Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC766772
ELIA, J.Defendant Darryl Shearer was convicted by a jury of first degree murder, which the trial court reduced to second degree murder. During trial the court excluded evidence that another person was responsible for the victim's death. (Evid. Code, § 1230.) On appeal, defendant contends that this ruling constituted prejudicial evidentiary error. We agree and therefore must reverse the judgment.
Background
In the evening of April 28, 1994, the victim, Lavona McLaughlin, was stabbed to death behind the Marqueta del Valle, a store in San Jose. When Police Officer Cliff Jepson found her that night, she had 27 knife wounds on her face, neck, head, arms, and back, and defensive wounds on her hands, along with abrasions on her forehead. Two neck wounds had caused massive bleeding and death. Some of her injuries suggested that McLaughlin had struggled with her attacker. Although she was found lying on her back, investigators found it "very clear" that most of the violence had been done while she was face down. There was blood on her left pants pocket, which was partially pulled out, and blood inside the right pocket as well.
At the autopsy a $20 bill was removed from the victim's right boot and a "crack pipe" from her left boot. A "transfer bloodstain" on the right boot indicated that the assailant had grabbed the boot with a bloodstained hand to move the body. A key found in her purse nearby belonged to the 3-A Motel a mile away, for a room occupied by Thomas Villarreal. Also found in the purse was a note to Villarreal advising him that there was a warrant out from Los Angeles for his arrest.
In addition to the copious amounts of the victim's blood at the scene, there were recent bloodstains from a source other than McLaughlin. Some of that foreign blood was on the asphalt; another bloodstain was found on a mattress near McLaughlin's body. Also found at the scene were two used condoms, one on the mattress and one lying in the street. The second was dirtier and contained more visible fluid.
The condoms and bloodstains were preserved and tested in future years. Between 1994 and 2001 the technology for analyzing DNA improved, so that instead of one chromosomal marker permitting only inclusion or exclusion, 15 markers could be used to identify sources with sufficient certainty. During this period the Combined DNA Index System, CODIS, became operational. In January 2001 analysts determined that Thomas Villarreal was the source of DNA from semen found on the outside of the condom from the mattress. The interior of that condom contained a mixture of non-sperm DNA from an unidentified male and a second person who was possibly McLaughlin. Inside the second condom, however, was sperm that had come from a different source. That source was neither Thomas Villarreal nor defendant, nor was it Regoberto Marquez (a homeless man in the area) or Thomas's brother, Robert.
At least 10 markers were required to enter a partial profile into the CODIS system; when a 13-marker agreement existed, an identification could be made.
The criminalist acknowledged that when the person pulled the condom off, he could have turned it inside out, thus switching the inside and outside. She noted, however, that most condoms have a spermicide inside, and DNA of the unidentified male from the interior of this condom was present in the "nonsperm fraction."
Marquez had found the victim's body and had called the police. He was excluded as a source of any of the evidence collected at the crime scene.
Further analyses were performed in April 2001, in 2003, in 2006, and in 2007. According to the April 2001 and October 2003 analyses, the same unidentified male was the source of DNA from the foreign bloodstains on the asphalt, the mattress, the left pocket of McLaughlin's pants, and a jacket found in the shopping cart of Regoberto Marquez. In September 2006, however, another analysis of bloodstains from McLaughlin's pants pocket led investigators to defendant's name, as samples had been taken from defendant that year in the course of an unrelated arrest. The reference samples from defendant were tested against the blood drops from the mattress and the asphalt, the blood on the jacket taken from Marquez, the blood on the left pants pocket, and the previously unidentified non-sperm DNA inside the condom from the mattress. Defendant was identified as the source of all of these evidence samples. His DNA was not found on the exterior of the condom, while Villarreal was excluded as a source of the DNA on the interior. In February 2007 testing of a preserved vaginal swab indicated that Thomas Villarreal was the source of the DNA from the "sperm cell fractions."
The criminalist found the condom evidence consistent with the theory that Villarreal had unprotected sex with the victim, and defendant's having sex with her afterward.
