Filed 7/3/17



       IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S228193
           v.                        )
                                     )                     Ct.App. 4/1 D066684
RUTHETTA LOIS HOPSON,                )
                                     )                      Riverside County
           Defendant and Appellant.  )                  Super. Ct. No. RIF1105594
____________________________________)


        Defendant Ruthetta Lois Hopson was tried on charges that she, along with
her boyfriend, Julius Thomas, was responsible for the 2011 murder of her
housemate, Laverna Brown. In her trial testimony, defendant pinned the blame on
Thomas, who had since died. In rebuttal, the prosecution introduced a confession
Thomas had given to detectives following his arrest, in which he pinned much of
the blame on defendant. Defendant argues that the admission of Thomas‘s
confession violated her right under the Sixth Amendment to the United States
Constitution to confront the witnesses against her. The Court of Appeal rejected
the argument, concluding that the claim fails because Thomas‘s confession was
presented not to establish the truth of his account, but instead to undermine
defendant‘s competing account of their joint crime.
        We conclude, contrary to the Court of Appeal, that the jury was in fact
asked to consider Thomas‘s confession for its truth and that the admission of the
confession thus violated defendant‘s Sixth Amendment right to confront her
accusers. We reverse the judgment of the Court of Appeal and remand for further




                          SEE DISSENTING OPINION
proceedings to determine whether the error was prejudicial in light of other
evidence in the case and whether defendant therefore must be given a new trial.
                                           I.
       Defendant and the victim, Brown, both rented rooms in a house in
Riverside. Brown planned to fly to Georgia early on October 28, 2011, but she
never took the flight. The next day, the police located Brown‘s minivan in the
parking lot of an automobile auction house. Her body and suitcase were found
inside. Defendant and Thomas were arrested and charged with Brown‘s murder.
Thomas initially denied involvement, but, three days after his arrest, he gave a
confession to detectives that implicated himself and defendant. Thomas also
showed the police where he had disposed of items he had used during the crime,
which enabled the police to recover one of the murder weapons. Roughly six
weeks later, Thomas committed suicide in jail.
       At defendant‘s trial, the content of Thomas‘s confession to police was
presented to the jury. Because the course of events that led to this result was
somewhat circuitous — as the Court of Appeal noted, ―evidentiary rules were very
loosely applied at this trial and few restrictions were observed by either side, or by
the trial court‖ — we describe this history at some length.
       Before trial, the prosecution asked the court to rule on the admissibility of
various pieces of evidence, including Thomas‘s confession to police. The defense
objected to the admission of Thomas‘s confession, arguing that admitting the
confession would violate defendant‘s Sixth Amendment right to confront the
witnesses against her. The prosecutor agreed he could not introduce Thomas‘s
confession, but advised the trial court that he might wish to revisit the issue at a
sidebar if defendant testified and ―opened any doors.‖ The trial court ordered
Thomas‘s confession excluded ―absent further order of the Court following a



                                           2
sidebar in the event that the prosecution believes that Ms. Hopson may have
opened the door with her testimony.‖
       At trial, the prosecution‘s theory was that defendant needed money and,
with Thomas, planned to rob Brown the morning of Brown‘s trip. During its case-
in-chief, the prosecution introduced evidence tending to prove the following:
Defendant intended to move into her own apartment around the beginning of
November 2011, but she needed money to pay an $800 security deposit. On
October 27, the day before the murder, defendant purchased several items,
including pepper spray, a folding knife, and a sweatshirt and sweatpants that were
too big for her. Thomas called defendant at 1:49 a.m. and 2:09 a.m. on
October 28; between calls, he had traveled toward the Riverside house. Brown
was killed in the garage early that morning. After the owner of the house awoke
around 5:15 a.m., she noticed ―things were out of place in the garage‖ and realized
that a butcher knife and machete were missing. Around 6:00 a.m., defendant came
home with Thomas; defendant denied knowing anything about the missing
machete or knife, and she warned the owner that the sidewalk was wet because she
tried to clean up some Coke that she had spilled there. Later that morning, the
owner found a bloody blanket in a garbage can; scared, she called 911.
       When Brown did not arrive in Georgia on the afternoon of October 28, as
scheduled, her daughter became concerned and reported her missing. Brown‘s
daughter also called the owner of the house, who again called 911; she told the
dispatcher she suspected defendant was involved in Brown‘s disappearance.
Police investigators interviewed defendant that evening while she was at work,
and again the following morning at the police station. At the time of these
interviews, defendant was not under arrest. Recordings of the interviews were
played for the jury. In the interviews, defendant told police that she had spent the
early morning with Thomas, denied knowing what had happened to Brown, and

                                          3
suggested that a homeless person she had seen in the neighborhood may have been
involved.
       Early on October 29, the police used Thomas‘s mobile phone records to
trace his location. They searched the area and found Brown‘s minivan nearby.
They discovered Brown‘s body, with her throat cut, and her suitcase inside the
minivan. Police then arrested defendant and Thomas for the murder. On
November 1, Detectives Rick Cobb and Richard Wheeler conducted a custodial
interview of Thomas, following which Thomas showed the detectives where he
had dumped clothing and other items used during the crime. The police used this
information to recover one of the murder weapons, a machete, which had Brown‘s
blood on it. In the weeks after her arrest, defendant wrote Thomas a letter
expressing continuing affection toward him. On December 15, Thomas
committed suicide in jail.
       Defendant testified in her own defense. She began by describing her
relationship with Thomas. Defendant and Thomas had been dating since 2008, but
defendant never went to his house and did not know his address. Defendant and
Thomas usually saw each other only at the Riverside house, typically late at night
to avoid disturbing the owner and Brown. Defendant testified that Thomas had
previously told her that he was in a motorcycle club that ―did things that were
shady,‖ and that he had killed a man. The prosecutor objected to this testimony on
hearsay grounds. The trial court overruled the objection and instructed the jury to
consider the testimony ―for the limited purpose . . . of establishing [defendant‘s]
state of mind at the time the statement was overheard.‖ Defendant went on to
testify that Thomas had ―made allusions that if we broke up that he would have to
take care of me,‖ that is, ―[t]hat he would hurt me, possibly kill me.‖
       Defendant‘s testimony then turned to the events of October 27 and 28,
2011. Defense counsel asked defendant, ―[D]id Julius [Thomas] ever tell you that,

                                          4
‗Hey, I want to plan a robbery upon Laverna [Brown] before she goes on her
trip‘?‖ Defendant responded in the negative. The prosecutor objected on hearsay
grounds. The trial court again overruled the objection, stating, ―The answer is in.‖
The prosecutor raised no further objections during defendant‘s direct testimony.
        Defendant went on to explain that she had previously told Thomas that
Brown was going on a trip to Georgia and had asked if they could spend time
together while Brown was away. The day before the murder, defendant purchased
a folding knife and pepper spray for personal protection. Thomas had also asked
her to buy a gift for his sister, so she bought sweatpants and a sweatshirt, which
she gave to Thomas that evening. Thomas called defendant twice around
2:00 a.m. on October 28; in the first call, he told her that he was ―on his way‖ to
the Riverside house, and in the second, he told her that ―he was there.‖
        Defendant went to the back door of the house and was shocked to see
Brown lying in a pool of blood on the garage floor with Thomas standing over her.
Thomas was wearing the sweatshirt and sweatpants defendant had purchased, as
well as protective foot covers she claimed to have given him months earlier.
Thomas told defendant that he needed money, thought Brown would have money
because she was going on a trip, and tried to rob her. He told defendant that
Brown could identify him, and when Brown began to scream, he sliced her throat
with the machete, and then with the butcher knife when the machete proved too
dull.
        Defendant further testified that she helped Thomas clean up the crime scene
because Thomas threatened to hurt her and her adult son if she refused. Defendant
and Thomas moved Brown‘s body into Brown‘s minivan and cleaned up the
murder scene. They wore gloves defendant kept in her room and used cleaning
supplies stored in the garage. Thomas told defendant to put Brown‘s suitcase in
the minivan to make it look like Brown had gone on her trip. Defendant, driving

                                          5
Brown‘s minivan, followed Thomas to the automobile auction house, where they
abandoned Brown‘s vehicle, with her body and suitcase inside. They bought food
at McDonald‘s and two Cokes from 7-Eleven, then returned to the Riverside
house; Thomas told defendant to pour the Coke on the bloodstains to eliminate
them.
        On cross-examination, defendant admitted that she knew Thomas had
―spoke[n] to police officers‖ and ―shown the police where the murder weapon
was.‖ She volunteered that ―[h]e also lied and said that I had . . . something to do
with it, and I did did [sic] not.‖ She acknowledged that Thomas had never been
violent with her; that she had referred to Thomas with affection, even after he
died; and that she did not warn her son of Thomas‘s threats. She testified that she
continued to fear Thomas because he had told her, ― ‗Snitches always die,‘ and
one way or another he would get to me.‖
        At the beginning of defendant‘s second day of cross-examination, the
prosecutor asked the trial court at sidebar to admit Thomas‘s confession ―under
[Evidence Code section] 1202 . . . to impeach the hearsay declarations that came
in through the defendant.‖ Defense counsel renewed his earlier confrontation
clause objection: ―Just under Crawford [v. Washington (2004) 541 U.S. 36], I
believe that just because my client testifies to her state of mind as to what
happened in the garage, what she heard the killer say, I don‘t think allows us to
bring in his statements that he told police days later.‖ The trial court agreed with
the prosecution and ruled ―that under 1202 that the prior inconsistent statements
would be admissible for that limited purpose.‖ The trial court did not request an
offer of proof or explain its reasoning on the record, but it did allude to a
discussion of the issue held during a prior in-chambers conference, a transcript of
which is not in the record.



                                           6
       On redirect examination, defendant admitted that she had read a police
report detailing Thomas‘s confession, acknowledged that Thomas had accused her
of planning the crime, and denied that his confession was true. While defense
counsel was asking the next question, the prosecutor raised a hearsay objection,
which the trial court overruled without comment. Defense counsel went on to ask
defendant other questions about what she had read in the police report and what
happened on the night of the murder; defendant denied that Thomas‘s confession
and the events outlined in it were true.1 The prosecutor raised no further
objections.
       In rebuttal, the prosecution called Detective Wheeler to testify about
Thomas‘s confession. Although the trial court had previously indicated that the
confession would be admissible for a limited purpose, defense counsel did not
request a limiting instruction, and none was given.
       Detective Wheeler testified as follows. On November 1, while in custody,
Thomas decided to tell police the truth, because he wanted to ―make it right for
Laverna‘s family.‖ Thomas was crying, upset, and apologetic while confessing.
Thomas said defendant suggested robbing Brown because Brown was going on a
trip, would have money, and would be an easy target. Defendant devised a plan a
few days in advance and provided the sweatshirt and sweatpants for Thomas to


1        For example: ―Q. And basically from what you read, what did you read
that Julius accused you of? [¶] A. He accused me of planning it, of helping him,
and I did not help him. [¶] Q. Were his statements true that he told police? [¶]
A. No. [¶] Q. Did you tell Julius that Laverna would be leaving on a trip and
that you felt that Laverna would have a good amount of money with her on that
trip? . . . [¶] A. No, I never told him that. [¶] Q. Did you tell Julius that you and
[he] should rob Laverna for her money? [¶] A. Never. [¶] Q. Did you tell Julius
that the plan was to have Julius hide in the garage while you convinced Laverna to
come into the garage and help Laverna [sic] with something? [¶] A. Never. I
never did that.‖


                                         7
wear during the robbery. When Thomas arrived at the Riverside house on
October 28, he told defendant he did not want to go through with the plan, but
defendant convinced him to. Defendant lured Brown into the garage, and Thomas
hit her with the machete. Thomas later saw defendant kneeling over Brown‘s
body with a bloody butcher knife. When it became obvious that Brown was dead,
Thomas wanted to call the police, but defendant suggested getting rid of Brown‘s
body instead, because nobody would expect her to be around for a few days.
Defendant put Brown‘s suitcase in her minivan, directed the cleanup effort, and
drove Brown‘s vehicle to the automobile auction house, while Thomas followed.
Afterward, they went to McDonald‘s, where only defendant ordered and ate food.
They returned to the Riverside house, and defendant poured Coke on the
bloodstains, because she had seen on a television show that Coke ―somehow
break[s] up the blood and make[s] it easier to clean.‖ Defense counsel raised only
a single objection, not relevant here, during the course of this testimony.2
       During closing argument, the prosecutor argued to the jury that Thomas‘s
confession supplied evidence that defendant was the ―direct perpetrator.‖ In his
closing argument, defense counsel contended that ―[t]he biggest question is who is
telling the truth‖ and attempted to discredit Thomas‘s confession. During his
rebuttal to the defense closing argument, the prosecutor argued that Thomas‘s
actions in admitting his role in the crime made him more credible than defendant.
Defense counsel raised no objections during the prosecutor‘s closing arguments.
       The jury found defendant guilty of first degree murder (Pen. Code, § 187,
subd. (a)) and found true special circumstances that defendant intentionally
murdered Brown while lying in wait (id., § 190.2, subd. (a)(15)) and murdered

2       Other testimony and several additional letters between Thomas and
defendant were introduced during the rebuttal and surrebuttal cases. This evidence
is not relevant to the question presented here.


