People v. Grimes (1 Cal. 5th 698, 2016)

Opinion

KRUGER, J.

A jury convicted defendant Gary Lee Grimes of one count of murder with burglary and robbery special circumstances and one count each of robbery, burglary, conspiracy to commit robbery, conspiracy to commit burglary, and the unlawful driving or taking of a vehicle. (Pen. Code, §§ 182, subd. (a), 187, subd. (a), 190.2, subd. (a)(17), 211, 459; Veh. Code, § 10851, subd. (a).) In connection with the murder, robbery, burglary, and conspiracy counts, the jury found true allegations that defendant inflicted great bodily injury upon the victim, an elderly person (§ 1203.09, subd. (a)), and that the offenses were committed while defendant was on parole (§ 1203.085, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that defendant had served four prior prison terms (§ 667.5, subd. (b)) and had been convicted of a serious or violent felony within the meaning of the “Three Strikes” law (§ 1170.12). The jury returned a verdict of death. The trial court sentenced defendant to death for the murder and imposed a term of six years for the driving or taking of a motor vehicle and four one-year terms for the four prior prison term allegations. Sentences on the remaining counts were imposed and stayed.

Over defendant’s objection, the trial court excluded certain statements made by the actual killer of the murder victim in which the killer claimed that he acted alone in committing the murder and that defendant was not involved. After an initial opinion was filed in this case, we granted rehearing to clarify the application of the hearsay exception for statements against the declarant’s interest. (Evid. Code, § 1230.) We now conclude that the trial court erred in excluding the statements. Although the error does not require reversal of the murder conviction and the special circumstance findings, it does require reversal of the judgment of death.

I. Facts

A. Guilt phase

1. The offenses

In October 1995, defendant, then 33 years old, was staying with a friend, Sheila Abbott (Sheila), in her trailer. Also staying in the trailer were Sheila’s son, Shane Fernalld; her daughter Misty Abbott (Misty); and Misty’s boyfriend, Patrick James Wilson, then 19 years old. On the morning of October 18, John Morris, a 20-year-old friend of the family, arrived at Sheila’s trailer. At approximately noon, Morris, Wilson, and defendant obtained some medical gloves and bandanas from the trailer. They tried on the bandanas, placing them over their mouths, before putting them in their pockets. They then drove Morris’s red sports car to a house in Redding shared by 98-year-old Betty Bone and her daughter. They ransacked the house and took property, including a .38-caliber handgun, a portable music player, some jewelry, a rifle, a telephone in a Styrofoam box, and a brown truck.

Bone was killed. Her body showed evidence of blunt force trauma to the head, ligature strangulation, and stab wounds. There was a telephone cord and a bandana around her neck. There was bruising on her tongue and lip that was likely caused by a gag. Her injuries were consistent with her having been knocked unconscious, strangled, and then stabbed repeatedly. Bleeding due to the stabbing was the primary cause of death, with strangulation as a contributory cause.

After the murder, defendant, Wilson, and Morris returned to Sheila’s trailer, with Morris and Wilson in Morris’s car and defendant driving the brown truck that had been taken from Bone’s residence. They unloaded items from the truck. Defendant showed a bag of jewelry to Sheila and asked whether it was real; she told him it was costume jewelry. Defendant drove the truck to Shasta Lake, with Morris and Misty following in Morris’s car. Defendant drove the truck into the lake, and the three returned to Sheila’s trailer in Morris’s car.

Later that afternoon, defendant, Morris, and Misty were in defendant’s brown Camaro when they approached a roadblock that had been set up by the Shasta County Sheriff’s Department. Before reaching the roadblock, defendant and Morris threw their guns into the bushes. When they went through the roadblock, defendant identified himself to an officer as “Gary Woods” and gave the officer a false Social Security number. He was wearing a pair of white fingerless gloves, similar to the type of gloves that Bone’s daughter kept in the brown truck.

They returned to Sheila’s trailer and then left for Sacramento. Misty and her baby rode in Morris’s car and defendant drove in his car with Misty’s brother, Shane Fernalld. They spent the night in Sacramento with Morris’s aunt. In her apartment, they left a bag of jewelry and the box containing a telephone that had been taken from Bone’s house. The next day, Fernalld left defendant at the apartment complex in Sacramento.

2. Defendant’s arrest and statements to police

Morris was arrested on October 21, 1995, three days after the crime, and killed himself in his jail cell the next afternoon. Wilson was arrested the following day. On that same day, a deputy sheriff recovered a long kitchen knife and a pocket knife that had been buried near Sheila Abbott’s property. DNA from both knives was consistent with a mixture of Bone’s DNA and Wilson’s DNA; none of the DNA on the knives could have come from defendant.

Defendant was arrested the following day as he drove into the parking area of the Sacramento apartment complex. As he got out of the car, a loaded .22-caliber handgun fell out of the driver’s side door. Defendant called Sheila from jail, and she told him that Morris had killed himself.

In a tape-recorded interview played for the jury at trial, defendant admitted to detectives that he was involved in the burglary and robbery. He denied any involvement in the murder, however, claiming Morris had killed Bone while defendant was in the back of the house. According to defendant, it had been Morris’s idea to break into a house because he needed money to pay for his automobile insurance. Defendant said that he, Morris, and Wilson each had a bandana that Sheila had given them, and they had latex gloves that were obtained from her first-aid kit. Morris drove defendant and Wilson to Bone’s neighborhood, an area in which defendant had formerly lived. In the car, defendant handed Morris a gun, which was wrapped in a bandana, and Morris put it in his pants. They then watched a house in the neighborhood and saw a woman outside. Morris said they could kill her and take their time going through the house, but defendant replied that he was “not into killin’ people.”

