Filed 3/11/21 P. v. Lambert CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

QUINTON WAYNE LAMBERT,

Defendant and Appellant.

F077901

(Stanislaus Super. Ct. No. 1461493)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna 

Reeves, Judge.

William W. Lee, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-
2.

Appellant and defendant Quinton Wayne Lambert was convicted of manslaughter 

in connection with the death of a neighbor. He contends the court prejudicially erred by 

excluding evidence that his sister-in-law, Cory Cline (Cline), with whom he lived, 

confessed to killing the victim. Defendant further argues his counsel was ineffective for 

failing to object to the sentencing court’s consideration of several factors in aggravation 

of his sentence on a firearm enhancement. We find any alleged errors were harmless and 

affirm the judgment.

BACKGROUND

In an information filed in June 2016, the district attorney charged defendant and 

Cline with the first degree murder of Mario Albo, Jr. (count 1; Pen. Code, § 187),1 during 

which defendant personally and intentionally discharged a firearm and proximately 

caused the death of another person (§ 12022.53, subd. (d).)

A jury acquitted defendant of first degree murder but convicted him of voluntary 

manslaughter. The jury also found defendant personally used a firearm in the 

commission of the offense, in violation of section 12022.5, subdivision (a).

The court sentenced defendant to six years on count 1, plus a consecutive term of 

ten years for the section 12022.5, subdivision (a) enhancement. The court also imposed 

various fines, fees and restitution.

TRIAL EVIDENCE

Donald Yeary worked for Phil Calloway’s company, Calloway Construction, in 

July 2013. Calloway would purchase rundown houses and Yeary would remodel them 

for him. Eventually, Calloway would rent out the houses.

1 All further statutory references are to the Penal Code unless otherwise noted.
3.

One of the houses Yeary worked on was on Ridge Road in Modesto. At the time, 

defendant lived in the home with Cline and her adult son, Nathien.

2

 Nathien lived in a 

detached studio with a garage in the back of the property.

On one occasion, Yeary had a beer with defendant at the home. Defendant 

showed Yeary a .357 chrome revolver and asked if Yeary could obtain some bullets. 

Two weeks later, Yeary stopped by defendant’s house and gave him six or seven .38-

caliber rounds.

On July 23,

3 Yeary and defendant went to a store to get beer. They returned to 

defendant’s house and stood outside drinking their beers. Defendant gave Yeary a 

“rolled up or folded up towel” and told him to get rid of it. Yeary asked why, but 

defendant would not tell him. Yeary put the rolled-up towel in his truck. Once he got 

home, Yeary discovered there was a .38-caliber gun in the towel. It was not the same gun 

defendant had shown him weeks prior. Yeary put the gun in a metal locker on his 

property. Yeary testified that another man living in his home, Dale Rutherford, 

subsequently wiped down the gun.4 Rutherford placed the gun in a “hidden” area on the 

far edge of Yeary’s property used for agriculture.

Defendant called Yeary early the next morning. Defendant asked if Yeary could 

come help him move something. Yeary went to defendant’s property and entered his 

home through a side door. When he entered, defendant locked the door behind him.

Cline was in the room as well and seemed distressed. Yeary asked what defendant 

needed moved, and defendant brought him into the living room. Yeary smelled a “real 

2 Earlier, Cline’s 10- or 11-year-old daughter, “Tabby,” and defendant’s daughter,

Traniece, had lived with them as well.

3 All dates referenced herein are in the year 2013 unless otherwise noted.

4 However, a Lieutenant Brandon Kiely with the sheriff’s office said Yeary had 

told him that he (Yeary) had wiped down the gun. Yeary also told Lieutenant Kiely that 

he gave the gun to an associate and told him to “place it somewhere where he basically 

wouldn’t know where it was.”
4.

strong odor” that was “worse than a dead animal.” Yeary saw a rolled-up towel or 

blanket behind a couch, and suspected there was a body inside. Defendant wanted to put 

the body in Yeary’s truck so he could “get rid of it.” Yeary said he had to go to work and 

could not take the body. Yeary helped defendant carry the body to a garage behind 

defendant’s house. As they were carrying the body, the “wrappings” moved and Yeary 

saw a face. Yeary got blood on his pants and Cline offered to rinse them off in a sink. At 

some point, Cline told Yeary that if he “said anything” then he should “be worried.”

Yeary left and went to work.

Yeary called his boss and told him what had happened. Later that day, Yeary 

talked to law enforcement. Deputies responded to defendant’s property and found Mario 

Albo, Jr.’s body in the detached garage.

