PEOPLE v. HOPSON

Respondent’s Answer Brief on the Merits

Cal.May 23, 2016

In the Supreme Court of the State of Califurnia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. RUTHETTA LOIS HOPSON, Defendant and Appellant. CaseNo. $228193 SUPREME COURT FILED Fourth Appellate District, Division One, Case No. D066684 Riverside County Superior The Honorable Jeffrey J. Prevost, Judge » loon MAY 23 2016 . RIF1105594Court, Case No 9 Frank A. McGuire Clerk Deputy RESPONDENT’S ANSWERBRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER , Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Deputy Solicitor General MICHAEL PULOS Deputy Attorney General SETH M. FRIEDMAN Deputy Attorney General State Bar No. 186239 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3199 Fax: (619) 645-2191 Email: Seth.Friedman@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Introduction ..........cccccsseessscecssneessecsccssnevssneesneesesecessesseeuscaneesesseecsnesesnesensenaes ] Statement of the Case and Facts ........ceeeesseserecreceeseesesesseenseeneessasecsesseeane 2 A. Appellant’s roommate, Laverna Brown, goes missing under circumstances suggesting foul PAY oo. eeeeeceeesteeseessessseeerecsecssesscsseeeseeeenseessesssesseeneenes 3 B. Appellant tells a suspicious story to the police........... 6 C. The police find Brown’s nearly beheaded body amidst evidence strongly implicating appellant and Thomas........ seevaseneeseeessessssseeeseeesresseseesesseeeeneneeess 9 D. Thomas Commits SUICIGE .0...see eeeceeeeeeeeseeeeteeneees 11 E. A jury convicts appellantof first degree murder with special CIrcUMStANCES 00... cece sees estes eeeeeeenes 11 F. The Court of Appeal affirms ......... ccc eceeeeereerereees 12 ASQUIMIEoo.cece eesseeseeerssseersesensnenseseraesesuecasssesssesseseceersasenneesaeesseentegs 13 I. The contours ofthe confrontation Clause... 13 Il. The standard Of review .........cccsesseesesseeerecessesseeseeessepeeseeenees 14 Ill. The rebuttal evidence of Thomas’s police statements did not violate appellant’s right of confrontation ............. 14 A. Proceedings DelOW .......cesesetecseersreesseeteeteearseneeessees 15 1. Thetrial court’s pretrial ruling .....0..eee 15 2. Appellant’s testimony ........scceceeeseesesesenereenes 16 a. DiLOCt 0.0... eeeeesseesneeeesteeeeseseeeeenseeeensuees 16 b. REIr€Ct......csceccessesteecerteessseeeseeeseneeeaees 19 3. The prosecution’s rebuttal evidence.............. 21 B. Thomas’spolice statements were properly admitted to impeachhis credibility 00.0... 23 1. This Court has held that the prosecution may constitutionally impeach a hearsay declarant’s credibility with the declarant’s inconsistent out-of-court StATEMENIS oe.cece seeeesreeeeeeeeeeeeteteseossseeeeans 23 TABLE OF CONTENTS (continued) Page 2. The Court should find appellant’s contrary arguments uNpPersuaSiVE.........cee25 C, Thomas’s police statements were properly admitted to impeach appellant’s credibility .............. 28 1, The controlling case law establishes that the prosecution may rebut a defendant’s testimony with out-of-court statements introduced for nonhearsay purposes............... 28 2. Appellant’s out-of-state cases donot help her...eee ceeecesenseecesseseseesesessenecsesees 33 D. Appellant opened the door to hearsay use of Thomas’s police statements..........cccccescesssseeeeeeeneees 35 l. There is a growing consensusof cases holding that a defendant can open the door to evidence that the confrontation clause would otherwise preclude...............0.. 35 2. Appellant opened the doorinthiscase.......... 40 E. Anyerror was harmless beyond a reasonable OUDeeecccccccesteeeeesstereeteeecccererseanesesseeeseieesensnaeeeeees 43 CONCLUSION ......cccccesccccccceuccccccussnseccascccssceaversccececsseeauseustausseaessesanesesensenseeneees 47 il TABLE OF AUTHORITIES Page CASES Chambers v. Mississippi (1973) 410 U.S. 284 oo cecscsceteserseeseersaeesseceseerssseeeseeseseeseneesseeerseaseeteees42 Chapmanv. California (1967) 386 U.S. 18 weecseseesteceneeeneeesceseaeessenatesereeaeesseeersnesseesenseseees43 Charles v. Thaler (Sth Cir, 2011) 629 F.3d 494.cescsseeeseensereeeeeenseeeeseeeersasesseansaes37 Clark v. Ohio (2015) 135 S.Ct. 2173 vcccccccsccsecscssesstessseeeseseaetsecsesesseeeseecsaaesateneeeees 13 Crawford v. Washington (2004) 541 U.S. 36 weeececssecssecessneeeersaeeerseaeerseecennenesseerereserseas passim Del Carmen Hernandez v. State (Tex.Ct.App. 2006) 219 S.W.3d 6 oo. eesccsecescesseesecrenneeersaeeceneeneesees25 Ko v. Burge (S.D.N.Y. Feb. 26, 2008, No. 06 Civ. 6826(JGK)) 2008 WL 552629 oo. cecsececsneecsseesecssessevsnecsesenseeseesserereseesesesssaeesseseneeserenss 37, 39 Lane v. State (ind.Ct.App. 2013) 997 N.E.2d 83 woo.ee eeeceeseeeeseeeeeeneeveeeeteseeessecauenes 38 McClenton v. State (Tex.Ct.App. 2005) 167 S.W.3d 86 oeeesseeseseesesseeseerseeesesnsreseseaseeees38 People v. Blacksher (2011) 52 Cal.4th 769... cccccccerccstecsrececrereeseeeeseeesseeeeneeesas 24, 25, 30 People v. Bryant (2014) 60 Cal.4th 335.eeseetecteeeees beevaeeeececeeeeseeeeseaeceeateneeenees 14, 43 People v. Cage (2007) 40 Cal.4th 965 0... ccccssessceseesseeenectseesseeateseensneeeseeseatesnats 14, 23 ill People v. Carter (2003) 30 Cal.4th 1166eceeeecseesessceeeeessaneesssssesesenssceseesseses 28, 29 People v. Combs (2004) 34 Cal.4th 821...eeeceeeceneesseeersecseereesseecesseensesesensneserseesenaes 14 People v. Cowan (2010) 50 Cal.4th 401 oo.eeeccccsnerecneecsseeeeeessesserssseessteeesseeseanersgs27 People v. Ervine (2009) 47 Cal.4th 745 oo... ccccccccsssssesseeeceeeseseserssesesessseesssscssseseesseserenesens23 People v. Hernandez (2004) 33 Cal.4th 1040... ececeseesterseeesrsceeeesesseresereseeseserseeseseseens27 People v. Jennings (2010) 50 Cal.4th 616.00.icceeesscrseressesssseeeseeeseesessssensseessesneeeneenas33 People v. Marquez (1979) 88 Cal.App.3d 993 oo. eieeecseseseserscnsessessseeeesessscsscessesnerseeseenesaes24 People v. Osorio (2008) 165 Cal.App.4th 603 oo.cesscscesnscecssresssesseeeeessesesseerseenes24 People v.Reid (N.Y. 2012) 971 N.E.2d 353 occeeeeessesertecereeeeerecessesserseenseaees passim People v. Rogers (Colo.Ct.App. 2012) 317 P.3d 1280 oeeceneseesssseterresersenees 38, 39, 40 People v. Seijas (2005) 36 Cal.4th 291] oeecscseessssscesscseseesesseseesserenserasesssensesseeseesnecees 14 People v. Spriggs (1964) 60 Cal.2d 868 00... ec eseeeeeseeerecrectertessessseeesessesrsesuesenseeeseresaneenss42 People v. Thompson CIILCt.App. 2004) 812 N.E.2d S16... cccssccsessersscssssecsesersnseeeesesneeegs33 Soto v. State (Ga. 2009) 677 S.E.2d 95 woeeesceeseseeetessnsteveessreesessscsseeessestnesenersseregs34 State v. Brooks (Hawaii Ct.App. 2011) 264 P.3d 40vcccceseeeereserseensensesssenes 38, 39 iV State v. Fisher (Kan. 2007) 154 P.3d 455 ooo. cccceesceneeeseecereereessesseseseeseeueseeesesseeerenes 38 State v. Nelson (Or.Ct.App. 2008) 197 P.3d 1130eecsesceceeeseeteeseeeteeneeeseeeeneeneeees 25 Tennessee v. Street (1985) 471 US. 409 (Streetoeeecceeseenceseeeeseeesecsssenseessesseeseeeenaeespassim Tinker v. State (Ala.Crim.App. 2005) 932 S0.2d 168 wo... cesceeteereeereeneeeeesssaeerseens 38 United States v. Acosta (Sth Cir. 2007) 475 F.3d 677 ...ccccccesssesseessessssessssesseesesseeenenes seceaveeseevess 37 United States v. Churchwell (11th Cir. 2012) 465 Fed.Appx. 864.............aavcecececeecececsuaaeceseceecuaceeeteans 27 United States v. Cromer (6th Cir. 2004) 389 F.3d 662... ccscccccsecsecseeseeeeeeeersesteseeseenaeens 38, 39 United States v. Cruz-Diaz (Sth Cir. 2008) 550 F.3d 169... ccecseeseseeeeseneseneeteesessreneseneseeesesnees 27 United States v. Graham (Sth Cir. 1988) 858 F.2d 986... eesccscssesecsenecetenseseeesseseeseseenessenens 26 United States v. Grant (11th Cir. 2001) 256 F.3d 1146...cecccseeeneetestessseneseeeeeensetens 26 United States v. Hall (C.A.A.F. 2003) 58 M.J. 90 vocecccetescessecrecseesesenseeeneeneeeeeerenanens 33, 34 United States v. Holmes (8th Cir. 2010) 620 F.3d 836... ceescsseesseesereeeesereesseeseeseesersseenaes 37, 40 United States v. Inadi (1986) 475 U.S. 387 oececcecsesetseeeseeteceesseesesseseseseessesecasenssseesesseesneneeas 14 United States v. Jimenez (3d Cir. 2008) 513 F.3d 62...ceecsetseseecsssseesessseeessessesseseesseseetereas 25 United States v. Lopez-Medina (10th Cir. 2010) 596 F.3d 716icececeseenessesseeeeeeseeeseteeesesenspassim AR ER RR RR EPe Re gu pn nt tp ns © a m a n : STATUTES Evidence Code § 1202eee eeceessenscneeeseseneeersnsssecssavsssesesesenesasessaesesseesenesaersevacensaes passim $1215eeeLecvevsncecesecccesesnseseecsueseecusessseceeseccesensncessetaneceneeraeesagees20 § 1230 vecccccccsscsscescsseneeseeceseesseeseesessseeseseesenesseseesessesvarecaeenssssesseeesanesseenaes43 § 1250 vic eecescsscecesscnevecseceeseneeeseseessesssevscssssessssessesseeseesseseesssesesnneeereeesntes20 Penal Code § 187, Subd. (8)... eceeceneceseesseneeceeeeseseesseenseesteessecnsscensssesssesenseensetenesars 12 CONSTITUTIONAL PROVISIONS California Constitution Article 1, § 15 ..ccccccccscccssccsecrseeasenececsaeesesescesseceeesssessesserereeesseseneeenees 13 United States Constitution Confrontation Clause..........ccccssccssscececesesseeseseeesneaeeesnneessnassiesateenees passim “Sixth AMendMentt ........:cccceessssecsscecesneeesssneeersreeeeceseesseeseseserereeeses passim COURT RULES Federal Rules of Evidence TUL BOG oo... ceccecccscscecccccccssccusvesecsevsesceceuvscccevssecceeuceneversesseesecesesenenese™ 23, 26 v1 INTRODUCTION Appellant and her boyfriend, Julius Thomas,killed appellant’s roommate, Laverna Brown,while trying to rob her. Thomasconfessed his role to the police and led them to a machete that was used during Brown’s murder. He later committed suicide. Attrial, appellant testified that she had no advance knowledgeof any plan to rob Brown, that Thomasattacked Brown on his own,that Thomas admitted to her that he killed Brown during a botched robbery, and that Thomascoerced her cooperation in covering up the crime. Thetrial court allowed the prosecution to rebut appellant’s testimony with Thomas’s statements to the police. Thomastold the police that he and appellant jointly planned the deadly assault on Brown, and that appellant called the shots both before andafter. The Court of Appeal rejected appellant’s claim that the trial court’s admission of Thomas’s police statements violated the Sixth Amendment right of confrontation. This Court granted appellant’s petition for review, and should now affirm. It is well settled that the confrontation clause does not prohibit out-of- court statements offered for nonhearsay purposes — i.e., out-of-court statements not offered for their truth. Here, the Court of Appeal correctly determined that there was no confrontation clause problem with Thomas’s statements because they were notoffered for their truth. In particular, the prosecution introduced Thomas’s police statements for the nonhearsay purpose of challenging Thomas’s credibility. Appellant herself had introduced for their truth Thomas’s out-of-court statements in which he took sole responsibility for the murder. Thomas’s contrary out- of-court statements were, therefore, admissible to impeach Thomas’s admissions to appellant. Thomas’spolice statements were also independently admissible to impeach appellant’scredibility. The statements cast doubt on appellant’s explanation for whyherstory at trial was different from what sheinitially told the police. They also impugned appellant’s claim that Thomas had really confessed to her. Moreover, even if Thomas’s police statements went beyond the bounds of impeachment, they werestill