                                          8
Brown while engaged in the commission of a robbery or attempted robbery (id.,
subd. (a)(17)(A)). The trial court sentenced defendant to life imprisonment
without the possibility of parole.
       On appeal, defendant argued that the admission of Thomas‘s confession
violated her constitutional right to confront Thomas. The Court of Appeal found
no constitutional violation because Thomas‘s confession was not introduced for its
truth, but instead to undermine the credibility of defendant‘s own account.
       We granted review to consider whether the admission of Thomas‘s
confession violated defendant‘s Sixth Amendment confrontation right. Our
review is de novo. (People v. Seijas (2005) 36 Cal.4th 291, 304.)
                                          II.
                                          A.
       The confrontation clause of the Sixth Amendment to the United States
Constitution, which is binding on the states under the Fourteenth Amendment,
guarantees the right of a criminal defendant ―to be confronted with the witnesses
against him.‖ (U.S. Const., 6th Amend.; see Pointer v. Texas (1965) 380 U.S.
400, 406.) The understanding of the clause‘s protections has shifted over time.
Although the United States Supreme Court at one time interpreted the clause to
bar admission of out-of-court statements that lacked ―adequate ‗indicia of
reliability‘ ‖ (Ohio v. Roberts (1980) 448 U.S. 56, 66), the court reconsidered this
approach in Crawford v. Washington, supra, 541 U.S. 36 (Crawford). Tracing the
historical origins of the confrontation right, the court explained that ―the principal
evil at which the Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte examinations as evidence
against the accused.‖ (Id. at p. 50.) Interpreting the clause with this focus in
mind, the court held that the Sixth Amendment bars ―admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to

                                           9
testify, and the defendant had had a prior opportunity for cross-examination.‖ (Id.
at pp. 53–54; accord, Davis v. Washington (2006) 547 U.S. 813, 821.)
       It is undisputed that Thomas‘s postarrest confession to police — which
defendant had no opportunity to test through cross-examination — qualifies as
testimonial within the meaning of Crawford. Indeed, Crawford itself identified
unconfronted accomplice statements to authorities as ―core testimonial statements
that the Confrontation Clause plainly meant to exclude.‖ (Crawford, supra, 541
U.S. at p. 63; see also, e.g., Michigan v. Bryant (2011) 562 U.S. 344, 358.) But in
a portion of the opinion central to the case before us, the high court in Crawford
also made clear that this rule of exclusion applies only to testimonial hearsay; the
confrontation clause ―does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted‖ — that is, for nonhearsay
purposes. (Crawford, at p. 60, fn. 9, citing Tennessee v. Street (1985) 471 U.S.
409, 414; see also People v. Sanchez (2016) 63 Cal.4th 665, 682 [describing the
―not-for-the-truth limitation‖ on the confrontation right].) The principal question
we confront here is whether Thomas‘s un-cross-examined confession was used for
such a nonhearsay purpose, or whether it was instead used ―as evidence against the
accused,‖ in violation of defendant‘s Sixth Amendment rights. (Crawford, at
p. 50.)3

3        In People v. Sanchez, supra, 63 Cal.4th 665, we examined the development
of the high court‘s Crawford jurisprudence and instructed courts addressing the
admissibility of out-of-court statements to undertake a two-step analysis. ―The
first step is a traditional hearsay inquiry: Is the statement one made out of court; is
it offered to prove the truth of the facts it asserts; and does it fall under a hearsay
exception? If a hearsay statement is being offered by the prosecution in a criminal
case, and the Crawford limitations of unavailability, as well as cross-examination
or forfeiture, are not satisfied, a second analytical step is required. Admission of
such a statement violates the right to confrontation if the statement is testimonial
hearsay, as the high court defines that term.‖ (Id. at p. 680.) The primary

                                                          (Footnote continued on next page.)


                                          10
                                           1.
        The first, and most basic, requirement for applying the not-for-the-truth
limitation on the confrontation right is that the out-of-court statement must be
offered for some purpose independent of the truth of the matters it asserts. That
means that the statement must be capable of serving its nonhearsay purpose
regardless of whether the jury believes the matters asserted to be true. (See People
v. Sanchez, supra, 63 Cal.4th at pp. 682, 684; see also, e.g., 2 McCormick on
Evidence (7th ed. 2013) The Hearsay Rule, § 249, p. 189, fn. 2 [―if in fact the
statement must be true for the inference desired, then the ostensible nonhearsay
use is invalid‖].)
        In ruling Thomas‘s confession admissible, the trial court relied on Evidence
Code section 1202, which provides that ―[e]vidence of a statement or other
conduct by a declarant that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not inadmissible for the purpose of
attacking the credibility of the declarant . . . .‖ The trial court evidently reasoned
that once defendant testified about statements Thomas had made to her on the
night of the murder, Thomas‘s confession was admissible under section 1202 for




(Footnote continued from previous page.)

question in this case centers on whether Thomas‘s confession was ―offered to
prove the truth of the facts it assert[ed],‖ and therefore qualified as testimonial
hearsay for purposes of the confrontation clause.
        Rather than focus on this question, the dissent changes the subject.
Advancing a theory no party has raised, the dissent argues that the prosecution was
justified in using Thomas‘s confession to prove the truth of the facts asserted
because defendant had testified on cross-examination that she knew Thomas made
a statement saying she ―had . . . something to do with it,‖ and that the statement
was a lie. (See dis. opn., post, at pp. 22–27, 30–31.) The dissent‘s theory is
addressed in footnote 7, post.


                                           11
the nonhearsay purpose of undermining his credibility as a hearsay declarant. The
Attorney General urges us to uphold the trial court‘s ruling on this basis.
       There are two problems with this argument. First, the trial court‘s ruling
created an unexplained inconsistency with its earlier rulings permitting defendant
to testify about statements Thomas had made to her. Both the trial court and the
parties appeared to understand this testimony to have been admitted for the
nonhearsay purpose of explaining defendant‘s state of mind at the murder scene
and her reasons for assisting Thomas in the coverup. (See, e.g., People v. Montes
(2014) 58 Cal.4th 809, 863.) As the Court of Appeal noted, defendant ―did not
obtain admission of the truth of Thomas‘s ‗threatening‘ statements, simply by the
way she reported them.‖ The probative value of the statements introduced for this
purpose depended on whether Thomas actually made the statements to defendant,
which was a question of defendant‘s credibility, not Thomas‘s, and whether
defendant believed the statements to be true — not whether they were indeed true.
(See Dutton v. Evans (1970) 400 U.S. 74, 88–89; 1 Witkin, Cal. Evidence (5th ed.
2012) Hearsay, § 38, pp. 831–832; 2 McCormick on Evidence, supra, The
Hearsay Rule, § 249, pp. 191–193.) It may well be that some of defendant‘s
testimony tested the bounds of this state of mind rationale; as the Attorney General
notes, defendant no doubt hoped the jury would believe that Thomas had, in fact,
killed Brown alone for purposes of financial gain, as she reported Thomas had
said. But the prosecution did not object at trial that defendant had crossed a line
with her testimony, and the apparent assumption at trial was that the statements
had been admitted for a limited nonhearsay purpose. As the Court of Appeal
rightly noted, for the trial court then to admit Thomas‘s confession for purposes of
impeaching him as a hearsay declarant, thereby overruling defendant‘s
confrontation clause objection, was something of a non sequitur. (Evid. Code,
§ 1202; see People v. Curl (2009) 46 Cal.4th 339, 362 [section 1202 does not

                                         12
authorize admitting evidence to impeach the credibility of a statement that was
offered for a nonhearsay purpose].)
         But the second and more fundamental problem with the argument is that the
jury was never informed of the limited nonhearsay purpose for which Thomas‘s
confession was ostensibly admitted, and, critically, the prosecution did not use
Thomas‘s confession for any such limited purpose. The prosecution instead used
Thomas‘s confession to establish the role that defendant had played in the
murder — that is, for the truth of his out-of-court statements. If the prosecution
had intended simply to impeach Thomas‘s credibility — that is, to demonstrate
that Thomas was an unreliable witness — it would have sufficed to present his
inconsistent statements. Of course, doing so would have undermined the
credibility of all of Thomas‘s out-of-court statements, including his confession to
detectives, which was favorable to the prosecution. (See, e.g., 1 McCormick on
Evidence, supra, Impeachment and Support, § 34, p. 209.) The prosecution
instead sought to bolster the credibility of Thomas‘s confession by eliciting
testimony from Detective Wheeler that Thomas, while confessing, ―was a
complete mess sitting across from me and talking, crying, almost couldn‘t catch
his breath, apologizing profusely for not being honest initially. And he just said
that he wanted to make it right for Laverna‘s family and he wanted to tell me the
truth about what happened, and then he proceeded to do so.‖ This testimony was
irrelevant if the confession was offered to prove Thomas‘s lack of credibility and
not the truth of the matters asserted. Put differently, Thomas‘s ―credibility was
important only if the prosecution was using his statement to prove the truth of its
contents — in other words, his credibility mattered only if his statement was in
fact inadmissible hearsay.‖ (Jones v. Basinger (7th Cir. 2011) 635 F.3d 1030,
1043.)



                                         13
       That the prosecution relied on Thomas‘s confession to establish the truth of
his out-of-court statements is plain from the prosecutor‘s closing argument, in
which he expressly referred to Thomas‘s confession as substantive evidence
against defendant: ―In this case, there is evidence that the defendant is the direct
perpetrator, that she had the bloody knife, the butcher knife in her hand while she
was leaning over the body of Laverna Brown. You heard that through the
statements of Julius Thomas that Detective Wheeler told us about.‖ And later:
―We heard from Detective Wheeler that Julius Thomas actually told Detective
Wheeler . . . it was [defendant‘s] plan that he would hide in the garage, and she
would create some secret plan to get Laverna out of her room and into the garage.‖
Furthermore, in rebutting defense counsel‘s argument that Thomas was lying to
the police when he confessed, the prosecutor expressly invited the jury to believe
Thomas‘s confession over defendant‘s testimony, again offering the confession for
its truth. (See, e.g., 3A Wigmore on Evidence (Chadbourn ed. 1970) Specific
Error (Contradiction), § 1000, pp. 956–958.) He argued: ―So what does
[defendant] do? She had to take the stand and had to try and give an explanation
for every one of the pieces of that evidence, and each time she did that, it was a
lie. . . . [¶] . . . [¶] But what did [Thomas] do? He admitted his role. He came
clean with the police and said, ‗I‘m sorry,‘ crying, ‗Tell Laverna‘s family sorry.‘
‗Here, let me take you to the murder weapon. Let me take you to where the
bloody clothing is.‘ That‘s what shocked her, because he gave it up, because he
could not take the weight of what he had done and keep quiet. [¶] You compare
that person to the defendant‘s statements when she‘s talking to [the police], and
you see right there the difference between the two. You see a cold-blooded killer
who can lie to the police, who can look Detective Cobb in the face and say
nothing. And then you have Julius Thomas who breaks down, tells the police the
truth, understands the weight of the enormity of what he had done, explains it was

                                         14
the defendant‘s plan and takes the police to the evidence that would bury him.‖
(Italics added.)
          In sum, the record belies any claim that the prosecution used Thomas‘s
confession for the limited nonhearsay purpose of impeaching the statements
defendant had attributed to Thomas in her testimony. The prosecution instead
relied on Thomas‘s confession to contradict defendant‘s testimony by establishing
a different account of the events surrounding the crime, which the prosecution
expressly and repeatedly invited the jury to consider for its truth.
                                            2.
          The Court of Appeal below recognized that ―the apparent purpose of the
rebuttal testimony from Detective Wheeler was to attack the credibility of Hopson
as a testifying defendant,‖ not to undermine Thomas‘s own credibility. But the
court nevertheless found no confrontation clause violation, comparing this case to
Tennessee v. Street, supra, 471 U.S. 409 (Street), the source of Crawford‘s not-
for-the-truth limitation on the confrontation right. A fair comparison with Street,
however, leads to a contrary conclusion.
          In Street, a murder case, the prosecution relied heavily on a ―detailed
confession‖ the defendant had given authorities. (Street, supra, 471 U.S. at
p. 411.) Testifying in his own defense, the defendant recanted the confession,
claiming that the sheriff had coerced him into repeating a confession given by his
alleged accomplice, Peele. (Ibid.) To rebut the claim, the prosecution had the
sheriff read Peele‘s confession to the jury and answer additional questions,
―emphasizing the differences between the confessions.‖ (Id. at p. 412.) The
prosecutor then ―referred to Peele‘s confession in his closing argument to dispute
[the defendant‘s] claim that he had been forced to repeat Peele‘s statement.‖
(Ibid.)



