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People v. Hopson

Supreme Court of California

July 3, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
RUTHETTA LOIS HOPSON, Defendant and Appellant.

         Superior Court Riverside County, No. RIF1105594, Ct.App. 4/1 D066684 Jeffrey J. Prevost Judge

          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.

          KRUGER, J.

         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 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 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 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, ‘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 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.

         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 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 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 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.)[1]

         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 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 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.)

         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 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.)

         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 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.[2]

         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 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.

         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.[3] 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 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 whole on the same subject.” (Evid. Code, § 356; see People v. Vines (2011) 51 Cal.4th 830, 861-863.)[4] 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 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 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.[5]

         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 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 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) 18');">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');">18 Cal.4th 1114, 1135; see Cal. Rules of Court, rule 8.528, subd. (c).)

         IV.

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

          We Concur: Chin, J., Corrigan, J., Liu, J., Cuéllar, J.

         DISSENTING OPINION

          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 ...


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