On November 9, 2006, based on an "investigative lead," homicide detectives interviewed defendant. The detectives learned that in the early 1990s defendant lived about a mile from the murder scene, and the bus he took to work passed close to the market where the murder occurred. Defendant also admitted that he solicited prostitutes in that area on Thursdays, the day he got paid -- which also was the day of the week that McLaughlin was killed. He had a preference for African-American women (the victim's race), and he always wore a condom when he had sex with prostitutes. When shown a photograph of the victim, however, he said that she was ugly and that he would "never mess with nothing like that." In June of 2007 investigators obtained another DNA sample from defendant.
A manager for the HP Pavilion, where defendant worked as a janitor in 1994, explained the payroll records as indicating that defendant did not work on April 28 of that year.
Thomas Villarreal was interviewed by the police three times in 1994 and again on January 31, 2001, after they learned that his DNA had been found on a condom from the crime scene. On that occasion Villarreal admitted that he had been staying in the motel room, but he denied that he knew the victim or had had sex with her; in fact, he had never seen her before. He did not know how the note could have been in her possession; he thought he had thrown it away. He explained the presence of the room key on the victim by saying he had merely thrown the key on the table and left the room. In the August 1994 interview, he said he had been introduced to a black prostitute by a resident of the motel, but he did not accept the "offer" and had no "relationship" with her.
After Lieutenant Millard became involved in the case in 2004, he interviewed Villarreal again. Villarreal admitted that he had carried a knife in 1994, but he said the police took it away. Again Villarreal said he had never seen McLaughlin before. When asked if he had ever had sex with her, he said he did not think so, but he would know if he had. He had no idea how his semen could have been in the condom. Villarreal never admitted to killing McLaughlin, even when the police exaggerated the incriminating nature of the evidence.
The police misstated the facts when they told him that his semen had been found inside the condom.
Villarreal also told police that he had left San Jose around 6 or 7 p.m. on the day of the murder and went to Los Angeles. He was vague, though, about the date of his departure. The police were never able to confirm where Villarreal was on the day of the murder.
On December 1, 2008, a defense investigator interviewed Villarreal. According to the parties' stipulation at trial, Villarreal told the investigator that he "might have had sex with an African-American prostitute while staying at the 3-A Motel, but he did not recall her name or what she looked like." He also did not recall whether he had used a condom when having sex at the motel.
Another stipulation informed the jury that Frank Espinoza told a police detective that the victim was a passenger in his taxicab around 9:15 on the night of the murder. He took her to an apartment complex he had taken her to several times before. He waited until she returned five or six minutes later, then took her home. Espinoza saw the victim again around 10 p.m. in a 7-Eleven parking lot. She appeared to be "pissed off." He took her back to the apartment complex, waited for her return 10 minutes later, and drove her to a corner next to a Mexican restaurant. She was still "pissed off" when he left her there. He did not see her again after that.
Thomas Villarreal's brother, Robert, lived with him for about a month in April 1994. At trial he testified that during that period Thomas consumed a lot of alcohol and drugs. Thomas "practically like" bragged about having sex with a black prostitute and using heroin with her. Thomas told Robert that he used a condom when having sex with the black prostitute. On cross-examination, Robert admitted that he too had been consuming drugs and alcohol, which might have affected his memory for events in 1994.
Linda Soto was a prostitute who had known McLaughlin for about six months in 1994. She and McLaughlin had both used crack cocaine. Soto lived at the 3-A Motel with Joyce Maynard. She saw McLaughlin on the day of the murder, while McLaughlin was working the streets. McLaughlin was "acting kind of strange," but she would not say what was bothering her. During an interview with an investigator, however, Soto said that McLaughlin had told her that she had done something "and was scared." Around 11 or 12 that night, McLaughlin, calmer and "more normal" by this time, went to Soto's room, and the two smoked crack cocaine together. McLaughlin left to "make some money" as a prostitute, and Soto never saw her again. At trial, Soto did not recognize a photograph of Thomas Villarreal.
Cecilia Perez was at a bar called Stella's at 6:30 p.m. on the day of the murder. She saw a black woman enter the bar and speak with a Mexican male customer for about 45 minutes. The customer appeared to be angry at the woman. Several times he said, "If you don't pay me, I'm going to kill you." She said she would. Perez confirmed that the woman from the bar was depicted in Exhibit 62, a photograph of McLaughlin. At one point the Mexican male, who had a knife on his right sleeve, followed the woman outside, where another man was waiting for him in a car. Before getting in the car, he asked the second man which way the woman had walked. Perez described the Mexican male: he was about five feet, four inches, and he had long hair, a dark complexion, and a tattoo on the back of his ear. When shown photographs of Thomas and Robert Villarreal, the witness said she had never seen either of them before. The victim was wearing different clothing at the bar from what she was wearing when she was stabbed to death.