Defendant’s First Interrogation

A detective interrogated defendant on the evening of July 24. After being read his 

Miranda5rights, defendant agreed to speak with the detective. Defendant denied 

knowing whose body was found in the garage. Defendant claimed he did not have a key 

to the garage.

Defendant claimed he had last seen Albo three or four days prior. He said the two 

of them had been on the porch drinking and “got f[**]ked up.” Defendant left to get 

some beer from the store and when he returned Albo was gone. Defendant said he then 

traveled to Oakland and, upon his return, he “smelled something.” He asked Cline what 

the smell was. He also wondered why their dog was outside, since it normally stayed in 

the house. Defendant volunteered that Nathien and Cline were the only two people who 

had a key to the garage. Defendant said he never goes into the garage.

Defendant said that on the day after he returned from Oakland, he and Cline 

walked to a local convenience store and stopped by Albo’s house on the way back. 

5 Miranda v. Arizona (1966) 384 U.S. 436.
5.

Albo’s girlfriend, Samantha, asked defendant if he had seen Albo. Defendant did not 

want to tell her that Albo might have had another girlfriend, so he did not answer.

Defendant claimed that Cline began telling him things such as, “always take care 

of [my] kids” and to “not let anything happen to them.” Defendant asked, “[W]hy, did 

you do something stupid?” Cline indicated she had not done anything stupid.

Initially defendant said he did not know whether Yeary had come over on July 23 

(the day before the interrogation) to move something. Later in the interrogation, the 

detective told defendant that Yeary had said defendant called him to help move 

something. Once confronted with Yeary’s statement, defendant admitted that Yeary had 

come to the house to move something at defendant’s request. Defendant initially claimed 

he simply moved some smelly blankets to the garage with Yeary. Defendant claimed he 

did not know there was a body in the blankets. Eventually, defendant admitted he “just 

knew something was up” because Albo was not present when he returned from the store 

to buy beers. Defendant suspected that “somebody got yacked,” which the detective 

understood to mean “somebody got hurt or injured or killed.”

Defendant eventually admitted that there was probably a body in the blanket. 

Defendant also said his revolver-style gun was missing.

Defendant claimed that Yeary mentioned that “it would be nice to have a gun” so 

defendant tried to give him two guns: a .38 Special revolver and another gun. Yeary only 

wanted one gun and took the .38 Special revolver.

Defendant also mentioned another gun that he “thinks” he put in a “hole” in an 

alleyway. !(RT 418-419)! Defendant said his fingerprints would be on the gun.6

Defendant said Cline and Albo “didn’t really like each other.” Defendant 

described Cline and Albo’s relationship as “volatile” and “vicious.” On one occasion, 

6 Eventually, this gun – a .357 revolver – was located in a trash pile in an alleyway 

behind a house on nearby Vernon Street.
6.

Albo was “picking at her” so she punched him in the chest. Defendant told Albo that 

Cline “wasn’t to be messed with” and that she could fight and take care of herself. 

Defendant described an incident where Albo had been grabbing Cline’s buttocks causing 

Cline to complain.7

Defendant said he found out Albo had “laced” Cline, which the detective 

understood to mean putting something in drugs or a drink. Defendant also described an 

incident in early June where Cline had overdosed and went into a coma.

Defendant said Cline had psychiatric issues and was “on several different 

medications.” He also said she was a hypochondriac and would “cut herself.”

Defendant said that Albo showed him a gun several times. Cline told him, “[Y]ou 

better not bring that in my effin’ house.”

Defendant told detectives that Nathien “got along with” Albo even though the two 

“didn’t really like each other a lot.”

Defendant said he drank four to six beers per day.

Second Interrogation

Defendant was again interrogated on July 26. Video of most of the interrogation 

was played for the jury.

During this interrogation, defendant provided a different version of events.

Defendant claimed that while he and Albo were on the porch, Albo threatened to kill 

Cline and Nathien. Albo pulled a gun on defendant. Defendant grabbed Albo’s wrist, 

then “[b]oom.” Defendant said that either he or Cline covered up the body. When asked 

if this incident with Albo occurred on Monday night (i.e., two days before the 

Wednesday when deputies located the body), defendant replied that “sound[ed] right.” 

Defendant said he believed Albo would have shot Nathien.

7

It is unclear whether this is the same incident where Cline punched Albo. 
7.

Informant Antonio Smith

Antonio Smith was in custody with defendant due to an unrelated homicide 

charge. Smith entered into a plea bargain which provided that he would testify truthfully 

in defendant’s trial in exchange for leniency in his own case.