Defendant told the detectives that when they arrived at the Bone house, Morris and Wilson knocked on the door. Initially no one answered; Morris commented that no one was there and defendant concluded they would just be committing a burglary. Then Morris said that someone was in the house. Defendant walked back to the car and saw Bone answer the door. Wilson asked for a girl named Debbie and Bone replied, “no, my daughter’s name is Barbara.” Wilson pushed the door open, hitting Bone and knocking her to the ground. Defendant walked through the open door. At some point he saw Bone lying on the floor with Morris on top of her; Bone was pleading with him to let her go. Defendant said to Morris, “Don’t hurt no women, don’t hurt nobody.” He said he went into the back of the house because he “couldn’t deal with it.” When he returned he saw Morris strangling Bone, who was tied up with a phone cord. Morris said, “I can’t leave no witnesses,” and “that fucking bitch won’t die.” Defendant then saw Morris rummaging through the kitchen looking for a knife, after which he saw or heard Morris stabbing Bone forcefully and repeatedly. Morris gave Wilson a paper sack containing the knives that were later recovered and told him to get rid of them.

According to defendant, Morris ordered him to take Bone’s truck. They loaded the items from the house into the truck and took them back to Sheila’s trailer, where Wilson and Morris siphoned gas out of the truck. Defendant drove the truck to Shasta Lake, following Morris and Misty. Morris instructed defendant to break out the truck’s windows and drive it into the lake.

Defendant told the detectives that the gun he had when he was arrested in Sacramento did not come from the house and he had obtained it that same day. He stated that Wilson had found a gun in Bone’s house and Morris had found a rifle. Defendant denied knowing the location of the guns taken from the house and asserted that Morris was supposed to dispose of them.

Law enforcement officers recovered the guns that defendant and Morris had thrown into the bushes before going through the police roadblock. One of these guns had been taken from Bone’s home.

3. Testimony regarding out-of-court statements

At trial, Misty Abbott testified that during the ride to Shasta Lake, Morris told her he had tried to strangle a woman, and when she did not die he took a knife from the kitchen and fatally stabbed her. She testified that during the ride back to her mother’s trailer, after they had dumped Bone’s truck in the lake, defendant and Morris fired their guns out of the windows of the car. When she was interviewed by Wilson’s private investigator, she said that Morris and defendant laughed about the murder and called each other “down white boys.” Misty’s brother, Shane Fernalld, testified that while he and defendant were driving to Sacramento, defendant told Fernalld either that “she deserved it” or “she didn’t deserve it”; Fernalld was not sure which. Before trial, however, Fernalld told several law enforcement officers that defendant’s statement was “she deserved it” or “the old bitch deserved it.” Morris’s grandfather testified that, an hour or two before committing suicide, Morris called him from jail, sounding very upset, and said that Morris’s friends had turned against him and were going to testify that he had killed Bone, but that he had not done it.

Jonathan Howe, a prisoner who had been housed with defendant in the Shasta County Jail, testified that defendant told him about the murder. According to Howe, defendant said he had ordered Wilson and Morris to tie up and kill Bone, and that he could not be linked to the murder with DNA evidence because he had never touched the body. Howe also reported that defendant said either that he had enjoyed watching Bone killed or that he enjoyed the fact that she died. Howe testified under an agreement that permitted him to plead guilty to pending charges for a sentence of a maximum of 24 months, consecutive to a term he was already serving. Before coming forward, he had been offered a plea bargain with a 24-month consecutive sentence. Under the new plea agreement, he could receive a sentence of less than 24 months; his sentencing was postponed until after trial in the present case, at which time the judge presiding over defendant’s trial would decide his sentence.

4. Defense evidence

The defense conceded that defendant was guilty of burglary, robbery, and murder, but contested the special circumstance allegations on the grounds that defendant was not the actual killer and lacked an intent to kill or a reckless indifference to life.

The defense introduced admissions made by Wilson to law enforcement officers that were consistent with defendant’s statements to the police regarding Wilson’s role: Wilson said he had participated in the burglary and had pushed Bone inside the house; when she fell back, she was knocked out and he watched her for several minutes; he found a .38-caliber revolver in a toolbox in a closet in Bone’s house; he cleaned the knives used to kill Bone by spitting on them and wiping them off with a cloth; he siphoned gas out of the truck before defendant drove it to the lake.

Defendant also presented evidence that Morris called Sheila Abbott’s trailer the day after his arrest and asked her daughter Ginger Abbott to provide him with an alibi. Ginger refused.

The jury convicted defendant on all counts.

B. Penalty phase

1. Aggravation

The prosecution introduced evidence that after driving the truck into the lake, defendant, Morris, and Misty bought and injected methamphetamine.

The prosecution also presented proof of defendant’s 10 prior felony convictions, as well as evidence regarding four incidents in which he engaged in violent criminal conduct. Specifically, in 1985, defendant and accomplice Anna Cline tied up James Leonard and stole $300 from him. Defendant brandished a pipe that was wrapped in a towel to simulate a gun. Afterward, he and Cline used the money to buy drugs. A day after that robbery, a police officer saw defendant shooting a sawed-off shotgun in an orchard. In 1991, a police officer encountered defendant in a restaurant with a loaded .25-caliber semiautomatic handgun in his waistband. In 1993, during a fight with his girlfriend, defendant held her down in his car by her throat, threatening to choke her if she left him. When he stopped the car in a parking lot, she escaped. He ran after her and they struggled until police arrived.

2. Mitigation

The defense case in mitigation focused on two themes: defendant’s cognitive impairment and his positive contributions to his friends and family members. Neuropsychologist John Wicks testified that he tested defendant’s mental functioning in 12 areas, and that he scored in the mentally retarded range in seven areas, low dull-normal in two areas, and normal in three areas. Defendant’s overall IQ score was 73, which is borderline retarded, and he generally tested in the range of third to fourth grade in reading, spelling, and arithmetic. Wicks concluded that defendant had organic brain damage and that his low intellect could impair his judgment and decisionmaking ability, cause impulsivity, and make it difficult for him to learn academic subjects and acceptable social behaviors.