Defendant was charged by information with first degree murder, in violation of Penal Code section 187, with the personal use of a deadly and dangerous weapon, a knife. (Pen. Code, § 12022, subd. (b)(1).) Upon the completion of the prosecutor's case in chief, defendant moved for a judgment of acquittal. The court granted the motion only as to the theory of first degree murder based on premeditation and deliberation, but it permitted the prosecution for first degree murder on a felony murder theory. The jury found him guilty of first degree murder and found the knife allegation to be true.
All further statutory references are to the Penal Code except as otherwise specified.
Defendant moved for a new trial, asserting (1) error in the restriction of his presentation of third-party culpability evidence and (2) insufficiency of the evidence of robbery as a basis for felony murder. The trial court agreed with him that the verdict was based on "too much... speculation" to support a felony murder theory. It accordingly granted the defense motion in part, reducing the verdict from first-degree to second-degree murder. The court sentenced defendant to 15 years to life, with a one-year enhancement for the use of the knife, to be served consecutively.
The prosecutor argued that the presence of defendant's blood inside her left pants pocket, which was pulled up, suggested that defendant had reached inside it to take money from her, thus constituting either a robbery or an attempted robbery.
Discussion
In addition to the evidence implicating Thomas Villarreal, defendant wanted to present to the jury the theory that a drug dealer named Lario was responsible for McLaughlin's death. Defendant sought to present five witnesses -- Linda Soto, Cecilia Perez, and three others -- who could offer evidence that McLaughlin was killed in retaliation for stealing drugs and money from Lario. James McCowan, defendant argued, had told a defense investigator that "in February or March of 1994, he and Alaina "Rabbit" Rent[i]e had been involved in a drug rip[-]off. He told investigators that he believed that Rabbit was the intended target in retaliation for the drug ripoff, but that Lovanna [sic] was mistakenly killed.[] Rabbit was interviewed in April 1995. During that interview she confirmed the drug ripoff performed by she [sic] and James McCowen, but contended that [Lavona] had performed her own independent drug ripoff.... She told the defense investigator that Lario [had] implied he was going to kill [Lavona] in retaliation for the rip[-]off and admitted employing people to kill [Lavona]." Rentie was described as a reliable informant for the San Jose Police Department.
There were apparently various spellings of this witness's name. We will adopt one and use it consistently.
According to the investigator's report, McCowan-- who used the alternative spelling "McCowen"-- told him that he had helped Rabbit steal drugs from a "Paisa" drug dealer. Subsequently, when he went to buy drugs from "the Paisa," the latter said, "You can tell that bitch Rabbit that I'm going to kill her." McCowan believed that McLaughlin was killed by men whom the Paisa had hired.
According to the investigator's report, "Rabbit" told him that McLaughlin had stolen drugs and cash and had used Rabbit's name. Rabbit eventually cleared up the misunderstanding with the drug dealer, and she "beat [Lavona's] ass bad" for assuming her identity. Lario told Rabbit that it shouldn't have been handled that way; Rabbit "knew at that moment that Lavona was now the target of Lario." In a subsequent interview, "Rabbit" gave the investigator the name "Lario" and described his drug "enterprise" as "quite extensive." She also said that Lario had told her that he had instructed his men, several Mexicans, to " 'stab her in the neck so she couldn't talk' and then stab her many more times until she was dead."
Defendant also asserted that Roswitha ("Rose") Koerner would corroborate the existence of "Carlos aka Lario" and the location of a drug house. McCowan, Soto, and Perez were each expected to describe the victim as fearful just before she was killed. In her interview with the defense investigator, Koerner described McLaughlin as "strung out" and frightened. She had told Koerner that she would not live very long, which Koerner interpreted as her fear resulting from having robbed or stolen from Mexicans off the street. Koerner said that Lario was another name for Carlos, a "big dope dealer" in San Jose.