While in jail, Smith came to know defendant. Smith said that, unlike others, 

defendant spoke openly about his case. Defendant told Smith that he returned from a 

store to find Cline and Albo in his house. Albo had previously been told not to come to 

the house, so defendant and Albo had a “confrontation.” Albo then left the home. Cline 

began having a seizure and ended up in the hospital. Thereafter, “it was determined” that 

Albo had tried to poison or “drug” Cline. Defendant’s “attitude changed as far as him 

wanting to get back at him, do something to him.”

Sometime after Cline left the hospital, Albo returned to the house. An argument 

broke out. Albo tried to “break the ice” by offering everyone free “dope.” Albo said, 

“ What? You guys think I laced this too? You think this is laced?” Albo then went 

down to “do his line of dope.” As he came back up, defendant shot him in the forehead. 

Defendant said he shot Albo “[r]ight between the eyes.” Defendant said Albo did a 

“dolphin kick” when he fell to the floor and was convulsing. Later, while defendant was 

watching a swimming competition in the Summer Olympics, he said “that’s what my 

victim did ... [a]fter I shot him, he was doing the dolphin kick.”

Defendant said “Donny” helped him move the body to a detached garage. 

Defendant also told Smith the police had identified the wrong gun as the murder weapon.

Smith said he did not have access to defendant’s personal papers, nor did he see 

any articles or television programming about defendant’s case.

Neighbor Kathleen Treat

Defendant’s neighbor, Kathleen Treat, testified that Albo was a good friend of 

hers. Treat knew Albo always carried a .38-caliber with him for protection. She 
8.

confirmed that People’s exhibit No. 6 was Albo’s gun. Albo usually carried the gun in 

the front of his belt. Albo had sold drugs to Treat’s son in the past.

Albo also appeared to be friendly with defendant, as the two would socialize and 

enjoy each other’s company. Cline and Albo were also good friends. In fact, they acted 

“real friendly” with one another, leading Treat to testify that it was “[v]ery possible” that 

the two were romantically involved.

Treat testified that about three weeks prior to deputies arriving at defendant’s 

house, Cline was released from the hospital. Cline was upset with Albo at that time.

About two weeks prior to Albo’s death, defendant pulled a grey .38-caliber snub 

nose revolver with a black handle out of a purple Crown Royal bag and waved it around 

saying, “I can pick anybody off walking down the street without them even knowing it.” 

Treat said defendant “always” had the purple Crown Royal bag underneath the front seat 

of his car.

The day before deputies came to defendant’s house, Cline came over to Treat’s 

house. Cline was “real nervous” and defendant called her several times, which was 

unusual.

Traniece Davett

Defendant’s daughter, Traniece Davett, lived at defendant’s home in the spring of 

2013 until June or early July of that year. According to Davett, Albo would come to 

defendant’s home every day or every other day, and the two would socialize. However, 

Albo and Cline did not get along. On one occasion, Albo grabbed Cline’s “behind” and 

she “did not like him from that time” on.

Davett also recalled Albo “hitting on” her (i.e., Davett).

Davett testified that Treat stopped coming over to speak with Cline once defendant 

moved in.
9.

Norrval Williams

Norrval Williams, a member of the Blood gang, was in custody with defendant a 

few years prior to trial.8 Antonio Smith is a family friend of Williams.

On multiple occasions, Williams saw Smith going over defendant’s “paperwork” 

with defendant. Smith also told Williams he would “do anything to get out of jail.” 

Smith said he would “tell on somebody, he’d lie on them saying that they did something 

they didn’t do, just so he can get a chance for him to get some freedom.”9

On cross-examination, the prosecutor elicited testimony from Williams that he 

sent letters to defendant while in custody, including one that said, “That’s why it was 

easy for me to bond with you from day one. Real recognize real blood.” The letter 

ended: “Until next time, I send my utmost respect and full salute your way, big bruh, 

with honor.” However, Williams claimed defendant was not a Blood gang member.

Dontae Galindo

Dontae Galindo was housed with defendant at the time of trial. In his past, 

Galindo had been convicted of possession of cocaine for sale and manufacturing a 

controlled substance. Galindo also knew Smith. Smith would “go over” defendant’s 

case with him. Galindo heard Smith tell defendant there was “no evidence on him,” so 

Smith did not know why defendant was in custody. Smith said all the evidence pointed 

to Cline.

Smith told Galindo he was facing up to 30 years in prison. Smith’s wife told him 

she “couldn’t do 30 years; he better figure something out.” Smith told Galindo he would 

“roll over on his co-defendant.”

8 Williams had previously been convicted of shooting at a vehicle, and a crime 

relating to assaulting someone with a firearm.