                                            15
       The high court upheld the trial court‘s ruling, concluding that the evidence
had been admitted ―for the legitimate, nonhearsay purpose of rebutting [the
defendant‘s] testimony that his own confession was a coerced ‗copy‘ of Peele‘s
statement.‖ (Street, supra, 471 U.S. at p. 417.) The court concluded that ―[t]he
nonhearsay aspect of Peele‘s confession — not to prove what happened at the
murder scene but to prove what happened when [the defendant] confessed —
raises no Confrontation Clause concerns.‖ (Id. at p. 414.) The high court stressed
that the impeachment value of Peele‘s confession did not derive from the truth of
the matters asserted, but from the bare fact that Peele‘s account differed from the
defendant‘s, which undermined the defendant‘s claim that the sheriff had coerced
him into repeating Peele‘s confession as his own. By contrast, the high court
recognized that ―[i]f the jury had been asked to infer that Peele‘s confession
proved that [the defendant] participated in the murder, then the evidence would
have been hearsay; and because Peele was not available for cross-examination,
Confrontation Clause concerns would have been implicated.‖ (Ibid.; see also
Dutton v. Evans, supra, 400 U.S. at pp. 88–89.)
       The Court of Appeal found that ―[w]ithin the scope of Street, supra, 471
U.S. 409, the jury was properly given the opportunity to compare the two versions
by the two participants about what happened in the garage the night that Brown
was killed, to decide whether Hopson was telling the truth about ‗the immediate
issue of coercion,‘ which was her theory of defense. (Id. at p. 416.)‖ But this line
of reasoning finds no support in Street. The high court in that case recognized that
if the prosecution had used Peele‘s confession to prove what happened at the
murder scene, ―the evidence would have been hearsay; and because Peele was not
available for cross-examination, Confrontation Clause concerns would have been
implicated.‖ (Id. at p. 414.) So it is here: Whether defendant was coerced into
helping Thomas cover up the crime was a question of what happened at the

                                         16
murder scene. Thomas‘s confession cast doubt on ―whether Hopson was telling
the truth about ‗the immediate issue of coercion‘ ‖ because the jury was asked to
conclude that his confession was true and defendant‘s testimony was not.
       Moreover, as the high court in Street noted, in that case ―[t]he jury‘s
attention was directed to th[e] distinctive and limited purpose‖ for which the
evidence had been admitted by ―the prosecutor‘s questions and closing argument,‖
and the jury was ―pointedly instructed by the trial court ‗not to consider the
truthfulness of [Peele‘s] statement in any way whatsoever.‘ ‖ (Street, supra, 471
U.S. at pp. 417, 414–415.) The court acknowledged that ―Peele‘s statement . . .
could have been misused by the jury.‖ (Id. at p. 414.) But because the
prosecution had restricted its questioning and argument to the limited nonhearsay
purpose for which Peele‘s confession had been offered — by ―emphasiz[ing] the
differences‖ between Peele‘s confession and the defendant‘s — the court
concluded ―that the trial judge‘s instructions were the appropriate way to limit the
jury‘s use of [Peele‘s confession] in a manner consistent with the Confrontation
Clause.‖ (Id. at pp. 416, 417.) No similar limitations were observed in this case.
On the contrary, the prosecution‘s questioning and arguments expressly invited the
jury to rely on Thomas‘s out-of-court confession to detectives as a true account of
the events surrounding the crime.4

4       These circumstances also distinguish this case from several out-of-state
authorities that allowed testimonial statements to be admitted for nonhearsay
purposes. (See, e.g., State v. Araujo (Kan. 2007) 169 P.3d 1123, 1127–1128 [in a
bench trial, no confrontation clause violation in admitting statements when the
trial court made clear the limited purpose for which the statements were
introduced and did not use them for their truth in its findings]; Le v. State (Miss.
2005) 913 So.2d 913, 940–943 [no confrontation clause violation in admitting a
deceased accomplice‘s police statement when offered to impeach the accomplice‘s
statements offered by the defendant, a limiting instruction was given, and the
record did not suggest that the prosecutor sought to present the police statement as

                                                          (Footnote continued on next page.)


                                         17
                                           3.
        The Attorney General advances other possible nonhearsay purposes for
which Thomas‘s confession might have been introduced at trial. But neither the
prosecution nor the trial court raised or relied on these theories of admissibility,
and the use of Thomas‘s confession was not confined to any of the limited
nonhearsay purposes the Attorney General now outlines. Each of these post hoc
justifications for the trial court‘s ruling thus fails for substantially the same reason:
In the end, Thomas‘s confession was not actually used for any of these purported
nonhearsay purposes, but was instead used for the illegitimate purpose of
establishing defendant‘s role in the crime. (Cf. Shepard v. United States (1933)
290 U.S. 96, 103 [―A trial becomes unfair if testimony‖ admitted and used for an
illegitimate purpose ―may be used in an appellate court as though admitted for a
different purpose, unavowed and unsuspected.‖].)
        For example, the Attorney General argues Thomas‘s confession could have
been used for the nonhearsay purpose of impeaching defendant insofar as
―Thomas‘s statements to the police that he and [defendant] both planned the crime
made it less likely that Thomas really admitted to [defendant] that he committed
the crime alone.‖ According to the Attorney General‘s brief, the truth of
Thomas‘s confession is irrelevant for this purpose, since ―the jurors could
disbelieve the substance of what Thomas said to the police but also disbelieve
[defendant‘s] testimony about what Thomas supposedly told her.‖ Even if we


(Footnote continued from previous page.)

hearsay]; Del Carmen Hernandez v. State (Tex.Crim.App. 2008) 273 S.W.3d 685,
689 [similar]; Hodges v. Commonwealth (Va. 2006) 634 S.E.2d 680, 687 [no
confrontation clause violation in admitting a written police statement when no
limiting instruction was requested or given, but the prosecution did not use it ―as
proof of the veracity of its contents‖].)


                                           18
were to accept the premise of the argument — and we have no occasion to pass on
its correctness here — the Attorney General‘s argument would fail. The
prosecution did not argue at trial that Thomas‘s confession, regardless of its truth,
made it less likely that Thomas made the statements defendant had attributed to
him. Instead, as previously discussed, the prosecution expressly asked the jury to
believe that the content of Thomas‘s confession to detectives was true, and to
credit it over defendant‘s testimony.
       The Attorney General also argues that Thomas‘s confession could have
been admitted for the nonhearsay purpose of impeaching defendant‘s explanation
of why she changed her story at trial. Comparing this case to People v. Carter
(2003) 30 Cal.4th 1166, 1206–1209, the Attorney General argues that Thomas‘s
confession ―impeached the credibility of [defendant‘s] claim that she hid the truth
because she was afraid of [Thomas] [and] suggested a different explanation for
[her] morphing narrative, namely, that [defendant] changed her story because she
had to account for what Thomas told the police.‖ It is not evident how Thomas‘s
confession could have served such a purpose. Far from ―account[ing] for what
Thomas told the police,‖ defendant‘s trial testimony affirmatively contradicted it.
The prosecutor‘s questioning of Detective Wheeler about Thomas‘s confession did
nothing to illuminate why defendant changed her story, and the prosecutor never
made any argument that the two events were somehow related. The prosecutor
instead argued that defendant had testified in a manner calculated to explain away
the evidence adduced during the prosecution‘s case-in-chief — that is, before
Thomas‘s confession was introduced, and indeed, before the trial court even ruled
it admissible. Thomas‘s confession was extraneous to this line of argument. The
confession was instead used to buttress the prosecutor‘s argument that defendant‘s
version of events was false, while Thomas‘s version, as recounted to the police
and related to the jury by Detective Wheeler, was true.

                                         19
                                           B.
       In the alternative, the Attorney General argues that even if Thomas‘s
unconfronted confession was admitted for its truth, defendant opened the door to
that use with her testimony. The Attorney General raises this argument for the
first time in his briefs in this court, having made no such argument below.5 The
idea that defendant had ―opened the door‖ was introduced by the Court of Appeal,
which apparently viewed the rationale as complementary to its primary holding
that Thomas‘s confession had not been admitted for its truth: The court concluded
that, by testifying ―in layers of multiple hearsay‖ and bringing ―Thomas‘s
character and actions into issue as her key defense point,‖ defendant had opened
the door to the ―nonhearsay uses‖ of Thomas‘s confession we have considered and
rejected above. (Italics added.) At the conclusion of its analysis, however, the
court went on to state, without elaboration, that ―[e]ven if . . . there were a
confrontation clause problem posed by Thomas‘s reported testimonial statements,
in the nature of ‗bleeding over‘ from impeachment into substantive evidence about
the identity of the killer,‖ defendant had opened the door to that result as well.
       Although the Attorney General seizes on the Court of Appeal‘s
unelaborated statement that defendant might have opened the door to the use of
Thomas‘s confession as substantive evidence of her role in the crime, the Attorney
General argues this is so for a different reason: Defendant‘s testimony left the jury
with the incomplete and misleading impression that Thomas‘s ―statements
recounted by [defendant] — which implicated Thomas and no one else — were
the only statements that Thomas made about the crime.‖ The Attorney General

5       The various opening the door cases and theories discussed in the Court of
Appeal‘s opinion and the Attorney General‘s brief in this court were not raised in
the Attorney General‘s Court of Appeal brief, any letter brief (none was filed), or
at oral argument before the Court of Appeal (which was waived).


                                          20
argues that it was necessary to introduce Thomas‘s confession, which he gave
several days after the murder, to dispel that impression. We reject this argument.
       To start, the Attorney General is incorrect that defendant misled the jury
about the extent of Thomas‘s statements. Defendant testified regarding her
version of events; although she may have conveyed more of Thomas‘s out-of-
court statements than was strictly necessary to explain her role in the coverup, she
did so without objection and did not leave the jury with any false impression that
Thomas‘s statements to her were the only statements he had made about the crime.
On the contrary, the jury would have been well aware that Thomas had made other
statements: During the prosecution‘s case-in-chief, Detective Cobb testified that
police had interviewed Thomas on November 1, after which Thomas showed the
police where he had disposed of clothing and other items used during the murder.
Later, when cross-examined by the prosecutor, defendant admitted that she knew
Thomas had given a confession implicating her during that interview, a point she
reiterated in her redirect examination.
       In any event, even if defendant had left the misimpression that Thomas had
made no other statement about his role in the murder, the admission of Thomas‘s
full confession, as recounted by Detective Wheeler on the stand, ventured far
beyond what (if anything) would have been necessary to dispel it. Courts
recognizing an opening the door exception to the confrontation right have
recognized it must be a limited one, lest the exception swallow the usual
confrontation rule. Most of the cases the Attorney General cites as support for his
opening the door theory stand for a separate, modest proposition with which we
have already agreed: If a defendant selectively introduces portions of an out-of-
court testimonial statement, he or she may not object to the admission of ―the




                                          21
whole on the same subject.‖ (Evid. Code, § 356; see People v. Vines (2011) 51
Cal.4th 830, 861–863.)6 That, of course, is not what happened here.
       The Attorney General also cites a handful of cases in which courts have
concluded that the defendant opened the door to the admission of limited
testimonial statements as necessary to clarify, rebut, or complete a particular issue,
such as questions concerning the adequacy of a police investigation. (See U.S. v.
Cruz-Diaz (1st Cir. 2008) 550 F.3d 169, 175–181 [a police officer‘s short
statement about what the codefendant told him was admissible for the limited
purpose of rebutting the defendant‘s characterization of the investigation as
inadequate and providing context for the investigator‘s actions]; U.S. v. Acosta
(5th Cir. 2007) 475 F.3d 677, 682–683 [a trial witness‘s out-of-court statement
was admissible for the limited purpose of showing his trial testimony was not a
recent fabrication, as implied by the defendant]; People v. Reid (N.Y. 2012) 971
N.E.2d 353, 356–357 [by using out-of-court statements to imply that someone else
was responsible for the crime and to question the adequacy of the police
investigation, the defendant opened the door to testimony that an eyewitness had
told the police the other person was not present at the crime scene]; cf. Charles v.
Thaler (5th Cir. 2011) 629 F.3d 494, 502–503 [during the punishment phase of a
noncapital trial, the defendant portrayed himself as ―a good kid with a nearly
blameless past‖ and denied instances of school misconduct, opening the door to a


6      The Attorney General does not cite People v. Vines, supra, 51 Cal.4th 830,
but he does cite several out-of-state authorities that are to similar effect. (See
Tinker v. State (Ala.Crim.App. 2005) 932 So.2d 168, 187–188; People v. Rogers
(Colo.Ct.App. 2012) 317 P.3d 1280, 1284; State v. Brooks (Hawaii Ct.App. 2011)
264 P.3d 40, 51; State v. Fisher (Kan. 2007) 154 P.3d 455, 481–483; People v. Ko
(N.Y.App.Div. 2005) 789 N.Y.S.2d 43, 45; McClenton v. State (Tex.App. 2005)
167 S.W.3d 86, 94; see also Ko v. Burge (S.D.N.Y. Feb. 26, 2008) 2008 WL
552629, *12–*13.)


                                         22
question about why school officials had told the prosecution about the misconduct
that he denied]; id. at p. 503 [the confrontation clause does not apply in the context
of noncapital sentencing].) We need not pass on the correctness of these
decisions, because they provide little support for the Attorney General‘s argument
in any event. As counsel candidly acknowledged at oral argument, none of these
decisions purports to authorize what the Attorney General seeks here: admission
of a nontestifying accomplice‘s testimonial statements, for their truth, because the
defendant claimed the accomplice made different, nontestimonial statements at a
different time and in a different place.
       Nor is this case analogous to U.S. v. Lopez-Medina (10th Cir. 2010) 596
F.3d 716. In that case, defense counsel questioned a police officer regarding
information he had that came from a confidential informant. (Id. at p. 726.) The
prosecutor asked for a sidebar and ―expressed concern about this line of
questioning.‖ (Ibid.) Defense counsel then explained to the court: ― ‗I think,
Your Honor, [the government is] worried that I am going to bring in the
confidential informant information. That‘s my full intention. I don‘t care what
door we open. If I open up a door, please feel free to drive into it.‘ ‖ (Ibid.) The
appellate court affirmed the admission of other testimony regarding the
informant‘s statements because the defendant had ―purposefully and explicitly‖
waived his confrontation right, opening the door to that testimony. (Id. at p. 731.)
That is not what occurred here. Granted, at a pretrial hearing, the prosecutor
alerted the trial court and defense counsel that he might seek to admit Thomas‘s
statements ―depend[ing] on how [defendant] testifies.‖ Unlike in Lopez-Medina,
however, this colloquy did not put defendant on notice of what precise testimony
the prosecution thought would open the door to Thomas‘s confession. Nor did the
prosecution contemporaneously object to the testimony that the Attorney General
now claims opened the door to the admission of testimony about Thomas‘s

                                           23
confession. Nor, finally, can it be said that defendant clearly and unambiguously
waived her right to confront her accomplice, Thomas, about his confession by
attributing other statements to Thomas during her own testimony.7