The prosecutor moved in limine to exclude evidence that a third party other than Thomas Villarreal might have been responsible for McLaughlin's murder. The prosecutor specifically sought to preclude testimony from all five witnesses. The statements of McCowan, Rentie, and Koerner, argued the prosecutor, all were based on "hearsay innuendo, speculation, and gossip." Soto's statement not only was based on hearsay, innuendo, and speculation, but was irrelevant as well. Perez's statement was based on hearsay and speculation; it, too, was irrelevant.
Defense counsel acknowledged that Koerner's story consisted of mostly hearsay, but he maintained that the witness nonetheless confirmed that Lario existed; she even thought Lario might have fathered her daughter. Perez, McCowan and Soto "all talk about small points regarding Lavona that corroborate part of what 'Rabbit' is saying."
Attached to defendant's opposition to the in limine motion was a police report describing detectives' interview with Rentie in April 1995. In the conversation, which was recorded without her knowledge, Rentie expressed concern that "the people that killed vic[tim] McLaughlin can easily come back and kill her and go back to Mexico so she does not want to provide information regarding the killers." Rentie described how, about a month before she was killed, McLaughlin had "ripped off" the occupants of a drug house on Reed Street using Rentie's name to gain entrance. On another occasion, Rentie and McCowan had stolen from a man in the same house, following an argument Rentie had been having with the man.
The trial court, however, found that there was "not enough independent evidence to link Mr. Lario to this crime scene." Defense counsel emphasized that the link was Lario's admission that he had hired others to kill McLaughlin. Unlike the cases cited by the People, he argued, here there was not only "clear motive" and "clear opportunity," but a "clear link: the admission." Counsel "strongly" disagreed with the court that there needed to be blood evidence, a knife, or an eyewitness to make the evidence admissible.
During the trial, Alaina Rentie (who by this time used the last name "Priest") testified outside the presence of the jury regarding her experience with Lario. She stated that while serving time in prison, two Mexican females told her that there was a contract out on her life for stealing drugs and money from one of Lario's houses. When she was released, she called Lario and explained that she had been in prison when the robbery occurred. Rentie further testified that she had told Lario about beating up McLaughlin for using the name "Rabbit" ("Coneja")to gain access to the drug house, and that Lario had said, "No, mija. It can't be handled that way."
On cross-examination, Rentie stated that she never actually beat up McLaughlin; she only told Lario that.
After the homicide, two detectives came to her and asked her for help. She told them that McLaughlin might have stolen money and drugs from Lario; then Rentie went into hiding, as she believed she was still in danger from Lario and she had been followed to a friend's trailer by four men, who then rocked the trailer as she hid there. Later, she explained, she was arrested for drug possession and the same officers interviewed her again. At that time she took them to the house where the theft had occurred as well as the place where Lario lived and another location where Lario had "workers."
When asked whether Lario made statements about how McLaughlin had died, Rentie expressed reluctance. She explained, "I am still in fear of my life. The only reason why I'm here is because I don't even know that man, but I know that man didn't do it. And because I'm a Christian now, I came forward. But my life can still be tooken [sic] from me for even being here." She did state, however, that Lario had told her that he had had men kill her by cutting her throat and stabbing her. "And they took off all her clothes, put it in a bag, put it in a trunk, and they left, back to Mexico."
On cross-examination, the prosecutor suggested that Lario had claimed responsibility for McLaughlin's death just so that people would fear him. Rentie was skeptical, however; she said that not many people even knew him, as he had "three to four people in the houses dealing drugs for him. You don't meet Lario."
Defense counsel urged the court to allow him to present this testimony to the jury because Rentie had personal knowledge of Lario's declarations against his own penal interest, thus demonstrating reliability. The prosecutor disputed this characterization: he argued that Lario's statement actually served his interest, to encourage people to fear him, just as Rentie had said she beat up McLaughlin to serve her interest in escaping from the "contract that was on her head." The prosecutor further argued that there were no circumstances corroborating this exculpatory evidence.
The court determined that Rentie's testimony lacked trustworthiness and reliability because Lario would not have been concerned about making incriminating statements; his position in the community would only have been "strengthened by people being afraid of him." Thus, "a reasonable drug dealer in [Lario's] position would have made the statement even if he didn't believe it was true."
