People v. Gordon

KENNARD, J.

I concur in the majority opinion in all respects except in its conclusion that Dennis Rauch’s out-of-court statement was properly admitted under the hearsay exception for declarations against penal interest (Evid. Code, § 1230). Because a reasonable person in Rauch’s position could have believed that making the statement would be in, rather than against, his own interests, I would hold that the trial court abused its discretion in admitting the evidence. Because I agree with the majority that defendant suffered no prejudice by the statement’s admission, however, I concur in the affirmance of the judgment.

The pertinent facts are not in dispute. Sergeant Wingo interviewed Rauch for four to five hours. The interview took place at the military base where Rauch was stationed. At the beginning of the interview, Rauch said that defendant and his brothers had come to stay at Rauch’s home in Georgia shortly before Thanksgiving and that defendant had not been injured when he arrived but was injured subsequently. Wingo said he did not believe that defendant had arrived uninjured. Wingo described the Riverside robbery, during which a guard was killed, and warned Rauch that if he had assisted in any away he could be at risk. Wingo gave Rauch this assurance: “If you had no involvement in the robbery, and you are truthful about what happened after it, you have no fear of prosecution.” Rauch then said that defendant had been injured when he arrived at Rauch’s house.

Evidence Code section 1230 provides that an out-of-court statement, to be admissible under the hearsay exception for declarations against penal interest, must have “so far subjected [the declarant] to the risk of . . . criminal liability . . . that a reasonable man in [the declarant’s] position would not have made the statement unless he believed it to be true.” Because the Federal Rules of Evidence contain a similar provision,* 1 the deci *1280 sions of federal courts may be consulted as persuasive authority in interpreting and applying our state rule. (See In re Joyner (1989) 48 Cal.3d 487, 492 [ 256 Cal.Rptr. 785 , 769 P.2d 967 ].) Accordingly, federal cases are cited freely in the following analysis.

To determine whether a statement offered as a declaration against penal interest was so far contrary to the declarant’s penal interest when made that a reasonable person would not have made the declaration unless it were true, it is not enough to ask whether the statement is incriminatory on its face. What is required, rather, is “a sensitive analysis of the circumstances in which the statement was made and the precise nature of the statement.” (United States v. Palumbo (3d Cir. 1981) 639 F.2d 123, 127 .) A number of factors have been identified as relevant to this analysis. For example, a statement made spontaneously to a close friend is more likely to be trustworthy than a statement elicited under police questioning. (United States v. Rasmussen (8th Cir. 1986) 790 F.2d 55, 56 ; United States v. Sarmiento-Perez (5th Cir. 1981) 633 F.2d 1092, 1102 ; United States v. Gonzalez (5th Cir. 1977) 559 F.2d 1271, 1273 .) Here, Rauch’s statement to Sergeant Wingo was not spontaneous; it was the product of prolonged interrogation.

Another important factor is whether the statements “solidly inculpate the declarant” in a serious offense. (United States v. Monaco (9th Cir. 1984) 735 F.2d 1173, 1176 ; see also, United States v. Poland (9th Cir. 1981) 659 F.2d 884, 895 ; Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest (1978) 66 Cal.L.Rev. 1189, 1214.) Rauch’s statement to Sergeant Wingo incriminated him at most in being an accessory to a felony (Pen. Code, § 32),* 2 and even as to that crime, which requires specific intent (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 9 [ 120 Cal.Rptr. 384 , 533 P.2d 1024 ]; People v. Duty (1969) 269 Cal.App.2d 97, 100-101 [ 74 Cal.Rptr. 606 ]), Rauch did not admit either that he knew defendant had committed a felony or that he acted with the specific intent to assist defendant. Moreover, the acts that Rauch admitted performing, such as providing defendant with a place to stay and treating his wounds, were not inherently criminal.

The most significant requirement for admissibility as a declaration against penal interest is that the statement be made under circumstances in *1281 which there exists an actual and appreciable risk of serious penal consequences. The rule admitting self-incriminatory statements “rests on the assumption that persons will not make damaging statements against themselves unless they are true.” (4 Weinstein’s Evidence (1988) p. 804-123; see also, 1 Witkin, Cal. Evidence (3d ed. 1986) § 688, p. 675.) If the declarant has reason to believe that an ostensibly damaging statement will have no adverse consequence, the rationale for the exception fails and the statement should be excluded. (4 Weinstein’s Evidence, supra, at p. 804-133; see also, Note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule (1976) 56 B.U.L. Rev. 148, 154.) Thus, for example, it is well established that a statement made under a grant of immunity is not admissible as a declaration against penal interest. (People v. Rice (1976) 59 Cal.App.3d 998, 1006-1007 [ 131 Cal.Rptr. 330 ]; United States v. Williams (5th Cir. 1987) 809 F.2d 1072, 1083 ; United States v. Gonzalez, supra, 559 F.2d 1271, 1273 .)