Psychiatrist Albert Globus, who interviewed defendant and reviewed the test results, agreed with Dr. Wicks’s findings. Dr. Globus thought defendant suffered from organic brain damage at birth (possibly due to beatings his mother suffered while pregnant), based on the test results and on his low birth weight, trouble breastfeeding, loss of weight during his first week of life, incontinence up to the age of eight, and a speech impediment. At age 12, he suffered a serious head injury which may have exacerbated his brain disorder. Although defendant could determine right from wrong, Dr. Globus concluded that he would have difficulty applying that knowledge to his decisionmaking and would likely rely on others to make decisions for him. People like defendant, he said, often function better in a structured setting like prison because most decisions are made for them.

At age nine, defendant was referred to a psychiatrist, who prescribed Ritalin and Librium. At age 11, he was placed in special education classes for emotionally disturbed children. Defendant’s special education teacher, a teacher’s aide, and a resource specialist for the special education program described defendant, at that time, as nonaggressive, well behaved, a follower, and someone in need of love and attention. At age 15, he began running away from home and was placed in foster care and then juvenile hall. He was committed to Napa State Hospital at age 17 for nine months. His records from the hospital indicate he was mildly mentally retarded and had latent schizophrenia.

Defendant’s sister, Darlene, testified that when defendant was a young boy he was incontinent and their mother made him wear a dress and stand out in the yard as punishment. Defendant, she said, lacked self-esteem and confidence, and was a follower who did what others told him to do.

Defendant’s mother, Patricia Grimes, testified that she loved her son. She testified that defendant’s father beat her while she was pregnant and left her before defendant was born. After the birth, she was in the hospital for more than three months with postpartum depression and defendant lived with her parents. She recalled that at a young age, he told her he heard voices and he would wake in the night screaming. Defendant’s mother also testified that the day before he was arrested, he was crying and remorseful, and said he was very sorry that the victim had died.

Defendant’s ex-wife, Cindy Grimes, who was briefly married to defendant in 1990, testified that she loved him and he had treated her and her teenage son well. Defendant also helped take care of her disabled father. Her son, Michael, testified that defendant treated both of them very well, and had influenced him to get his General Educational Development certificate and stay out of trouble with the law. Cindy’s mother and the manager of their apartment complex confirmed that defendant was helpful and kind to Cindy’s family and to others who lived in their apartment complex. A fellow prison inmate, Michael Huntsman, testified that defendant came to his aid when he was assaulted by a group of inmates.

In 1995, defendant attempted to assist the mother of his fiancée, Shannon Yarnell, in a domestic violence incident involving Shannon’s stepfather. The incident ended in tragedy, however, when Shannon’s stepfather rammed his truck into the car in which Shannon was riding, killing Shannon.

II. Discussion

A. Exclusion of Morris’s alleged statements against interest

As previously explained, witness Misty Abbott testified for the prosecution that while she was driving with John Morris to Shasta Lake shortly after Bone was murdered, Morris told her he killed Bone, first attempting to strangle her and then, because she did not die, taking a knife from the kitchen and stabbing her. The trial court admitted this statement as a declaration against Morris’s penal interest. (Evid. Code, § 1230.)

The defense also sought to admit an additional statement made in the course of the same conversation: According to defendant’s offer of proof, Misty would testify that when asked whether defendant took part in the killing, Morris responded that he had not; Morris told Misty that after he “did the lady,” defendant and Wilson “looked at [Morris] as if they were saying, what in the hell are you doing, dude.” The defense also proffered evidence that while Morris was incarcerated in the county jail following his arrest for murdering Bone, he told inmate Albert Lawson that he stabbed Bone and “grabbed her by the throat,” and that defendant and Wilson “were in the house but took no part in the actual killing.” Lawson did not testify at trial.

The trial court ruled that Morris’s statement to Misty was inadmissible hearsay that did not qualify as a declaration against interest. The court ruled that Morris’s statement to Lawson that he stabbed Bone and grabbed her by the throat was admissible, but that his statement that defendant and Wilson took no part in the actual killing was not.

Defendant asserts the statements were admissible as declarations against interest and that the trial court’s rulings violated his right to due process, a fair trial, to present a defense, and to reliable procedures in death penalty cases. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Chambers v. Mississippi (1973) 410 U.S. 284, 302 [35 L.Ed.2d 297, 93 S.Ct. 1038].) As explained below, the trial court erred in excluding the testimony under Evidence Code section 1230, and the error, while harmless at the guilt phase of trial, requires reversal of the judgment of death.

1. Declarations against interest

Although hearsay statements are generally inadmissible under California law (Evid. Code, § 1200, subd. (b)), the rule has a number of exceptions. One such exception permits the admission of any statement that “when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be hue.” (Evid. Code, § 1230.) As applied to statements against the declarant’s penal interest, in particular, the rationale underlying the exception is that ‘“a person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest,” thereby mitigating the dangers usually associated with the admission of out-of-court statements. (People v. Spriggs (1964) 60 Cal.2d 868, 874 [36 Cal.Rptr. 841, 389 P.2d 377].)

To demonstrate that an out-of-court declaration is admissible as a declaration against interest, ”[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte (2000) 24 Cal.4th 603, 610-611 [101 Cal.Rptr.2d 701, 12 P.3d 1110] (Duarte).) “In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” (People v. Frierson (1991) 53 Cal.3d 730, 745 [280 Cal.Rptr. 440, 808 P.2d 1197].)

We review a trial court’s decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153 [115 Cal.Rptr.2d 614, 38 P.3d 461], citing People v. Gordon (1990) 50 Cal.3d 1223, 1250-1253 [270 Cal.Rptr. 451, 792 P.2d 251] (Gordon).) Whether a trial court has correctly construed Evidence Code section 1230 is, however, a question of law that we review de novo. (See Gordon, at p. 1251 [while the application of the against-interest exception “to the peculiar facts of the individual case” is reviewed for abuse of discretion, “we review the specific determinations underlying the court’s ruling under the standards appropriate thereto”]; People v. Louis (1986) 42 Cal.3d 969, 985 [232 Cal.Rptr. 110, 728 P.2d 180] [conclusions of law are subject to de novo review].)