Defense counsel renewed his argument the next day in an effort to seek reconsideration of the court's finding of untrustworthiness. Rentie herself, he pointed out, was a reliable witness, based on her past personal relationship with the declarant and her past experience as an informant for law enforcement. Defense counsel maintained that the jury should hear everything about potential suspects and determine for itself the issues of trustworthiness and reliability. The court corrected him on this last point, however, noting that this was a "foundational fact" for the court to assess in an individual case. "In this case," the court found, "the stock and trade of somebody who's in drug dealership, as described by Ms. Rentie, their stock and trade is intimidation and fear. And in my view, that makes this... statement suspect in terms of its reliability. If an average person had made this statement, I would have... given it great credence. But under the circumstances of this case, I do not."
After the jury reached its verdict, defendant moved for a new trial, asserting insufficiency of the evidence and error in excluding his "critical" third-party-culpability evidence. Defendant argued that had the court permitted Rentie's testimony to be considered in conjunction with that of Perez and Soto, it would have provided "direct evidence that a third party was culpable, as opposed to inferences [the jurors] were asked to make based on the limited testimony of [Soto and Perez]." The court again rejected this argument, as it was still not convinced that Lario's statement was reliable.
On appeal, defendant asserts prejudicial error in the exclusion of evidence connecting Lario to McLaughlin's death. Emphasizing the nature of Lario's statement as a declaration against penal interest, he disputes the rationale that Lario claimed responsibility just so that people would fear him. Defendant notes that there was no evidence that Lario told anyone besides Rentie; and if Lario had created fear, he would risk having to close his drug houses and flee. It was "pure speculation," defendant argues, for the court to infer that Lario was likely to have taken credit for a crime he did not commit. Defendant further reasons, "Moreover, it is important to note that before McLaughlin was killed Lario put out a contract on Rentie's life when he thought she was responsible, and after learning that McLaughlin was responsible he told Rentie that simply beating her was not a sufficient response to the theft, clearly implying he intended to cause her harm, with the logical inference that he would simply transfer the contract to McLaughlin. Even without Lario's subsequent admission to directing the murder, it is reasonable to infer from his initial acts and statements that he had something to do with her death. His admission under these circumstances to directing the killing is highly trustworthy; to find to the contrary, one would need to conclude that her death was simply a fortuitous occurrence that saved Lario from having to kill her himself." Finally, invoking the precept that all relevant evidence is admissible, defendant contends that the evidence of Lario's culpability was relevant because he had a motive to harm McLaughlin after she stole from him, along with, presumably, access to people who would do the killing for him. Weighing the probative value of the evidence against the prejudicial effect, defendant notes that the additional testimony would have consumed only a minimal amount of extra trial time and there was little chance of confusing the jury, since his defense was "that the case against him was weak, circumstantial, and disputed, and that someone else killed McLaughlin."
"The focus of the declaration against interest exception... is the basic trustworthiness of the declaration. [Citations.] 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; People v. Geier (2007) 41 Cal.4th 555, 584; see also People v. Duarte (2000) 24 Cal.4th 603, 614.) In other words, the determination of trustworthiness "requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion." (People v. Gordon (1990) 50 Cal.3d 1223, 1251; People v. Frierson, supra, 53 Cal.3d at p. 745.) Accordingly, "[a] reviewing court may overturn the trial court's finding regarding trustworthiness only if there is an abuse of discretion." (People v. Frierson, supra, 53 Cal.3d at p. 745; People v. Cudjo (1993) 6 Cal.4th 585, 607.)
Viewed in its overall context, the evidence of Lario's culpability should have been admitted. It is beyond question that "[t]o be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, [however,] we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability." (People v. Hall (1986) 41 Cal.3d 826, 833; People v. Geier, supra, 41 Cal.4th at p. 581.) In particular, "[e]vidence of another person's motive or opportunity to commit the crime, without more, will not raise a reasonable doubt about a defendant's guilt; direct or circumstantial evidence must link the third person to the actual perpetration of the crime." (People v. Johnson (1998) 200 Cal.App.3d 1553, 1563; see also People v. Lynch (2010) 50 Cal.4th 693, 756; People v. Brady (2010) 50 Cal.4th 547, 558.) In this case, however, there was more than motive and opportunity: Lario admitted that he ordered McLaughlin to be killed. While Rentie's testimony about this fact was hearsay, defendant made a sufficient showing that the declarant, Lario, was unavailable, that his statement was against his penal interest when made, and that the declaration was "sufficiently reliable to warrant admission despite its hearsay character." (People v. Duarte, supra, 24 Cal.4th at p. 611; People v. Frierson, supra, 53 Cal.3d at p. 745.)
