not taken part in the killing, determining that this

                                              6
portion of the statement was not specifically disserving to the accomplice's interest.

(Ibid.) The Grimes court concluded that the trial court's ruling with respect to the

accomplice's statement reflected a misunderstanding of the law governing the admission

of declarations against interest. (Id. at p. 712.)

       The majority asserts that Grimes "instructs that courts may consider whether the

portion of a confession that tends to exculpate the declarant nonetheless may be admitted

'in view of surrounding circumstances, even though the exculpatory portion of the

statement is not independently disserving of the declarant's interests.' " (Maj. opn. ante,

at p. 31, quoting in part Grimes, supra, 1 Cal.5th at p. 715.) However, this is clearly not

what Grimes states. Rather, Grimes holds that pursuant to the Leach rule, those portions

of a confession that tend to exculpate another, rather than to shift blame or curry favor,

should be admitted in view of surrounding circumstances, even though the exculpatory

portion of the statement is not independently disserving of the declarant's interests. In

Grimes, unlike in this case, the declarant's statement exculpated the defendant, and it was

the defendant who sought the admission of the statements; the Grimes court held that the

trial court's exclusion of the exculpatory statement was error, even though the statement

was not specifically disserving of the declarant's interests. The court did not hold, as the

majority suggests, that a declarant's self-exculpatory statements are properly admissible

under the exception for declarations against interest "in view of surrounding

circumstances."

       In explaining how courts should apply the exception for declarations against

interest, the Grimes court considered the United States Supreme Court's decision in

                                               7
Williamson, supra, 512 U.S. 594, which involved a situation in which part of the

confession at issue was self-inculpatory, but other parts were self-exculpatory. (Grimes,

supra, 1 Cal.5th at pp. 713–714.) In Williamson, the police apprehended a man with two

suitcases of cocaine in the trunk of his car. The man admitted that he had been

knowingly transporting the cocaine and told police that Williamson had furnished the

cocaine to him. At trial, the man who was found with the cocaine refused to testify. The

trial court permitted the government to introduce his hearsay statement that Williamson

was the source of the cocaine. (Williamson, supra, at pp. 596–597.) The United States

Supreme Court held that admission of the hearsay statement against Williamson was

error because the statement that Williamson had furnished the cocaine was not self-

inculpatory of the man who had been transporting the cocaine. The Williamson court

observed that the portion of the statement in which the man blamed Williamson was

"actually self-exculpatory," and asserted that the "commonsense notion that reasonable

people . . . tend not to make self-inculpatory statements unless they believe them to be

true" had no application to that portion of the driver's statement in which he pointed the

finger at Williamson while also admitting to knowingly transported cocaine. (Id. at p.

599.)

        The Grimes court, quoting with approval the application of the Williamson rule in

U.S. v. Paguio (9th Cir. 1997) 114 F.3d 928 (Paguio), explained that " 'the statement

[sought to be admitted or excluded under section 1230] must be examined in context, to

see whether as a matter of common sense the portion at issue was against interest and

would not have been made by a reasonable person unless he believed it to be true.' "

                                             8
(Grimes, supra, 1 Cal.5th at pp. 714–715, italics added.) Thus, " '[a]s a matter of

common sense,' the [Paguio] court explained, this is less likely to be true when the

statement takes the form ' "I did it, but X is guiltier than I am," ' than when the statement

is ' "I did it alone, not with X." That is because the part of the statement touching on X's

participation is an attempt to avoid responsibility or curry favor in the former, but to

accept undiluted responsibility in the latter.' " (Grimes, supra, at p. 715, italics added.)

       The Grimes court adopted the Paguio court's reasoning, determining that

ultimately, the question that a trial court must ask with respect to the hearsay exception

created by section 1230 is "[w]hether the statement, even if not independently inculpatory

of the declarant, is nevertheless against the declarant's interest, such that 'a reasonable

man in [the declarant's] position would not have made the statement unless he believed it

to be true.' " (Grimes, supra, 1 Cal.5th at p. 716.) The Grimes court reiterated that "such

a statement is more likely to satisfy the against-interest exception when the declarant

accepts responsibility and denies or diminishes others' responsibility, as in the example,

' "I robbed the store alone," ' as opposed to attempting to assign greater blame to others,

as in the example, ' "I did it, but X is guiltier than I am." ' " (Ibid.)