9 Another defense witness, Kendall Johnson, offered similar testimony. The 

prosecution introduced evidence of a botched sting operation wherein Johnson had 

pretended he would cooperate with law enforcement only to pocket thousands of dollars 

intended to be used to purchase illegal firearms.
10.

Defendant’s Testimony

Defendant testified that Albo would sell methamphetamine and weed to Cline. 

One day, when defendant was returning from the store, he saw Albo running out of 

Cline’s door. That “shocked” defendant because Cline would never let Albo in the house 

when defendant was not home. Defendant asked where he was going and Albo said, “I 

have got to go make a drop.” Defendant went inside and asked Cline what was wrong. 

Cline kept replying, “Nothing.” Cline went to her room, then returned in a frazzled and 

irate state. She kept referring to Albo as a motherf[**]ker. Cline returned to her room 

and defendant went to his. Later, defendant heard someone yelling and saw Cline 

“flopping like she is having a bad seizure” on the driveway. Her lips were turning blue 

and she went into a coma for nine days.

When Cline recovered consciousness, Treat drove defendant to the hospital. Cline 

had to use a wheelchair for two weeks. After the incident, Cline became more paranoid, 

and “mean.” Cline was being medicated for schizophrenia.

Defendant asked Albo about the drugs he had sold to Cline before the coma. Albo 

replied, “I always keep two bags, one for guys and one for the b[**]ches.” Albo would 

not explain in detail how the latter batch was different except that it made “them” more 

“accommodating.” Afterwards, Albo said Cline needed to “get over it.”

The relationship between Cline and Albo became toxic. Cline would always call 

Albo a “b[**]ch.” Albo would use the same word to describe Cline. However, defendant 

continued to talk with Albo and would still drink beer with him on the porch. Cline 

would get mad at defendant for talking with Albo. During one conversation, Albo told 

defendant that he had committed “a home invasion the other night” and “shot a kid on the 

way out.” Cline overheard and began screaming that Albo needed to leave. Cline also 

told defendant he better not let Albo come back. Defendant told Albo not to come over 

anymore. Albo said, “You gonna take this b[**]ch over me?” Defendant told him, 

“[J]ust go.”
11.

Two or three weeks later, Albo approached defendant while he was drinking on 

the porch. Defendant asked what Albo wanted. Albo said he wanted to talk for a minute. 

Defendant and Albo went inside. Defendant asked, “[W]hat’s up?” Albo said, “I thought 

we were good.” Defendant said, “[N]ot after what you did.” Albo, said, “[D]o you want 

to do something?” Defendant said, “No, I’m cool.” Albo replied, “Oh, so you think I’m 

going to lace you like I did the b[**]ch?” Defendant told Albo to leave. Albo remained 

seated, pulled out a little baggie and straw, and then “[did] some.” He offered “some” to 

defendant, who declined.

Albo then pulled out a gun and began waving it. He said, “the b[**]ch don’t think 

I’ll pop her.” Albo then pointed the gun towards defendant’s head and said, “Nate don’t 

think I’ll kill his ass.” Albo said Cline’s claim that he laced her drugs was preventing 

him from making money. Albo then said he knew where Tabby (defendant’s daughter) 

lives and that he would “go after her.” Defendant grabbed Albo and pushed him into the 

wall. The two became entangled and the “[n]ext thing” was a “boom” and a “flash.” 

Albo “goes down” and defendant sees Cline holding a gun. Albo was not moving. 

Defendant told Cline that everything was going to be alright. Cline was stiff and shaking.

Defendant’s “only thought” was about how to get his “sister” “out of this mess.” 

Defendant called Yeary, who came over and explained how to clean the mess. Yeary 

said they needed peroxide to “take the blood out.” Defendant denied locking the door 

behind Yeary. Yeary suggested they take Albo’s body “to the back” and that Yeary 

would return later to retrieve the body.

Yeary asked defendant what he was going to do with Albo’s gun. Defendant said, 

“[T]ake it, I don’t care.” Yeary retrieved the gun and placed it in his waistband.

As for the gun Cline used to shoot Albo, defendant told her to “get rid” of it. 

Defendant walked with Cline past a local convenience store. Sometime after turning 

down a street called Beverly, Cline pulled the gun out, wiped it down, and “[s]hoved it in 

the ground.”
12.

Defendant testified that he met Smith while in custody for the present charges. 

Defendant claimed he told Smith he was innocent.

Smith went through defendant’s paperwork around the time of his preliminary 

hearing. Smith said he did not know why defendant was in custody, considering that 

Cline had “confessed.”