7       The dissent advances a different theory of waiver: It argues that defendant
implicitly waived her right to confront Thomas when she testified on cross-
examination that she knew Thomas had made a statement implicating her and that
the statement was a lie. (See dis. opn., post, at pp. 22–27, 30–31.) In so doing, the
dissent conducts the parties‘ litigation for them, for the Attorney General has
never sought, as the dissent does, to justify the prosecution‘s use of Thomas‘s full,
unconfronted confession as a necessary response to defendant‘s brief reference to
the confession on cross-examination. And because the Attorney General has not
raised this waiver argument, defendant has had no opportunity to respond to it. It
is not the practice of this court to decide cases on grounds the parties have neither
briefed nor argued, and the dissent offers no sound reason to depart from that
practice here.
        The dissent‘s argument is faulty in any event. The premise of the argument
is that defendant‘s statement that Thomas‘s confession was false put the
prosecution at an unfair disadvantage, entitling the prosecution to level the field by
admitting Thomas‘s full, unconfronted confession. But defendant‘s statement did
not disadvantage the prosecution (and again, the Attorney General does not claim
that it did). The prosecutor had adverted to Thomas‘s November 1 police
interview during the prosecution‘s case-in-chief, and he later cross-examined
defendant regarding her knowledge of Thomas‘s confession. Defendant candidly
admitted that she knew Thomas had confessed to detectives, and that he had
accused her of planning the crime. By testifying that this accusation was false,
defendant did not rely on any aspect of Thomas‘s confession for its truth; rather,
she acknowledged the existence of a version of events that conflicted with her
own.
        The notion that defendant sought to use her confrontation right as a
―sword‖ (dis. opn., post, at p. 31) might have force if defendant had
misrepresented the content of Thomas‘s confession to her advantage, but she did
not. (Cf. Evid. Code, § 356; People v. Vines, supra, 51 Cal.4th at pp. 861–863.)
The only representation she made about the content of the confession was both
indisputably accurate and, if anything, more helpful to the prosecution than it was
to her: She informed the jury that Thomas had told detectives that she ―had . . .
something to do with it.‖ Nor did defendant‘s testimony undermine any efforts the
prosecution might have wished to make to attack Thomas‘s credibility under
Evidence Code section 1202, as the dissent suggests (see dis. opn., post, at pp. 21–

                                                          (Footnote continued on next page.)


                                         24
        We find more instructive the cases the Attorney General cites in which the
courts have rejected arguments for introducing inculpatory testimonial statements
on grounds that the defendant opened the door. For example, one federal appellate
court held that, by questioning a police officer about the evidence that tied the
defendant to a residence where drugs were dealt, the defendant ―did not open the
door so wide as to allow [the officer] to recite the full extent of the statements
from [a confidential informant] implicating [the defendant] in selling drugs and
possessing firearms.‖ (U.S. v. Holmes (8th Cir. 2010) 620 F.3d 836, 844; see also
U.S. v. Pugh (6th Cir. 2005) 405 F.3d 390, 400 [by raising the issue of a
detective‘s motive for transporting a witness from jail to the police station, one
defendant ―may have ‗opened the door‘ to allow the Government to provide an
alternative reason for questioning [the witness], but the Government overstepped
constitutional bounds by asking [the detective] if [the witness] identified the
defendants as the robbers‖]; Lane v. State (Ind.Ct.App. 2013) 997 N.E.2d 83, 91
[by asking a detective ―if there was nothing else that tied [the defendant] to the
crime[,]‖ the defendant did not open the door to evidence linking him to a phone
number that the victim called four times]; McClenton v. State, supra, 167 S.W.3d
at p. 94 [by asking questions about one accomplice‘s out-of-court statement, the
defendant opened the door to that accomplice‘s entire statement but not to another
accomplice‘s out-of-court statement].) Similarly here, if the goal were simply to
correct an incomplete and misleading impression that Thomas‘s statements to

(Footnote continued from previous page.)

22); Thomas‘s confession could have impeached his credibility as a putative
hearsay declarant even if — and perhaps especially if — his confession to
detectives were false. Ultimately, the contention that the prosecution was unfairly
disadvantaged by this testimony would make sense only if the prosecution had
somehow been entitled to rely on Thomas‘s out-of-court, unconfronted confession
for its truth. It was not so entitled. (See Crawford, supra, 541 U.S. at pp. 53–54.)


                                           25
defendant were the only statements that Thomas made about the crime, it would
have sufficed to confirm that Thomas later gave police a statement, ―without the
need to go into the damning details‖ of what he said. (Holmes, at p. 842.)
       The Attorney General protests that this result gives criminal defendants
―carte blanche to testify that any unavailable witness took credit for the crime, and
there would be nothing the prosecution could do about it.‖ Not so. For one thing,
if the prosecution in this case had been concerned about defendant‘s testimony that
Thomas had taken credit for the crime, it could have objected to the testimony on
hearsay or other evidentiary grounds, or it could have asked that the jury be
admonished to consider the testimony only for the limited purpose of considering
the statements‘ effect on defendant‘s state of mind. It did neither. The
prosecution instead waited until defendant‘s direct examination was over,
introduced a detailed recounting of Thomas‘s confession for the putative purpose
of impeaching Thomas‘s credibility as a hearsay declarant, and then relied on the
confession as substantive evidence of defendant‘s role in the murder.
       It is, in any event, well established that the prosecution can impeach a
testifying defendant, just like any other witness. (Portuondo v. Agard (2000) 529
U.S. 61, 69.) The prosecution is always entitled to point out a defendant‘s
motivation to divert blame to an unavailable accomplice and present admissible
facts that contradict the defendant‘s story. And it may be possible, in appropriate
cases, for the prosecution to argue that the defendant has opened the door to
admission of otherwise inadmissible testimonial statements. We do not adopt here
a general opening the door exception to the confrontation right or decide the scope
of any such exception. It is enough to say here that defendant in this case did not,
as the Attorney General now argues, give the prosecution carte blanche to
introduce her accomplice‘s full, unconfronted extrajudicial confession — for its
truth — by creating an incomplete and misleading impression that the statements

                                         26
she attributed to him were the only statements Thomas had made about the crime.
                                         III.
       Crawford makes clear that the prosecution may not ask the jury to credit an
accomplice‘s out-of-court stationhouse confession shifting or spreading blame to
the defendant unless the defendant has had the opportunity to test the accomplice‘s
reliability in the ―crucible of cross-examination.‖ (Crawford, supra, 541 U.S. at
p. 61.) In this case, as the Court of Appeal observed, ―evidentiary rules were very
loosely applied . . . and few restrictions were observed by either side, or by the
trial court.‖ The end result was that an accomplice‘s confession implicating the
defendant was used as substantive evidence of her role in the crime, even though
she had no opportunity to test his reliability through cross-examination. This
violated defendant‘s right of confrontation.
       The Attorney General argues that any violation of defendant‘s Sixth
Amendment rights was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24; see, e.g., People v. Pearson (2013) 56 Cal.4th
393, 463.) The Attorney General argues the evidence of defendant‘s guilt was
sufficiently overwhelming that there was no reasonable possibility that the jury
verdict could have been affected by the admission of Thomas‘s confession. (See
also dis. opn., post, at pp. 32–36.) Defendant, however, points out that Thomas‘s
confession was both powerfully incriminating and provided the only direct
evidence of defendant‘s role in the murder, which explains why the prosecutor
relied on the confession so heavily in his arguments to the jury.
       Because the Court of Appeal concluded that defendant‘s constitutional right
to confront Thomas had not been violated, it did not address these arguments. ―[W]e
‗consider it appropriate to remand this matter to the Court of Appeal to permit that
court to determine‘ the question in the first instance.‖ (People v. Mendoza (1998) 18
Cal.4th 1114, 1135; see Cal. Rules of Court, rule 8.528, subd. (c).)

                                          27
                                        IV.
       The judgment of the Court of Appeal is reversed and the case remanded for
further proceedings consistent with this opinion.


                                                    KRUGER, J.


WE CONCUR:

CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.




                                        28
            DISSENTING OPINION BY CANTIL-SAKAUYE, C. J.


       The problem of suspects giving conflicting stories when interrogated has
been well documented not only by police, but also in our case law. (People v.
Tobias (2001) 25 Cal.4th 327, 331 [―an accomplice may try to shift blame to the
defendant in an effort to minimize his or her own culpability‖]; People v. Duarte
(2000) 24 Cal.4th 603, 615 [recognizing that suspects accused of criminal
behavior often will attempt ― ‗to shift blame or curry favor‘ ‖]; People v.
Ainsworth (1988) 45 Cal.3d 984, 1006 [recognizing that defendant has an
incentive to make another defendant appear more ― ‗blameworthy‘‖ in the context
of a capital case].)
       The present matter is no different.
       Here, the police arrested partners in crime who were then questioned
separately. Their versions conflicted about the circumstances of the wrongdoing.
Defendant Ruthetta Lois Hopson told police that she knew nothing about the
crime. Julius Thomas told police that she was the mastermind and that he had
been reluctantly convinced by her to commit the killing with her. At trial, she
took the stand and testified to the jury that he had lied to police. In order to
explain her own lies to the police about not knowing anything about the killing,
she portrayed him as a brutal killer who had threatened her own life if she did not
become his accomplice. She testified that he had acted on his own in killing the
victim. She insisted to the jury that she was telling the truth, and that his


                                           1
confession to police inculpating her was a lie, knowing very well that her
accomplice could not take the stand to contradict her because he had committed
suicide well before the trial.
       Even though defendant had been forewarned by a tentative pretrial ruling
that the scope of her testimony might render admissible her accomplice‘s
confession, today the majority holds that regardless of the scope of defendant‘s
testimony, the confession is inadmissible when the accomplice is deceased and
unavailable to testify. Even though defendant herself proceeded to place the
truthfulness of her accomplice‘s confession in dispute by assuring the jury that her
own self-serving description of her accomplice‘s statements was the truth and that
her accomplice‘s confession was false, the majority would still allow her to claim
the protection of the confrontation clause.
       The result is that defendant is allowed to have it both ways, by exonerating
herself with her own testimony while enjoying protection from incriminating
evidence on the same subject. As recognized by courts with similar exclusionary
rules protecting a defendant from otherwise incriminating evidence, such rules are
fairly applied as a ― ‗shield,‘ ‖ not a ― ‗sword‘ ‖ that can be used to cut off the
prosecution‘s fair response to the evidence or argument of the defendant. (United
States v. Robinson (1988) 485 U.S. 25, 32.) Under the majority‘s interpretation,
defendants would be shielded from incrimination by an accomplice‘s confession to
police while simultaneously being allowed to attack with impunity the credibility
and character of that accomplice.
       Because I do not believe the confrontation clause was intended to apply in
this manner, I dissent.
                                       I. FACTS
       In the early morning hours of October 28, 2011, Laverna Brown, a 66-year-
old registered nurse and grandmother, was brutally killed at her home, assaulted

                                           2
with a machete and nearly decapitated as she was preparing to leave on a trip to
see her family. Brown rented a room in a home owned by Darcy Timm and lived
with Timm and defendant Hopson, a nursing assistant, as housemates.
       In the days before the killing, defendant had expressed a desire to move out
of the house and into her own apartment. Defendant, however, had difficulty
saving enough funds to pay an $800 deposit so she could move into her new
apartment on October 29, the day after Brown was killed.
       When Brown did not arrive as scheduled, her family reported her missing.
The morning of the murder Timm noticed that a machete she kept in her garage
was missing, as well as a large butcher knife she kept in a butcher block in her
kitchen. Soon after, Timm discovered a blood-soaked blanket in a trash can
outside next to her garage and saw blood and pieces of flesh on the ground. Timm
called the police.
       The police quickly identified defendant and her lover, Julius Thomas, as
suspects. Defendant and Thomas had been intimate for several years while
Thomas was living with and engaged to his fiancée, Veronica Franklin.
       Approached by an officer at her place of work, defendant told the officer
that she knew nothing about Brown‘s disappearance. Defendant claimed that, on
the morning of the killing, she and Thomas had been together and that they went
outside Timm‘s house between 2:30 a.m. to 4:30 a.m. She told the police that she
had seen a ―weird guy‖ with ―scraggly, black hair underneath a hat,‖ walking
around the neighborhood that week.
       Later, in an interview at the police station, defendant told police that she
saw Brown packing for her trip, and then defendant went to sleep. Defendant
claimed she woke up at around 2:00 a.m. to meet Thomas and that they went
outside and spent time together at a local park. She again claimed to have seen a
―weird‖ man walking around the neighborhood, but this time described him as

                                          3
having scraggly blond hair. Defendant admitted to using a water hose outside that
morning, but stated that she thought she was cleaning spilled cola, not blood.
       The police used cell tower data for Thomas‘s cell phone to locate his
whereabouts at the time of the murder, and to locate Brown‘s minivan, which had
been abandoned in a parking lot. Brown‘s travel suitcase and nearly decapitated
body were inside. The steering wheel of the van yielded biological evidence
matching defendant‘s DNA profile, and Brown‘s, but not Thomas‘s. According to
Timm, Brown had sometimes given defendant a ride to the store, but to Timm‘s
knowledge, defendant had never driven the van herself.
       The police arrested defendant and Thomas. A few days later, Thomas
confessed to the killing, but claimed that defendant had masterminded the plan to
assault and rob Brown. Thomas further cooperated with the police, led them to
where he had disposed of clothing he wore during the crime, and helped the police
recover one of the murder weapons, the machete.
       Using cell phone data and purchase receipts, the police investigated the
actions of defendant and Thomas in the hours before Brown‘s killing. At 5:53
p.m. on October 27, 2011, defendant and Thomas bought pepper spray and a
pocket knife at a military surplus store. That evening at 7:12 p.m., defendant
purchased at a department store the clothes Thomas wore during the killing, which
took place just hours later.
       Cell tower data for both defendant‘s and Thomas‘s cell phones showed that
between approximately 7:00 p.m. on October 27 and 2:09 a.m. on October 28th,
the two exchanged seven phone calls. The last two of these calls occurred on
October 28 at 1:49 a.m. and 2:09 a.m. Cell tower data showed that during these
two calls Thomas was driving in a westerly direction toward Timm‘s house. But
defendant received both calls through a cell tower in the location of Timm‘s house



