Girlfriend’s extradjudicial admission she was driving car involved in alcohol-related injury accident is inadmissible as a declaration against penal interests because it was obviously unreliable. Smith was convicted of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), and other alcohol-related offenses and allegations. At trial, Smith offered evidence that his girlfriend told a private investigator that she, not Smith, was driving the car at the time of the accident. The girlfriend refused to testify at trial, asserting her Fifth Amendment rights. After an Evidence Code section 402 hearing, the trial court found the statement unreliable and excluded the statement. Smith appealed. Held: Affirmed. A trial court’s decision to admit or exclude evidence will not be overturned except on a showing the court abused its discretion. An extrajudicial declaration against penal interest is admissible as an exception to the hearsay rule. (Evid. Code, § 1230.) The proponent of the evidence must show that the declarant is unavailable as a witness and that the statement is against penal interest and is sufficiently reliable to warrant admission despite its hearsay character. In determining whether the evidence is admissible, the trial court must look at the totality of the circumstances in which the statement was made, including any possible motivation of the declarant, as well as the declarant’s relationship to the defendant. Smith’s girlfriend was motivated to provide evidence which would exculpate him, made the admission nine months after the accident, and asserted her right to remain silent when cautioned by counsel. She had earlier told emergency personnel who responded to the accident that Smith had been driving. Her unreliable admission was properly excluded. [Editor’s Note: The concurring opinion agrees that the majority correctly evaluates binding California Supreme Court precedent, but questions that precedent because Evidence Code section 1230 does not provide that in addition to determining whether the statement is truly against the declarant’s penal interest, the trial court must also evaluate whether the statement is reliable.]

Even if the girlfriend’s statement was improperly excluded, any error was harmless. Smith was able to present his defense through the testimony of several other witnesses, whose testimony the jury rejected. It is not reasonably probable that Smith would have obtained a different result from the introduction of his girlfriend’s unsworn statement.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A146648.PDF