Filed 12/15/05 P. v. Wardell CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H027777
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. CC302587)
CHRISTOPHER JAMES WARDELL,
Defendant and Appellant.
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Defendant was convicted by jury trial of three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and fourteen counts of felony false imprisonment, and the jury found true that he had personally used a firearm in the commission of each offense (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)). Defendant admitted that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). He was committed to state prison to serve a term of 23 years and 8 months.
On appeal, defendant asserts that the judgment must be reversed because the trial court prejudicially erred in (1) admitting into evidence an out-of-court testimonial statement by his non-testifying accomplice that the accomplice was the driver of the getaway car, (2) failing to give various instructions related to the accomplice's statement, (3) admitting evidence of defendant's statements to the police and (4) instructing the jury regarding the mental state required for the firearm enhancements. We conclude that the trial court's federal constitutional error in admitting into evidence defendant's accomplice's out-of-court testimonial statement requires reversal of the judgment.
I. Evidence At Trial
A Bank of America branch in San Jose was robbed shortly before 4:00 p.m. on January 21, 2003. The lone robber was a black man wearing a ski mask, gloves, a black jacket and dark or black pants and carrying a large revolver. Most of the witnesses described the robber as between 5 feet, 10 inches tall and six feet tall, though one witness described him as â€