                                         4
that was different from the cell tower used by Thomas‘s cell phone for the same
calls.
         For the next six weeks after their arrest, defendant and Thomas exchanged
letters in jail. Defendant consistently wrote to Thomas that she loved him and
missed him. In her last letters to Thomas, defendant again expressed her love for
him, but asked him about his statements to police and said she wanted to end their
relationship and would not write anymore. In his last letter to defendant, Thomas
wrote, ―Goodbye. Like you said, you won‘t write no more. That‘s fine. You did
this, not me . . . . Don‘t waste my time no more. That‘s how you want to be.
Well, have a nice life.‖ Soon after, in December 2011, Thomas committed suicide
in jail by hanging himself, leaving defendant to stand trial by herself.
         Defendant testified in her defense and for the first time admitted her
involvement in Brown‘s killing. Defendant, however, claimed she had not
planned the homicide and that Thomas had acted on his own in killing Brown.
Defendant testified that she only learned of his intentions just after 2:00 a.m. on
October 28, 2011, when he called her and told her to come to the garage, where
she discovered him with Brown‘s bloodied body. She claimed that Thomas
demanded that she help him clean up the crime scene and threatened to kill
defendant and her son if she did not help. Defendant told the jury that she feared
Thomas and that, under his threats, she was compelled to help clean up the crime
scene, dispose of Brown‘s body and incriminating evidence, and then lie to police.
         In her testimony, as described in greater detail below, defendant recited
numerous statements purportedly made by Thomas both before and after the
killing. Defendant testified that Thomas had previously admitted to killing
someone else and to other acts of past violence. Defendant claimed that Thomas
had told her why he acted alone to kill Brown and how he had killed her.
Defendant quoted threats Thomas had made against her and her son and how he

                                           5
would carry out those threats. Defendant explained in detail how he had directed
her to dispose of the body and other evidence.
       In rebuttal, the prosecution called Detective Richard Wheeler to testify
concerning Thomas‘s recorded confession to him. Thomas had told Wheeler how
defendant had devised a plan for them to rob the victim, which involved defendant
coaxing Brown into the garage where Thomas would rob and assault her. Thomas
told Wheeler that defendant had purchased clothing for him to wear for the assault.
       Thomas admitted that he hit Brown with the machete after defendant lured
the victim into the garage. Thomas told the officer that defendant then kneeled
over Brown and that he saw her holding a bloody kitchen knife. Thomas claimed
that defendant told him that they had to get rid of Brown‘s body. According to
Detective Wheeler, Thomas alleged that it was defendant‘s idea to clean up the
blood using cola because she had seen a television show showing that cola
dissolved blood.
       Finally, Detective Wheeler described how Thomas had led police officers
to various locations where he claimed he had disposed of evidence of the killing.
This resulted in the recovery of the machete, but not the bloody clothing, which
Thomas had disposed of in a dumpster that had been emptied in the interim.
       The jury convicted defendant of first degree murder of Laverna Brown, also
finding true the allegations that she killed Brown by means of lying in wait, and in
the course of a robbery. Defendant was sentenced to life imprisonment without
the possibility of parole.




                                         6
II. FACTUAL AND PROCEDURAL BACKGROUND CONCERNING THE ADMISSION
                     OF THOMAS’S STATEMENTS

         A. Pretrial Evidentiary Rulings
         The evidentiary issues raised in this case require a detailed description of
the trial court‘s rulings, the arguments of counsel related to those rulings, and the
rulings of the court admitting various out-of-court statements for the jury‘s
consideration. The following is a description of these matters, in chronological
order.
         Before opening statements, the trial court made a series of evidentiary
rulings. In response to a motion made by the prosecution for its admission, the
trial court ruled that evidence of Thomas‘s assisting the police in recovering
incriminating evidence would be admissible, provided there was no reference to
defendant‘s involvement in disposing of the evidence. The trial court admonished
the prosecutor to consult with his witnesses to ensure ―that they understand that
there will be no reference to any person other than Mr. Thomas in the simple act
of taking the officers to the location, with no other amplification or elaboration.‖
         The trial court also made a preliminary ruling concerning the admissibility
of Thomas‘s police confession. By in limine motion, defense counsel had sought
a ruling, based on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), to
prohibit admission of Thomas‘s statements. At a hearing before opening
statements, defense counsel explained that he wanted to ―make sure‖ that if
defendant testified, Thomas‘s statements to police would not be admitted. The
prosecutor responded: ―I think it depends on how she testifies. If I see that she‘s
opened any doors, and if she does and if I want to go there, then I‘ll ask for a
sidebar before we discuss that.‖ The trial court then ruled that there would be no
reference to Thomas‘s statements, ―absent further order of the court following a




                                            7
sidebar in the event that the prosecution believes that Ms. Hopson may have
opened the door with her testimony.‖

       B. Defendant’s Testimony on Direct Examination
       On direct examination, defendant‘s first significant reference to an out-of-
court statement by Thomas occurred when defense counsel asked her about
Thomas‘s prior violent conduct: ―Did he ever say anything to you where you
believed — made you feel a little bit uncomfortable regarding some type of threat
or violence that he had done in the past?‖ Defendant answered affirmatively, and
the prosecutor lodged a hearsay objection to which defense counsel replied, ―State
of mind, your Honor.‖ The trial court responded, ―It will be admitted for the
limited purpose, ladies and gentlemen, of establishing the witness‘s state of mind
at the time the statement was overheard.‖1
       Defendant, on direct examination, continued to testify, relating numerous
and detailed statements that Thomas had purportedly made to her, all asserted to
show why defendant feared Thomas and why she participated in helping him
conceal the murder.
       In her testimony, defendant claimed that Thomas had admitted to beating
someone to death before and had made admissions about assaulting other persons.
She also claimed that Thomas had ―made allusions‖ that he would kill or hurt her
if she ended their relationship.


1       Later, the record in this matter indicates that the prosecutor believed the
trial court had admitted these statements under Evidence Code section 1215. But
there is no section 1215 in the Evidence Code, so either the prosecutor misspoke
or the transcript is in error. Likely, the intended reference was either to Evidence
Code section 1250 or 1251. But neither section would be relevant because those
sections cover hearsay exceptions concerning the declarant’s own statement
revealing her own state of mind and not a statement uttered by someone else and
its effect on the state of mind and conduct of the listener.


                                          8
       Defendant claimed that Thomas had told her why he acted alone to kill
Brown and how he had killed her. Thomas said he attacked Brown because he
needed money, and he thought Brown was ―an easy target‖ because she would
have had spending cash on hand before leaving on her trip. According to
defendant, Thomas said that Brown had recognized him ―and that he had no
choice but to kill her.‖ Defendant testified that Thomas ―said that she screamed
and was making noise, and he didn‘t want anybody to hear her, so he sliced her
throat.‖ Defendant claimed Thomas ―said that the machete was too dull‖ and
Brown was still alive, ―having sounds coming out of her throat,‖ and Brown‘s
―eyes were blinking.‖ Defendant testified that, because she was still alive,
Thomas said ―he went into the kitchen and took the butcher knife and used [it] to
finish what he started.‖
       Defendant also quoted threats Thomas had made to her and about her son.
Defendant said that Thomas claimed he had someone watching her son and that
that person could harm her son if she did not cooperate in covering up evidence of
the crime. Defendant further explained how Thomas had directed her to dispose
of the body and other evidence and how she should lie to the police. Defendant
testified that while Thomas was directing her to wipe away certain spots of blood,
he stood over her while holding both the machete and the butcher knife and used a
―very forceful‖ tone of voice with her.
       Defendant further described statements that Thomas purportedly had made
to her before the killing in order to explain why she had supplied the clothing and
protection that Thomas had worn during the attack on Brown. Defendant claimed
that Thomas, a bus driver, had asked her for hospital-style foot covers because
Thomas had previously ―said that he was tired of stepping on vomit and urine in
his bus, and he asked me if I could get him some foot covers, so I did.‖ Defendant
testified that Thomas was wearing a hoodie sweat jacket and sweatpants, both size

                                          9
3X, that ―he told me to buy for‖ his sister and that ―she was a big girl like he was‖
but ―not as tall.‖ Defendant also testified that she had previously given Thomas
the blue nitrile surgical gloves he wore during the killing because he purportedly
had said ―he didn‘t like to touch the things that the customers would touch on the
bus‖ because ―they were nasty and he didn‘t want to get their germs.‖
       Defendant further testified that, after their arrests for the killing, she was
afraid that Thomas could still have her son killed because she had previously
overheard him on the phone and that ―he would talk in some kind of code that I
didn‘t understand, and I felt that he could talk that way to whoever it was‖ who
could kill her son.

       C. Defendant’s Testimony on Cross-examination
       During cross-examination, defendant admitted that Thomas had never been
violent with her and that she had never seen him become violent with anyone else.
The prosecutor also asked about Thomas‘s involvement in a motorcycle club, and
defendant testified that Thomas said the club ―did things that were against the
law,‖ and he alluded to violent acts.
       The prosecutor repeatedly questioned why defendant had remained in a
relationship with an admitted killer before Brown‘s death. Defendant replied that
―not too long before‖ the Brown killing, in early October 2011, Thomas had
threatened to kill her if defendant left the relationship.
       Defendant admitted, however, that in a taped police interview she gave
before she was aware that Thomas had confessed to police, she can be heard
giggling and saying that ―he‘s a little teddy bear,‖ ―he‘s my snugly teddy bear,‖ in
reference to Thomas. She also admitted describing Thomas in a very similar
manner to another officer who questioned defendant at her place of work, soon




                                           10
after the killing of Brown. She further admitted describing Thomas as ―my
honey‖ with a fellow nurse at the hospital after the killing.
       The prosecutor asked a series of questions involving defendant‘s
involvement in cleaning up the crime scene, and defendant repeatedly reiterated
that she had done so under Thomas‘s threats and directions, including driving
Brown‘s van to a location where they abandoned it. Defendant claimed that it was
Thomas‘s idea to buy cola to help dissolve bloodstains at the crime scene and that
he made her purchase cola at a convenience store.
       The prosecutor then asked defendant about Thomas‘s cooperation with the
police. The prosecution inquired whether defendant knew if Thomas had
cooperated with the police and had led them to the location of the weapon used to
kill the victim. Defendant acknowledged she knew that Thomas had assisted the
police. The prosecutor then asked: ―So we have this admitted killer actually
showing the police officers evidence that will convict him of the crime?‖
Defendant replied: ―Yes.‖ She then further volunteered: ―He also lied and said
that I had nothing — something to do with it, and I did did [sic] not.‖2 Defendant
then claimed that the last time she saw Thomas was in court, and he threatened her
by telling her that ― ‗snitches always die.‘ ‖ The prosecutor later asked, ―So even
though [Thomas] had taken the police officers to the place where the murder
weapon was, which completely implicates him, and then [Thomas] kills himself,
leaving you to tell this story that it was all [Thomas‘s] doing, right?‖ Defendant
responded: ―No — yes, I‘m telling the truth.‖

2      Compare with the description in the majority opinion: ―The prosecutor had
adverted to Thomas‘s November 1 police interview during the prosecution‘s case-
in-chief, and he later cross-examined defendant regarding her knowledge of
Thomas‘s confession. Defendant candidly admitted that she knew Thomas had
confessed to detectives, and that he had accused her of planning the crime.‖ (Maj.
opn., ante, at p. 24, fn. 7.)


                                          11
       D. The Trial Court’s Ruling Admitting Thomas’s Police Confession
          under Evidence Code Section 1202
       In response to this testimony, during a break, the prosecutor asked the trial
court to admit Thomas‘s statements to police to impeach the version of Thomas‘s
statements that defendant had testified to in front of the jury. As authority, the
prosecutor cited Evidence Code section 1202,3 which permits, for impeachment
purposes only, admission of a nontestifying declarant‘s statements that are
inconsistent with other statements received in evidence by that same declarant.4
(See People v. Blacksher (2011) 52 Cal.4th 769, 806 [§ 1202 ―governs the
impeachment of hearsay statements by a declarant who does not testify at trial‖].)
       Defense counsel objected and briefly stated the basis of his reasoning:
―Just under Crawford, I believe that just because my client testifies to her state of
mind as to what happened in the garage, what she heard the killer say, I don‘t
think allows us to bring in his statements that he told police days later. That was
my objection under Crawford.‖
       This was the only objection the defense lodged concerning Thomas‘s police
confession for the remainder of the trial. When the court overruled that objection,
determining that the statements would be admitted for the ―limited purpose‖ of
impeachment under section 1202, defense counsel merely replied, ―thank you.‖




3      All further statutory references are to the Evidence Code.
4      In relevant part, section 1202 states: ―Evidence of a statement or other
conduct by a declarant that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not inadmissible for the purpose of
attacking the credibility of the declarant though he is not given and has not had an
opportunity to explain or to deny such inconsistent statement or other conduct.‖




                                          12
When the court asked whether defense counsel wanted to place anything else on
the record, defense counsel said, ―No.‖

       E. Defendant’s Testimony on Redirect Examination
       After this ruling, on defendant‘s redirect examination, defense counsel
asked her if she had read some of Thomas‘s statements to police. Defendant
replied that she read them in a police report and she further explained that ―[h]e
accused me of planning it, of helping him, and I did not help him.‖ Defense
counsel then asked defendant: ―Were his statements true that he told police?‖
Defendant replied, ―No.‖

       F. The Admission of Thomas’s Police Confession
       As previously noted, the prosecution called Detective Richard Wheeler as a
rebuttal witness to testify concerning Thomas‘s recorded confession to him, which
Thomas made four days after the killing.
       Detective Wheeler described Thomas as crying as ―he said that the entire
plan was created and brought about because [defendant] knew that her next-door
roommate, [Brown], was going to be leaving cross-country on a trip and because
she knew she had a good job she would have money‖ and that they needed money
so they ―put together a plan to rob her and that [defendant] would make it
happen.‖ The prosecutor asked the detective about Thomas‘s demeanor.
Detective Wheeler noted that he himself was ―not a little guy, but that Thomas
was ―much bigger than‖ he, and yet Thomas ―was a complete mess sitting across
from me and talking, crying, almost couldn‘t catch his breath, apologizing
profusely for not being honest initially.‖ Wheeler testified that Thomas said he
wanted to tell the truth about what happened to ―make it right‖ for the victim‘s
family.