       Applying the above rules to this case, the issue is whether Smith's out-of-court

statements were specifically self-disserving and sufficiently trustworthy/reliable to be

admissible pursuant to the exception for declarations against interest.

       Examining the challenged statements in context, I disagree with the People's

assertion that the statements that Smith is alleged to have made to Williams and Lott

were properly admitted against Williams because the statements "were entirely disserving

                                                9
to [Smith] as she wholly and equally implicated both herself and Mitchell in the burglary

and murder." (Italics added.) Clearly, the statements were not "entirely disserving" to

Smith and they did not "equally" implicate her. As explained further below, given the

requirements of the exception for declarations against interest as set forth in Leach,

Duarte, Samuels, and, most recently, in Grimes, I would conclude that the trial court

erred in ruling that the statements were admissible against Mitchell under this exception.

Several portions of the statements that were admitted were not "specifically disserving"

of Smith's interests, but rather, were self-exculpatory. Many portions of the statements

constitute a clear attempt by Smith to shift the majority of the blame to Mitchell and

away from herself. In other words, the statements in this case present precisely the

scenario against which the Grimes cautioned, in which a declarant attempts to assign

greater blame to others than herself, such as in the example, " ' "I did it, but X is guiltier

than I am." ' " (Grimes, supra, 1 Cal.5th at p. 715.) Indeed, virtually every reference

Smith purportedly made with respect to Mitchell involves a claim that he, and not Smith,

was effectively the "guiltier" party because he was the one who engaged in violence

against the victim and/or bore more responsibility for placing the victim in a precarious

circumstance. As a result, one cannot say that " 'a reasonable [person] in [the declarant's]

position would not have made the statement unless [s]he believed it to be true.' "

(Grimes, supra, at p. 716, italics added.) The statements at issue, in which Smith




                                              10
essentially said that Mitchell was more culpable than she was, were, in my view,

improperly admitted in evidence.3

              i. The evidence of Smith's statements to Williams, as reported by Johns

       The statements that Johns told investigators she overheard Smith make to

Williams were not specifically disserving to Smith, such that they were properly

admissible against Mitchell. Again, "[e]ven a hearsay statement that is facially

inculpatory of the declarant may, when considered in context, also be exculpatory or

have a net exculpatory effect," and thus, not be admissible as a declaration against

interest. (Duarte, supra, 24 Cal.4th at p. 612, italics added.) Many of the inculpatory

portions of the statements that Smith is alleged to have made to Williams involved

statements that, while implicating Smith in the burglary, minimize Smith's own

involvement while placing more blame on Mitchell for what occurred. For example,

Smith claimed that Mitchell was the one who came up with the idea to cover the victim's

head with a pillowcase, that it was Mitchell's idea to bind the victim, and that it was

Mitchell who beat the victim unconscious. Other portions of Smith's statements were

also particularly self-serving, as opposed to self-disserving. For example, according to

Johns, Smith said that she, Smith, could not believe what was happening when Mitchell

began beating the woman. None of these portions of the statements that Smith


3      In addition, at least with respect to Johns's statements about what she claimed to
have overheard Smith telling Williams about the burglary, there were significant
questions about the reliability of these statements. These questions undermine the
prosecution's showing that the declarations that it sought to admit were "sufficiently
reliable to warrant admission despite [their] hearsay character." (Duarte, supra, 24
Cal.4th at pp. 610–611.)
                                             11
purportedly made was specifically disserving. Rather, these statements essentially

conveyed the message, " ' "I did it, but [Mitchell] is guiltier than I am," ' " (Grimes,

supra, 1 Cal.5th at p. 715), or even, "I was there but Mitchell is the guilty one." Under

Grimes, none of these statements qualifies as a statement against Smith's interest.

       The People maintain that Smith's statements were "wholly disserving" of her own

interests, and contend that she "implicated herself in the burglary and murder without

attempting to shift blame or cast herself in a more favorable or sympathetic light."