admissible. Appellant’s testimony that Thomas madestatements exculpating her opened the door to evidence that Thomasalso made statements inculpating her. Otherwise, the jury would have been left with an incomplete and misleading understanding of what Thomassaid aboutthe crime. Finally, to the extent the admission of Thomas’spolice statements waserror, it was harmless beyond a reasonable doubt. Notwithstanding Thomas’s statements, the evidence of appellant’s guilt was overwhelming. STATEMENT OF THE CASE AND FACTS Appellant needed moneyfor a security deposit on a new apartinent. She believed her roommate, Laverna Brown, had money. So appellant and her boyfriend, Julius Thomas, decided to rob Brown. During the robbery, Brown’s neck wasstabbed andsliced to the point that she was nearly decapitated. After Brown died, appellant and Thomas moved the body andtried to cover up the crime. It did not work. Police found Brown’s corpse and discovered evidence linking appellant and Thomasto the murder. Athertrial, appellant blamed Thomasfor killing Brown and claimed that she knew nothing aboutit until it was already done. She said Thomas murdered Brown by himself and then coerced her help after the fact. The jury convicted appellant of first degree murder. A. Appellant’s Roommate, Laverna Brown, Goes Missing Under Circumstances Suggesting Foul Play Darcy Timm rented out three bedroomsofher houseto travelling nurses employed at the Riverside County Hospital. (1 RT 58.) Sixty-six- year-old Laverna Brownwasa regular tenant, and wasliving at Timm’s housein the summerof 2011. (1 RT 58-59.) Brown neverhad trouble paying rent. (1 RT 64.) In July 2011, appellant moved into a room at Timm’s house for $500 per month. (1 RT 62-63.) Although she wasa registered nursing assistant, appellant rarely worked and she routinely had problems makingtherent. (1 RT 59, 63-64.) In October, appellant gave notice to Timm that she was moving out. (1 RT 64.) | . On October 22, appellant contacted a managerat an apartment complex to discuss renting an apartment for $995 per month. (2 RT 281- 282, 284.) The managertold appellant that she could moveinto the apartment on October 29 if she paid an $800 security deposit. (2 RT 290.) Appellant did not have enough moneyto pay the security deposit. Between August 2011 and October 2011, the combined balance of appellant’s checking and savings accounts ranged between approximately $15 and $33. (2 RT 246.) ‘Her credit was also bad. (2 RT 287.) Notwithstanding her financial difficulties, appellant made several curious purchases on October 27. Specifically, she spent $76.46 on a folding knife and pepper spray from a military surplus store. (2 RT 199, 202, 246.) Later, she went to Target and bought a burgundy hooded sweatshirt (size large), grey sweatpants (size large), a gray cap, and a scarf. (2 RT 198.) That night, appellant texted the apartment managerthat “‘I'll have the money and I’ll be moving in on the 29th.’” (2 RT 291.) The next morning, October 28, Timm wokeup around 5:15 am. (1 RT 70-71.) Timm thought nothing of it when Brown’s van wasnotinits usual spot because Brown was supposedto be flying to Georgia that day to visit family. (1 RT 31-32, 83.) Brown planned on having moneyonherfor the trip. (1 RT 38.) Timm wentout to the garage to do laundry and saw that things were out of place. (1 RT 71-72, 84.) Timm’s son owned a machete that Timm kept hanging in a sheath on the garage wall. (1 RT 72, 74.) The empty sheath was lying on a workbench, but the machete was not there. (1 RT 72, 84.) Also, a rug had been movedagainst the garage door. (1 RT 84.) Backinside the house, Timm noticed that the large knife in her butcher block was missing. (1 RT 69, 72.) She began writing a note to appellant about the machete and the knife. (1 RT 73-74.) Just then, around 5:45 a.m., appellant came home. (1 RT 74, 76.) Appellant entered the garage from the side of the house wherethe trash cans were. (1 RT 75.) She was wearing a grey sweatshirt and jeans, and she told Timm that she had to change her clothes. (1 RT 75, 81.) Appellant explained that she was going to be spending the day with her boyfriend, Julius Thomas. (1 RT 72.) When Timm confronted appellant regarding the knife and machete, appellant said she knew nothing aboutit. (1 RT 76-77.) Appellantdid, however, mention that she had spilled some Coke onthe side of the house and had washedit away. (1 RT 82.) Appellant was only in the house for a few minutes. (1 RT 80-81.) After appellant left with Thomas, Timm beganto clean the garage. (1 RT 83.) She saw that appellant’s garage trash can was full and that it contained a Coca-Cola box. (1 RT 84.) Timmtook appellant’s trash can outside to empty it into a larger can. (1 RT 84-85.) When Timm opened the lid to the larger can, she discovered a blanket that was soaked in blood. (1 RT 85.) There were also globules of blood or chunksofflesh on the ground. (1 RT 87.) Timm called 911. (1 RT 87.) An officer responded, collected the blanket, and took pictures of the scene. (1 RT 42-47.) Although there were no signs of forced entry, the wires on a motion-activated light on the side of the house had been detached. (1 RT 44, 80.) While the officer was there, Timm phonedappellant and left a voicemail. (1 RT 48, 87.) Appellant returned Timm’s call a couple of hours later, when Timm was at work. (1 RT 88.) Appellant was at the house. (1 RT 89.) She admitted moving things aroundin the garage, but denied knowing anything about the machete or knife. (1 RT 88.) Appellant also mentioned a blond, long-haired homeless man that she saw wearing a backpack and roaming the neighborhood. (1 RT 88-89.) Timm did not believe appellant’s story, as Timm had not seen any homeless people in her neighborhood for at least 30 years. (1 RT 90.) Timm came homefrom work around 5:00 p.m., a half hour earlier than usual. (1 RT 90.) Appellant was in the garage. (1 RT 90.) Shetold Timmthat she had again washedthe side of the house to removethe spilled soda. (1 RT 91.) Timm kepta bottle of cleaning solution in the garage, which was missing. (1 RT 91-92.) Appellant claimed she did not know where it went. (1 RT 91.) While Timm andappellant were talking, Timm’s house phonerang. (1 RT 92.) It was Brown’s daughter, and she was hysterical. (1 RT 92-93.) Brown wasnot on the Georgia flight and nobody could find her. (1 RT 35- 36, 93.) Until this point, Timm had assumed that Brown madeherflight. (1 RT 93.) | Now, Timm wasscared. (1 RT 93.) Appellant had trailed Timm into the house whenthe phonerang andstoodright next to Timm during her conversation with Brown’s daughter. (1 RT 92-93.) To escape from appellant, Timm made up a reason to go into her bedroom. (1 RT 94.) But appellant followed Timm there as well. (1 RT 94.) Unable to shake appellant, Timm wentout to the driveway to wash her car where she could be seen by neighbors. (1 RT 90-91, 95, 97.) As Timm wasdoing this, Thomas drove upto give appellant a ride to work. (1 RT 82, 96.) Appellant emerged from the house dressed in her scrubs and left with Thomas. (1 RT 96-97.) As soon as appellant was gone, Timm ran into the house andcalled 911 again. (1 RT 97; 1 CT 99-103.) Officer Jayson Jahinian responded. (1 RT 104.) When Officer Jahinian contacted Timm,she looked scared. (1 RT 106.) Timm gave Officer Jahinian an overview of what she knew. (1 RT 106.) This wasnow a missing person case, as Brown’s daughter had made a missing person report. (1 RT 105.) B. Appellant Tells a Suspicious Story to the Police Officer Jahinian left Timm’s house and wentto the hospital where appellant was working. (1 RT 107-108.) He interviewed appellanta little bit after 9:00 p.m. on October 28. (1 RT 109-110.) During the interview with Officer Jahinian, appellant said that she wentoutside to visit Thomas when he came over that morning around 2:30 a.m. (1 CT 79.) She described Thomasas “a big, snuggly teddy bear.” (1 CT 96.) Appellant said that when she returned homearound 4:30 a.m. to get her sweater, Brown wasin her room and “getting ready for w—to go.” (1 CT 80-81, 93.) Afterwards, appellant and Thomas went to McDonald’s for some breakfast. (1 CT 82-83.) Appellant then ran some errands, and when she returned homearound 6:00 or 6:30 a.m., Brown’s vehicle wasalready gone. (1 CT 83.) Appellant later went to a couple of check cashing businesses. (1 CT 87.) She asked Thomasto drive over so she could use him as a reference. (1 CT 87.) When Officer Jahinian mentioned the blood on the sidewalk, appellant denied having seen any. (1 CT 89-90.) She said that she hosed down the ground onthe side of the house because she spilled a soda and that she had no idea there was blood. (1 CT 89-90, 92.) Appellant also recounted having seen a “weird guy” walking downthestreet earlier in the week. (1 CT 94.) She described him as having “‘scraggly, black hair underneath a hat.” (1 CT 94-95.) After Officer Jahinian finished his interview and left, a co-worker asked appellant if she was okay. (2 RT 277.) Appellant said that Brown was missing and that she was concerned because she was unable to reach her “honey” by phone. (2 RT 277.) It struck appellant’s co-worker as odd that appellant referred to Brownin the past tense and repeatedly saidthat Brown “‘was” a nice lady. (2 RT 278.) Meanwhile, Officer Jahinian did not believe the story appellant told him. (1 RT 111.) He thought appellant killed Brown and waslying about it. (1 RT 111.) Therefore, he handed the investigation off to Detective Richard Wheeler in the robbery/homicide unit. (1 RT 111; 2 RT 250-251.) In the early morning hours of October 29, Detective Wheeler and his partner wentback to the hospital. (2 RT 252-253.) Appellant agreed to accompanythem to the police station for another interview, which began around 2:00 a.m. (2 RT 253-254.) Atfirst, appellant was very open and talkative. (2 RT 257.) Again, appellant referred to Brownin the past tense. (2 CT 172, 176.) Appellant’s demeanor changed whenshe wasasked aboutthe blood at Timm’s house. (2 RT 257-258; 2 CT 301-303.) She got quieter. (2 RT 258.) Instead of expressing concern, appellant became less responsive and more “emotionally closed in.” (2 RT 258.) Throughout the interview, appellant maintained that she did not know Brown’s whereabouts. Appellant insisted that she had a good relationship with Brown,andsaid that she last saw Brown when Brown came homefrom work the night of October 27. (2 CT 187-188.) Appellant described Brown as excited abouther trip and getting ready to go. (2 CT 187-188.) She said that Brown’s suitcase looked “pretty much packed,” although she purported not to know what the suitcase looked like. (2 CT 191, 197.) . Appellant said she took a nap before Thomas cameover around 2:00 a.m. (2 CT 199-200.) She described Thomasas her “big, snuggly teddy bear.” (2 CT 208.) Appellant and Thomas went outside while Thomas smoked a cigarette. (2 CT 206.) They saw a “weird” guy with scraggly blond hair and a backpack walking the neighborhood. (2 CT 210-214.) Appellant told the officers that she and Thomas wentto a nearby park for about an hour, and then returned home because appellant was getting cold. (2 CT 216.) The light was on in Brown’s room and appellant presumedthat she wasin there. (2 CT 217-218.) Next, appellant put on a long-sleeved shirt and she and Thomas went to a McDonald’s. (2 CT 219.) When they came home, appellant ran into Timm. (2 CT 220.) After Timm asked appellant about the missing machete and knife, appellant left through the back door. (2 CT 225-233.) Appellant did not know why she camein through