                                          13
       According to Detective Wheeler, Thomas claimed that on the night of the
killing he had tried to convince defendant not to go through with it, but defendant
insisted that Brown would be an easy target. Wheeler testified that Thomas
explained how he and defendant had devised a plan together to rob the victim by
having defendant coax Brown into the garage where Thomas would rob and
assault her. Thomas also told the detective that defendant had purchased clothing
for him to wear for the assault.
       Thomas admitted to Detective Wheeler that he hit Brown with the machete.
Thomas claimed defendant then kneeled over Brown and he saw her holding a
bloody kitchen knife. Thomas alleged that it was defendant‘s plan to then dispose
of Brown‘s body. Thomas said that he tried to convince defendant ―to call the
police‖ because it wasn‘t ―the way that [he] expected it to go down.‖ But
defendant insisted on disposing of the body using Brown‘s van in order to make it
appear that she actually left on her trip. According to Detective Wheeler, Thomas
stated that defendant placed Brown‘s travel suitcase in the van and then defendant
drove Brown‘s van, while Thomas followed in his own vehicle. Thomas claimed
that defendant had directed the cleanup of the crime scene.
       Detective Wheeler testified that Thomas recounted that he and defendant
went to a fast food restaurant, after they had disposed of Brown‘s body. Thomas
―said that [defendant] didn‘t seem to be bothered by how the entire incident had
gone down and that she had no problem eating her food and that he was so sick to
his stomach, he didn‘t order anything.‖ According to Detective Wheeler, Thomas
claimed it was defendant‘s idea to clean up the blood using cola because she had
seen a television show showing that cola broke down blood.
       Finally, Detective Wheeler described how Thomas led police officers to
various locations where he claimed he had disposed of evidence of the killing.



                                         14
       On cross-examination, defense counsel asked Detective Wheeler whether it
appeared that Thomas was being honest during his confession, and the detective
replied that Thomas did appear to be speaking honestly. Defense counsel also
repeatedly asked Wheeler whether Thomas said that the crimes were defendant‘s
plan, and the detective replied affirmatively.

       G. Additional Rebuttal Evidence Concerning Thomas
       As further rebuttal evidence, the prosecution called as a witness Thomas‘s
fiancée, Veronica Franklin.
       Franklin testified that in the five years she was with Thomas, she never
heard him complain about the uncleanliness of the buses he drove such that he
would want to wear foot covers while driving. Franklin testified that Thomas was
―[l]aid back, real funny, [a] jokester; cool, calm and collected.‖ Franklin
explained that Thomas did belong to a motorcycle club, but that it was a faith-
based Christian club known as the ―Sons of Genesis.‖ She explained that Thomas
had never been violent with her and that he had never admitted to beating someone
to death.
       On cross-examination, Franklin admitted that she had been unaware of his
relationship with defendant. Franklin testified that she trusted Thomas with her
life and that she still thought he was an honest and nonviolent person despite what
happened to Brown.
       In addition, the prosecution introduced evidence that Thomas had no prior
arrests or convictions.

       H. Closing Arguments
       During closing arguments, the prosecutor contended that defendant was
directly involved in Brown‘s killing. The prosecutor, without any objection by the
defense, stated: ―In this case, there is evidence that the defendant is the direct



                                          15
perpetrator, that she had the bloody knife, the butcher knife in her hand while she
was leaning over the body of Laverna Brown. You heard that through the
statements of Julius Thomas that Detective Wheeler told us about.‖
       Later, the prosecutor described the various elements of the crime, including
lying in wait. In describing the state‘s lying-in-wait theory, the prosecutor, again
without any objection by the defense, argued to the jury: ―We heard from
Detective Wheeler that Julius Thomas actually told Wheeler it was his plan to hide
in the garage — it was her plan that he would hide in the garage, and she would
create some secret plan to get Laverna out of her room and into the garage.‖ The
prosecutor noted that this was consistent with the fact that Brown had left her
bedroom with the sewing machine set up to do some work, as well as the fact that
she had not completed the items on her to-do list before leaving on her trip.
       For the remainder of his initial closing arguments, the prosecutor made no
other reference to Thomas‘s police confession.
       Defense counsel began his closing arguments by declaring that the
applicable laws were not ―the biggest question in this case.‖ Instead, defense
counsel contended: ―The biggest question is who is telling the truth.‖ Defense
counsel explained that if defendant was telling the truth, then she was not guilty.
       Defense counsel acknowledged that Thomas ―talked to police,‖ but then
assailed Thomas‘s trustworthiness. Defense counsel questioned whether Thomas
could be trusted by contending that Thomas ―does such a mind-job to women‖ by
convincing them that he is honest and not violent. Defense counsel argued that
Thomas ―treats girls like dirt, like trash, disposable,‖ contending that he can ―step
on you and then just urinate on you.‖ He noted that he lied to his fiancée about his
relationship with defendant. Counsel contended that defendant was a victim of
this ―same mind-job‖ by Thomas, and that it showed that Thomas was the actual
mastermind, who pulled ―the strings,‖ and called ―the shots.‖

                                         16
       Defense counsel then asked the jury: ―Now the question is, is [Thomas]
lying when he talked to police?‖ Counsel contended that Thomas was lying to
police because the evidence showed he was in control of manipulating defendant.
In this same context, defense counsel rhetorically asked the jury twice: ―What‘s
the truth?‖ Counsel then argued that even the prosecutor had partially
acknowledged that Thomas was a liar because Thomas did not tell police that he
and defendant had planned to kill the victim. Defense counsel contended that
defendant and Franklin were both ―weak-minded‖ persons whom Thomas
manipulated to gain their love while also lying and threatening them. Defense
counsel then recited defendant‘s testimony that Thomas had threatened that she
would be ―next,‖ after the killing. Counsel further contended that Thomas treated
women ―like dirt‖ and that the reason Thomas killed himself was because ―[h]e‘s
guilty, and ―[h]e‘s a liar.‖
       In his rebuttal, the prosecutor argued that defendant had repeatedly lied on
the stand. Later, the prosecution commented: ―And if you notice the defense‘s
closing argument, it was all about Julius and nothing about her.‖ The prosecutor
contended that Thomas‘s police confession revealed that Thomas had a breakdown
and realized the seriousness of the matter and chose to tell the police the truth,
explaining that it was defendant‘s plan to kill the victim and then leading police to
evidence that would incriminate himself in the matter.
       The prosecutor compared Thomas‘s credibility with defendant‘s credibility,
contending that Thomas was more believable than defendant. ―So what does
[defendant] do? She had to take the stand and had to try and give an explanation
for every one of the pieces of that evidence, and each time she did that, it was a
lie.‖ ―But what did he do? He admitted his role. He came clean with the police
and said, ‗I‘m sorry,‘ crying, ‗Tell Laverna‘s family sorry.‘ ‗Here, let me take you
to the murder weapon. Let me take you to where the bloody clothing is.‘ That‘s

                                          17
what shocked [defendant], because he gave it up, because he could not take the
weight of what he had done and keep quiet.‖ The prosecutor then compared
defendant‘s police interview with Detective Cobb with Thomas‘s confession to
Detective Wheeler: ―You compare that person to the defendant‘s statements when
she‘s talking to [the police], and you see right there the difference between the
two. You see a cold-blooded killer who can lie to the police, who can look
Detective Cobb in the face and say nothing. And then you have Julius Thomas
who breaks down, tells the police the truth, understands the weight of the enormity
of what he had done, explains it was the defendant‘s plan and takes the police to
the evidence that would bury him.‖
       For the remainder of his rebuttal, the prosecutor made no further reference
to Thomas‘s police confession.
          III. DEFENDANT WAIVED HER RIGHT OF CONFRONTATION
       Defendant claims that the trial court‘s section 1202 ruling improperly
admitted Thomas‘s police confession because his statements had no probative
value under the circumstances unless the jury considered them for their truth,
which is not the purpose of limited admissibility under section 1202. She further
assigns blame to the prosecutor, contending that he utilized Thomas‘s police
confession for its truth during closing arguments.
       Defendant made no such argument or objection concerning section 1202
before the trial court, and defendant lodged no objection to the prosecutor‘s
closing arguments concerning Thomas‘s statements. Setting aside these
forfeitures, defendant overlooks the fact that she herself placed the truthfulness of
Thomas‘s police confession in front of the jury well before the trial court‘s section
1202 ruling, before the police confession was introduced, and before closing
arguments. As I will explain, defendant‘s argument overlooks her own testimony
imploring the jury to believe that Thomas‘s police confession was a lie.

                                         18
       Under these circumstances, I find defendant waived her right of
confrontation concerning Thomas‘s police confession. By repeatedly attacking
Thomas‘s police confession as a ―lie,‖ defendant created a credibility dispute
between herself and Thomas in front of the jury. As a consequence of her actions
and under the court‘s duty to protect its truth-seeking function, the jury was
entitled to consider that confession to determine for itself whether defendant‘s
claim was credible. 5

       A. Defendant Herself Placed the Credibility of Thomas’s Police
          Confession at Issue.

           1. The Circumstances Leading to the Trial Court’s Admitting
               Thomas’s Police Confession into Evidence on Rebuttal
       As described above, during the prosecution‘s cross-examination of
defendant, the prosecutor asked defendant about Thomas‘s cooperation with the
police. The prosecution inquired whether defendant knew if Thomas had
cooperated with the police and defendant replied: ―Yes.‖ She then further
volunteered: ―He also lied and said that I had nothing — something to do with it,
and I did did [sic] not.‖ The prosecutor later asked, ―So even though [Thomas] had
taken the police officers to the place where the murder weapon was, which
completely implicates him, and then [Thomas] kills himself, leaving you to tell
this story that it was all [Thomas‘s] doing, right?‖ Defendant responded: ―No —
yes, I‘m telling the truth.‖




5      Placing aside the applicability of the confrontation clause or whether
defendant waived its protections concerning Thomas‘s police confession, under
circumstances supporting trustworthiness, we have often upheld the admission of
an accomplice‘s statements where they disserved the accomplice‘s penal interests.
(People v. Cortez (2016) 63 Cal.4th 101, 127; People v. Samuels (2005) 36 Cal.4th
96, 120; People v. Brown (2003) 31 Cal.4th 518, 536; see § 1230.)


                                         19
       Following this exchange, the prosecutor asked the trial court to reconsider
its tentative ruling and admit Thomas‘s police confession as rebuttal evidence.
Defendant objected on Crawford grounds, but the court overruled that objection,
determining that the statements would be admitted for the ―limited purpose‖ of
impeachment under section 1202. Although the trial court afforded the defense
the opportunity to make any additional objections, defense counsel did not do so.

           2. The Trial Court’s Evidence Code Section 1202 Ruling Was
               Irrelevant in Light of Defendant’s Testimony
       Defendant contends that the trial court‘s section 1202 ruling was erroneous
because the only purpose for which the prosecutor or the jury could have used
Thomas‘s police confession was for the truth of those statements. But defendant
did not raise this point before the trial court. ―A party cannot argue the court erred
in failing to conduct an analysis it was not asked to conduct.‖ (People v. Partida
(2005) 37 Cal.4th 428, 435.)6 At this point, it was incumbent on the defense to
prevent any alleged error by informing the court why the evidence could not be
offered for the limited purpose contemplated by section 1202.7 (Simons, Cal.

6      We have previously explained the purposes of requiring an opposing party
to object to potentially unfavorable evidence at trial: ―The objection
requirement is necessary in criminal cases because a ‗contrary rule would deprive
the People of the opportunity to cure the defect at trial and would ―permit the
defendant to gamble on an acquittal at his trial secure in the knowledge that a
conviction would be reversed on appeal.‖ ‘ [Citation.] ‗The reason for the
requirement is manifest: a specifically grounded objection to a defined body of
evidence serves to prevent error. It allows the trial judge to consider excluding the
evidence or limiting its admission to avoid possible prejudice. It also allows the
proponent of the evidence to lay additional foundation, modify the offer of proof,
or take other steps designed to minimize the prospect of reversal.‘ [Citation.]‖
(People v. Partida, supra, 37 Cal.4th at p. 434.)

7     Certainly, defendant, on direct examination, testified as to several
statements that Thomas purportedly made to her that supported the nonhearsay
                                                          (Footnote continued on next page.)


