California Court of Appeal Mar 13, 2026 No. E084091Unpublished
Filed 3/13/26 P. v. Burnham CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084091
v. (Super.Ct.No. VCR1431)
FLOYD NORVEL BURNHAM, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Enrique Guerrero,
Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
In 1981, a jury convicted defendant and appellant Floyd Burnham of first degree
murder after hearing evidence that he and his accomplice Audis Coley robbed and killed
a man who had picked them up as hitchhikers. At trial, Coley testified that Burnham had
“[E]ven when a hearsay statement runs generally against the declarant’s penal [or
other] interest . . . , the statement may, in light of circumstances, lack sufficient indicia of
trustworthiness to qualify for admission.” (People v. Duarte (2000) 24 Cal.4th 603, 614.)
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“ ‘There is no litmus test for the determination of whether a statement is trustworthy and
falls within the declaration against interest exception.’ ” (People v. Tran (2013)
215 Cal.App.4th 1207, 1217.) “In determining whether a statement is truly against
interest within the meaning of Evidence Code section 1230, and hence is sufficiently
trustworthy to be admissible, the court may take into account not just the words but the
circumstances under which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.” (People v. Frierson (1991) 53 Cal.3d
730, 745.) “ ‘The decision whether trustworthiness is present requires the court to apply
to the peculiar facts of the individual case a broad and deep acquaintance with the ways
human beings actually conduct themselves in the circumstances material under the
exception.’ ” (Ibid.)
“[A] trial court has broad discretion to determine whether a party has established
the foundational requirements for a hearsay exception.” (People v. DeHoyos (2013)
57 Cal.4th 79, 132.) We review the trial court’s ruling for abuse of discretion, and we
will not overturn it “ ‘except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.’ ”2 (People v. Brown (2003) 31 Cal.4th 518, 534 (Brown).)
2 We reject Burnham’s claim that we must review the evidentiary ruling de novo. The case he cites as authority for that proposition, People v. Albarran (2007) 149 Cal.App.4th 214, is inapposite because it pertains to the standard of review applicable to a trial court’s order denying a motion for new trial. (Id. at p. 224, fn. 7.) As that case acknowledged, a trial court’s evidentiary rulings are reviewed for abuse of discretion. (Id. at p. 224.)
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The case of People v. Chhoun (2021) 11 Cal.5th 1 (Chhoun) is instructive to our
analysis. There, as here, the defendant’s accomplice made an out-of-court statement that
he (the accomplice) had killed the robbery victim, not the defendant. The defendant and
the accomplice had been involved in a home invasion robbery during which a husband
and wife and their three children were killed. (Id. at pp. 11-15.) The accomplice pled
guilty to various counts in exchange for a sentence of 50 years to life imprisonment. (Id.
at p. 46.) Years later, a defense investigator interviewed the accomplice in prison in
preparation for the defendant’s capital trial. (Ibid.) The accomplice took responsibility
for killing the wife and her three children. He said that after “ ‘the man’ ” was shot, “ ‘he
lost it or went crazy, shot the woman, [then] ran into the bedrooms and shot the
children.’ ” (Ibid.) The accomplice initially agreed to testify at the defendant’s trial, then
later refused on the advice of his counsel. (Ibid.)
The defendant sought to introduce the accomplice’s interview statements as
declarations against penal interest, but the trial court ruled that they were “insufficiently
reliable” to satisfy the hearsay exception. (Chhoun, supra, 11 Cal.5th at p. 45.) On
appeal, our Supreme Court rejected the defendant’s claim that the trial court violated his
constitutional right to a fair trial by excluding the exculpatory evidence. (Id. at p. 50.)
Chhoun concluded that the accomplice’s statement lacked the requisite hallmarks of
reliability. First, the statement was not sufficiently detrimental to the accomplice’s penal
interests. Claiming responsibility, “[b]elatedly,” for some of the shootings could not
result in additional punishment because the accomplice had already been convicted of
crimes arising from the robbery. (Id. at p. 48.) And, the potential that the admission
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could affect the accomplice’s chances of obtaining parole or motion for a new trial, in the
event he later decided to withdraw his guilty plea, was “too speculative or remote . . . for
purposes of Evidence Code section 1230.” (Ibid.)