the front door andleft out the back. (2 CT 233.) As she was going out the back door, appellant spilled a can of Coke she grabbed from a box in the garage. (2 CT 233.) She sprayed the ground with a hose before leaving with Thomas. (2 CT 233-234.) Thomas droppedappellant off near a bus stop, and appellant went shopping for paint and furniture for her new apartment. (2 CT 237-238.) Appellant did not know where Thomas went. (2 CT 242-243.) Later, Timm and appellant talked on the phone, and appellant admitted moving things around in the garage. (2 CT 251-252.) But appellant did not notice that the garage rug had been moved,and she denied taking the machete or the butcher knife. (2 CT 252-253.) Appellant said that when she returned home from her errands around 2:30 p.m., she sprayed OxiClean on the sodaspill, and used a broom to “scrub the spots.” (2 CT 260-262.) She claimed she had no idea whythere was bloodin the exact same location where she supposedly dropped her soda. (2 CT 273-277.) Appellant repeatedly stated that she thought she wascleaning up soda, not blood. (2 CT 282-286, 296.) She also repeatedly denied having anything to do with the bloody blanketin the trash can. (2 CT 289-290, 292.) C. The Police Find Brown’s Nearly Beheaded Body Amidst Evidence Strongly Implicating Appellant and Thomas While appellant was talking to the detectives, the police simultaneously continued their investigation at Timm’s house. They observed blood, which someonetried to clean up,all over the garage,the side of the house, and in the driveway. (2 RT 167, 181-185, 194.) It was evident that something violent happenedin the garage, and there wasa trail of blood from inside the garage to the side of the house wherethe trash cans were. (2 RT 167, 193-194.) In addition to the bloody blanket that Timm discoveredin the trash, the police recovered twopairs of rubber gloves. (1 RT 126-127.) The blood around the house and on the blanket belonged to Brown. (2 RT 197.) The police traced Thomas’s movements bytracking the location of his cell phone. (1 RT 113.) Around 3:20 a.m. on October 29, Thomas was at or near 5850 Republic Street in Riverside. (1 RT 113-114.) Brown’s van wasfound in an empty parking lot nearby. (1 RT 114.) Brown’s corpse was lying facedownin the middle of the van, and a spray bottle was on her back. (1 RT 131.) Her suitcase wasin the front passenger’s seat, (1 RT 114.) The suitcase contained women’s clothing and toiletries, although Brown’s shoes, cell phone, and purse were missing. M A T y C E C RR OR ET IR AD ST IH EN T R O N M B B T S e T T a t (1 RT 114.) Brown’s body appeared to have been dragged into the van through the driver’s side. (1 RT 132.) | Appellant’s DNA — but not Thomas’s — wason the van’s steering wheel. (2 RT 196-197.) This, even though appellant never drove the van while Brown wasalive. (1 RT 70) Browndied from a sharp force injury to her neck. (1 RT 145-146.) Specifically, her neck was cut open and hercarotid artery, trachea, and esophagus were severed. (1 RT 149-151.) The weapon usedto slash Brown’s neck went so deep that it left marks on her spinal cord;a little bit more and she would have been decapitated. (1 RT 149-151.) Brown’s injuries were consistent with an attack using a machete or a butcherknife. (1 RT 151.) She did not have any defensive wounds. (1 RT 147.) Uponfinding Brown’s body, the police arrested Thomas and Detective Rick Cobb interviewed him. (2 RT 204-205.) Thomas then took Detective Cobb to a dumpster where Detective Cobb searched for some clothing. (2 RT 205-206.) He did not find any, and thelot caretaker told Detective Cobb that the dumpster was recently emptied. (2 RT 206.) Next, Thomasled Detective Cobb to a canalarea, at which Detective Cobb located the machete from Timm’s garage. (1 RT 73; 2 RT 207-208.) Brown’s blood was on the machete. (2 RT 178, 197.) | Besides the physical evidence, the police obtained the message and call logs for the cell phones belonging to appellant and Thomas. (2 RT 216.) Between October 27 and October 29, appellant and Thomas exchanged numeroustext messages and phonecalls. (2 RT 222, 224.) Ofparticular interest, Thomas called appellant on October 28 at 1:49 a.m. from near the 91 freeway in Riverside. (2 RT 232.) He called her again at 2:09 a.m., as he was moving west towards Timm’s housein the La Sierra area. (2 RT 233.) Appellant received these calls at or near Timm’s house. (2 RT 233.) 10 There was noactivity at all onappellant’s cell phone from 2:10 a.m. to 6:30 a.m. (2 RT 227-228.) At 7:42 a.m., Thomas called appellant from near where Detective Cobb discovered the missing machete. (2 RT 234- 235.) Fourteen minuteslater, at 7:56 a.m., Thomascalled appellant from near where Brown’s van wasfound. (2 RT 235.) Rightafter the 7:56 a.m. call from Thomas, appellant phoned the apartment managerregarding the $800 security deposit. (2 RT 291.) Appellant told the apartment managerthat she did notyet haveall of the _ money andaskedif she could move in anyway (the managersaid no). (2 RT 291-292.) D. Thomas Commits Suicide On December 15, 2011, Thomas committed suicide in his jail cell. (2 RT 248.) There wasa letter from appellant in Thomas’s cell, dated December 10, 2011. In that letter, appellant wrote that she was“sorry,” that she did not blame Thomas“for being mad, angry, or even hating”her, and that she “love[d],” “need[ed],” “want[ed],” “desire[d],” and “miss[ed]” him. (2 RT 265-266.) E. A Jury Convicts Appellant of First Degree Murder with Special Circumstances Appellant’s trial began on March 25, 2013. (1 RT 28.) Shetestified in her own defense. (2 RT 304-420; 3 RT 423-443.) In a nutshell, appellant claimed that, without her prior knowledge or involvement, Thomas alone killed Brown. (2 RT 322-326.) According to appellant, Thomas then used threats to coerce her assistance in covering up the crime. (2 RT 326.) On rebuttal, the prosecution offered Thomas’s statements to the police that appellant masterminded Brown’s robbery and murder, with appellant participating and giving orders every step of the way. (3 RT 445-450.) 11 The jury did not believe appellant’s story. It convicted her offirst degree murder and foundtrue robbery and lying-in-wait special circumstances. (2 CT 357-359; Pen. Code §§ 187, subd. (a); 190.2, subd. (a)(15), (17)(A).) F. The Court of Appeal Affirms Appellant argued on appeal that the trial court violated her right of confrontation whenit allowed the prosecution to introduce the evidence of Thomas’s police statements. On June 24, 2015, the Court of Appeal rejected this argument in an unpublished decision. The court found that (1) Thomas’s statements were not introduced for their truth, but rather to explain the police’s actions or to impeach appellant’s credibility, and (2) Thomas’s testimony had opened the doorto hearsay use of Thomas’s statements anyway. (People v. Hopson (June 24, 2015, D066684) [nonpub. opn.], hereinafter “Opn.”) On October 14, 2015, this Court granted appellant’s petition for review. The court’s order limited the issue to be briefed and argued as follows: “Was defendant’s right of confrontation under the Sixth Amendmentviolated whenthetrial court permitted the prosecution to introduce out-of-court statements made by her deceased codefendant?” (Oct. 14, 2015, Order.) 12 ARGUMENT I. THE CONTOURS OF THE CONFRONTATION CLAUSE The Sixth Amendmentto the federal Constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.)' In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the Supreme Court held that the confrontation clause bars the “admission of testimonial statements of a witness who did not appearattrial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” (Jd. at pp. 53-54.) Whethera statementto police is testimonial depends on the context in which it is made. Statements are nontestimonial when madeduring police interrogation undercircumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. (Clark v. Ohio (2015) 135 S.Ct. 2173, 2179.) Conversely, statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (/d. at pp. 2179-2180.) Respondent doesnot dispute that all of the statements at issue here are testimonial. But that a statementis testimonial does not end the inquiry. The purpose for which the statementis offered must also be evaluated. Specifically, “[t]he [confrontation] [c]lause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59, fn. 9, italics added.) Indeed, “Crawford made clear that there are no confrontation clause restrictions on the introduction of out-of-court statements for nonhearsay ' The California Constitution has a similar confrontation clause. (Cal. Const., art. 1, §15.) 13 purposes.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6, citing Crawford, supra, 541 U.S.at p. 59, fn. 9; see also United States v. Inadi (1986) 475 U.S. 387, 398, fn. 11 [“[A]dmission of nonhearsay raises no Confrontation Clause concerns,” internal quotation marks omitted]; Tennessee v. Street (1985) 471 U.S. 409, 414 (Street) [same]; People ve Combs(2004) 34 Cal.4th 821, 843 [same].) II. THE STANDARD OF REVIEW This Court independently reviews whethera trial court’s ruling violated the confrontation clause. (People v. Seijas (2005) 36 Cal.4th 291, 304.) - WI. THE REBUTTAL EVIDENCE OF THOMAS’S POLICE STATEMENTS DID NOT VIOLATE APPELLANT’S RIGHT OF CONFRONTATION Appellanttestified that she did not participate in Brown’s murder and that Thomas admitted to her that he did it. According to appeliant, Thomas conscripted her assistance in covering up the crime by threatening to kill her and her son. After appellant’s testimony,the trial court allowedthe prosecutor to submit rebuttal evidence that Thomastold the police that, at appellant’s behest, he and appellant acted together to kill Brown and dispose of her body. Appellant’s opening brief argues that the rebuttal evidence violated’ her right of confrontation.’ There was nosuchviolation. ? Appellant additionally argued below that evidenceofcertain “implied statements” admitted during the prosecution’s case in chief violated her right of confrontation. (Opn. at pp. 18-22.) She does not renew that argument in her opening brief on the merits and has, thus, forfeited it. (People v. Bryant (2014) 60 Cal.4th 335, 408 [explaining that an appellant’s argument was“forfeited by the failureto raise it in the opening brief”].) 14 Once appellant testified about what Thomas supposedlysaid to her about Brown’s murder, the prosecution was constitutionally permitted to offer Thomas’s contrary out-of-court statements to impeach both Thomas’s credibility and appellant’s credibility. Furthermore, even if the rebuttal evidence strayed beyondthe bounds of impeachment, the evidencestill properly came in througha constitutional door that appellant’s testimony opened. In any event, the admission of Thomas’s police statements was harmless beyond a reasonable doubt. A. Proceedings Below 1. The trial court’s pretrial ruling Appellant moved before trial to bar the prosecution from introducing any of Thomas’s statements to the police about the murder. (1.RT 12.) The prosecutor agreed,telling the court that “I think under Crawford,I don’t believe I can play the statements of [Thomas] in termsofhis | interview, because there’s a Sixth Amendmentright.” (1 RT 12.) Defense counsel then askedthetrial court to rule that Thomas’s statements could not comein even if appellant testified. That led to this discussion: [Defense counsel]: I just wanted to make sure that even if my client testifies that [Thomas’s] statements still can’t come in .... Would that be Your Honor’s ruling? The court: I think so. I can’t see them as adoptive admissions or any other — [Prosecutor]: I think it depends on howshetestifies. If] see that she’s opened any doors, and if she does and if I wantto go there, then I'll ask for a sidebar before we discussthat. The court: All right. Well, it will be the order then that no reference to Mr. Thomas’s statements ... absent further order of the 15 Court following a sidebar in the event the prosecution believes that [appellant] may have openedthe door with her testimony. [Prosecutor]: And one ofthe reasonsfor that is obviously through Thomas’ statements, | have a good faith belief of how the crime went down. So I can follow those statements myself in terms of my theory of the case, and if shetestifies, I can attack her with my understandingofthe case. The court: I don’t disagree with that. [Prosecutor]: I can’t say, “Hey, Thomastold usthis.” The court: Right. (1 RT 18-19.) 