                                         20
Evidence Manual (2017 ed.) § 1:24, p. 32 [―Courts concerned about the jury‘s
ability to adhere to the limiting instruction can utilize § 352 to exclude the
evidence‖], citing People v. Green (1980) 27 Cal.3d 1, 26; Hrnjak v. Graymar,
Inc. (1971) 4 Cal.3d 725, 729, 732-733; see also People v. Ross (1979) 92
Cal.App.3d 391, 406-407 [crediting defendant‘s § 352 objection made in light of
trial court‘s § 1202 ruling].)8
        Instead of lodging any such objections, defendant actually did the opposite
of what she now complains of on her appeal — she presented Thomas‘s police


(Footnote continued from previous page.)

purpose of explaining why she assisted him in concealing the murder. But also,
the portions of her testimony on direct in which she relayed Thomas‘s description
of why he allegedly targeted Brown, how he confronted her, and why and how he
killed her, appear less relevant to explain her subsequent conduct and more
relevant to explain Thomas‘s guilt, which is hearsay consistent with Thomas‘s
declaration‘s against penal interest. (See § 1230, ante, fn. 5.) Arguably, this could
make section 1202 relevant if Thomas‘s police confession could impeach
Thomas‘s garage confession, as the Attorney General contended at oral argument.
At any event, we need not need reach this issue, for the reasons I explain below.
8       In a passing reference discussing the scope of section 1202, the majority
states: ―Thomas‘s confession could have impeached his credibility as a putative
hearsay declarant even if — and perhaps especially if — his confession to
detectives were false.‖ (Maj. opn., ante, at p. 25, fn. 7.) To be clear, a statement
admitted under section 1202 used to impeach a declarant‘s previously admitted
hearsay statement is not admitted for its truth or falsity, but is strictly limited for
impeachment purposes only. In considering conflicting statements of a hearsay
declarant, ―we are not asked to believe his prior statement as testimony, and we do
not have to choose between the two (as we do choose in the case of ordinary
contradictions by other witnesses). We simply set the two against each other,
perceive that both cannot be correct, and immediately conclude that he has erred in
one or the other, — but without determining which one.‖ (3 Wigmore, Evidence
(3d ed.) § 1018, p. 687; see also Simons, Cal. Evidence Manual (2017 ed.) § 2.18,
p. 91 [―Prior inconsistent statements of a hearsay declarant are admissible only to
impeach and not for the truth of the matter‖].)



                                           21
confession for its truthfulness. Soon after the section 1202 ruling, she again
placed into question the credibility of Thomas‘s police confession on redirect
examination when defense counsel asked defendant: ―Were his statements true
that he told police?‖ Defendant replied, ―No.‖
       However, placing forfeiture aside, and further assuming without deciding
the trial court erred under section 1202, the trial court‘s ruling admitting Thomas‘s
police confession was still correct because defendant herself had already placed
the truth of Thomas‘s police confession at issue well before this challenged ruling.
       We have recognized that a ruling will not be disturbed on appeal merely
because it was given for a wrong reason, if the ruling would otherwise be correct
― ‗ ―upon any theory of the law applicable to the case,‖ ‘ ‖ and ― ‗ ―regardless of
the considerations which may have moved the trial court to its conclusion.‖ ‘ ‖
(People v. Zapien (1993) 4 Cal.4th 929, 976, quoting D’Amico v. Board of
Medical Examiners (1974) 11 Cal. 3d 1, 19; see also People v. Smithey (1999) 20
Cal.4th 936, 972.) In the present matter, the trial court properly admitted
Thomas‘s police confession because defendant had waived any prior limitations
on its admission, a limitation which she now relies upon on appeal, by claiming at
trial that his confession was substantively a lie.
       Moreover, almost immediately following the trial court‘s section 1202
ruling, defendant, on her redirect testimony again went beyond the court‘s limited-
purpose ruling and claimed that Thomas was not truthful to police.
       Defendant speculates that her counsel elicited this testimony only in
response to the court‘s section 1202 ruling. This contention is questionable for
several reasons. First, this argument overlooks the fact that the court explicitly
admitted the confession for impeachment and not for its truthfulness, citing section
1202. Second, and more importantly, defendant made no effort to object to the
section 1202 ruling on the basis that the court could not so limit the use of the

                                          22
evidence. Defendant makes no claim that any such objection would have been
futile under the circumstances. (People v. Valdez (2012) 55 Cal.4th 82, 139
[―Nothing about the court‘s rulings on counsel‘s objections indicates it would have
been futile to object to the same evidence under Evidence Code section 352‖];
People v. Anderson (2001) 25 Cal.4th 543, 587 [―Counsel is not required to
proffer futile objections‖].)
       Moreover, there is nothing in the record to illuminate defendant‘s assertion
on appeal that her defense counsel had consciously made a tactical decision to
forgo an objection that Thomas‘s police confession had no valid nonhearsay
impeachment purpose and instead, address that confession for its truth, following
the section 1202 ruling.

           3. The Record Demonstrates that the Prosecution Was Not
               Responsible for Addressing Thomas’s Police Confession for Its
               Truth
       The majority contends: ―the record belies any claim that the prosecution
used Thomas‘s confession for the limited nonhearsay purpose of impeaching the
statements defendant had attributed to Thomas in her testimony. The prosecution
instead relied on Thomas‘s confession to contradict defendant‘s testimony by
establishing a different account of the events surrounding the crime, which the
prosecution expressly and repeatedly invited the jury to consider for its truth.‖
(Maj. opn., ante, at p. 15.)
       In support of this contention, the majority and the defendant both focus on
Detective Wheeler‘s testimony in the rebuttal phase of the trial and the
prosecutor‘s references to Thomas‘s police confession in closing arguments.
(Maj. opn., ante, at pp. 12-15.) Obviously, however, defense counsel‘s redirect
examination took place well before Detective Wheeler‘s rebuttal testimony and
before closing arguments. And in that redirect, defendant expressly commented


                                         23
on the truthfulness of Thomas‘s police confession, despite the trial court‘s limited
purpose ruling. Therefore, defendant and her defense counsel‘s decision to
address Thomas‘s police confession for its truth cannot be attributed to any
relevant prosecution conduct.
       The majority further contends, in an argument not raised by defendant, that
the fact that defendant characterized Thomas‘s police confession as a lie did not
―misrepresent[] the content of Thomas‘s confession to her advantage . . .‖ (Maj.
opn., ante, at p. 24, fn. 7.)
       I disagree. The record reflects that defendant‘s characterization did in fact
work to her advantage. By expressly volunteering that not only did Thomas
purportedly lie to police, she further asserted, in juxtaposition, that she was
―telling the truth.‖ Given this circumstance, combined with the trial court‘s earlier
pretrial ruling tentatively excluding Thomas‘s police confession, it is hard to
accept the majority‘s conclusion that defendant enjoyed no advantage in telling the
jury that she was honest and her accomplice was a liar, hoping that the jury would
never have the opportunity to hear her accomplice‘s statements that would
effectively impeach her own claims of honesty.
       The majority additionally argues that pointing out these circumstances of
the record is effectively conducting ―the parties‘ litigation for them,‖ and that this
is an argument the Attorney General himself has not raised. (Maj. opn., ante, at
p. 24, fn. 7.) But this is a non-sequitur, because it is defendant’s claim on appeal
that the prosecutor used Thomas‘s police confession for its truth, and it is her
burden to prove the existence of such error. (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573 [―Perhaps the most fundamental rule of appellate law is
that the judgment challenged on appeal is presumed correct, and it is the
appellant‘s burden to affirmatively demonstrate error‖].) The fact that the
Attorney General does not raise this claim is, therefore, irrelevant. I merely point

                                          24
out these circumstances to rebut defendant‘s claim that the record supports her
claim of error, when she should arguably be estopped from doing so by her own
conduct.
       ―On appeal, we assume a judgment is correct and the defendant bears the
burden of demonstrating otherwise.‖ (People v. Thompson (2016) 1 Cal.5th 1043,
1097, fn. 11, citing People v. Garza (2005) 35 Cal.4th 866, 881; People v.
Cardenas (2015) 239 Cal.App.4th 220, 227.) Under these circumstances,
defendant fails to show, on this record, that the trial court erred in admitting
Thomas‘s police confession. (See People v. Montes (2014) 58 Cal.4th 809, 882
[―We reject defendant‘s contentions as unsupported by the record‖]; People v.
Lancaster (2007) 41 Cal.4th 50, 101 [―This claim is not supported by the
record‖].)

             4. Additional Circumstances Establishing Defendant’s Waiver of
                 Limitations on the Use of Thomas’s Police Confession
       The defense continued to directly address the truthfulness of Thomas‘s
police confession in the prosecution‘s rebuttal. After the prosecution presented
Detective Wheeler‘s description of Thomas‘s police confession, defense counsel
asked Wheeler whether it appeared that Thomas was being honest during his
confession, and the detective replied that Thomas did appear to be speaking
honestly.9
       If there can be any further doubt that defendant wanted the jury to consider
Thomas‘s police confession for its truthfulness, consider defense counsel‘s closing
arguments. As described above, defense counsel began his closing argument by
declaring that ―[t]he biggest question [in this case] is who is telling the truth.‖


9      In contrast, the prosecutor did not ask Detective Wheeler a similar question
and, instead, only asked the detective about Thomas‘s demeanor.



                                           25
Defense counsel spent much of his closing statement contending that Thomas had
lied to police because he was a skilled manipulator, and outright labeled Thomas
―a liar.‖
       In further assigning blame to the prosecution for the admission of Thomas‘s
police confession for its truth, the majority references the prosecution‘s closing
arguments. But the bulk of defendant‘s and the majority‘s complained-of
references are to the prosecutor‘s rebuttal closing arguments. Given that the core
of defense counsel‘s closing statement was a comparison of defendant‘s credibility
with Thomas‘s, contending that Thomas‘s character established that he lied to
police, it is unsurprising that the prosecutor directly addressed the truthfulness of
Thomas‘s police confession in his rebuttal.
       Defendant does identify two references in the prosecutor‘s initial closing
arguments, in which she contends the prosecutor improperly referred to Thomas‘s
police confession for its truth.10 To the extent that both of these comments can be
deemed as referencing Thomas‘s police confession for its truth, defendant has
forfeited any allegedly impropriety by failing to object on this ground. (People v.
Tafoya (2007) 42 Cal.4th 147, 176 [―a claim of prosecutorial misconduct is not
reviewable on appeal unless the defendant makes a timely objection and asks the
trial court to admonish the jury to disregard the prosecutor's improper remarks‖].)
       In any event, given that defendant herself had placed into question the
truthfulness of Thomas‘s police confession well before that confession was


10      The first is when the prosecutor stated, ―there is evidence that the defendant
is the direct perpetrator, that she had the bloody knife, the butcher knife in her
hand while she was leaning over the body of Laverna Brown.‖ The second is
when the prosecutor stated, ―We heard from Detective Wheeler that Julius Thomas
actually told Detective Wheeler . . . it was her plan that he would hide in the
garage, and she would create some secret plan to get Laverna out of her room and
into the garage.‖


                                          26
admitted and well before closing arguments, it became fair game for the
prosecution to comment on the truth of that confession, especially when it
appeared likely that the defense would argue the truth of Thomas‘s police
confession in its own closing arguments. (People v. Bemore (2000) 22 Cal.4th
809, 846 [recognizing that ―[m]isconduct claims also have been rejected where the
prosecutor anticipates the flaws likely to appear in counsel‘s closing argument
based on evidence that was introduced‖], citing People v. Thompson (1998) 45
Cal.3d 86, 113; see also Bemore, at p. 846 [―[A] prosecutor has wide latitude in
describing the deficiencies in opposing counsel‘s tactics and factual account‖].)
Defendant in fact did so in her counsel‘s closing arguments.

       B. The Scope of a Defendant’s Testimony Can Result in the Waiver of
          Constitutional Rights and Permit the Admission of Evidence
          Otherwise Subject to Exclusion

           1. Similar Waivers of Other Constitutional Rights
       In other contexts, the high court has repeatedly recognized that a
defendant‘s choice to take the stand, as well as the scope of a defendant‘s
testimony, may result in a waiver of constitutional rights.
       When a defendant elects to testify, any Fifth Amendment right against self-
incrimination is deemed waived, and ―the district attorney may fully amplify his
testimony by inquiring into the facts and circumstances surrounding his assertions,
or by introducing evidence through cross-examination which explains or refutes
his statements or the inferences which may necessarily be drawn from them.‖
(People v. Cooper (1991) 53 Cal.3d 771, 822; see People v. Wagner (1975) 13
Cal.3d 612, 618; People v. Saddler (1979) 24 Cal.3d 671, 679.)
       Moreover, given that the truth-seeking function of cross-examination
applies as much to a defendant who elects to testify as to any other testifying
witness, the high court has recognized that a defendant can waive the protection of


                                         27
an exclusionary rule by taking the witness stand and offering testimony that
conflicts with evidence that would otherwise be inadmissible under an
exclusionary rule.
       In Walder v. United States (1954) 347 U.S. 62 (Walder), the high court
permitted physical evidence, earlier excluded on Fourth Amendment grounds, to
be used for impeachment purposes where the defendant testified, inconsistently
with the evidence seized, that he had never purchased, sold or possessed any
narcotics. The high court concluded that the evidence had been properly admitted:
―It is one thing to say that the Government cannot make an affirmative use of
evidence unlawfully obtained. It is quite another to say that the defendant can turn
the illegal method by which evidence in the Government‘s possession was
obtained to his own advantage, and provide himself with a shield against
contradiction of his untruths.‖ (Id. at p. 65.) The high court explained that a
contrary conclusion ―would be a perversion of the Fourth Amendment‖ because
―there is hardly justification for letting the defendant affirmatively resort to
perjurious testimony in reliance on the Government's disability to challenge his
credibility.‖ (Ibid.)
       In Harris v. New York (1971) 401 U.S. 222, the high court permitted the
admission of a defendant‘s statements to police, although they were taken in
violation of Miranda v. Arizona (1966) 384 U.S. 436, because his testimony was
inconsistent with his statements to police. After describing its prior decision in
Walder, the court observed, ―We are not persuaded that there is a difference in
principle that warrants a result different from that reached by the Court in
Walder.‖ (Harris, supra, 401 U.S. at p. 225; see Walder, supra, 347 U.S. 62.) In
highlighting the necessity of allowing the prosecution to admit the defendant‘s
statements to police, despite having been obtained in violation of Miranda, the
court explained, ―Having voluntarily taken the stand, petitioner was under an

                                          28
obligation to speak truthfully and accurately, and the prosecution here did no more
than utilize the traditional truth-testing devices of the adversary process.‖ (Harris,
at p. 225; see also United States v. Robinson, supra, 485 U.S. 25, 32 [defense
counsel‘s closing argument that the state had not given defendant an opportunity
to explain his actions waived the Fifth Amendment protection afforded by Griffin
v. California (1965) 380 U. S. 609, permitting prosecutor to comment on
defendant‘s failure to testify].)