Defendant knew Smith’s wife was having difficulty with the possibility Smith 

would be incarcerated for 30 years or more. Defendant told Smith he “probably got to 

tell on somebody.” Three days later, defendant learned that Smith heeded his advice by 

“telling on” defendant.

Ammunition

A small cloth bag containing ten .38-caliber rounds and one .38-caliber casing was 

found in a pouch in a laundry basket near a toilet. The bag also contained an off-white 

crystalline substance.

Forensic Pathologist

The forensic pathologist concluded Albo died from a gunshot wound to the head. 

The bullet was fired from a gun, the muzzle of which was being held at relatively close 

range when fired – i.e., no closer than six or seven inches away and not farther away than 

about 18 inches from Albo’s head. The bullet traveled on a downward trajectory; 

entering three inches from the top of Albo’s head and exiting six inches from the top of 

Albo’s head. Albo’s body had no other injuries, including no defensive wounds.

It could not be determined what caliber of gun was used to shoot Albo.

Toxicologist Bill Posey

Toxicologist Bill Posey tested a sample of Albo’s liver tissue from the coroner’s 

office. Methamphetamine and amphetamine were found in the sample. However, Posey 

could not determine how much methamphetamine Albo had ingested or when he had 

taken it.
13.

According to Posey, when someone takes methamphetamine, they experience an 

“up phase” and a “down phase.” During the “down phase,” the user becomes forceful, 

paranoid and, in some cases, violent. Posey could not say what phase Albo was in at the 

time of death.

Long term methamphetamine use tends to cause extreme violence and 

irrationality, which is referred to as “meth rage.” Posey could not say whether Albo was 

addicted to methamphetamine.

DISCUSSION

I. Defendant has not Established Prejudicial Error in the Exclusion of Evidence 

of Cline’s Confession

A. Background Information

In a pretrial motion in limine, defendant moved for a ruling that Cline’s 

“confession” – described below – should be admitted at trial. The prosecution opposed 

the motion, and a hearing was held under Evidence Code section 402. After the court 

heard the testimony described below, it excluded Cline’s confession because it was 

unreliable.

Reserve Deputy Kathryn Flanagan testified that she was part of the investigation 

into the body found at defendant’s home. Flanagan was told to wait with Cline in the 

kitchen during the investigation. Cline appeared nervous, upset and confused. There was 

no air conditioning in the house, and it was very hot on that day. Cline told Flanagan that 

her hospitalization on May 31, 2013, was not due to seizures but instead because she had 

tried to commit suicide.

Deputy Flanagan eventually transported Cline to the police station. Flanagan did 

not initiate conversation during transport. Nonetheless, about a minute or two into the 

drive, Cline began talking and crying, saying, “ ‘I did it. I shot Mario.’ ” She said the 

specific words: “ ‘I shot him. I killed him.’ ” Cline said she had been fearful of Albo 

because he had come to the house and was “touching her.” Cline did not explain the 
14.

touching, but she was insinuating that it was sexual. Cline became fearful, grabbed a gun 

out of Albo’s waistband and shot him.

Eventually, Deputy Flanagan and Cline arrived at the police station, and Cline was 

interviewed by Detective Darwin Hatfield.10 Hatfield initially told Cline she was not 

under arrest and did not have to answer any questions. Cline said Albo came into her 

home and was grabbing her chest. Albo said, “ ‘You know you want to give it to me. If 

you don’t give it to me, I’m going to take it and then I’m going to kill your son.’ ” Cline 

used the gun in Albo’s waistband to shoot him in the forehead. Cline said defendant was 

not present at the time.

At that point, Detective Hatfield initiated a break in the interview to talk with the 

detective who was interrogating defendant. The detective told Hatfield that defendant 

said Cline had shot Albo.

Detective Hatfield returned to Cline, informed her she was being arrested for 

homicide and advised her of her Miranda rights. Hatfield told Cline that defendant said 

she had shot Albo. Cline then changed her story and said that “Donny” (presumably a 

reference to Yeary) shot Albo. Cline now claimed that she came into the house just after 

Donny had shot Albo. Cline was “despondent and crying” as she accused Donny of 

being the shooter. Throughout the interview, Cline was “all over the place emotionally” 

and would change “from talking to crying to just being silent to ignoring to 

acknowledging.”

Cline initially said she moved the body. Thereafter, she said, “the Shadow 

People” helped her move the body.

Two days later, Detective Hatfield interviewed Cline again. This time, Cline said 

that she was outside when she heard a “pop.” She came into the home, saw Albo on the 

10 Before the interview began, Deputy Flanagan told Detective Hatfield that Cline 

had confessed to shooting Albo.
15.

floor, and defendant walking away. Cline was “a lot calmer” during this interview 

compared to the first interview.

