Codefendant’s incriminating statements made to paid jailhouse informants were not testimonial under Crawford v. Washington (2004) 541 U.S. 123, and their admission did not deny defendants’ confrontation rights. Three codefendants, Angel, Michael and Garcia, jointly conducted a drive-by shooting of three rival gang members, one of whom died. The main prosecution evidence at trial was a surreptitiously recorded jailhouse conversation between Angel and two paid police informants who were posing as inmates. Angel was convicted of first degree murder, and Michael and Garcia of second degree murder, and other crimes. They appealed. Held: Reversed. In Crawford, the Court “held that the admission of testimonial out-of-court statements violates a criminal defendant’s confrontation rights unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination or waived that right by his own wrongdoing.” To qualify as testimonial, the out-of-court statement must be made with some degree of solemnity and must be given and taken primarily for the purpose of establishing some past fact for possible use in a criminal prosecution. Here, Angel’s statements to the paid informants were nontestimonial because there was no evidence that he knew or suspected that the informants were government agents or that his comments might be used at trial.

The admission of Angel’s jailhouse statements does not violate the defendants’ Sixth Amendment right to confrontation under Aranda/Bruton. Relying on People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123, Michael and Garcia argued the admission of Angel’s incriminating statements to the informants denied their right to confront Angel, who was a nontestifying codefendant. The Court of Appeal disagreed. The Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. However, Aranda and Bruton predate Crawford, “which narrowed the scope of the right to confrontation to testimonial statements.” In People v. Cortez (2016) 63 Cal.4th 101, the California Supreme Court recognized that the United States Supreme Court has unequivocally held the confrontation clause applies only to testimonial statements. Thus, defendants’ confrontation clause claim fails because Angel’s statements to the informants were not testimonial.

The trial court committed prejudicial error when it admitted Angel’s jailhouse confession identifying Garcia as the shooter and Michael as the driver under the hearsay exception for declarations against interest. Michael and Garcia argued that Angel’s statements identifying them as the shooter and driver of the car were improperly admitted as a declaration against Angel’s penal interest (Evid. Code, § 1230) because they effectively served to minimize Angel’s role in the crimes and to shift blame to them. The Court of Appeal agreed. To qualify an out-of-court statement as a declaration against interest, the proponent must show the declarant is unavailable, that the declaration was against the declarant’s interest when made, and was sufficiently reliable to warrant admission despite its hearsay character. Those portions of the declarant’s statement that are self-serving or blame shifting do not qualify for admission under this hearsay exception. Considering the context in which Angel’s statements were made, his assertions that Garcia was the shooter and that Michael was the driver were too self-serving and unreliable to qualify as statements against his penal interest because, although he admitted knowledge of the crimes, he placed the major responsibility on his codefendants. The trial court abused its discretion by admitting the statements. The error was prejudicial because it directly identified the codefendants as the perpetrators. The rest of the prosecution evidence was circumstantial at best. There is a reasonable probability the jury would have reached a different result had the statements been excluded, requiring reversal of the judgments against Garcia and Michael.

Angel’s jailhouse statements were not inadmissible under Penal Code section 4001.1. Angel argued his entire jailhouse conversation should have been excluded under section 4001.1, subdivision (b), which prohibits a law enforcement agency and in-custody informants acting as police agents, from taking any action that is deliberately designed to elicit incriminating statements. However, even if section 4001.1 applies to informants only posing as inmates, it does not apply to conduct intended to elicit incriminating remarks about uncharged offenses. The Legislature intended section 4001.1 to codify case law that had applied Massiah v. U.S. (1964) 377 U.S. 201, which held that once a defendant’s Sixth Amendment right to counsel has attached, he is denied that right when federal agents deliberately elicit incriminating statement from him in the absence of his attorney. However, no Sixth Amendment violation occurs where the incriminating statements pertain to uncharged offenses. Angel’s jailhouse statements were made prior to the time he was charged with the offenses in this case, so section 4001.1 did not apply.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B269034.PDF