(Italics added.) This statement is simply inaccurate. By placing responsibility for all of

the violence directed at the victim squarely on Mitchell's shoulders, Smith's statements

cannot reasonably be viewed as anything other than Smith minimizing her own

culpability and shifting all or most of the blame to Mitchell, thereby casting herself in a

more favorable or sympathetic light. In this way, Smith's statements are similar to the

statements made by the defendant's accomplice in Duarte, supra, 24 Cal.4th at p. 613,

which were determined to be inadmissible pursuant to the against-interest exception. In

that case, as here, the declarant implicated himself in the crime by admitting his

participation in the crime, acknowledging that he had shot at the house where the victim

was, but also minimized his own role in the crime by claiming that he had " 'shot high' "

because he did not want to kill or hurt someone. The Supreme Court determined that

these statements tended to "sympathetically" describe the declarant's own participation

and "minimize his responsibility for the injuries caused [by the shooting]." (Ibid.)

Smith's statements even more clearly tend to describe her participation in a sympathetic



                                              12
light and minimize her responsibility in the crime, while also more clearly shifting blame

to Mitchell.4

       Further, the statements that Johns said she overheard Smith make to Williams

cannot be deemed to be sufficiently reliable for admission under the hearsay exception

for declarations against interest. (See Duarte, supra, 24 Cal.4th at pp. 610–611 [party

seeking to admit evidence pursuant to the declaration against interest exception "must

show that the declarant is unavailable, that the declaration was against the declarant's

penal interest when made and that the declaration was sufficiently reliable to warrant

admission despite its hearsay character" (italics added)].) The record contains a

significant amount of evidence that casts doubt on the reliability of Johns's statements

concerning Smith's purported statements. This case presents a unique circumstance with

respect to the "reliability" of the statements, separate from whether the statements were,

in fact, declarations against the declarant's interest. While the statements at issue were

ostensibly made in the "most reliable circumstance" (People v. Greenberger (1997) 58

Cal.App.4th 298, 335) because they were purportedly made by Smith in a noncoercive

setting—i.e., to an acquaintance in Johns's home, there are other factors that undermine

the reliability of these statements. First, the statements were presented through the use of


4      Further, although Smith's statements may have, as a legal matter, implicated her
not only in the robbery/burglary, but in Kelley's murder as well, as a result of the felony
murder rule, the exception for statements against interest focuses on whether a
"reasonable man in [the declarant's] position would not have made the statement unless
he believed it to be true." (Evid. Code, § 1230.) A "reasonable" person would not
necessarily recognize the full legal import of the felony murder rule; rather, such a person
would likely believe that it was in her penal interest to minimize her role and place the
blame for an unintended death on an accomplice.
                                             13
other out-of-court statements made by Johns to a police detective, creating double

hearsay and an additional level of reliability concerns.5 Although Johns's statements to

the detective were admissible pursuant to the prior inconsistent statement exception to the

hearsay rule on the ground that Johns recanted at trial and claimed that she never

overhead Smith make the statements at issue, the record demonstrates that Johns's

statements about Smith's statements may not have been sufficiently reliable to warrant

the admission of Smith's statements (through Johns's statements) pursuant to the hearsay

exception identified in Evidence Code section 1230, even if the statements had been

sufficiently disserving of Smith's interest.

       Mitchell also suggests that Johns was an unreliable witness, given the fact that she

admitted to being vindictive and said that she had made up the entire story because she

was angry with her son and wanted to get revenge. There is evidence that supports

Johns's trial testimony concerning how she knew certain information about the crime,

including the fact that after being arrested for possession of stolen property, Mitchell had

left court papers, including police reports, with her that were related to the crime, and the

fact that she claimed to have done Internet research regarding the Kelley murder.

Further, it is not solely Johns's recantation of her statements to police that calls into

question the reliability of those statements. Even more concerning is the fact that

Williams, to whom Smith's statements were purportedly directed, specifically and



5      The California Supreme Court has acknowledged that "the probative value of
hearsay evidence decreases with each level of hearsay." (People v. Zapien (1993) 4
Cal.4th 929, 956.)
                                               14
unequivocally denied under oath that the conversation that Johns claimed to have

overheard between Smith and Williams ever took place.

       Williams testified at trial that she lived with Johns for two or three months.