Defense investigator Richard Paloma testified that he made numerous 

unsuccessful attempts to serve a subpoena on Cline in November 2017.

The court ruled the evidence of Cline’s confession would be excluded because it 

was not reliable as required by Evidence Code section 1230. The court observed that 

Cline’s statements suggest three different shooters: herself, defendant and “Donny” 

(again, presumably a reference to Yeary). However, notwithstanding the court’s ruling, 

defendant referenced Cline’s confession multiple times during his trial testimony. 

Outside the presence of the jury, defense counsel suggested that he had “made the 

strategy call to try to get [Cline’s] admission in, even if it opened the door” to introducing 

the other versions of events Cline had told to law enforcement.

Later, also outside the presence of the jury, defense counsel expressly renewed his 

request to admit Cline’s confession. He argued that Chambers v. Mississippi (1973) 410 

U.S. 284 was controlling, and the confession needed to be admitted under the due process 

clauses of the state and federal constitutions. Defense counsel also contended Cline’s 

confession was admissible as a spontaneous statement under Evidence Code section 

1240. The court rejected these contentions.

B. Law

All relevant evidence is admissible unless prohibited by law. (Evid. Code, § 351.) 

One category of evidence generally prohibited by law is hearsay evidence. (Evid. Code,

§ 1200, subd. (b).) “ ‘Hearsay evidence’ is evidence of a statement that was made other 

than by a witness while testifying at the hearing and that is offered to prove the truth of 

the matter stated.” (Id., subd. (a).) However, the hearsay rule does not render 

inadmissible statements against the speaker’s penal interest. (Evid. Code, § 1230.) 

(Ibid.)
16.

“A party who maintains that an out-of-court statement is admissible under this 

exception as a declaration against penal interest must show that the declarant is 

unavailable, that the declaration was against the declarant’s penal interest, and that the 

declaration was sufficiently reliable to warrant admission despite its hearsay character. 

[Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 607, italics omitted (Cudjo).) “To 

determine whether the declaration passes the required threshold of trustworthiness, a trial 

court ‘may take into account not just the words but the circumstances under which they 

were uttered, the possible motivation of the declarant, and the declarant’s relationship to 

the defendant.’ [Citation.]” (Ibid.) “Courts applying section 1230 to determine the basic 

trustworthiness of a proffered declaration are ... to ‘consider all the surrounding 

circumstances to determine if a reasonable person in [the declarant’s] position would 

have made the statements if they weren’t true.’ [Citation.]” (People v. Duarte (2000) 24 

Cal.4th 603, 618.)

We review the trial court’s determination for abuse of discretion.11 (Cudjo, supra, 

6 Cal.4th at p. 607.) 

C. Application

The Attorney General argues the trial court properly excluded Cline’s confession 

because it was unreliable. Specifically, the Attorney General notes Cline was emotional, 

confused, and upset when she made the confession. However, the fact that a speaker was 

emotional and upset does not necessarily render the statement unreliable. Indeed, it 

might even be expected that a declarant making a true confession to killing someone 

would be emotional and upset. 

11 Defendant claims he is arguing that the trial court misconstrued Evidence Code 

section 1230 and, therefore, we should apply a de novo standard of review. However, 

defendant’s argument that “Cline’s subsequent self-exculpatory statements should not be 

given equal weight with her self-inculpatory statements” in determining reliability does 

not present an issue of statutory construction.
17.

Granted, the testimony that Cline was “confused” at the time is different. 

Generally, a declarant being “confused” might make the statement less reliable. To 

similar effect are Cline’s later contradictory claims that Yeary actually shot Albo (or 

possibly defendant) and that “shadow people” helped her move the body. But no 

statement is so trustworthy that its veracity is beyond question. That cannot be the 

standard for admitting statements against penal interest. That is why statements against 

penal interest are admissible even when there may be some reason to doubt its veracity. 

(E.g., Cudjo, supra, 6 Cal.4th at pp. 607–608 [fact that statement was “inconsistent to 

some extent with the physical evidence” did not warrant exclusion because the 

discrepancies did not “negate all possibility” of statement being true.]) The question is 

not whether there is any reason to doubt the statement, but instead whether “the 

declaration was sufficiently reliable to warrant admission despite its hearsay character. 

[Citation.]” (Id., at p. 607, italics added.) Sufficiently reliable does not mean 

categorically unimpeachable.