As the trial court in this case correctly held, the portions of Morris’s statements admitting to stabbing Bone were admissible under Evidence Code section 1230 because a reasonable person in Morris’s position would have believed that these admissions would subject him to criminal liability. Defendant’s challenge concerns the portions of Morris’s statements indicating that (1) defendant did not participate in the killing, and (2) defendant reacted with surprise when Morris killed Bone. In excluding these portions of the statements, the trial court reasoned that “if somebody is confessing to a murder and to personally being the one who stabbed someone, ... it does not in any way significantly enhance the personal detriment to the confessor if he says nobody else had any part in it. . . . [T]he fact that the others did or did not assist him isn’t going to diminish his exposure, his public ridicule, et cetera.” The court found People v. Gatlin (1989) 209 Cal.App.3d 31 [257 Cal.Rptr. 171] (Gatlin) to be controlling.

The trial court’s ruling reflects a misunderstanding of the law governing the admission of statements against interest. As an initial matter, to the extent the trial court relied on Gatlin, supra, 209 Cal.App.3d 31, its reliance was misplaced. In Gatlin, a defendant charged with burglary sought to introduce recordings of statements by three codefendants. The codefendants claimed the defendant “had nothing to do with [it],” but they made these statements while disclaiming their own involvement. (Id. at p. 44.) The Court of Appeal thus held that their exculpation of the defendant was “not specifically disserving” (ibid.) because it was made in the context of the declarants’ “self-serving” denials of culpability {id. at p. 43). Here, by contrast, the portions of Morris’s statements at issue were made during conversations in which Morris admitted personally murdering the victim by choking and stabbing her—admissions that unquestionably were against Morris’s interest.

The Attorney General argues that the trial court nevertheless properly excluded the relevant portions of Morris’s statements because they were collateral assertions that tended to exculpate defendant, not to “further incriminate” Morris. The Attorney General contends that the trial court’s parsing of Morris’s statements was necessary because Evidence Code section 1230 does not permit the admission of “any statement or portion of a statement not itself specifically disserving to the interests of the declarant.” (People v. Leach (1975) 15 Cal.3d 419, 441 [124 Cal.Rptr. 752, 541 P.2d 296] (Leach).) As the Attorney General’s argument demonstrates, the proper application of the Leach rule appears to have generated some confusion. We therefore discuss the origins and purpose of the rule in some depth.

The question in Leach concerned the admissibility of coconspirators’ extrajudicial confessions implicating other defendants in a murder plot, which the prosecution introduced as, inter alia, declarations against penal interest. (Leach, supra, 15 Cal.3d at pp. 428, 438.) This court concluded that to the extent the confessions contained collateral assertions that inculpated the defendant, rather than the confessor, the statements were inadmissible. {Id. at pp. 441-442.) We explained that those portions of a confession inculpating others are not as inherently trustworthy as those portions that are actually disserving to the declarant’s interests. {Id. at pp. 439-441.) The resulting rule, we noted, is consistent with the constitutional right of a defendant to confront his or her accusers: “[I]t is precisely the purpose of the Constitution—and, we might add, the hearsay rule—to ‘protect defendants from statements of unreasonable men if there is to be no opportunity for cross-examination.’ ” (Id. at p. 441.) We further explained that “[t]his limitation on the against-interest exception was at least implicit” in decisions of this court and of the United States Supreme Court that generally forbid the prosecution in a joint trial of two defendants from introducing those portions of one defendant’s confession that implicate the other defendant. (Id. at p. 441, fn. 17, citing People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265], and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620].)

The United States Supreme Court, interpreting an analogous exception to the federal hearsay rule, reached much the same conclusion when it later addressed the issue in Williamson v. United States (1994) 512 U.S. 594 [129 L.Ed.2d 476, 114 S.Ct. 2431] (Williamson). The court held that the against-interest exception did not authorize the admission of those portions of a third party’s out-of-court confession that tended to shift blame to the defendant. The court explained that the exception “is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.” {Id. at p. 599.) That notion, the court explained, does not extend to the entirety of the broader statement in which the self-inculpatory statement appears. Where, as in the Williamson case, “part of the confession is actually self-exculpatory, the generalization on which [the hearsay exception] is founded becomes even less applicable. Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements.” {Id. at p. 600.)

Concurring in the judgment, Justice Kennedy noted that this approach raises questions as applied to collateral statements that exculpate, rather than inculpate, the defendant. Justice Kennedy gave as an example a statement in which a declarant said, “ T robbed the store alone,’ ” but a criminal defendant on trial for robbery was permitted to introduce “only the portion of the statement in which the declarant said T robbed the store.’ ” (Williamson, supra, 512 U.S. at p. 617 (cone. opn. of Kennedy, J.).) Such a result, Justice Kennedy opined, “seems extraordinary.” (Ibid.) The Williamson majority did not directly respond to Justice Kennedy on this point, since no such issue was raised in the case. But the majority did make clear that the proper application of the rule depends on context. The majority explained that “[t]he question under [the against-interest exception] is always whether . . . ‘. . . a reasonable person in the declarant’s position would not have made the statement unless believing it to be true,’ and this question can only be answered in light of all the surrounding circumstances.” (Id. at pp. 603-604.)