Williams met Smith, whom she knew as Mitchell's girlfriend, when Williams began

living with Johns. Williams testified that while she was in the county jail after having

gotten into "[a] major argument" with Johns, Smith was also being housed there, and they

were both "staying in the same area." Williams heard Smith tell others "why she was in

jail" while they were "all sitting eating." Williams overheard Smith say "that her and her

boyfriend and some friends were robbing houses, and that it was kind of cool at first until

the end. She got caught up." Smith indicated that "it went bad, and she got caught up."

       However, when asked whether she had ever had a conversation with Smith about a

specific home invasion, Williams stated emphatically that no such conversation had

occurred:

            "Q Okay. Now, in – after September 15th did Kiesha Smith braid
            your hair?

            "A I don't know the dates, but I do remember her braiding my hair
            once, yes.

            "Q Do you have any discussions – was there any discussions
            during the time that your hair was being braided concerning any
            incident where Miss Smith was supposedly involved in any
            burglaries?

            "A   No.

            "Q Okay. So if Miss Johns indicated that you were getting your
            hair braided and that Kiesha and you were having a discussion about
            a burglary ultimately that ended in a death, would that be true or
            untrue?

                                             15
          "A     That would be false. We never had a discussion.

          "Q So it is your testimony today that if Miss Johns testified to a
          long discussion between yourself and Miss Smith that she ultimately
          came into, would that be true or untrue?

          "A     That would be false.

          "Q Okay. Now, if you would have had information concerning
          that would you have stayed living in that house?

          "A     Heck, no. No. I wouldn't. I would have been gone."6

       Williams did not have the credibility issues that Johns had. For example, there is

nothing to indicate that Williams was biased either for or against Smith or Mitchell. She

provided other incriminating details about Smith of which she had become aware,

including statements that she claimed Smith had made on a different occasion, but she

unequivocally denied having had a conversation with Smith about one particular home

burglary, as Johns related during her police interview.

       It is well understood that the "focus of the declaration against interest exception to

the hearsay rule is the basic trustworthiness of the declaration." (People v. Frierson

(1991) 53 Cal.3d 730, 745.) Given the significant questions regarding the reliability of

Johns's statements about Smith's purported statements to Williams—statements that focus

blame on Mitchell, I would conclude that in addition to failing to qualify as statements

against the declarant's interest because in context, the statements are exculpatory and shift


6      Williams was living at Johns's home when police executed a search warrant at the
home. She moved out immediately after the day of the search of the home. She
indicated that she was "kind of taken aback when the police came to the house," so she
"went to Texas to go stay with [her] mom," where she stayed for two or three weeks.
                                             16
the blame to Mitchell, the statements also lack sufficient indicia of reliability to render

them admissible against Mitchell as statements against interest.

       Given the lack of reliability and trustworthiness of the statements that Smith

purportedly made to Williams, as recounted by Johns, these statements, in which Smith

minimized her own role and shifted the majority of the blame to Mitchell for any harm to

the victim, under the holdings in Leach, Duarte, Samuels, and Grimes, the statements at

issue should have been redacted from the Johns interview before the contents of that

interview were presented to the jury. Because these statements minimized Smith's own

culpability and shifted blame away from Smith and onto Mitchell, Grimes affirms that the

statements in which Smith implicates Mitchell cannot be considered to have been against

Smith's self-interest and, therefore, were not properly admissible under the against-

interest exception to the hearsay rule.

              ii. The evidence of Smith's statements to Lott

       The statements that Smith made to Lott also shifted blame to others, including

Mitchell, and away from Smith. Although the statements may be facially inculpatory, in

that Smith placed herself at the scene of the crime, her comments clearly minimized her

own role in the crimes and placed blame for any injury to the victim on Mitchell and

another individual. According to Lott, Smith said that "they" put a pillowcase over the

woman's head, and then "proceeded to beat her," while Smith "was trying to get them to

stop." (Italics added.) Thus, contrary to the majority's suggestion, "they" clearly referred

to Mitchell and the other unnamed man, not to Mitchell and Smith. Smith specifically

said that her "boyfriend" put the pillowcase over the woman's head, and "[t]he cousin"

                                              17
was the one who tied up the victim. According to Lott, Smith also said that she urged the

group to leave, saying, "[L]et's go, let's go." Like the statements attributed to Smith by

Johns, these statements purportedly made by Smith to Lott (or overheard by Lott) were

clearly not specifically disserving to Smith's interests. Rather, the statements, in context,

were, at most, essentially various forms of the message, " ' "I did it, but [Mitchell] is

guiltier than I am." ' " (Grimes, supra, 1 Cal.5th at p. 715.) In fact, the statements

essentially said, "I was present, but Mitchell and another man are responsible for the

murder, and I tried to get them to stop." For this reason, the statements cannot be

considered to be declarations against Smith's interest.