In our view, statements against penal interest should be admitted even if there are 

some questions about its veracity, so long as those questions do not render the statement 

fundamentally unreliable. In such a case, the facts suggesting unreliability can be 

presented alongside those suggesting reliability (see Evid. Code, § 356), and it can be left 

to the jury to perform its crucial role in resolving credibility issues. (See Cudjo v. Ayers 

(9th Cir. 2012) 698 F.3d 752, 763 [“questions of credibility are for the jury to decide”].) 

In contrast, disallowing a defendant to even present evidence of a plausible third-party 

confession for the jury’s consideration merely because there is some suggestion of 

unreliability may often raise serious constitutional concerns. (See People v. Cudjo, 

supra, 6 Cal.4th at pp. 638–641 (dis. opn. of Kennard, J.); cf. Chambers v. Mississippi, 
18.

supra, 410 U.S. at pp. 298–303.)12 Here, however, we need not conclusively resolve 

whether the evidence was erroneously excluded because we find the ruling harmless.

Harmlessness

When a trial court erroneously excludes evidence under state evidentiary law, we 

consider the issue of harmlessness under the Watson13 standard. (See People v. Duarte, 

supra, 24 Cal.4th at pp. 618–619.) Under that test, we ask whether “ ‘it is reasonably 

probable that a result more favorable to defendant would have been reached’ ” without 

the error. (Id. at p. 619.)

If the trial court erroneously excludes evidence and such error infringes 

defendant’s federal constitutional rights, we consider the issue of harmlessness under the 

12 However, a trial court’s evidentiary ruling may not be overturned merely 

because there is more than one reasonable approach to the issue. Here, the trial court was 

rightly concerned with Cline’s inconsistent statements. Defendant disagrees, saying 

some courts simply redact the self-exculpatory statements while admitting the selfinculpatory statements. However, where the self-exculpatory statements contradict the 

self-inculpatory statements, they bring the reliability of the self-inculpatory statements 

into question. Indeed, when a declarant provides other versions of events contradictory 

to the inculpatory statement, the inconsistency is an “obvious” indicator of unreliability. 

(People v. McCurdy (2014) 59 Cal.4th 1063, 1109.) For example, if a declarant offers 

three inconsistent versions of events, then at least two of the three statements are 

necessarily untruthful, “rendering the reliability of any of the statements questionable.” 

(People v. Geier (2007) 41 Cal.4th 555, 585, overruled on other grounds as recognized in 

People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) 

Defendant contends that the other, self-exculpatory versions of events that Cline 

provided were less reliable than the confession. He argues that Cline offered the selfexculpatory versions of events while in custody. In contrast, she initially confessed to 

Flanagan while she was still in her residence. And she was not under arrest when she 

repeated the confession at the police station.

We think the best approach here would have been to admit Cline’s inculpatory 

statements as well as her other, inconsistent versions of events, and let the jury resolve 

credibility issues. (See Evid. Code, § 356; see also People v. Armstrong (2019) 6 Cal.5th 

735, 787 [Evidence Code section 356 most often operates as a hearsay exception].) 

However, we are hesitant to say the trial court’s contrary approach was an abuse of 

discretion.

13 People v. Watson (1956) 46 Cal.2d 818.
19.

Chapman14 standard. (See Cudjo v. Ayers, supra, 698 F.3d at pp. 768–769.) Under 

Chapman we ask “whether the error has been proven harmless beyond a reasonable 

doubt. [Citation.]” (Cudjo v. Ayers, at p. 768.)

As explained below, we conclude that even if error occurred, and even if that error 

invoked the more stringent Chapman test, it was harmless.

Despite the court’s exclusion of Cline’s confession to Deputy Flanagan and 

Detective Hatfield, the fact that Cline confessed was made known to the jury. Defendant 

referenced Cline’s confession multiple times during his testimony. When discussing

Smith’s review of his paperwork, defendant testified that Smith said, “[W]ell, right here 

she [Cline] confessed to doing it.” Shortly thereafter, defendant testified Smith said “he 

didn’t know why [defendant] was here [in custody] because Cory [Cline] confessed.”

As a result of this testimony, the generic fact that Cline had “confessed” was 

before the jury. Granted, the jury did not get to hear Cline’s actual words: “I shot him. I 

killed him.” But there is nothing particularly compelling about the wording of Cline’s 

short confession to suggest it had any marginal utility to defendant’s case above and 

beyond the fact that she had confessed. We are therefore confident any error in the 

exclusion of the confession itself was harmless beyond a reasonable doubt.

II. Defendant has not Established Prejudicially Ineffective Assistance of Counsel

Defendant next contends that his sentence must be reversed due to ineffective 

assistance of counsel.