In the wake of Williamson, the United States Court of Appeals for the Ninth Circuit has considered how the rule applies to a statement in which the declarant both inculpates himself and exculpates another, much as in Justice Kennedy’s hypothetical. (U.S. v. Paguio (9th Cir. 1997) 114 F.3d 928 (Paguio).) In Paguio, the court reversed the defendant’s conviction on the ground that the trial court abused its discretion by admitting his father’s confession that he had falsified certain tax forms, but excluding the portion of the statement that represented that the son “ ‘had nothing to do with it.’ ” (Id. at pp. 934-935.) Writing for the court, Judge Kleinfeld explained that, in context, the latter statement both disserved the father’s interests, insofar as “leading others into wrongdoing has always been seen as especially bad,” and was “not practically separable” from the remainder of the confession. (Id. at p. 934.) The court rejected the government’s argument that the rule announced in Williamson “mean[s] that the trial judge must always parse the statement and let in only the inculpatory part.” (Ibid.) Rather, “[i]t means that the statement must be examined in context, to see whether as a matter of common sense the portion at issue was against interest and would not have been made by a reasonable person unless he believed it to be true.” (Ibid.) “As a matter of common sense,” the court explained, this is less likely to be true when the statement takes the form “ ‘I did it, but X is guiltier than I am,’ ” than when the statement is “ ‘I did it alone, not with X.’ That is because the part of the statement touching on X’s participation is an attempt to avoid responsibility or curry favor in the former, but to accept undiluted responsibility in the latter.” (Ibid.; see also U.S. v. Lopez (10th Cir. 1985) 111 F.2d 543, 554 [trial court erred in excluding hearsay statements of a passenger in a vehicle that he alone had placed cocaine into the vehicle and that the defendant was not aware of the drugs prior to transporting them].)

Our cases, too, have taken a contextual approach to the application of the Leach rule. We have applied Leach to bar admission of those portions of a third party’s confession that are self-serving or otherwise appear to shift responsibility to others. (Duarte, supra, 24 Cal.4th at p. 612 [excluding portions of confession that, “far from ‘specifically disserving’ [the de-clarant’s] penal interests, positively served those interests”]; cf. In re Sakarias (2005) 35 Cal.4th 140, 155 [25 Cal.Rptr.3d 265, 106 P.3d 931] [under the Leach rule, portions of declarant’s confession that tended to inculpate an accomplice “could well have been held inadmissible as attempts to deflect culpability away from the declarant”].) But we have permitted the admission of those portions of a confession that, though not independently disserving of the declarant’s penal interests, also are not merely “self-serving,” but “inextricably tied to and part of a specific statement against penal interest.” (People v. Samuels (2005) 36 Cal.4th 96, 120-121 [30 Cal.Rptr.3d 105, 113 P.3d 1125] (Samuels) [upholding the trial court’s admission of declarant’s assertion that the defendant had paid him to kill the victim, and rejecting the argument that the reference to the defendant “should have been purged,” where the statement in question was “in no way exculpatory, self-serving, or collateral”].) In Samuels, we applied the Leach rule to admit evidence that inculpated the defendant. By the same token, the Leach rule permits courts to consider whether the portion of a confession that tends to exculpate another, rather than to shift blame or curry favor, should be admitted in view of surrounding circumstances, even though the exculpatory portion of the statement is not independently disserving of the declarant’s interests.

In advocating a contrary rule, the Attorney General relies heavily on People v. Lawley, supra, 27 Cal.4th 102, in which we applied the Leach rule in upholding a trial court’s exclusion of those portions of an out-of-court confession that were neither self-exculpatory nor inculpatory of the defendant. That reliance is misplaced. The defendant in Lawley was charged with murder, conspiracy to commit murder, and solicitation to commit murder. At his trial, he sought to present evidence that an alleged coconspirator had confessed to killing the victim pursuant to a contract issued by the Aryan Brotherhood prison gang. The trial court admitted the portion of the statement confessing to accepting payment for killing the victim, but excluded the portion identifying the Aryan Brotherhood as having issued the contract, as well as the declarant’s statement that “an innocent man was in jail,” charged with the crime. (Id. at p. 152.) In upholding the trial court’s ruling, we noted that the excluded statements did not make the declarant “more culpable than did the other portions of his statement” (id. at p. 154) or “further incriminate” the defendant (id. at p. 155, fn. 21). But as our later decision in Samuels makes clear, Lawley did not announce a rigid or hypertechnical application of the Leach rule that would in all cases require exclusion of even those portions of a confession that are inextricably intertwined with the declarant’s admission of criminal liability. (See Samuels, supra, 36 Cal.4th at pp. 120-121 [distinguishing Lawley].) Lawley itself affirmed that “[wjhether a statement is self-inculpatory or not can only be determined by viewing the statement in context.” {Lawley, at p. 153.) Further, as we also explained, the proffered evidence in that case lacked “sufficient reliability to demand its admission.” (Id. at p. 155; see id. at pp. 174-175 (cone. opn. of Brown, J.); cf. Samuels, at p. 121 [“[T]he differences between the trustworthiness of the statements involved in this case and those excluded in [Lawley] are palpable.”].)

In short, the nature and purpose of the against-interest exception does not require courts to sever and excise any and all portions of an otherwise inculpatory statement that do not “further incriminate” the declarant. Ultimately, courts must consider each statement in context in order to answer the ultimate question under Evidence Code section 1230: Whether the statement, even if not independently inculpatory of the declarant, is nevertheless against the declarant’s interest, such that “a reasonable man in [the declarant’s] position would not have made the statement unless he believed it to be true.” As the court recognized in Paguio, such a statement is more likely to satisfy the against-interest exception when the declarant accepts responsibility and denies or diminishes others’ responsibility, as in the example “ T robbed the store alone,’ ” as opposed to attempting to assign greater blame to others, as in the example, “ T did it, but X is guiltier than I am.’ ” (Paguio, supra, 114 F.3d at p. 934.) Of course, not all such statements are admissible; sometimes a declarant who makes an inculpatory statement may have a substantial incentive to exculpate others. A member of a criminal street gang, for example, may choose to take the fall for fellow gang members by making a confession that exculpates them. A trial court in that situation may reasonably conclude that the declarant’s incentive to protect his friends renders the exculpatory portions of the statement inadmissible. (See Duarte, supra, 24 Cal.4th at p. 611 [to be admissible under Evid. Code, § 1230, a declaration must be shown to be “sufficiently reliable to warrant admission despite its hearsay character”].) But such a statement is not, as the Attorney General argues, automatically inadmissible merely because it does not render the declarant more culpable than the other portions of his confession—or because, as the trial court put it in this case, the statement does not “significantly enhance the personal detriment” to a person who has already confessed responsibility for the crime.