       I would conclude that the trial court erred in finding that Smith's purported

statements to other individuals were all statements against Smith's interest, and that the

court abused its discretion in admitting these statements in their entirety against Mitchell,

including those portions in which Smith implicated Mitchell by specifically shifting

blame away from herself and onto Mitchell.

              iii. The erroneous admission of these statements was prejudicial

       The majority concludes that the admission of the statements attributed to Smith

were not prejudicial to Mitchell. In reaching this conclusion, the majority states, "In this

regard, the court's discussion of prejudice in Grimes is particularly telling. Even though

the court in Grimes found that it was error to exclude the killer's statement, with respect

to the jury's finding the defendant acted with reckless indifference to human life and was

therefore eligible for the death penalty, the court found that the error was not prejudicial."

(Maj. opn. ante, at p. 39.) However, the majority fails to acknowledge that Grimes

                                              18
involved the erroneous exclusion of a single exculpatory statement in a case in which the

evidence against the defendant was overwhelming, while this case involves the erroneous

admission of numerous inculpatory statements in a case lacking direct evidence of the

defendant's guilt. I would conclude that the error in permitting the prosecution to

introduce Smith's statements that were not specifically self-disserving in the trial against

Mitchell was prejudicial under the Watson7 standard since, in my view, there is a

reasonable probability that the outcome of Mitchell's trial would have been different if

the trial court had excluded the erroneously admitted hearsay statements.

       Without Smith's hearsay statements about what occurred inside the Hassett

residence, the prosecution's case against Mitchell was entirely circumstantial and fairly

weak. There was no physical or other forensic evidence indicating that the defendants

were ever present inside the Hassett residence. Other than Smith's hearsay statements,

the only other significant evidence that linked Mitchell to having been present at the

Hassett residence on the day Kelley was killed was Beck's testimony, and Beck's value as

a witness was highly questionable. Beck was herself implicated in the crime and

admitted that she "took the deal" from the prosecution so that she "wouldn't get

prosecuted for murder."

       In addition, Beck, the prosecution's star witness and the person on whom the

prosecution relied for the bulk of their evidence implicating Smith and Mitchell, had

difficulty identifying Mitchell in photographic lineups, despite claiming that the group



7      People v. Watson (1956) 46 Cal.2d 818
                                             19
had planned the crime together and that Mitchell had pointed a gun at her. Beck could

not remember what time she had been at the Hassett residence on the day Kelley was

killed, and her testimony about a variety of details surrounding the incident were

inconsistent, at best. Further, Beck was unable to provide any information as to what

actually occurred inside the house. She said that she was not present "when the incident

occurred," and conceded that she had no idea "what happened to Derrick's grandmother"

because she "wasn't there." Therefore, absent Smith's statements about Mitchell, there

was a dearth of evidence placing the defendants at the Hassett residence, and there was

no evidence as to what happened in the residence that day.

       Further, there were a number of other people who were admittedly in the Hassett

home on the day of the robbery—i.e., there were a number of third parties who could

have played a role in the burglary and killing of Kelley. In fact, the police initially

suspected at least one other person of committing this crime—Derrick Hassett—and had

arrested him for the crime.




                                              20
       The prosecution's case against Mitchell relied heavily on Smith's statements

inculpating Mitchell and herself in the burglary and Kelley's death. In light of the

foregoing, particularly the absence of any testimony by an eyewitness to the burglary and

the lack of physical evidence linking Mitchell to the crime, I would conclude that it is

"reasonably probable that a result more favorable to defendant would have been reached"

(Watson, supra, 46 Cal.2d at p. 837) if the trial court had not erred in admitting Johns's

and Lott's testimony relating Smith's hearsay statements that were not wholly disserving

of Smith's own interests and that shifted the majority of the blame to Mitchell.




                                                                                   AARON, J.




                                             21