In imposing sentence, the court made the following comments:

“The crime involved great violence and great bodily harm. [¶] The 

defendant was armed with and used a firearm at the time of the offense. [¶] 

The defendant encouraged others to participate in concealing the 

commission of the crime. [¶] The defendant has engaged in violent 

conduct that indicates a serious danger to society. [¶] The defendant’s 

prior convictions as an adult have been numerous and are of increasing 

14 Chapman v. California (1967) 386 U.S. 18.
20.

seriousness. The court notes that, according to the criminal history 

included in the probation officer’s report, convictions for Mr. Lambert 

range from 1989 through 2013 with no significant periods of years free of a 

new conviction or return to custody. Criminal history includes both violent 

and serious felonies that were not alleged here.”

The court further observed that defendant served a prior prison term, as well as 

multiple “commitments” to the county jail. The court also noted defendant was on 

probation for possession of ammunition as a felon at the time of the present offense. 

Indeed, that offense preceded the present offense by only about six months. The court 

referenced the fact that defendant had “multiple grants of probation and parole with no 

apparent rehabilitation.” Finally, the court observed that the “most aggravating fact in 

this case ... is that even though prohibited and even though [defendant has] previously 

been convicted of firearms violations, [defendant is] still ... obtaining and carrying a 

firearm ....” The court stated there was only one factor in mitigation: the victim was 

armed with a firearm and his role was unclear.

Finally, the court stated,

“The factors in aggravation heavily outweigh the factors in 

mitigation. Nonetheless, the Court has chosen the midterm of six years for 

the main offense and the aggravated term for the firearm use because of the 

aggravating facts that the Court just mentioned.”

Defendant insists it was improper for the court to consider his “obtaining and 

carrying a firearm” because that was essentially an element of the enhancement. (See 

People v. Clark (1992) 12 Cal.App.4th 663, 666 [“A circumstance which is an element of 

the substantive offense cannot be used as a factor in aggravation. [Citation.]”]) 

Similarly, he argues the court should not have considered “great violence and bodily 

harm” as an aggravating factor because that is inherent to the crime of manslaughter. 

Defendant argues that because the court erred in these ways, and his trial counsel failed to 

object, he was prejudicially harmed by the ineffective assistance of his counsel.
21.

To prevail on such a claim, defendant “must show that counsel’s performance was 

deficient, and that the deficiency prejudiced the defense. [Citations.]” (In re Gay (2000) 

8 Cal.5th 1059, 1073.) When evaluating a claim of ineffective assistance of counsel, “a 

court need not determine whether counsel’s performance was deficient before examining 

the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

which we expect will often be so, that course should be followed.”15 (People v. Carrasco 

(2014) 59 Cal.4th 924, 982, citing Strickland v. Washington (1984) 466 U.S. 668, 697.)

Here, we conclude defendant has failed to show prejudice. Even when a 

sentencing court relies on improper factors in aggravation, reversal is not warranted 

where there is no reasonable probability the sentencing court would reach a different 

conclusion had the improper factors been excluded. (People v. Alvarado (2001) 87 

Cal.App.4th 178, 195–196; People v. Watkins (1992) 6 Cal.App.4th 595, 601–602.) By 

the same rationale, a defendant cannot establish prejudicial ineffective assistance of 

counsel for failure to object to a sentencing factor when there is no reasonable probability 

a sentencing court would have reached a different conclusion if such an objection had 

been made. Here, even assuming the court relied on two improper factors in aggravation, 

several additional aggravating factors remained, including: defendant encouraged others 

to participate in concealing the commission of the crime (Rules of Court, rule 

4.421(a)(4)); his prior convictions were numerous and increasing in seriousness (id., rule 

4.421(b)(2)); he previously served a prison term (id., rule 4.421(b)(3)); he was on 

probation when he committed the present offense (id., rule 4.421(b)(4)); and his prior 

performance on probation and parole was unsatisfactory (id., rule 4.421(b)(5).) Given the 

numerous and substantial factors in aggravation that remain undisputed, defendant cannot 

15 As explained below, we do follow this course, rendering moot defendant’s other 

contentions on the issue.
22.

establish there is a reasonable probability the sentencing court would have made a more 

favorable decision had it ignored the two challenged factors. The fact that the court 

selected the middle term on the manslaughter count does not alter this conclusion. 

Consequently, his ineffective assistance of counsel claim fails. 

DISPOSITION

The judgment is affirmed.

POOCHIGIAN, Acting P.J.

WE CONCUR:

DETJEN, J.

MEEHAN, J.