2. Appellant’s testimony a. Direct Appellanttestified at trial. (2 RT 304.) She said she met Thomas in 2006. (2 RT 306-307.) He drove the busthat she rode to get to work. (2 RT 306.) The twostarted dating in 2008. (2 RT 306-307.) Thomastold appellant he was divorced and she believed him. (2 RT 307-308.) But Thomas would never allow appellant to come over to his house and shedid not know his address. (2 RT 308, 311-312.) While appellant wasliving at Timm’s house, Thomas would typically visit once a week around 1:00 a.m. or 2:00 a.m. (2 RT 310.) Sometimes he would comeinside the house and sometimes they wouldsit outside in his car. (2 RT 310-311.) In 2011, Thomas told appellant that he beat a manto death for disrespecting his grandmother. (2 RT 314-315.) This was after he previously told her that he beat up other people in the past. (2 RT 315.) From time to time, Thomasalso warned appellantthat, if she broke up with 16 him, he would “take care of” her, which she took to mean that he would hurt or kill her. (2 RT 315-316.) Appellant knew that Brown wastaking a trip to Georgia. (2 RT 318.) She told Thomasaboutit and they discussed the time of Brown’s flight. (2 RT 318-319.) Appellant also informed Thomasthat Timm had a machete. (2 RT 320.) Thomas never mentioned any plan to rob Brown. (2 RT 321.) Appellant explained that she bought the clothes from Target on October 27 because Thomasasked her to. (2 RT 337-338.) Thomassaid his sister, a large woman, was coming to town and the clothes were forher. (2 RT 337-338, 365.) Thomascalled appellant at roughly 2:00 a.m. the morning of Brown’s murder. (2 RT 322.) Appellant got dressed and wentinto the garage. (2 RT 322-23.) There, she saw Brownlying in a pool of blood with Thomasstanding over her. (2 RT 323.) Thomas was wearing the clothes that appellant bought from Target, along with hospital foot covers that she gave him earlier. (2 RT 336-339.) Appellant asked Thomas why he had donethis. (2 RT 323.) According to appellant: e “He told me that he thought she would have money and he needed money,and hefelt that she would have been an easy target because she was going on atrip.” (2 RT 323.) e “He told me that she — he told methat she knew thatit was him andthat he had no choicebutto kill her.” (2 RT 324.) e “He said that she screamed and was making noise, and he didn’t want anybodyto hear her, so he sliced her throat.” (2 RT 324.) e “He said that he had taken [Timm’s] machete and he used the machetefirst.” (2 RT 324.) 17 e “He had the machete, but he also had a butcher knife from the kitchen. ... And he said that the machete was too dull and he couldn’t leave heralive.” (2 RT 324.) e Hesaid “[s]he wasn’t — she was just — he said she was just having sounds comingoutofher throat, and I guess he said her eyes werelike blinking.” (2 RT 324.) e “He said she wasstill alive from the macheteslicing her, and he wentinto the kitchen and took the butcher knife and used the butcher knife to finish what he started.” (2 RT 325.) Thomasthreatenedto kill appellant and her adult son, Alexander,if she did not help clean up the evidence of Brown’s murder. (2 RT 323. 326.) Hetold appellant that he had someone watching Alexander, whowasliving in Norwalk at the time. (2 RT 320, 345.) Appellant helped Thomas drag Brown’s bodyinto the van using a blanket from Brown’s bedroom. (2 RT 326-328.) Thomashadthe van keys but he madeappellantopen the van,telling her it would not matterif she touched the van since she had ridden in it before. (2 RT 331-332.) Thomasforced appellant to clean the blood in the garage and he instructed her to use Clorox wipes. (2 RT 334, 342.) To do this, appellant put on gloves that she already had. (2 RT 334-335.) While appellant was scrubbing, Thomas grabbed Timm’s bottle of cleaning solution and sprayed the bloodstains. (2 RT 335, 342.) The garage cleanup took about 30 to 45 minutes. (2 RT 335.) Next, Thomastold appellant to drive Brown’s van andleaveit somewhereso it would look like Brown wenton hertrip. (2 RT 340.) She followed Thomasto a lot and left the van there. (2 RT 347.) Appellant and Thomas then went to McDonald’s, where Thomas ordered some food, but neither ofthem ate. (2 RT 348.) Thomastold 18 appellant whatto tell the police, and to blame the murder on the long-haired homeless man. (2 RT 348-350.) In addition, Thomas warned appellantthat, if she did not do exactly as he said, ““Snitches will die, and even if you’re locked up, they will get to you.’” (2 RT 348.) “Hesaid thatat first I would find out that my son was. dead and then I would die myself.” (2 RT 348.) On the way back to Timm’s house, they stopped at a 7-Eleven, where Thomashadappellant buy two Cokes. (2 RT 353.) Thomas believed that the Coke would clean up the blood on the side of the house. (2 RT 353-355.) Whenthey got back to Timm’s house, appellant spilled the Coke on the blood like Thomastold her to. (2 RT 353-355.) Appellant also removed the clothes she was wearing and gave them to Thomas. (2 RT 351.) Thomasput the clothes in a trash bag, along with his clothes and the murder weapons. (2 RT 351.) Appellant did not know where Thomas dumpedthe bag, the machete, or the butcher knife. (2 RT 364-365.) Appellant admitted buying a knife and pepper spray shortly before Brown’s murder, but she insisted these items were for self-protection, and not for use on Brown. (2 RT 362-364.) As for her December10, 2011, love letter to Thomas, appellant explained that she only wrote it because she did not want him to hurt her son. (2 RT 370-371.) b. Redirect During a break in the prosecutor’s cross-examination of appellant, the court and counsel met in chambers to discuss several matters. (3 RT 422.) Following that meeting, the prosecutor put on the record that “we spoke about the statements of Julius Thomas madeto Detective Wheeler, and I’m asking for those to be admitted under [Evidence Code section]1202of the 19 hearsay exception to impeach the hearsay declarations that came in through the defendant under 1215.”° (3 RT 422.) Appellant objected under Crawford. (3 RT 422-423.) Thetrial court overruled the objection, explaining that “I indicated in chambersthat I’m still of the opinion that under [Evidence Code section] 1202 the prior inconsistent statements would be admissible for that limited purpose.” (3 RT 423.) After the prosecutor finished his cross-examination, defense counsel used his redirect to make a preemptive effort at minimizing the evidence of Thomas’spolice statements. In particular, defense counsel asked appellant whether she knew that Thomas accused her of planningthe events leading to Brown’s death. (3 RT 434.) Appellant answered that she did know that, and that Thomas’s statements were not true.’ (3 RT 434-435.) Further, appellant testified that she did not plot the attack on Brown, she did not tell Thomas they should rob Brown, and shedid not tell Thomas to hide in the garage while she lured Browninside. (3 RT 435-436.) Appellant also denied convincing Thomasto go through with the plan, denied telling Thomasto usehis fingers in his sweatshirt to simulate a handgun, and denied telling Thomasto get rid of Brown’s bodyinstead of calling the police. (3 RT 436.) Appellant reiterated that she got the idea to pour Coke on the blood from Thomas, and not a television show. (3 RT > There is no section 1215 in the Evidence Code. The Court of Appeal surmised that the prosecutor wasreferring to section 1250 (declarant’s existing mental or physical state). (Opn.at p. 24, fn. 4.) * Appellant learned of Thomas’s statements around December2011, whenherattorney read them to her. (3 RT 468-469.) The prosecutor made a hearsay objection as to appellant’s knowledge of what Thomastold the police, but the trial court overruled it. (3 RT 434-435.) 20 437-438.) Finally, she said that she did not eat anything when they went to McDonald’s. (3 RT 437-438.) 3. The prosecution’s rebuttal evidence In rebuttal, the prosecutor called Detective Wheelerto testify about a November1, 2011, interview with Thomas. (3 RT 444.) During that interview, Thomas described the crime in a way that was directly at odds with what appellant described in her testimony. This is what Thomastold Detective Wheeler: e “{H]e said that the entire plan was created and brought about because [appellant] knew that her next-door roommate, [Brown], was going to be leaving cross- country and because she knew she had a good job she would have money. They [appellant and Thomas] were both out of money and they would put together a plan to rob [Brown] andthat [appellant] would makeit happen.” (3 RT 445.) Thomassaid it wasall appellant’s plan. (3 RT 453.) e Thomassaid hetried to talk appellant out of the plan but that “[s]he said that, no, [Brown] would be an easytarget, it would not be a problem, and convinced him to continue on with it.” (3 RT 446.) e Thomassaid the plan was for him to wearthe clothes that appellant bought from Target and hidein the garage. Appellant would lure Browninto the garage where they would rob her. (3 RT 446.) e Thomassaid he hit Brown with the machete when she came in the garage. (3 RT 446.) Hesaid he then saw appellant, with a bloody knife in her hand, kneeling over Brown’s body. (3 RT 446.) e Thomas said it was appellant who decidedto get rid of Brown’s body and that she had the keysto the van. (3 RT 447.) 21 e Thomassaid that appellant took Brown’s suitcase from her room and putit on the front passengerseat. (3 RT 447.) e Thomassaid that, when he realized Brown was dead, he implored appellant to call the police. She responded, “No, we’re not going to call the police. Nobody is going to expect her around forat least a few days. We need to get rid of the body. We’ll take her van, suitcase, and so forth, and make it look like she just left on her trip.’” (3 RT 447.) e Thomassaid that appellant decided whereto take the van. (3 RT 447.) e Thomassaid they both cleaned up the blood,at appellant’s direction. (3 RT 447.) e Thomassaid that appellant put the spray bottle in the van with Brown’s.body. (3 RT 448.) e Thomassaid that appellant ate the food they boughtat McDonald’s and that she did not seem bothered by what they had just done. (3 RT 448.) e Thomassaid it was appellant’s idea to pour Coke on the blood. She told him shehadseen it on a television show. (3 RT 448-449.) e Thomassaid that he dumped the clothes in the dumpster and that he threw away the machete and the knife at the canal area where hetook the police. (3 RT 449-450.) Besides Detective Wheeler’s testimony about what Thomastold him, the prosecutor introduced a letter from Thomasthat wasin appellant’s jail cell. (3 RT 470). In that letter, Thomascalled appellant ““‘a hypocrite’” and told her, “*You did this, not me.’” (3 RT 470-471.) In surrebuttal, appellant explained that “You did this, not me”referred to her ending the relationship with Thomas. (3 RT 477.) 