The concurring and dissenting opinion faults us for “watering down the standard for admission under the against-interest exception.” (Cone. & dis. opn. of Cantil-Sakauye, C. J., post, at p. 745.) But in rejecting the Attorney General’s argument, we have broken no new ground. A rule that permitted admission of no more of a declarant’s statement than was necessary to expose him to criminal liability, requiring courts to mechanically sever and excise the rest, certainly might be easier to apply. But as the concurring and dissenting opinion itself appears to recognize, this is not the rule we have: Under the law as it has developed in California, as in the federal system, context matters in determining whether a statement or portion thereof is admissible under the against-interest exception. This contextual approach accords with the rationales underlying the modern expansion of the rule governing the admission of statements against interest. (See Paguio, supra, 114 F.3d at p. 934; see also fn. 3, ante.)

Applying that approach in this case, we conclude that defendant’s proffered statements to Lawson and Misty were declarations against interest. Considered in context, the disputed portions of those two statements form part of Morris’s admission of responsibility for killing Bone and thus, for purposes of Evidence Code section 1230, are not practically separable from the remainder of the statements. In each instance, the disputed portion of the statement elaborated on Morris’s responsibility for the murder; rather than attempting to minimize his responsibility or shift blame to others, Morris instead assumed sole responsibility. A reasonable person in Morris’s position, moreover, would have understood that Morris’s explanatory comment in his statement to Misty—when he confessed to undiluted responsibility for carrying out the brutal murder of Bone and elaborated on that confession by acknowledging that his confederates looked on in surprise as it occurred— was against his penal interest. Of course, his elaboration did not specify the reason for his confederates’ surprise, whether the fact of the killing, the brutal manner in which it was carried out, or both. But under any conceivable interpretation of the statement, it tended to underscore Morris’s responsibility for the crime, rather than diminish it.

Certainly under California law, while Morris’s role as an actual killer in a felony murder made him eligible for the death penalty regardless of the role played by his confederates, his admission of sole responsibility for the brutal murder of Bone would have qualified as an aggravating circumstance tending to justify imposition of the death penalty. (See § 190.3, factor (a); People v. Carpenter (1997) 15 Cal.4th 312, 414-415 [63 Cal.Rptr.2d 1, 935 P.2d 708] [that defendant acted alone could be considered by jury as a circumstance of the crime in determining penalty], disapproved on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190 [185 Cal.Rptr.3d 431, 345 P.3d 62]; People v. Howard (1992) 1 Cal.4th 1132, 1195 [5 Cal.Rptr.2d 268, 824 P.2d 1315] [defendant’s role as the actual killer and motivating force behind the crime was a factor aggravating his culpability].) And while Morris may not have been familiar with the intricacies of Californias death penalty law, it is reasonable to infer that he understood the commonsense notion that killers who act on their own are likely to be punished more severely than those who were encouraged or assisted by a confederate, or who played some lesser role in the act.

Finally, neither the circumstances in which the statements were made nor Morris’s relationship to defendant provide reason to believe that Morris made the statements to protect defendant. (See People v. Frierson, supra, 53 Cal.3d at p. 745.) There was no evidence that defendant and Morris were close friends, which might have given Morris a motive to protect defendant by minimizing his participation in the murder. Defendant and Morris do not appear to have known each other well; indeed, defendant told the police that he did not even know Morris’s last name. And while some offenders may attempt to enhance their reputations by bragging about crimes they did not commit or exaggerating the extent of their responsibility for a criminal act (see, e.g., People v. Nunez and Satele (2013) 57 Cal.4th 1, 13 [158 Cal.Rptr.3d 585, 302 P.3d 981] [expert testimony that gang members may “brag about crimes they did not commit to gain a reputation”]; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292 [128 Cal.Rptr.3d 417, 256 P.3d 543] [same]), Morris had no apparent incentive to attempt to enhance his reputation in such a manner in his conversation with Misty. Moreover, Morris committed suicide not long after making his statement to Lawson, and it is unlikely that a person contemplating suicide following his arrest for murder would have any interest in enhancing his reputation in jail.

In short, we can think of no plausible reason (and none has been offered by the trial court, by the Attorney General, or in the concurring and dissenting opinion) why Morris’s assertion to Lawson that defendant and Wilson took no part in the killing of Bone, and his assertion to Misty that both of them were shocked when Morris killed her, would be any less trustworthy than the remainder of Morris’s confession. This is hardly surprising: In the absence of any special relationship with defendant and Wilson, why should he lie not only about having committed a brutal murder, but also about their lack of involvement and their surprise at his conduct?

We therefore conclude that Morris’s statements to Misty and Lawson that he acted alone and that defendant and Wilson appeared startled when he killed Bone were so disserving to his interests that a reasonable person in his position would not have made them unless they were true. The statements were thus admissible under Evidence Code section 1230.

2. Prejudice

Before turning to the question of whether the trial court’s error was prejudicial, we briefly pause to consider the appropriate standard of review. In this case, the Attorney General did not argue, in the answer brief she filed when this matter was first before this court, that any error in the trial court’s exclusion of Morris’s hearsay statements was harmless. This court invited the parties to submit supplemental briefs addressing the significance, if any, of that omission, and whether exclusion of the statements prejudiced defendant at the guilt and penalty phases of trial. In his supplemental brief, defendant acknowledged that when trial court error violates state law, no forfeiture occurs. He argued, however, that the error violated the federal Constitution, the Attorney General’s failure to brief the question of prejudice acts as a forfeiture, and that a reviewing court can find the error in question harmless only in three limited circumstances: “(1) the record is short and straightforward and the court can easily determine prejudice on its own, (2) the harmless error question is in no doubt, and (3) a remand would be futile.” The Attorney General, in turn, argued that any forfeiture does not affect this court’s independent duty to determine whether any error was harmless.

We ultimately conclude that it is unnecessary to resolve this debate over the significance, if any, of the Attorney General’s failure to brief the question of prejudice, because the answer to that question does not alter the outcome of the case. Under either California’s traditional harmless error test or under the more rigorous standard advocated by defendant, the trial court’s erroneous exclusion of Morris’s statements to Misty and Lawson was harmless at the guilt phase of trial. And again, regardless of which test we apply, the error requires reversal of the judgment of death.