Second, the admission was not close in time to the crimes in question. A
“ ‘significant passage of time is a relevant circumstance to be considered when
determining a statement’s reliability,’ ” and the accomplice had waited years to claim
responsibility for the murders. (Chhoun, supra, 11 Cal.5th at p. 48.) Third, the
accomplice was “a demonstrated liar, and his current account was ‘completely contrary’
to all of his previous statements.” (Ibid.)
Fourth, the evidence suggested that the accomplice had a motive to lie. As
Chhoun explained, although admitting to the murder of a mother and her children would
likely subject a person to social disgrace within the general community, “certain aspects
of [his] particular community meant he could actually benefit from making a false
confession.” (Chhoun, supra, 11 Cal.5th at p. 49.) Because the was “a high-ranking
gang leader” and the accomplice was a “relative newcomer to the gang,” the accomplice
“might have believed that taking the blame for a more senior member’s crimes, thus
helping him evade the death penalty, could enhance his position in the gang or help to
secure his safety in prison.” (Id. at pp. 49-50.) Given all of those reliability issues,
Chhoun concluded that the trial court acted well within its discretion by excluding the
purported admission. (Ibid.)
Coley’s deathbed admission raises similar reliability concerns. Like the
accomplice in Chhoun, Coley was a demonstrated liar and his statement to Billy was
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contrary to all of his previous statements. Coley initially told the police that Burnham
was solely responsible for Blanchard’s death; at trial he told the jury that he shared
responsibility for the robbery and murder; and, on his deathbed, he made a complete
reversal and claimed that he was solely responsible. As the Court observed in Chhoun,
“[i]nconsistent accounts cast doubt on the reliability of a declarant’s statements.”
(11 Cal.5th at p. 48.) And, as in Chhoun, the evidence that Coley’s statement was
sufficiently detrimental to his penal and societal interest is slim. Because of his guilty
plea, and his impending death, he faced no prospect of additional punishment. And
because of his serious medical condition and impending death, he would not live to face
any social fallout. (See, e.g. People v. Shipe (1975) 49 Cal.App.3d 343, 354 [To satisfy
the hearsay exception, the statement must be “ ‘distinctly’ ” against the declarant’s penal
or other interest “and must be clothed with indicia of reliability.”].)
Similarities aside, Coley’s out-of-court admission is even more unreliable than the
one in Chhoun. This is because it was made after a longer period of time, is encased in
an additional layer of hearsay, and is contradicted by the trial evidence.
The accomplice in Chhoun waited a handful of years to take responsibility for the
murders; Coley waited over four decades. Much can happen over such a lengthy period
of time, including memory loss and changes in the incentive to tell the truth or fabricate a
statement. Given that Burnham was Coley’s childhood friend and Coley was suffering
from cancer, the trial court could reasonably infer that Coley had a motive to inculpate
himself and exonerate Burnham. In the final moments of his life, Coley may have seen
an opportunity to help Burnham with little risk to himself by claiming responsibility for
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the murder on his deathbed. “ ‘[S]ometimes a declarant who makes an inculpatory
statement may have a substantial incentive to exculpate others. . . . A trial court in that
situation may reasonably conclude that the declarant’s incentive to protect his friends
renders the exculpatory portions of the statement inadmissible.’ ” (Chhoun, supra,
11 Cal.5th at p. 50.)
Burnham argues that the more reasonable inference to draw from the totality of the
circumstances is that Coley knew he was dying and wanted to clear his conscience.
Burnham argues that the fact Coley made the statement on his deathbed shows that he
was lying during his trial testimony and finally taking responsibility for killing
Blanchard. But this argument is at odds with our standard of review. It is the trial court’s
duty to weigh the evidence relevant to reliability, not ours. As long as the court’s
assessment of the evidence is reasonable, we will uphold the court’s evidentiary ruling.
(Brown, supra, 31 Cal.4th at p. 534.) Because Coley and Burnham had been close
friends at the time of the murder, it was reasonable for the court to infer a motive to
exculpate Burnham.
