People v. Duarte
| Decision Date | 13 January 1998 |
| Docket Number | No. B104672,B104672 |
| Citation | 60 Cal.App.4th 1027,70 Cal.Rptr.2d 733 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 60 Cal.App.4th 1027 60 Cal.App.4th 1027, 98 Cal. Daily Op. Serv. 357, 98 Daily Journal D.A.R. 451 The PEOPLE, Plaintiff and Respondent, v. Danny DUARTE, Defendant and Appellant. |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert Carl Schneider, Peggie J. Bradford, Deputy Attorneys General, for Plaintiff and Respondent.
Danny Duarte appeals from a judgment following conviction by jury of shooting at an inhabited dwelling (Pen.Code, § 246), 1 assault with a firearm (§ 245, subd. (a)(2)), and conspiracy to shoot at an inhabited dwelling (§§ 182, subd. (a)(1), 246). He was also found to have personally used a firearm. (§ 12022.5, subd. (a)(1).) The trial court sentenced him to state prison for a total of nine years. Appellant contends that the introduction of a codefendant accomplice's confession violated his constitutional rights to confrontation, even though the statement was redacted to exclude reference to anyone other than the declarant and the codefendant was tried separately. We hold that the confrontation clause is violated when hearsay statements of a codefendant which implicate the defendant are admitted against the defendant as evidence of his guilt, and reverse.
At approximately 10:30 p.m. on the evening of October 18, 1994, Leslie Sullivan was working in her Newbury Park home. Her two young children were asleep. Suddenly, a barrage of bullets hit the house. As Ms. Sullivan was running toward her children's room, she was struck in the upper thigh with a bullet which was apparently fired from an assault rifle. Ms. Sullivan called the police, and was transported to the hospital. Ventura County Sheriff's deputies recovered numerous shell casings and spent rounds from a 9 millimeter weapon and a 7.62 millimeter assault rifle from the front of the residence.
Search warrants were eventually served at the residences of Eran Knox, William Morris and appellant. At appellant's residence, officers located a .22 caliber revolver, a 12-gauge shotgun, various caliber ammunition, gun cleaning kits, photographs of handguns. None of the firearms or ammunition matched those used on the attack on the Sullivan home. Appellant refused to talk to the officers and he was arrested.
No evidence was recovered at Knox's residence, but he was handcuffed and transported to the police station to be interviewed. There, he told the officers that on October 18, 1994, he, Morris and appellant went to Newbury Park where they met several friends, smoked marijuana and drank rum. Appellant suggested that the group shoot at the residence of Tam Nguyen in retaliation for a shooting several months earlier. Knox and Morris initially refused to go, but appellant eventually persuaded Morris to join him. They left in Morris's car, joined by Gilberto Lopez. Knox stayed behind. A short time later, Knox heard gunshots and telephoned his brothers to pick him up at the park. As he was waiting for his ride, he saw appellant, Morris and Lopez return. Knox said that he had previously seen a Tec-9 and an SKS automatic rifle at appellant's house, along with ammunition for both weapons.
At Morris's residence, officers recovered ammunition for a 9 millimeter weapon and a 7.62 millimeter weapon and paraphernalia for an SKS assault rifle. Several 7.62 millimeter Appellant and Morris were charged together in the information but were tried separately. Morris was convicted at his trial. Appellant's first trial ended in a mistrial after the jury was unable to reach a verdict. Apparently, several jurors were concerned about the reliability of Knox's testimony, which was impeached by the defense with his prior inconsistent statements.
casings found in Morris's backpack were made the same year and by the same manufacturer as those found outside the Sullivan residence. Morris was arrested, waived his Miranda rights (Miranda [60 Cal.App.4th 1031] v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and spoke to the officers. During the interview, he incriminated himself and appellant, and said that after hearing news accounts of the shooting, they realized they had shot at the wrong house.
After establishing that Morris was unavailable to testify at appellant's second trial, the prosecution was permitted, over defense objection, to introduce the inculpatory statement provided by Morris, which was generally consistent with Knox's version of the events on October 18, 1994. The trial court ruled the statement--redacted to omit any reference to the names of Morris's companions and all pronouns--was admissible as a declaration against Morris's penal interest, relevant to corroborate Knox's testimony. The statement was admitted and appellant was convicted.