In a variety of other contexts as well, the risk of penal consequences from an ostensibly self-incriminatory statement has been found to be too attenuated to warrant admissibility. For example, a prisoner serving three consecutive life sentences was found to have “de facto immunity” and his statement was held to be inherently untrustworthy and inadmissible. (United States v. Silverstein (7th Cir. 1984) 732 F.2d 1338, 1346-1347 .) And a statement by a declarant who knew the case against him was already overwhelming, and so had “little to lose” by acknowledging guilt, was likewise held inadmissible. (United States v. Brandenfels (9th Cir. 1975) 522 F.2d 1259, 1264 .) Finally, and of particular relevance to the facts of this case, it has been recognized that an ostensibly self-incriminatory statement made under law enforcement questioning may be self-serving and thus untrustworthy if it could have been “motivated by expectations of leniency” or “made with the purpose of placating the authorities.” (United States v. Monaco, supra, 735 F.2d at p. 1177 ; see also, United States v. Riley (8th Cir. 1981) 657 F.2d 1377, 1384 .)

In this case, Sergeant Wingo assured Rauch he would not be prosecuted for any assistance given to defendant after the robbery. To repeat, Wingo told Rauch: “If you had no involvement in the robbery, and you are truthful about what happened after it, you have no fear of prosecution.” 3 *1282 Although this assurance did not have all the trappings of a formal grant of immunity, it was a credible statement by a law enforcement officer that Rauch would not be prosecuted for providing assistance to defendant after the Riverside robbery; although the assurance was conditioned on Rauch’s being “truthful,” Wingo had already told Rauch that he did not believe Rauch’s statement that defendant had arrived uninjured, so Rauch would reasonably expect that if he said defendant arrived injured, Wingo would accept the statement as truthful whether or not it was actually true. In sum, Rauch’s statement when made was likely to be believed whether true or not, was what his interrogator wanted to hear, and would result in no adverse penal consequences to Rauch. It was a statement well calculated to placate the authorities and thereby terminate prolonged interrogation without serious risk of penal consequences.

For these reasons, I cannot agree that Rauch’s out-of-court statement to Sergeant Wingo was properly admitted as a declaration against penal interest. Because I am persuaded by the majority’s reasoning on the issue of prejudice, however, I concur in the ultimate conclusion that the admission of the evidence does not require reversal of the judgment.

Appellant’s petition for a rehearing was denied August 29, 1990.

“The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . [j|] (3) A statement which ... so far tended to subject the declarant to . . . *1280 criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. . . .” (Fed. Rules Evid., rule 804(b)(3), 28 U.S.C.)

“Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.” (Pen. Code, § 32.)

The majority gives this statement a strained and unnatural construction that empties it of significance. According to the majority, Rauch was told by Sergeant Wingo that “he should not [fear prosecution] if he was truthful and had taken no part at all in the crimes” and that because he “all but confessed that he was an accessory to the crimes committed” he “thereby admitted he had taken some part in those offenses" and thus Rauch’s statement “falls outside any ‘grant’ or ‘promise’ the words could reasonably have been understood to offer.” (Maj.

*1282 opn., ante, at p. 1253.) In other words, Sergeant Wingo’s assurance, as construed by the majority, meant only that Rauch need not fear prosecution if he was truthful and neither participated in the robbery nor was guilty as an accessory for aiding the participants afterwards.

A reasonable person in Rauch’s position would not have so understood Sergeant Wingo’s statement. A legally sophisticated listener would have known that the crime of being an accessory to a felony “is separate and distinct from the felony” (People v. Mitten (1974) 37 Cal.App.3d 879, 883 [ 112 Cal.Rptr. 713 ]), and thus that an accessory to a robbery would have “no involvement in the robbery” itself. Any reasonable person in Rauch’s position, whether legally sophisticated or not, would have noticed that Sergeant Wingo contrasted “involvement in the robbery” with “what happened after it,” and from this would have drawn the same conclusion, namely, that Sergeant Wingo was providing assurance that the listener would not be prosecuted for acts committed after the robbery even though those acts could support a prosecution for being an accessory to a felony.