Moreover, because Coley made the statement when he was on hospice, dying of
cancer, his cognitive capacity is also a reasonable reliability concern. Billy was the only
witness who could answer questions about Coley’s mental state, such as whether Coley
was taking medications that affected his cognitive capacity.
The extra layer of hearsay—the fact that Coley’s purported admission came
second hand from his brother—also raises reliability issues. Because Billy told the
investigator that he had known Burnham’s sister his whole life and that she lived nearby,
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the trial court could reasonably infer that Billy himself had a motive to exculpate
Burnham. With his brother deceased, Billy may have seen a way to help Burnham’s
sister without risk to his own family. Billy’s unavailability meant there was no way of
probing these areas of concern. Notably, Burnham does not offer a hearsay exception for
the second layer of hearsay. (See Evid. Code, § 1201 [multiple layers of hearsay are
admissible only if each hearsay statement is admissible under an exception].)
Because there were serious reliability issues with both out-of-court statements, the
trial court did not abuse its discretion by ruling that the defense investigator could not
provide the proper foundation.
Burnham argues that if the trial court could reasonably view Coley’s deathbed
admission with skepticism, then the court was required to do the same with his trial
testimony. Burnham points out that Coley gave at least three accounts of the murder,
none of which were the same. But Burnham overlooks “the most crucial difference”
between Coley’s accounts. (Chhoun, supra, 11 Cal.5th at p. 50.) Only one of them—the
version he gave at trial—was “subject to extensive cross-examination, which allowed the
jury to evaluate [his] truthfulness.” (Ibid.) As the court observed, “the testimony of Mr.
Coley . . . was of particular significance [at trial]; and, therefore, his credibility was a
substantial issue for th[e] jury to decide as finders of fact.” It is also significant that
Coley’s deathbed admission completely contradicts his trial testimony; the accounts are
mutually exclusive. In the version of events Coley provided at trial, Coley and Burnham
tried to rob Blanchard of his money and truck, and Burnham was injured during a knife
fight with Blanchard before he shot Blanchard. In the version he gave over 40 years
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later, Coley claimed to be the victim of Blanchard’s robbery attempt and claimed to have
shot Blanchard then gone to sleep. The fact that the later account could not be subjected
to any questioning whatsoever is a good reason for the trial court to view it with
skepticism.
Another good reason to view the later account with skepticism is that it directly
conflicts with the physical evidence regarding the murder scene and the eyewitness
accounts of Burnham’s thumb injury. There were blood stains at the murder scene in the
places that Coley said Burnham touched after the knife fight—the keys, ignition, camper,
and plaid shirt, and multiple witnesses who saw Burnham shortly after the murder noticed
the cut on his thumb. All of that evidence is consistent with the version of events that
Coley testified to at trial.
In any event, assuming it was error for the trial court to exclude the double hearsay
statement as insufficiently reliable, Burnham cannot demonstrate prejudice—even under
the heightened standard articulated in Chapman v. California (1967) 386 U.S. 18. (See
id. at p. 24 [Where the error is one of federal constitutional magnitude, reversal is
required unless the error was “harmless beyond a reasonable doubt.”].) This is because,
even if the court admitted the statement, it still had broad discretion to determine its
relevance. (People v. Jones (2013) 57 Cal.4th 899, 947.) Given the trial court’s finding
that the trial evidence established beyond a reasonable doubt that Burnham was a major
participant in the robbery who acted with reckless indifference to human life and, given
the trial court’s stated views on the reliability of the deathbed admission, we have no
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doubt that Coley would not have obtained a different outcome had the court considered
the admission at the resentencing hearing.
For all of these reasons, we reject Burnham’s claim of reversible error.
DISPOSITION
The order denying Burnham’s resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
RAMIREZ P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in excluding a double hearsay statement as a declaration against interest because the statement lacked sufficient indicia of trustworthiness.
Issues
Whether the trial court abused its discretion by excluding a double hearsay statement as a declaration against interest under Evidence Code section 1230.
Whether the exclusion of the hearsay statement violated the defendant's federal due process right to a fair trial.