When one of several codefendants has confessed to a crime and implicates another defendant, admission of that confession against the silent defendant implicates that defendant's constitutional right to be confronted with and cross-examine the witnesses against him. (People v. Fletcher (1996) 13 Cal.4th 451, 455, 53 Cal.Rptr.2d 572, 917 P.2d 187.)
In a joint trial of the two defendants, the confession may be admitted if the declarant testifies and is subject to cross-examination. (Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; People v. Boyd (1990) 222 Cal.App.3d 541, 562, 271 Cal.Rptr. 738.) But in a joint trial where the declarant does not testify, his confession is only admissible if the court excises any reference to the other defendant and instructs the jury that it may consider the confession only against the confessing defendant. (People v. Fletcher, supra, 13 Cal.4th at pp. 455, 467, 53 Cal.Rptr.2d 572, 917 P.2d 187; Richardson v. Marsh (1987) 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176.) In other words, if Duarte and Morris had been tried together, Morris's statement might have been admissible against him, but only after all references to Duarte were redacted. The jury would also have to be instructed not to consider the evidence against Duarte.
The issue presented here is whether the redaction procedure alone provides adequate constitutional protection to the nondeclaring defendant when he is tried separately and the confession of the codefendant is introduced without an opportunity for cross-examination and without a limiting instruction. It is not.
Respondent contends that Morris's statements were admissible pursuant to the statutory exception to the hearsay rule for declarations against penal interest (Evid.Code, § 1230), and it necessarily follows that no constitutional violation occurred. That argument ignores long-standing concerns about the reliability of post-arrest statements of a codefendant. These concerns have prevailed since the inception of the confrontation clause, and the propriety of admission of such statements must be determined on a case-by-case basis. (People v. Fletcher, supra, 13 Cal.4th at pp. 465-467, 53 Cal.Rptr.2d 572, 917 P.2d 187; Dutton v. Evans (1970) 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213.)
Although hearsay is generally prohibited at trial (Evid.Code, § 1200), Evidence Code section 1230 provides that "a statement ... is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of ... criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true." The proponent of such a statement must establish that the declarant is unavailable, that the statement is against his penal interest, "and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Cudjo (1993) 6 Cal.4th 585, 607, 25 Cal.Rptr.2d 390, 863 P.2d 635.)
(People v. Lucas (1995) 12 Cal.4th 415, 462, 48 Cal.Rptr.2d 525, 907 P.2d 373.)
Here, Morris made his statement after he had been arrested for the shooting, and he had a significant incentive to cooperate with the police. He also had incentive to shift the responsibility for the crime to another, or at least to share culpability. The dissent justifies admission of the statement on the basis that "people do not admit to crimes that they have not committed." Not so. When thieves fall out, one may well try to fasten guilt on the other while trying to minimize his own culpability. Such statements, while inculpatory, have sufficient exculpatory character to render them inadmissible as declarations against interest. (People v. Coble (1976) 65 Cal.App.3d 187, 191-192, 135 Cal.Rptr. 199; People v. Campa (1984) 36 Cal.3d 870, 885, 206 Cal.Rptr. 114, 686 P.2d 634; People v. Leach (1975) 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296.) A person in Morris's position might well have made untrue statements to the police. The statement does not satisfy the reliability requirement of Evidence Code section 1230. (See U.S. v. Beydler (9th Cir.1997) 120 F.3d 985, 988.)
Even if the statement was otherwise reliable, our inquiry does not end there. We must determine whether the statement satisfies the confrontation clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-1069, 13...
To continue reading
Request your trial
-
People v. Duarte
...383 PEOPLE, Respondent, v. Danny DUARTE, Appellant. No. S068162. Supreme Court of California April 15, 1998. Prior report: Cal.App., 70 Cal.Rptr.2d 733. Respondent's petition for review GEORGE, C.J., and KENNARD, BAXTER, WERDEGAR and CHIN, JJ., concur. ...