22 B. Thomas’s Police Statements Were Properly Admitted to ImpeachHis Credibility 1. This Court has held that the prosecution may constitutionally impeach a hearsay declarant’s credibility with the declarant’s inconsistent out-of- court statements In her testimony, appellant pointed the finger at Thomasandsaid that he admitted to her that, on his own, he killed Brown during a botched robbery. The prosecutor’s stated basis for seeking the admission of - Thomas’s contrary statementsto the police was Evidence Codesection 1202. (3 RT 422.) Section 1202 provides that “[e]vidence of a statement or other conduct by a declarantthat is inconsistent with a statement by such declarant received in evidence as hearsay evidenceis not inadmissible for the purpose ofattacking the credibility of the declarant though heis not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct.” (Evid. Code,§ 1202.)° Thetrial court concluded, over appellant’s Crawford objection, that Thomas’spolice statements were admissible for the “limited purpose” of attacking the credibility of his purported statements to appellant. (3 RT 423.) Underthe law as this Court has articulated it, the trial court’s ruling wascorrect. Specifically, “Crawford madeclear that there are no confrontation clauserestrictions on the introduction of out-of-court statements for nonhearsay purposes.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6; see also People v. Ervine (2009) 47 Cal.4th 745, 775-776.) Therefore, using a declarant’s inconsistent out-of-court statements for the nonhearsay > In federal courts, rule 806 of the Federal Rules of Evidenceis comparable. 23 purpose of impeaching the credibility of the declarant’s in-evidence hearsay statements does not implicate a defendant’s right of confrontation. People v. Blacksher (2011) 52 Cal.4th 769 (Blacksher) addressed and resolved this very issue. There, the trial court admitted the preliminary hearing testimony of the defendant’s mother, Eva, who was unavailable to testify at trial. (/d. at p. 803.) During the preliminary hearing, Eva denied having obtained a restraining order against the defendant, said she did not remembersigning an application for the order, and claimed she never wrote that she wasafraid of the defendant. (/d. at pp. 803-804.) The prosecutor called Eva’s daughter, Ruth, whotestified that Eva said she wasafraid of the defendantand did apply for a restraining order. (/d. at p. 804.) On appeal, the defendant argued that the admission of Ruth’s testimony about what Evatold her violated his right of confrontation. (Blacksher, supra, 52 Cal.4th at p. 805.) The Court held otherwise: “[W]Je ... reject defendant’s claim that Ruth’s testimony impeaching Eva’s former testimony was not admissible on confrontation grounds undereither state or federal law.” (/d. at p. 806.) In particular, the Court explained that “Eva’s statements to Ruth were admissible not for their truth but solely to impeach her former testimony.” (Blacksher, supra, 52 Cal.4th at p. 806.) “Although the court did not admit the evidence undera specific Evidence Code section, the statements were admissible under Evidence Code section 1202, which governs the impeachmentof hearsay statements by a declarant who doesnottestify at trial.” (/bid.) The Court explained that this is allowed under the confrontation clause as long as the prosecution does notoffer the declarant’s inconsistent statements for their truth. (/d. at p. 808; see also People v. Osorio (2008) 165 Cal.App.4th 603, 615-617; People v. Marquez (1979) 88 Cal.App.3d 993, 997-998.) 24 So it is here. Appellant testified that Thomastold her he alone plotted Brown’s robbery and killed her when it went bad. Under Blacksher, the prosecutor’s introduction of Thomas’s police statements for the purpose of impeaching the statements he made to appellant was a proper application of Evidence Codesection 1202, and did not run afoul of the confrontation clause. (See also United States v. Jimenez (3d Cir. 2008) 513 F.3d 62, 81 (‘“‘Nonhearsay use of evidence as a means of demonstrating a discrepancy does not implicate the Confrontation Clause”]; State v. Nelson (Or.Ct.App. 2008) 197 P.3d 1130, 1131 [“This case presents the question of whether the testimonial statement of a declarant, admitted for the purpose of impeaching the declarant ... is barred by the rule in [Crawford]. We hold that it is not”); Del Carmen Hernandez v. State (Tex.Ct.App. 2006) 219 S.W.3d 6, 10-13 [finding no Crawford violation where, after defendant introduced accomplice’s statements exculpating defendant, the prosecutor introduced accomplice’s inconsistent statements inculpating defendant].) 2. The Court should find appellant’s contrary arguments unpersuasive Notwithstanding Blacksher, appellant contendsthat section 1202 did not apply because there was no hearsay to impeach inthefirst place. (ABOM 33-34.) Thatis, section 1202 comesinto play only after hearsay — out of court statements offered for their truth — is admitted. (Evid. Code, § 1202.) Appellant says, and the Court of Appeal agreed, that Thomas’s statements to her were not hearsay because she wasnot relying on them for their truth. (ABOM 33-34; Opn.at p. 26.) But of course she was. Appellant, who wasontrial for murdering Brown, took the stand and testified that Thomastold her how and whyhekilled Brownail by himself. She hadto be offering these alleged statements for their truth. Given the avalanche of other damning evidence against her, appellant needed the jury 25 to believe Thomas’s purported admission that he alone planned the robbery and killed Brown. Alternatively, appellant asserts that the rebuttal evidence of Thomas’s police statements could not have any impeachmentvalue to the prosecution unless they were offered for their truth. (ABOM 41-42.) That is not so. The impeachmentvalueof inconsistent statements necessarily derives from their inconsistency, and not their substance. That a declarant said different things at different times makes a// of his statements unreliable, regardless of whether any of the statements is actually true. (See United Statesv. Grant (11th Cir. 2001) 256 F.3d 1146, 1156 (“Rule 806 [the federal equivalent of Evidence Code section 1202] made the statements admissible for impeachment purposes, and the point of admitting inconsistent statements to impeachis not to show that they are true, but to aid the jury in deciding whether the witness is credible; the usual argumentofthe party doing the impeachingis that the inconsistent statements show the witness is too unreliable to be believed on important matters”); United Statesv. Graham (5th Cir. 1988) 858 F.2d 986, 990, fn. 6 [explaining in the context of rule 806 of the Federal Rules of Evidencethat “the hallmark of an inconsistent statement offered to impeach a witness’s testimonyis that the statementis not hearsay within the meaningofthe term,i.e., it is not offered for the truth of the matter asserted ... rather, it is offered only to establish that the witness has said both ‘x’ and ‘not x’ andis therefore unreliable”}.) Still; appellant’s theory suggests the possibility that the prosecutor’s section 1202 argument wasreally a ruse to get Thomas’sstatements admitted for their truth, under the guise of being “inconsistent.” Indeed, there is support for the notion that courts should look beyond the prosecutor’s ostensible nonhearsay reason for seeking introduction of out- of-court statements to determine whetherit is mere pretext. (See Williams 26 Illinois (2012) 132 S.Ct. 2221, 2256 (opn. of Thomas,J., conc. in judg.); United States v. Cruz-Diaz (5th Cir. 2008) 550 F.3d 169, 177.) The Court should find no such chicanery here. Right up front, the prosecutor acknowledged that Crawford prevented him from introducing Thomas’s police statementsfor their truth. (1 RT 13.) Healso explained that, if appellant testified, he might want to cross-examine her using Thomas’s statements as a roadmapto how the crime occurred, but that “I can’t say, ‘Hey, Thomastold us this.’” (1 RT 19.) It was only after appellant put specific words in Thomas’s mouththat the prosecutorraised the argumentof introducing Thomas’spolice statements. The prosecutorspecified that he was seeking admission ofthe statements solely “to impeach the hearsay declarations that camein through the defendant.” (3 RT 422,italics added.) And the trial court agreed that “the prior inconsistent statements would be admissible for that limited purpose.” (3 RT 423.) Appellant notes that thetrial court did not instruct the jury as to the limited purpose of the statements. (ABOM 38.) Butthat is nobody’s fault but hers. Appellant never asked for such an instruction and she has explicitly disavowed any instructional error claim. (ARB 12-13 [“Ms. Hopsondoesnotclaim thatthe trial court made an error whenit failed to give a limiting instruction in this case”]; see also People v. Cowan (2010) 50 Cal.4th 401, 479 [Absent a request, a trial court generally has no duty to instruct as to the limited purpose for which evidence has been admitted”; People v. Hernandez (2004) 33 Cal.4th 1040, 1052 [“Because defendants did not specifically request a limiting instruction at the appropriate time, the court had no sua sponte duty to give one”]; United States v. Churchwell (11th Cir. 2012) 465 Fed.Appx. 864, 865-866 [finding no violation of 27 confrontation clause wheretrial court did not give a sua spontelimiting instruction on evidence introduced for nonhearsay purpose].)° Finally, appellant points to the prosecutor’s closing. (ABOM 40.) She says that, during an argument that lasted over 20 transcript pages, the prosecutor madefourfleeting references to the truth of Thomas’s statements. (ABOM 40-41.) Again, however, appellant neither objected nor requested a limiting instruction. (People v. Carter (2003) 30 Cal.4th 1166, 1209, fn. 13 (Carter).) And, as the Court of Appeal observed, “Ta]lthough the prosecutor talked about Thomas’s confession to the detectives as showing that Thomas had a conscience and wantedto help Brown’s family, his argument mainly dwelled on the lies that he believed Hopson hadtold,‘all the way through this case.’” (Opn.at p. 30.) C. Thomas’s Police Statements Were Properly Admitted to Impeach Appellant’s Credibility 1. The controlling case law establishes that the prosecution may rebut a defendant’s testimony with out-of-court statements introduced for nonhearsay purposes Apart from being admissible to impeach Thomas’s credibility, the Court of Appeal found that Thomas’s police statements were admissible for the nonhearsay purpose of impeaching appellant’s credibility. (Opn.at pp. 33-36.) This is correct for multiple reasons. To begin with, Thomas’s statements to the police impeachedthe credibility of appellant’s claim that she hid the truth because she wasafraid of him. They suggested a different explanation for appellant’s morphing narrative, namely, that appellant changed her story because she had to account for what Thomastold the police. © Thetrial court did give a generallimited purpose instruction later on, after the close of evidence. (3 RT 500; 2 CT 390.) 