With respect to the effect of the error at the guilt phase, defendant acknowledges that the trial court’s erroneous exclusion of the proffered evidence had no effect on his conviction for first degree murder; under the felony-murder rule, he was guilty of this crime regardless of whether he had anything to do with the killing. He contends, however, that the error may well have affected the jury’s finding with respect to the felony-murder special circumstances.

To find the special circumstances true, the jury had to find either that defendant acted with the intent to kill or that he assisted in the criminal enterprise as a ‘“major participant” and acted with “reckless indifference to human life.” (§ 190.2, subds. (c), (d).) The excluded evidence that defendant expressed surprise after Morris killed Bone might well have affected the jury’s determination with respect to whether defendant had the intent to kill. But the prosecution relied primarily not on that theory but on the evidence that defendant was a major participant who acted with reckless indifference to human life. That evidence was overwhelming.

In defendant’s statement to the police, he admitted that he participated in the planning of the burglary/robbery that resulted in Bone’s death and that he handed Morris a gun. He also admitted that he entered Bone’s house along with Morris and Patrick Wilson, that he participated in the ransacking of the house, and that he drove away from the house in Bone’s truck. These uncontroverted admissions overwhelmingly demonstrate that defendant was a major participant in the offense.

The evidence that defendant acted with reckless indifference to life is equally overwhelming. He knew Morris was armed: He told the police that before they entered Bone’s home, Morris was looking for his gun and defendant gave it to him. Defendant also admitted that before they entered, Morris had observed a woman taking out her trash and said, “ ‘Fuck it, we’ll just fuckin’ kill her an’ look at the house, we got all day long.’ ” Thus, even if, as defendant claimed, he responded to Morris’s comment by telling Morris that he was “not into killin’ people,” he nonetheless handed Morris a gun and thereafter entered Bone’s house with Morris while fully aware of Morris’s desire to kill, thereby clearly demonstrating reckless indifference to the possibility that a killing would indeed occur.

Based on this undisputed evidence, no reasonable jury could have found that defendant was not a major participant in the crime or that he did not act with reckless indifference to life. Thus, the trial court’s exclusion of the evidence that defendant did not participate in the killing and was surprised that it occurred was harmless with respect to jury’s finding as to the truth of the special circumstance, regardless of whether we apply the standard test for errors violating California law (see People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]), the test for errors violating the federal Constitution (see Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]), or (because this court may easily determine prejudice on its own) the test urged by defendant for cases in which the Attorney General did not brief the question of prejudice.

The error, however, was not harmless at the penalty phase. Under California law, the effect of a trial court’s erroneous ruling on the admissibility of evidence is ordinarily measured by the standard first described in People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135]: “[W]e will affirm the judgment unless we conclude there is a reasonable (i.e., realistic) possibility that the jury would have rendered a different verdict had the error or errors not occurred.” This reasonable possibility test “ ‘is the same, in substance and effect’ ” as the test for errors that violate the federal Constitution, which requires reversal unless the reviewing court can say beyond a reasonable doubt that the error was harmless. (People v. Pearson (2013) 56 Cal.4th 393, 472 [154 Cal.Rptr.3d 541, 297 P.3d 793].)

The prosecutor’s case in aggravation relied primarily on the circumstances of the offense. In her closing argument, the prosecutor told the jury: “The important thing to remember in your deliberations is to focus on the defendant and his conduct on [the day of the murder]. Not the defendant as a child, not the defendant at some other time in his life, but the defendant and his behavior on [the day of the murder] .... This is the thing to focus on.” Although the prosecutor never argued that defendant personally killed Bone, at the guilt phase the prosecution had presented the testimony of Jonathan Howe, who told the jury that defendant had ordered Morris to kill Bone and that he had enjoyed the victim’s death. Howe’s credibility was not a significant issue at the guilt phase; the central issue was, as noted, whether defendant was recklessly indifferent to the possibility that the robbery would result in a murder. But the issue took on particular significance at the penalty phase, when the jury was asked to fix a penalty for defendant’s crime based on the precise nature of defendant’s involvement in the death of Betty Bone—whether, as defendant argued, he was merely a follower of Morris’s, or, as the prosecution argued, defendant was directly responsible for the planning of the murder. Howe’s testimony that defendant had played a leadership role in the murder provided strong support for the prosecution’s view that defendant should be held directly responsible for Bone’s death. In response to defense counsel’s argument that Howe was “not believable,” the prosecutor argued that Howe’s testimony was, in fact, worthy of belief: “[T]he defense has never been able to give you a reason that Mr. Howe would lie. They’ve never been able to give you any reason that he would simply make this up about the defendant. . . . They’ve never given you a reason to doubt his testimony.” The prosecutor also emphasized the violent nature of the killing, arguing that defendant “stood by” while Bone was brutally strangled and stabbed to death.

The excluded statements would have given the defense a substantial basis for countering the prosecutor’s argument. Misty would have testified that Morris told her that defendant did not take part in the killing and, after it happened, looked at Morris as if “saying, what in the hell are you doing, dude?” Lawson would have testified that while he was incarcerated in the county jail, shortly before Morris committed suicide, Morris told Lawson that defendant and Wilson were “in the house but took no part in the actual killing.” Based on these statements, the jury might well have concluded that, contrary to Howe’s testimony that defendant had ordered the killing, the murder was, as the defense claimed, entirely Morris’s idea and that defendant was shocked when it happened. Although defendant later told police that he had observed Morris strangling Bone and then saw or heard him stabbing Bone, neither statement is inconsistent with this conclusion; the jury might have inferred that defendant was surprised by Morris’s actions while they occurred and remained surprised thereafter. And even had the jury interpreted Morris’s description of defendant’s surprise as a reaction not to the fact of killing, but, for example, the brutality with which it was carried out, the testimony still would have countered Howe’s testimony that defendant had enjoyed the victim’s death, as well as the prosecutor’s argument that defendant deserved the death penalty because he “stood by” watching as Morris brutally strangled and stabbed the victim.