Taken together, Perez and Soto, in addition to Rentie, would have provided evidence of not only Lario's motive to retaliate against McLaughlin but an admission that he in fact ordered her murder. These witnesses would have informed the jury that the victim had stolen from Lario, that she had been afraid of someone shortly before she was killed, that a Mexican male who was not a Villarreal had threatened her in the bar, and that Lario had put a contract out on her for having stolen from him, after learning who the culprit of the theft was. Thus, the Evidence Code section 1230 exception for declarations against penal interest was applicable.
In rejecting the proposed testimony, the trial court stated that it had considered the specific circumstances in which Lario's statement was said to have occurred. A significant aspect of this background, in the court's view, was that a drug dealer like Lario would have depended on maintaining his status and power through intimidation and fear. Consequently, he would have made such a statement "even if he didn't believe it was true." Without independent evidence connecting Lario to the murder, the court was not convinced that the statement was trustworthy enough to be admitted.
Taking a broader perspective, we cannot overlook the amount and significance of the evidence the jury was not permitted to hear. As defendant points out, "trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight." (People v. Murphy (1963) 59 Cal.2d 818, 829.) "Whenever there is any doubt of the question, or rather, whenever the evidence proposed by the defense is not plainly inadmissible, it is better to let it go in." (People v. Williams (1861) 18 Cal. 187, 194.) The rationale that Lario took responsibility for the killing merely to inflate his importance and generate fear in others is too weak and speculative to justify excluding the admission, particularly since it was directly exculpatory.
In rejecting the evidence in limine, the court found a "very strong" analogy to People v. Johnson (1988) 200 Cal.App.3d 1553, where the defendant sought to admit evidence that a third person had been detained in the vicinity of one of the four burglaries shortly after the crime was committed. (Id. at p. 1560.) The defendant pointed to the third person's height, the amount of cash he had on his person, the number of $20 bills he carried, his residence in the neighborhood, and the fact that he was walking away from the area of the Weller house. (Id. at p. 1560.) The trial court would have admitted the evidence given these circumstances, but the defendant's fingerprints at the scene and the absence of the third man's fingerprints constituted strong evidence that the man could not have been the burglar. The appellate court upheld the ruling, noting that "even the strongest circumstantial evidence case of third party culpability does not raise a reasonable doubt about a defendant's guilt when fingerprints found at the scene of the crime could not have been those of the third party.... Simply put, Johnson's evidence raised a possibility that the prosecution's evidence made an impossibility." (Id. at p. 1564.)
The significance of the proposed testimony in this case, however, does not rest on the absence of comparable identifying evidence-in this case, DNA rather than fingerprints. The implication of the proffered testimony is that Lario ordered the killing of McLaughlin, and he not only had a motive and opportunity to do so, but later admitted to the witness that he did. Given the high probative value of the evidence and the small likelihood of confusing the jurors, the witnesses' testimony should have been admitted notwithstanding the extra court time necessary for the defense to present it. (See People v. Geier, supra, 41 Cal.4th at p. 584, quoting People v. Cudjo, supra, 6 Cal.4th at p. 609 ["such statements, even if admissible are nonetheless subject to Evidence Code section 352 under which 'the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption' "].)
We further cannot agree with the People that the error in excluding this evidence was harmless. Whether viewed under the federal or the state standard (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836), the error in excluding the evidence implicating Lario in McLaughlin's murder was prejudicial. (Cf. Chambers v. Mississippi (1973) 410 U.S. 284, 302 [where declaration against interest was trustworthy and critical to defense, constitutional rights are implicated and "the hearsay rule may not be applied mechanistically to defeat the ends of justice"].) Although DNA samples placed defendant at the scene at some point, the evidence against him was circumstantial and unspecified in temporal order. The jury deliberated for more than two days, and made several requests of the judge during its deliberations. Thus, it was at least reasonably probable that if the evidence had been admitted, a more favorable outcome would have occurred.
Disposition
The judgment is reversed.
WE CONCUR: RUSHING, P. J., PREMO, J.