28 Carter, supra, 30 Cal.4th 1166 provides guidance onthis point. There, the defendant and two accomplices were accused of murdering two victims. The defendanttestified that he intended to rob the victims, but did not intendto, or actually, kill them. (7d. at p. 1206.) He said he admitted his role because he wantedthe truth to come out. (/bid.) On cross-examination, the prosecutor established that the defendant had initially denied any involvementto the police, and only changedhis story after he became awarethat his accomplices hadtold the police that he was the shooter. (Carter, supra, 30 Cal.4th at pp. 1206-1207.) The defendant argued that the prosecutor’s cross-examination “concerning [his accomplices’] extrajudicial statements ... constituted inadmissible hearsay, thereby depriving him ofhis constitutional right of confrontation.” (/d.at p. 1208.) The Court rejected the defendant’s claim, holding that “the evidence did not constitute inadmissible hearsay.” (Carter, supra, 30 Cal.4th at p. 1209.) Rather, “[t]he prosecutor’s apparent aim in inquiring into defendant’s knowledge of [the accomplices’] statements wasnot to establish the truth of the matters asserted therein but to shed light on defendant’s state of mind in admitting his own involvementin the ... offenses andthe credibility ofhis trial testimony that his admission was motivated by a desire to bring forth the truth.” (/did.) This caseis a lot like Carter. Like the defendant in Carter, appellant initially denied any involvement in Brown’s murder. Like the defendant in Carter, only after appellant learned of Thomas’s statements fingering her as the mastermind did she acknowledgethat her initial denial was untrue. And,as in Carter, the jury had to decide if appellant changed herstory for the reason she said — that she wastoo scared to do so earlier — or for some other reason. 29 Therefore, it was important for the jurors to hear exactly what Thomas told the police so they could evaluate whether appellant wastelling the truth at trial or whether she hadcrafted a story to matchthe details of Thomas’s statements, which her attorney read to her in December 2011. (3 RT 468-469.) That, as the Court of Appeal explained, did not make Thomas’s statements hearsay: “Wealso agree with respondentthat Thomas’ statements were admissible for the nonhearsay purpose of explaining why [appellant] apparently continued to stay friends with Thomasup until the weeks before his death, consistently claiming a homeless man must have donethe killing, and why shedid not start to blame Thomasfor planning the killing until she became aware he had made statements against her. She then changedhertactics to accommodate his version of what happened.” (Opn.at p. 36.) Beyond impeachingthe credibility of appellant’s explanation for changingher story, Thomas’s police statements also impeached the credibility of appellant’s assertion that Thomasactually made the admissions that she ascribed to him. Unlike in Blacksher, supra, 52 Cal.4th. 769 — where there was nodispute that the declarant’s hearsay statements had been made becausethey weretranscribed in a preliminary hearing — in this case, the prosecutor had every reason to doubt that Thomas made the statements to which appellant testified. Thomas’s statements to the police madeit less likely that appellant wastelling the truth about the statements Thomasallegedly madeto her. The Supreme Court’s opinion in Street is instructive. In Street, the defendant was charged with murdering his neighbor. (Street, supra, 471 U.S. at p. 411.) Attrial, the prosecutor submitted a confession that the defendant gaveto the police, in which the defendantsaid that he and an accomplice (Peele) killed the victim during a burglary gone awry. (/bid.) 30 The defendanttestified that he was innocent andthat the confession was coerced. (Street, supra, 471 U.S. at p. 411.) Peele had separately confessed and the defendant explained his confession by claimingthat the sheriff forced him to adopt Peele’s confession. (/bid.) To rebut the defendant’s claim that his confession was coerced, the sheriff read Peele’s confession to the jury so the jury could see for itself that the defendant’s confession contained details that Peele’s did not. (/d. at pp. 411-412.) The jury convicted the defendant. (/d. at p. 412.) Onappeal, the defendant argued that the introduction of Peele’s confession violated the confrontation clause. (Street, supra, 471 U.S. at p. 413.) The Supreme Court disagreed. (/bid.) Specifically, “the prosecutor did not introduce Peele’s out-of-court confession to prove the truth of Peele’s assertions.” (/bid.) Rather, Peele’s confession was read to impeach the credibility of the defendant’s assertion that his own confession was coerced. (/d. at pp. 413-414.) “The nonhearsay aspect of Peele’s confession — not to prove what happened at the murder scene but to prove what happened when respondent confessed — raises no Confrontation Clause concerns.” (Street, supra, 471 U.S. at p. 414.) “The Clause’s fundamentalrole in protecting the right of cross-examination ... was satisfied by [the sheriff's] presence on the stand.” (Ibid.) “If [defense] counsel doubted that Peele’s confession was accurately recounted, he wasfree to cross-examine the Sheriff.” (/bid.) Althoughthe issue here is not identical to that in Street, Street’s analysis still applies. Appellant claimed that Thomas coerced her statements to the police the night of Brown’s murder, in which she denied that she and Thomashad any involvement whatsoever in Brown’s disappearance. (2 RT 348-349.) Shetestified that, in reality, Thomas admitted to her that he killed Brown on his own (2 RT 323-325.) 31 The prosecution’s rebuttal evidence — that Thomastold the police something different from what appellant claimed Thomastold her — was introduced for the purpose of impeaching appellant’s credibility. Thatis, Thomas’s statements to the police that he and appellant both planned the crime madeit less likely that Thomasreally admitted to appellant that he committed the crime alone. Thus, as in Street, the issue was whether Thomas made the statements to the police and, as in Street, defense counsel wasfree to cross-examine Detective Wheeler about what Thomastold him. (Street, supra, 471 U.S. at p. 414.) Moreover, because the impeachmentwasin the details, the prosecutor wasnot required to sanitize or abridge Thomas’s statements to the police. In her testimony, appellant gave a very specific account of what Thomas supposedly told her he did — i.e., Thomas planned on his ownto rob Brown, he sliced Brown’s neck with the machete when she recognized him, and then he cut Brown with the knife to finish the job. (3 RT 323-325.) To impeach appellant’s claim that Thomassaid those thingsto her, it was necessary to show that he described the details of the crime very differently to the police. (Street, supra, 471 U.S.at p. 415 [“We do not agree with the Court of Criminal Appeals’ suggestion that Peele’s confession could have been edited to reduce the risk ofjury misuse ‘without detracting from the alleged purpose for which the confession was introduced’”].) Appellant argues that Street is inapposite. (ABOM 39-42.) She says that, unlike the statements in Street, Thomas’s statements to the police could impeachher “only if the jury believed that what Thomassaid was true.” (ABOM 339,italics removed.) Again, that is not so. Thomas’s police statements did not haveto be true to impeach appellant’s credibility, they just had to have been made. Jurors could decide that appellant changed her story becauseshefelt like she had to explain what Thomastold the police. Or the jurors could decide Thomas 32 would not have told appellant something different from what hetold the police. In either scenario, the truth of Thomas’s police statementsis irrelevant to the jurors’ calculus — the jurors could disbelieve the substance of what Thomassaidto the police but also disbelieve appellant’s testimony about what Thomassupposedly told her. 2. Appellant’s out-of-state cases do not help her Appellant cites three cases in support of her assertion that the admission of Thomas’s statements violated her right of confrontation. These cases donotassisther. First, there is People v. Thompson(Ill.Ct.App. 2004) 812 N.E.2d 516. In that case, the defendant was charged with beating up his fiancée. (/d. at p. 517.) Attrial, he testified that he never had any domestic violence issues with the victim. (/d. at p. 519.) Thetrial court permitted the prosecutor to cross-examinethe defendantwithstatements the victim made aboutthe incident in an order of protection. (/d. at pp. 519-520.) The court held that this was a prejudicial violation of the defendant’s right of confrontation. (Id. at p. 522.) Thecritical difference between Thompson andthis caseis that, in Thompson,“[t]he State concede/d] use of [the order of protection] to impeach defendant was improper,” and the only issue was whetherit was harmless. (People v. Thompson, supra, 812 N.E.2d at p. 520,italics added.) Thus, there was no argument in Thompsonthatthe out-of-court statements were offered for a nonhearsay reason. Thompson obviously did not considerthe viability ‘of an argument that was not made. (Peoplev. Jennings (2010) 50 Cal.4th 616, 684 [“‘It is axiomatic that cases are not authority for propositions not considered’”’].) Second, appellant cites a case from the Court of Appeals for the ArmedForces, United States v. Hall (C.A.A.F. 2003) 58 M.J. 90. There, a court martial convicted the defendant ofwrongful use of cocaine after she 33 tested positive for the drug. (/d. at p. 90.) Her defense attrial was that she innocently ingested the cocaine from Central American tea that her mother sent to her. (/d. at p. 92.) As “impeachment,” the military judge permitted a governmentspecial agentto testify that the defendant’s mother told him she had nevergiven her daughter any tea. (/d. at pp. 92-93.) The government acknowledgedthat the admission ofthis testimony waserror and the question before the court was whetherthe error was harmless. (United States v. Hall, supra, 58 M.J. at pp. 93-94.) Duringits discussion, the court explained that “‘[t]he members could not have found contradiction of Appellant’s testimony without considering the hearsay as fact contrary to Appellant’s in-court testimony.” (/d. at p. 94.) Appellant predictably trumpets this language. (ABOM 45.) Respondent does not dispute that Hall was correct based on the facts | before it. But this avails appellant of nothing because the issue in Hal] was not the same as the issue here. Hall would be like this case if the defendant in Hall had testified that her mother admitted sending her cocaine-laced tea. Underthose circumstances, for the reasons discussed above, the mother’s statement to the agent would have been admissible to impeach the mother’s admission to her daughter and to impeach the daughter’s testimony that the mother made the admission. Finally, appellant relies on Soto v. State (Ga. 2009) 677 S.E.2d 95. It, too, is inapposite. In Soto, the murder defendant’s accomplicetestified that the defendant was innocent and then refused to answer any more questions. (Id, at p. 97.) At that point,the trial court allowed the prosecutor to admit the accomplice’s out-of-court statements, in which he inculpated the defendant. (/bid.) The court held that this violated the confrontation clause. (Cd. at pp. 98-99.) Soto might be right as far as it goes. It does not, however, address the issue presented here, where the defendanttestified and offered her 34 accomplice’s out-of-court statements for their truth. In this scenario, the prosecutor can introduce the accomplice’s inconsistent out-of-court statements for the nonhearsay purpose of impeachment. In sum, appellant cites three inapplicable cases that are not from either the United States Supreme Court or the California Supreme Court. Sound or not, the reasoningin these casesis of limited, if any, utility to the question in this case. D. Appellant Opened the Door to Hearsay Use of Thomas’s Police Statements Even if the Court were to determinethat the introduction of Thomas’s police statements crossed the line from nonhearsayinto hearsay, it should still hold that there was no violation of appellant’s right of confrontation. Multiple courts have concluded that a defendant’s trial strategy can open the door to the admission of evidence that the confrontation clause would normally bar. This Court should hold likewise, and find that appellant opened the Sixth Amendmentdoorhere. 