We cannot say with certainty whether the proffered evidence would ultimately have caused the jury to render a different verdict. But given the centrality of the issue of defendant’s role in the murder—a murder that, as all acknowledge, defendant did not personally commit—we also cannot say that the jury’s verdict was “ ‘surely unattributable’ ” to the trial court’s error in preventing the jury from hearing evidence that tended to show that defendant not only did not participate in, but was surprised by, the brutal killing of Betty Bone. (People v. Neal, supra, 31 Cal.4th at p. 86, quoting Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) In sum, had the jury heard the excluded evidence, we find a “reasonable (i.e., realistic) possibility” that it would have rendered a different verdict. (People v. Brown, supra, 46 Cal.3d at p. 448.) We must therefore set aside the judgment of death.

B. Instructions on circumstantial evidence

The trial court delivered the standard instruction regarding circumstantial evidence (CALJIC No. 8.83), which told the jury that (1) each fact that is essential to complete a set of circumstances necessary to establish the truth of a special circumstance must be proved beyond a reasonable doubt, and (2) if there are two reasonable interpretations of the circumstantial evidence, the jury must accept the one that favors defendant. Defendant argues that instructing the jury regarding these principles only in connection with circumstantial evidence could cause the jury to believe that the principles did not apply when direct evidence is used. (See People v. Vann (1974) 12 Cal.3d 220, 226-227 [115 Cal.Rptr. 352, 524 P.2d 824] [instruction on circumstantial evidence, in the absence of a general instruction requiring proof of guilt beyond a reasonable doubt, might have been interpreted by jurors as requiring a lesser degree of proof if the evidence is direct].) He contends the instruction undermined the requirement of proof beyond a reasonable doubt as applied to direct evidence, and that this instructional error requires reversal of the special circumstance finding because it could have affected the jury’s consideration of Howe’s testimony, which was direct evidence that defendant intended to kill.

The Attorney General contends defendant forfeited this claim by failing to ask the trial court to modify the standard instruction. We agree. “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024 [264 Cal.Rptr. 386, 782 P.2d 627], disapproved on other grounds in People v. Diaz, supra, 60 Cal.4th 1176, 1190; see People v. Livingston (2012) 53 Cal.4th 1145, 1165 [140 Cal.Rptr.3d 139, 274 P.3d 1132] [defendant forfeited claim that instruction discussing proof by direct evidence should have included additional principles related to the burden of proof beyond a reasonable doubt that were contained in the instruction on circumstantial evidence]; People v. Bolin (1998) 18 Cal.4th 297, 328 [75 Cal.Rptr.2d 412, 956 P.2d 374] [defendant forfeited claim that instruction directing jury to find special circumstance not true if it had a reasonable doubt as to its truth was incomplete because it did not define reasonable doubt or direct the jury to find the special circumstance ‘“beyond a reasonable doubt”].) The instructions regarding circumstantial evidence were not incorrect or inapplicable and defendant did not request any modification of the instructions to address the concerns he now presents.

Were we to address the merits, we would reject the claim. An instruction “[differentiating between direct and circumstantial evidence does not undermine the reasonable doubt standard or presumption of innocence.” (People v. Livingston, supra, 53 Cal.4th at p. 1166.) We addressed and rejected claims nearly identical to defendant’s in Livingston and in People v. Solomon (2010) 49 Cal.4th 792, 825-827 [112 Cal.Rptr.3d 244, 234 P.3d 501]. In Solomon, the defendant argued that because the instruction on circumstantial evidence did not refer to direct evidence, “jurors would have believed that a fact essential to guilt that was based on direct, rather than circumstantial, evidence need not be proved beyond a reasonable doubt.” (Id. at p. 826.) We noted that the trial court had instructed the jury “that both direct and circumstantial evidence were acceptable means of proof,” that the defendant was to be presumed innocent, and that “ ‘in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.’ ” (Ibid., quoting CALJIC No. 2.90.) “These instructions, coupled with the directive to ‘consider the instructions as a whole and each in light of the others,’ fully apprised the jury that the reasonable doubt standard applied to both forms of proof.” (Solomon, at p. 826.)

As in Solomon, here the trial court instructed the jury on the presumption of innocence and the requirement of proof beyond a reasonable doubt, and it told the jury to consider the instructions as a whole. We see no reasonable likelihood that because the jury was given some additional, more detailed, direction about how to apply the reasonable doubt standard to circumstantial evidence, but was not given such direction regarding direct evidence, the jury would have concluded that the reasonable doubt standard did not fully apply to proof by direct evidence.

Furthermore, the jury received additional relevant instructions applicable to the direct evidence with which defendant is here concerned—Howe’s testimony that defendant told him he ordered the killing, which was evidence of defendant’s intent. The jury was instructed that “if the evidence as to any specific intent or mental state is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to the absence of the specific intent or mental state, you must adopt that interpretation which points to the absence of the specific intent or mental state.”

C. Failure to instruct that the jury must unanimously agree on any overt acts required for conspiracy to commit robbery

Defendant was convicted of conspiracy to commit robbery. Conspiracy to commit a crime requires proof of an overt act committed in pursuance of the conspiracy. (§ 184.) The information alleged five different overt acts in furtherance of the conspiracy. Defendant contends the trial court erred in failing to instruct the jury that it could not convict him of conspiracy unless the jurors unanimously agreed regarding the required overt act. Defendant concedes that this court has previously rejected the argument that jury unanimity regarding the overt act is required under state law. (People v. Russo (2001) 25 Cal.4th 1124, 1135 [108 Cal.Rptr.2d 436, 25 P.3d 641] (Russo).) He contends, however, that Russo did not consider whether the federal Constitution requires the agreement of at least a majority of jurors on an overt act. Defendant cites cases holding that the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution require a jury trial and proof beyond a reasonable doubt on all eleme