           2. Waiver under the Confrontation Clause
       As the high court has recognized, ―[t]he right to confrontation may, of
course, be waived, including by failure to object to the offending evidence; and
States may adopt procedural rules governing the exercise of such objections.‖
(Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 314, fn. 3.) Similarly, in
People v. Stevens (2007) 41 Cal.4th 182, 199, we concluded that the defendant had
waived his initial confrontation clause objection concerning the admission of a
codefendant‘s statements to police because his defense counsel eventually
expressed satisfaction with a redacted version of the statements. (Id. at p. 199.)
       If the confrontation clause can be waived by the simple failure to object or
can be waived by defense counsel, then it certainly may also be waived when the
defendant herself begins to explicitly question the truthfulness of the very
evidence that the confrontation clause would exclude. That defendant must have
known her testimony would constitute a waiver is evidenced by the fact that
defendant was warned at the beginning of trial that her testimony, if not
sufficiently restrained, could result in the admission of Thomas‘s police
confession.




                                          29
           3. The Scope of Defendant’s Testimony Waived Her Right to Confront
               Thomas
       Defendant fails to provide a persuasive argument that she has not waived
protection under the exclusionary rule of the Sixth Amendment‘s confrontation
clause in the circumstance of this case. As the testifying defendants did in Walder
and Harris, she offered testimony that conflicted with evidence that would
otherwise be inadmissible. Moreover, defendant went even further and told the
jury that Thomas was a liar and that her version was the truth.
       As the high court has observed: ―A defendant may decide not to take the
witness stand because of the risk of cross-examination. But this is a choice of
litigation tactics. Once a defendant decides to testify, ‗[the] interests of the other
party and regard for the function of courts of justice to ascertain the truth become
relevant, and prevail in the balance of considerations determining the scope and
limits of the privilege against self-incrimination.‘ ‖ (Jenkins v. Anderson (1980)
447 U.S. 231, 238, quoting Brown v. United States (1958) 356 U.S. 148, 156.)
       Exclusionary rules protecting a defendant from otherwise incriminating
evidence are important, if not essential, to the protection of both a defendant‘s
rights and the rights of society as a whole against oppressive state conduct. But
such exclusionary rules cannot be manipulated so as to thwart the truth-seeking
function of the court. ―The right to cross-examination, protected by the
Confrontation Clause, thus is essentially a ‗functional‘ right designed to promote
reliability in the truth-finding functions of a criminal trial.‖ (Kentucky v. Stincer
(1987) 482 U.S. 730, 737.)
       Defendant in this matter used Thomas‘s purported past admissions of
violence, his confession in the garage, and his threats of harm to her own
advantage to establish, as her counsel argued in closing arguments, that Thomas
was a person of capable of killing a grandmother who could treat women ―like



                                          30
dirt‖ and could ―step on you and then just urinate on you.‖ In furtherance of that
depiction, defendant in this matter sought to turn her accomplice‘s police
confession into a sword for her own advantage, using it to further malign
Thomas‘s character as a liar and establish herself as a truthful victim, and yet she
also sought to ―provide [herself] with a shield against contradiction of [her]
untruths‖ by relying on the confrontation clause to prevent the jury from hearing
the same declarant‘s confession to police. (Walder, supra, 347 U.S. at p. 65.)
This inconsistent dual use only flouts the truth-seeking function contemplated
under the confrontation clause.11
       Because defendant has waived her confrontation clause claim, we need not
decide whether there exists, distinct from a simple waiver, a separate confrontation
clause exception to the admission of Crawford-related hearsay where the defense
has ―opened the door‖ to such testimonial hearsay by presenting evidence
suggesting an incomplete, misleading, or selective portrayal of otherwise
inadmissible evidence under the shield of the confrontation clause. (People v.
Reid (2012) 19 N.Y.3d 382, 389.) Nor need we decide, as the majority does, that
assuming such an exception exists, defendant did not open that door. Courts
generally avoid reach constitutional questions unless absolutely required to do so
to dispose of the issues before them. (People v. Leonard (1983) 34 Cal.3d 183,
187; DeLancie v. Superior Court (1982) 31 Cal.3d 865, 877.)


11     The majority dismisses this ground for affirming the judgment because the
Attorney General has raised no such argument. (Maj. opn., ante, at p. 24, fn. 7.)
But the issue I raise is that defendant herself chose to address her accomplice‘s
police confession for its truth and thereby waived any confrontation clause claim.
The Attorney General certainly did argue such a waiver, but did so under the so-
called opening the door exception. I am merely contending that the waiver that
occurred here was not so complicated so as to need to resort to that theory, even
assuming that such an exception exists under the confrontation clause.


                                         31
       Finally, we also need not reach this constitutional question, because, as
discussed below, any error was harmless.
       IV. ANY ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT
       Even assuming the admission of Thomas‘s police confession created an
error of constitutional magnitude, I find that any asserted confrontation error was
harmless beyond a reasonable doubt. (People v. Capistrano (2014) 59 Cal.4th
830, 874 [reviewing error under the confrontation clause under the harmless
beyond a reasonable doubt standard].) A brief review of the facts and defendant‘s
testimony reveals that any error was harmless beyond a reasonable doubt in that
the verdict would have been the same without the challenged evidence.
       The prosecution established and argued that, just before the killing,
defendant had difficulty securing enough funds so she could move out of the room
she had been renting in a home she shared with her landlord and the victim and
live in her own apartment. On the day before Brown‘s killing, defendant‘s bank
records showed she had less than $35 total in her accounts, yet defendant told her
prospective new landlord that same day that she thought she would have the
money to pay an $800 deposit so she could move on October 29, the day after
Brown was killed.
       According to defendant‘s version of events, she had no idea that Thomas
intended to rob and kill her roommate Brown. Defendant testified that she learned
of his intentions only after 2:00 a.m. on October 28, 2011, when he called her and
told her to come to the garage, where she discovered him with Brown‘s bloodied
body. But this story conflicts directly with the crime analyst‘s testimony
concerning cell tower data, showing that at 2:09 a.m., Thomas‘s phone was
traveling ―east-west out towards the La Sierra area‖ whereas defendant‘s phone at
that time was ―in the vicinity of the address of 11530 Gedney Way,‖ where the
killing occurred. Moreover, a stipulation read to the jury explained: ―Generally,

                                         32
the cell tower that is closest to the cell phone is utilized to connect the call.‖ For
the 2:09 a.m. phone call, defendant‘s and Thomas‘s phones used different cell
towers. According to the map in evidence, Thomas‘s cell tower was about a mile
further away from the house than defendant‘s cell tower, which was very close to
her residence.
       In addition, there were numerous circumstances indicating that Thomas
must have had defendant‘s cooperation before the killing in order to ambush and
kill Brown. The evidence showed that Brown had an erratic work schedule,
comprised of 12-hour shifts. Brown did not park her van in the garage, where she
was killed, but generally parked it at the side of the house. Defendant
acknowledged that the house residents normally kept locked the side door that was
used to gain entrance into the garage from where Brown normally parked her van.
Defendant admitted that she knew, in advance of the night of the homicide,
Brown‘s work schedule and her flight information for the following morning.
Defendant also admitted that she told Thomas that her landlord owned a machete,
but she denied ever telling Thomas where it was kept.
       Given these circumstances, defendant‘s claim that she was not involved in
planning the killing is not credible. In order for Thomas to have ambushed Brown
in the garage, he would have to have known Brown‘s work schedule that night, the
side door would have to have been unlocked, he would have to have known where
the machete was so he could arm himself for the ambush, and he would have to
have expected that Brown, for some reason, would be inside the garage at 2:00
a.m., instead of being asleep in her room. Furthermore, Thomas would to have
been unconcerned about the risk that he would encounter the other residents of the
household, defendant and her landlord, Timm.
       Instead, as the prosecution contended, defendant must have told Thomas of
Brown‘s work schedule that night and defendant must have lured Brown into the

                                          33
garage. This was consistent with the state of Brown‘s room, which indicated
Brown had been interrupted from using her sewing machine and had left behind an
incomplete to-do list in preparing for her trip.
       In a taped police interview given before defendant learned Thomas had
confessed to the police, in referring to Thomas, defendant can be heard saying,
―Oh [giggle] he‘s a little teddy bear,‖ and ―he‘s my snugly teddy bear.‖
       Moreover, although she tried to provide innocent explanations for doing so,
defendant also admitted that she had bought and provided Thomas with the
clothes, surgical gloves, and surgical booties that he wore during the killing and
the subsequent cleanup. Thomas‘s fiancée rebutted defendant‘s claim that
Thomas wore surgical booties or gloves because he believed the buses he drove
were unsanitary.
       In addition, defendant made various purchases in the hours before Brown‘s
murder and her explanations for those purchases were not convincing. A vendor
at a military surplus store identified defendant and Thomas as persons in his store
who bought pepper spray and a pocket knife on October 27, 2011, the evening
before the homicide. He also identified a handwritten receipt he had written for
that transaction on that same date. In her testimony, defendant claimed the vendor
lied and that she was by herself and made the purchase of $76.44, despite her
admitted financial problems at that time in struggling to gather enough money for
a deposit on an apartment rental. She provided no explanation concerning why the
vendor would be lying.
       Pursuant to stipulation, it was established that less than 80 minutes later,
defendant purchased the clothes Thomas wore for the killing that occurred just
hours after that. Defendant claimed that Thomas had tricked her into buying this
triple-large clothing for his sister. But again, she made this purchase even though
defendant had almost no money in her bank accounts.

                                          34
       Furthermore, according to defendant, Thomas originally wanted only to rob
Brown, but to his ―surprise‖ Brown recognized him, so he decided to kill her.
This testimony was not credible because, as the prosecutor argued, defendant also
admitted that Brown and Thomas had met before. Furthermore, wearing surgical
booties is planning activity more consistent with trying to avoid leaving bloody
footprints after a killing with sharp instrument than planning a bloodless robbery.
       In her statements to police, defendant claimed that on the morning after the
killing, she had used a hose to wash off cola she had spilled at the side of the
house. When the police told her they found significant traces of blood at that spot,
she appeared surprised, and reiterated that she thought she was cleaning up cola,
not blood. According to the interviewing officer, she then started to pause in her
responses and seemed to become more quiet, indicating a consciousness of guilt.
       As additional evidence to support alleged fear of Thomas, defendant
testified that Thomas said he was involved in a motorcycle club ―and sometimes
they did things that were shady.‖ But the prosecution rebutted that assertion
through defendant‘s fiancée, who explained that Thomas did belong to a
motorcycle club, but that it was a faith-based Christian club known as the Sons of
Genesis. Franklin further explained that the club‘s emblem depicted a cross with
wings, and that Thomas wore a jacket with that emblem whenever he participated
in the club‘s activities.
       Defendant also admitted that she did not report Thomas‘s alleged threats to
her until 14 or 15 months after his suicide because she thought that Thomas could
carry out his threats against her and her son through a third party. But defendant
provided no reason why her testimony at trial posed no similar risk to her or her
son.
       Finally, it is also peculiar and doubtful that Thomas would risk severely
upsetting defendant, his mistress of many years, by killing her roommate, which,

                                         35
under normal circumstances, would obviously shock her and jeopardize both his
relationship with her and with his live-in fiancée. Under these circumstances, it is
not credible that Thomas acted alone without planned assistance from defendant.
       The far more logical, if not unavoidable, explanation was that defendant
and Thomas colluded together to have defendant lure Brown to the garage, where
Thomas could lie in wait with the machete (given to him by defendant) to assault
Brown, and where it would be easier to clean blood evidence.
       Consequently, even without the admission of Thomas‘s police confession,
whether admitted for its truth or not, the jury would have found that defendant‘s
testimony on direct examination did not survive the test of cross-examination.
(People v. Vega (2015) 236 Cal.App.4th 484, 497 [―when a defendant does testify,
all bets are off‖ because the defendant waives Fifth Amend. privileges ―and is
subject to cross-examination just as any other witness is‖], citing People v.
Saddler, supra, 24 Cal.3d 671, 679; People v. Wagner (1975) 13 Cal.3d 612, 618;
and People v. Zerillo (1950) 36 Cal.2d 222, 227-229.) Rather, defendant‘s guilt
was established beyond a reasonable doubt. As a result, I would find any error
harmless beyond a reasonable doubt.
       On these grounds, I dissent.
                                                 CANTIL-SAKAUYE, C. J.


I CONCUR:
WERDEGAR, J.




                                         36
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hopson
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 6/24/15 – 4th Dist., Div.1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S228193
Date Filed: July 3, 2017
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Jeffrey J. Prevost

__________________________________________________________________________________

Counsel:

Gordon S. Brownell, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State
Solicitor General, Andrew S. Mestman, Sean M. Rodriquez, Michael Pulos and Seth M. Friedman, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gordon S. Brownell
1241 Adams Street, #1139
St. Helena, CA 94574
(707) 942-4565

Seth M. Friedman
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-3199