1. There is a growing consensusofcases holding that a defendant can openthe doorto evidence that the confrontation clause would otherwise preclude The Court of Appeal analyzedthis issue through the prism of Peoplev. Reid (N.Y. 2012) 971 N.E.2d 353 (Reid). (Opn. at pp. 32-33, 37.) Reid “raises the question whether a defendant can open the doorto the admission of testimony that would otherwise be inadmissible under the Confrontation Clause of the United States Constitution.” (Reid, supra, 971 N.E.2dat p. 354.) “We hold that he can, and,in this case, he did.” (bid.) In Reid, the defendant (Reid) and his accomplice (Joseph) were charged with shooting a man to death. (Reid, supra, 971 N.E.2dat p. 354.) Joseph confessed that he and Reid committed the crime together. (/bid.) 35 A themeofReid’s defenseat trial was that the police investigation was inadequate. (Reid, supra, 971 N.E.2d at p. 355.) Reid’s counsel developed this theme through questioning of someofthe witnesses. Specifically, the prosecutor called a witness whotestified that Reid told him that he was with Joseph and another person (McFarland) the night of the shooting. (Reid, supra, 971 N.E.2d at p. 355.) Reid’s counsel elicited from this witness that the police had not arrested McFarland. (/bid.) Likewise, Reid’s counsel got an investigating detective to admit that he received information of McFarland’s potential involvement from multiple sources. (/bid.) In response, the prosecutor had the detective confirm that an “eye witness” — who could only be Joseph — told him that McFarland was definitely not there during the shooting. (Reid, supra, 971 N.E.2dat pp. 355-356.) Reid objected that this violated his right of confrontation. (/d. at p. 356.) On appeal, “the People concede[] the admission of the testimony that a nontestifying eyewitness told the police who had been presentat the murderviolated the Confrontation Clause, unless the door was opened to that testimony by the defense counsel’s questioning of witnesses.” (Reid, supra, 971 N.E.2d at p. 356.) The court held that it could be. In particular, the court explained that, “[i]f evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant’s actionsat trial, then a defendant could attempt to delude a jury by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context.” (Reid, supra, 971 N.E.2d at p. 357, internal quotation marks omitted.) “To avoid such unfairness and to preserve the truth-seeking goals of our courts [citation to Street, supra, 471 U.S. at p. 415], we hold that the 36 admission of testimony that violates the Confrontation Clause may be properif the defendant opened the doorto its admission.” (/bid.) Reid hardly stands alone. To the contrary,Reid recognized that a “consensus” of “United States Courts of Appeals have held that ‘a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause.’” (Reid, supra, 971 N.E.2dat pp. 356-357, quoting United States v. Lopez~Medina (10th Cir. 2010) 596 F.3d 716, 733 (Lopez-Medina).) For example, in Lopez-Medina, supra, 596 F.3d at p. 726, defense counsel cross-examinedan officer regarding the substanceofcertain statements a confidential informant made. On redirect, the prosecutor asked the officer about other statements from the confidential informant. (Ibid.) The Tenth Circuit held that defense counsel had opened the door to the officer’s redirect testimony. (/d. at pp. 730-731.) The court explainedthat “[t]he Confrontation Clauseis a shield, not a sword,” (Lopez-Medina, supra, 596 F.3d at p. 732.) “Where, as here, defense counsel purposefully and explicitly opens the dooron a particular (and otherwise inadmissible) line of questioning, such conduct operates as a limited waiver allowing the governmentto introduce further evidence on that same topic.” (/d.at p. 731; see also Charles v. Thaler (5th Cir. 2011) 629 F.3d 494, 503 [“Otherwise inadmissible hearsay evidence may be offered to impeach the defendant on a topic to which he has opened the door, and no violation of the Confrontation Clause arises”]; United States v. Holmes(8th Cir. 2010) 620 F.3d 836, 843 [“Crawford did not change the rule that a defendant can waivehis right to confront witnesses by opening the door to the admission of evidence otherwise barred by the Confrontation Clause,” internal quotation marks omitted]; United States v. Acosta (5th Cir. 2007) 475 F.3d 677, 684-685; Ko v. Burge (S.D.N.Y. Feb. 26, 2008, No. 06 Civ. 6826(JGK)) 2008 WL 552629 at pp. *12-13.) 37 It is not just Reid and these federal cases, either. There are also multiple state cases besides Reid that have reached the same conclusion. People v. Rogers (Colo.Ct.App. 2012) 317 P.3d 1280 (Rogers)is particularly instructive. There, the defendant was convicted of unlawful firearm possession after the police found a gun in the back seat ofa carin which the defendant and a driver were riding. (Rogers, supra, 317 P.3d at pp. 1281-1282.) The defendant denied the gun washis. (/d. at p. 1282.) Attrial, defense counsel got the arresting officerto testify that the driver admitted handling the gun. (Rogers, supra, 317 P.3d at p. 1282.) The prosecutor then had the officer explain that the driver also said that the defendant brought the gun with him into the car and threw it in the back seat when the car was pulled over. (/bid.) The court held that, notwithstanding the confrontation clause, defense counsel’s examination of the officer “opened the doorto the prosecution’s redirect examination and the admission of statements implicating defendant.” (qd. at p. 1284; see also State v. Fisher (Kan. 2007) 154 P.3d 455, 481-483; McClenton v. State (Tex.Ct.App. 2005) 167 S.W.3d 86, 93-94; Tinker v. State (Ala.Crim.App. | 2005) 932 So.2d 168, 187-88; State v. Brooks (Hawaii Ct.App. 2011) 264 P.3d 40, 51; Lane v. State (Ind.Ct.App. 2013) 997 N.E.2d 83, 93.) In the face of this authority, appellant cites a single contrary case, United States v. Cromer (6th Cir. 2004) 389 F.3d 662 (Cromer). (ABOM 50-52.) Cromerheld that, even if a defendant opensthe doorto the admission of hearsay underthe applicable rules of evidence, that does not permit introduction of evidence that the confrontation clause would otherwise exclude. (Cromer, 389 F.3d at pp. 678-679.) Cromerhas been repeatedly criticized and rejected. For example, the Lopez-Medina court carefully examined Cromer before concluding that “Twle disagreewith Cromer.” (Lopez-Medina, supra, 596 F.3dat p. 733.) ““Tf the Cromer rule were correct, a defendant would be free to mislead a 38 jury by introducing only parts of an out-of-court statement, confident that the remainderof the statement could not be introduced because the Confrontation Clause would provide a shield.’” (/bid., quoting Ko v. Burge, supra, 2008 WL 552629 at p. *13.) The court in Ko v. Burge went even further: The Cromer decision cited no authority for the proposition that a defendant cannot open the doorto the admission of evidence otherwise barred by the Confrontation Clause. The decision has not been followed by any other Court of Appeals. It is inconsistent with other cases in which the Supreme Court has held that a defendant’s statement, otherwise inadmissible under other constitutional provisions, can be introducedattrial to impeach a defendant’s conflicting trial testimony. See, e.g. Michigan v. Harvey, 494 U.S. 344, 351-52 (1990) (statement taken in violation of the Sixth Amendment); Harris v. New York, 401 U.S. 222, 224-25 (1971) (statement taken in violation of the Fifth Amendment). ... [T]here is no basis for concluding that the Confrontation Clause can be used asa shield to allow a jury to be misled, particularly when the Supreme Court has refused to allow other constitutional rights to be used by defendants as a shield for misleading the jury. (Ko v. Burge, supra, 2008 WL 552629 at p. *13; see also Rogers, supra, 317 P.3d at p. 1283; State v. Brooks, supra, 264 P.3d at p. 52.) The Court should find Cromer unpersuasive for the same reasons other courts have. Instead, consistent with the overwhelming weight of authority, the Court should hold that a defendant can open the door to hearsay testimony that the confrontation clause would otherwise prohibit. 39 2. Appellant opened the doorin this case Assuming that a defendant can open the door to hearsay evidence,that raises the question of whether appellant did so in this case. The Court should conclude that she did. The case law hasnotcrystallized a single standard for determining whether a defendant has opened the door to hearsay evidence overher right of confrontation. In Lopez-Medina, defense counsel explicitly told thetrial court that “‘I don’t care what door we open. If I open up a door, please feel free to drive into it.”” (Lopez-Medina, supra, 596 F.3d at p. 731.) The court held that, so long as this was a legitimate trial tactic from which the defendant did not dissent, the door was opened. (Jbid.) It did not resolve whether the door could be opened through counsel’s inadvertence or neglect. (/bid.) The Rogers court concluded that “[a] court may assumethat when an attorney fails to comply with relevant procedural rules, the attorney has made a decision to waive defendant’s right of confrontation regardless of whetherthe attorney knew ofor understoodthe rule or its requirements.” (Rogers, supra, 317 P.3d at pp. 1283-1284.) Because “defendant’s counsel introduced the driver’s hearsay statement... to elicit evidence that the driver knew of the gun andhadtried to concealit,” which was“a strategic trial tactic designedto shift the jury’s attention to the driver and away from defendant,” the door was opened. (/d. at p. 1284; compare United States v. Holmes, supra, 620 F.3d at p. 844 [finding that defense counsel had not opened the door].) Reid used a two-step test to deciding if the door was opened: (1) whether, and to what extent, the evidence or argumentsaid to open the door is incomplete and misleading and (2) what, if any, otherwise inadmissible evidence is reasonably necessary to correct the misleading impression. (Reid, supra, 971 N.E.2d at p. 357.) 40 ‘ Respondent proposesthat the Court adopt Reia’s test. Specifically,if defense counsel offers hearsay evidence that is incomplete or misleading, then the door is opened for the prosecution to submit otherwise inadmissible evidence that is reasonably necessary to correct the misleading impression. Even if, however, the Court were to use the Lopez-Medinatest — i.e., defense counsel must make anintentional, strategic decision to introduce hearsay evidence — or to graft its requirements onto the Reidtest, it would make nodifference here. Either way, the Court should find that appellant’s testimony about Thomas’s alleged statements to her openedthe doorto the prosecutor’s rebuttal evidence of Thomas’s statements to the police. To begin with, appellant’s door-opening testimony did not comein through someinadvertent mistake. Defense counsel was on noticethat, depending on how appellanttestified, the prosecution might seek introduction of Thomas’s police statements. .