[776]MOSK, J. Defendant Johnny Bocktune Lew appeals from a judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. He contends. that the trial court erroneously allowed into evidence certain .hearsay statements to show the state of mind- of the Victim, • Karen Gervasi, at the time of her death. We have concluded that the statements should not have been admitted, and, since the error was plainly prejudicial, the judgment must be reversed.
The facts are not in dispute. Defendant, though married, had for some time been enamored of Karen; they were sexually intimate, and there was some contemplation of marriage. On the day Karen died defendant had picked her up at her parents’ house with the knowledge of and without objection from her parents. The defendant and Karen were in a gay mood. They completed some errands and then drove to defendant’s apartment. On the way, according to defendant, Karen noticed some earmuffs which he explained were designed to protect the wearer’s ears from the repeated concussion of weapons fired at a pistol range. Although other evidence adduced at trial showed that Karen had an aversion to firearms, defendant testified that the earmuffs naturally led into a conversation about guns, and Karen expressed a desire to fire defendant’s pistol. He agreed to take her to a pistol range, and they stopped at his apartment to get the gun. As they entered, a neighbor observed Karen’s carefree demeanor and testified that she appeared to proceed voluntarily.
Inside the apartment, according to defendant, they sat on the couch and looked at some pictures through a slide viewer. Defendant then retrieved the gun from another room; and sat down in an overstuffed chair in the living room. Karen sat on his left side, partly in his lap and partly on the arm of the chair. Defendant released the clip from the gun with his right hand while his left arm was partially around Karen’s shoulder. He then handed Karen the gun, probably with his right hand, while at the same time he took the viewer from Karen’s left hand. The clip fell to the floor, and as he bent over to pick it up he heard a shot. The bullet struck Karen in the left temple just above her eye. Defendant became hysterical when he discovered that Karen was no longer breathing, and placed her on the floor to administer mouth-to-mouth resuscitation. She then began to breathe but remained unconscious.
Defendant further testified that he wanted to call the police and obtain an ambulance, but could not recall the telephone [777]number and instead called his wife at work and requested that she come home," stating that there had been an accident. He then called the operator and gave her the information, asking that she call the police and summon an ambulance. Upon their arrival the police found defendant standing on the stairway in front of his apartment motioning for them to hurry. Karen was lying on her back and bleeding profusely around the head. She was still alive and momentarily regained consciousness, but was unable to relate the events in the apartment. She died a short time later in a hospital.
There was no evidence of a struggle. To determine whether defendant had fired the fatal shot, the police required him to submit to paraffin tests on his hands. These tests were inconclusive : some traces of nitrates were present, but they were not located where one would have expected had defendant in fact fired the gun. There was no trace of nitrates on defendant's right hand, for example, even though he is right-handed. It was conceded that the nitrate deposits on his left hand could have come from other common sources; no nitrates were found on Karen’s hands. Finally, the autopsy surgeon testified that it was impossible for him to state that death was not caused accidentally.
Defendant consistently maintained that Karen’s death was the result of an accident. His detailed version of the events leading up to the fatal shot in the interview with investigating officers preceding his arrest did not vary in significant respect from his testimony at trial. Under these circumstances certain hearsay statements undoubtedly played a major role in the jury’s deliberations.
These hearsay statements, all introduced into evidence over objection, were confidential remarks made by Karen to various friends. Five witnesses (Professor Reseh, Dale Moore, Diane Ijames, Patricia Mullen, and Leslie Sautter) testified that Karen told them defendant had threatened to kill her. Professor Reseh and Dale Moore declared that Karen also told them defendant had threatened to harm her parents if she confided in them. Leslie Sautter testified that Karen said defendant had threatened to throw the rings he presented to her into the ocean if she would not accept them. Diane Ijames declared that Karen said defendant had told her he had purchased adjoining cemetery plots for her and for him. Professor Reseh and Diane Ijames also testified that Karen said defendant had displayed a gun when she, defendant’s wife, and. defendant met in a parking lot. Dale Moore stated that Karen-requested [778]him to witness two parking lot meetings she had with defendant because she feared him. Professor Eesch and Leslie Sautter further testified that ICaren told them defendant often went into rages, had a terrible temper, and she feared him.
The foregoing testimony falls into two groups: the first four statements are threats allegedly made by defendant to Karen which she then related to friends, and the last three consist of Karen’s remarks to friends which no more than purport to reflect her attitude toward defendant. The testimony was introduced to show Karen’s state of mind prior to her death.