(1 RT 18-19.) Yet counsel deliberately asked appellant question after question about what Thomas told her regarding the murder: e Did hetell you whathappened? (2 RT 323.) e And whatelse did he tell you after he told you that it would be any easy target? Whatelse did he tell you with respect to what happenedin that garage and how Laverna ended up being dead? (2 RT 323-324.) e Did Julius explain to you that there was a struggle, or whatdid he explain to you regardingthe interaction between Laverna and Julius, which is what caused Julius to kill Laverna? (2 RT 324.) e Did hetell you that at some point that Laverna was actually alive after he sliced her? (2 RT 324.) e Howdid he describe to you that Laverna wasalive? Whatdid he say that Laverna was doing? (2 RT 324.) 4d e And did he say how manytimeshesliced her with the — machete? (2 RT 325.) e And he mentioned to you that [the machete] was dull? (2 RT 325.) e Where did he say he finished what he started? What part of her body did Julius slice Laverna? Did he tell you? (2 RT 325.) | Furthermore, there was a manifest tactical reason for having appellant testify that Thomas admitted sole responsibility for — and described to her in detail - Brown’s murder. Namely, defense counsel wantedto shift the blame to Thomasalone. But, once defense counsel elicited this testimony from appellant, the jury had an incomplete and misleading understanding of Thomas’s out-of- court statements. Without Detective Wheeler’s rebuttal testimony, the jurors would havebeen left with the impression that the statements recounted by appellant — which implicated Thomasand no oneelse — were the only statements that Thomas made aboutthe crime. Simply put, a defendant should not be able to selectively reveal a witness’s helpful out-of-court statements while concomitantly concealing the witness’s other out-of-court statements on the same topic. (Reid, supra, 971 N.E.2d at p. 357.) To hold otherwise would sew unfairness and pervert the “truth-seeking goals” of our criminal justice system. (/bid.) Indeed,it is not hard to imagine the consequencesofallowing a defendant to hide behind the confrontation clause in situation like this. The defendant would havecarte blancheto testify that any unavailable | witness took credit for the crime, and there would be nothing the prosecution could do about it. (Chambers v. Mississippi (1973) 410 U.S. 284, 300-302 [holding that a defendant hasthe right to present evidence that another person admitted guilt]; People v. Spriggs (1964) 60 Cal.2d 868, 42 875-876 [same]; Evid. Code, § 1230 [hearsay exception for declarations against interest].) It is, of course, true that a defendant can do exactly this in cases where the prosecution does not have contrary out-of-court statements from the unavailable witness. But that should not bar the prosecution from introducing the witness’s contrary out-of-court statements when they do exist. If the defendantelects to take the stand and put words in the mouth of an. unavailable witness, then she should not be able to prevent the jury from hearing the rest of that witness’s related statements. “The Confrontation Clauseis a shield, not a sword.” (Lopez-Medina, supra, 596 F.3d at p. 732.) Therefore, the Court should hold that, under the circumstancesofthis case, appellant opened the door to the admission of Thomas’s statements to the police whenshe testified that Thomas described to her how he alone killed Brown. To hold otherwise would only countenance appellant’s attempt to delude the jury. E. Any Error Was Harmless Beyond a Reasonable Doubt Should the Court decide that the admission of Thomas’sstatements to the police was a violation of appellant’s right of confrontation, reversalis not automatically required. Confrontation clause violations are subject to federal harmless-error analysis under Chapmanv. California (1967) 386 U.S. 18, 24. (People v. Bryant (2014) 60 Cal.4th 335, 395.) The reviewing court asks whetherit is clear beyond a reasonable doubtthat rational jury would have reached the sameverdict absent the error. (/bid.) Here, the Court should find that any error was harmless. Even without Thomas’s police statements, there was a mountain of physical and circumstantial evidence establishing that appellant and Thomaskilled Brown together. 43 In particular, the evidence showed that appellant needed money, which she did not have, to move into a new apartment on October29. (2 RT 290.) Appellant knew that Brown would be travelling on October 28 and expected Brown to have cash on her. (2 RT 411-412.) Although appellant was destitute, on October 27, she bought a knife, pepper spray, and clothes in Thomas’s size. (2 RT 198-199, 202, 246.) Then, she called the apartment managerandtold her that she would have the move-in money by October 29. (2RT291.) Brown went missing on October 28. (1 RT 35-36, 93.) That morning, Timm discovered that the machete and butcher knife were gone. (1 RT 69, 72, 74, 84.) Timm found blood on the side of the house and a bloody blanket in the trash can. (1 RT 85, 87.) There wasalso bloodin the garage. (2 RT 167.) Appellant told Timm that she had spilled, and cleaned up, soda right where the blood was. (1 RT 82.) Later that day, appellant cleaned the area again. (1 RT 91.) Brown’svan, with her body inside and a bottle of cleaning solution on her back, was located close to where Thomas’s cell phone put him after Brown wasreported missing. (1 RT 113-114, 131.) Appellant’s DNA, but not Thomas’s, was on the van’s steering wheel. (2 RT 196-197.) The suitcase in the van wasnot fully packed and there were no defensive wounds on Brown’s body, suggesting she was interrupted by someone in the house while she was packing and lured into the garage where she was ambushed. (1 RT 114, 147.) The cell phone records revealed constant communication between Thomasand appellant in the morning of October 28, with a conspicuous gap between 2:10 a.m. and 7:42 a.m. (2 RT 227-228, 232-235.) The gap ended when Thomas madecalls to appellant from near where the machete was found and from near where the van was found. (2 RT 234-235.) 44 Although appellant mostly lied to the police about what happened the morning of October 28, she admitted that she had encountered Brown packing for hertrip. (2 CT 187-188.) Appellant also repeatedly referred to Brownin the past tense before anyone knew that she was dead. (2 RT 278; 2 CT 172, 176.) And, during hertrial testimony, appellant put herself at the . murder scene with Thomas and confirmed that Thomas was wearing the clothes that she bought for him on October 27. (2 RT 323, 336-339.) Againstthis crushing evidence, there was appellant’s versionofthe murder. Appellant wanted the jury to believe that, Thomas— acting alone — somehow got Brownto leave her bedroom in the middle of the night and comeinto the garage where he was hiding. Since, according to appellant, Thomasjust wanted to rob Brown, Thomas’s one-manplan hinged on Brownserendipitously bringing money with herto the garage at 2:00 a.m. (2 RT 323.) Appellant said Thomastold her he killed Brownafter she recognized him, which meant that Brown sawherattacker coming yet made noeffort to defend herself. (1 RT 147; 2 RT 324.) Then, after Thomas killed Brown, he supposedly called appellant from the garage, even though there is no record of Thomas making a call at Timm’s house. (2 RT 232-233.) When appellant arrived inside the garage, Thomas coerced her help in covering up his crime by threatening the lives of her and her son, Alexander. (2 RT 323, 326.) Apart from being incredible onits face, appellant’s story simply did not jibe with her behavior following the murder. For example, while appellant claimed that she believed Thomas had people watching Alexander and-could make good onhis threat to hurt him, she made absolutely no effort to warn her son of this imminent danger. (2 RT 345; 3 RT 427-428, 431, 433.) Instead, she went furniture shopping. (3 RT 427-428, 431.) 45 B U N S E N S M M H e e s Similarly, appellant’s conduct andattitude towards Thomas were wholly inconsistent with her being scared for her own life. After Thomas had brutally murdered Brown and threatened to do the same to appellant and her son, appellant regularly used terms of endearmentlike “honey” and “snuggly teddy bear” to describe him. (2 RT 277, 388; 1 CT 96; 2 CT 208.) Moreover, following their arrest, appellant repeatedly sent Thomas mash notes that gushed with longing and desire. (2 RT 265-266; 3 RT 468- 469.) The letters were replete with heart drawings and declarations of appellant’s everlasting love. (2 RT 265-266; 3 RT 468-469.) Lastly, once Thomas committed suicide and appellant wasfree of this purported monster, she did not go to the police andtell them that Thomas had forced her to go along with him. Rather, she wrote an inscription in his memorythat read, “My love is gone and I pray heis in heaven with Jesus. 7/6/81-12/16/11.” (3 RT 471-472.) In light of the overwhelming evidence against appellant, and the patent preposterousnessofher story, the Court should find beyond a reasonable doubtthat the jury would have reached the same verdict even if it had not heard Thomas’s statementsto the police. 46 CONCLUSION For the foregoing reasons, the Court should affirm the judgmentofthe Court of Appeal. Dated: May 19, 2016 $D2015802736 71194366.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Deputy Solicitor General MICHAEL PULOS PRY Attorney_General ‘LV "SETH M.FRIEDMAN Deputy Attorney General Attorneysfor Plaintiffand Respondent 47 CERTIFICATE OF COMPLIANCE I certify that the attached respondent’s answerbrief on the merits uses a 13 point Times New Romanfont and contains 13,769 words. Dated: May19, 2016 KAMALA D. HARRIS Attorney Generalof California SETH M.FRIEDMAN Deputy Attorney General Attorneysfor Plaintiffand Respondent Ns DECLARATION OF SERVICE BYU.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Hopson Case No.: $228193 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance withthat practice, correspondence placedin the internal mail collection systemat the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On May20, 2016, I served the attached RESPONDENT’S ANSWER BRIEF ON THE MERITSbyplacing a true copythereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: GordonS. Brownell Court of Appeal of the State of California Attorney at Law Fourth Appellate District-Division One 1241 AdamsStreet, # 1139 750 B Street, Suite 300 St. Helena, CA 94574 San Diego, CA 92101 (2 Copies) Riverside County Superior Court Michael Hestrin Clerk of the Court District Attorney-Riverside For: The Honorable Jeffrey J. Prevost Western Division, Main Office 4100 Main Street 3960 Orange Street Riverside, CA 92501 Riverside, CA 92501 and, furthermore | declare, in compliance with California Rules of Court, rules 2.251(1)(1)(A)- (D) and 8.71 (f)(1)(A)-(D), I electronically served a copy of the above document on May20, 2016 to Appellate Defenders, Inc.'s electronic service address eservice-criminal@adi- sandiego.com by 5:00 p.m. on the close of business day. 1 declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on May 20, 2016, at San Diego, California. B. Romero B homeALa Declarant / Signature $1920! 4802736 71196719. dac