We start by analyzing the first group of statements, which constitute hearsay on hearsay: in each instance the prosecution witnesses reiterated what Karen reported defendant had told her. Had any witness himself overheard defendant threaten Karen, that witness could have properly testified to the content and manner of the threat. As long as the alleged threat was not too remote in time, such testimony would have been relevant to defendant’s intent, a material issue, and admissible under the admissions exception to the hearsay rule. (See Evid. Code, § 1220.) In the instant ease, by contrast, not a single witness produced by the prosecution actually heard defendant threaten Karen. “While threats made by defendant are, of course, material, they must be testified to by the person who heard them, not by someone who was told by someone else that they had been made.” (People v. Merkouris (1959) 52 Cal.2d 672, 696 [344 P.2d 1] (Peters, J., dissenting).) Thus the threats allegedly made by defendant may well be highly relevant in determining his intent at the time of Karen’s death (i.e., whether his conduct was intentional or not), but as double hearsay they cannot be admitted under the admissions exception.1
The People contend, however, that all the hearsay testimony, including the alleged hearsay threats, was admissible to show Karen’s state of mind at the time of her death. In [779]People v. Hamilton (1961) 55 Cal.2d 881, 893 [13 Cal.Rptr. 649, 362 P.2d 473], this court delineated the principal requirements which must be satisfied before the state-of-mind exception to the hearsay rule can be invoked. “Undoubtedly, in a proper case, and in a proper manner, testimony as to the ‘state of mind’ of the declarant, where there is an issue in the ease is admissible, but only when such testimony refers to threats as to future conduct on the part of the accused, where such declarations are shown to have been made under circumstances indicating that they are reasonably trustworthy, and when they show primarily the then state of mind of the declarant and not the state of mind of the accused.” Defendant insists that the hearsay testimony was not relevant to any issue presented by his defense.
In our cases involving hearsay threats, admissibility has always been approached through a careful examination of the precise issues to which the threats might be relevant. Thus, Karen’s state of mind would have been in issue in the absence of direct proof that she had been with defendant at the time of her death, or had defendant claimed self-defense. Had Karen told a friend that she had a date on the night of her death, for example, the friend’s testimony would have been admissible to enable the factfinder to infer that she had actually gone out on that night. (People v. Alcalde (1944) 24 Cal.2d 177, 185 [148 P.2d 627].) Or had defendant claimed self-defense, he would have placed Karen’s state of mind at issue: since a claim of self-defense requires the trier of fact to find that the other party was the aggressor, the prosecution, through rebuttal testimony, could have shown that Karen was apprehensive and not likely to be aggressive. Her fear would then have been a factor properly before the factfinder in its deliberations on the defendant’s claim of self-defense. (People v. Atchley (1959) 53 Cal.2d 160, 172 [346 P.2d 764] ; see People v. Purvis (1961) 56 Cal.2d 93, 98 [13 Cal.Rptr. 801, 362 P.2d 713].) Similarly, Karen’s state of mind clearly would have been placed in issue had the police investigation produced any evidence of a struggle preceding her death or had the neighbor, who observed the young couple approach defendant’s apartment, testified that Karen entered involuntarily.
Defendant contends, in addition, that Karen’s state of mind is not in issue where the defense is accidental shooting so long as the defense does not argue that the shooting arose accidentally out of a struggle instigated by the victim. [780]"We cannot agree. Even under the circumstances of this case, no indication of a struggle being evident, some probative value attaches to Karen’s expressed fear of defendant because it enables the factfinder to infer' that Karen might have been reluctant to handle a gun in defendant’s presence.2 We thus conclude that Karen’s expressions of fear were relevant to an issue of fact raised by the defense, i.e., whether Karen was willing to handle the gun, as defendant asserted.
We are nevertheless persuaded that the statements should have been excluded from evidence. In People v. Hamilton (1961) supra, 55 Cal.2d 881, 893-896, we said that statements indicating a declarant’s state of mind cannot be admitted into evidence unless exacting standards are met. An initial requirement is “that such testimony is not admissible if it refers solely to alleged past conduct on the part of the accused. This is so because to try and separate state of mind from the truth of the charges is an almost impossible task.” (Id. at pp. 893-894.) A second requirement, equally important, is that there must be “at least circumstantial evidence that [the statements] are probably trustworthy and credible.” (Id. at p. 895.)
In this case neither requirement was fulfilled. Most of the statements made by Karen refer to past conduct of defendant: the drawing of the gun in the parking lot, his temper tantrums, the purchase of adjoining cemetery lots, his previous threats to kill her. Karen’s credibility was also cast in doubt. One example will suffice: Professor Resch’s conversation with Karen after she had missed a midterm examination. She had called at Ms office to explain why she missed the test. At that time she was dating two men, defendant and Dale Moore; she was intimate with both, and it is not unlikely she claimed a fear of defendant as a pretext for having missed the examination. By contrast, Karen never told her parents, with whom she was close, that she was afraid of defendant or that defendant had threatened to harm them.
Our review of other prosecution evidence introduced .at trial persuades us that it cannot be seriously contended the error was nonprejudieial. (People v. Watson (1956) 46 Cal.2d [781818], 836 [299 P.2d 243].) While the trial judge cautioned the jury that the testimony could be used only. in evaluating Karen's state of mind and could not be used in determining whether defendant executed his threats, it is apparent that the prosecution used Karen’s repeated statements of fear of defendant to convince the jury that defendant murdered Karen.3 We need not dwell on the damaging impact of such hearsay testimony since in Hamilton and elsewhere we have fully explored its inherently inflammatory and prejudicial nature.
The judgment is reversed.
Traynor, C. J., Peters, J., Tobriner, J., and Sullivan, J., concurred.
The People rely on People v. Cooley (1962) 211 Cal.App.2d 173 [27 Cal.Rptr. 543], for the proposition that hearsay threats reiterated to third persons are admissible. In Cooley the erroneous admission of the hearsay threats was not prejudicial since the defendant’s threats had been directly overhead by others who testified at trial. This testimony was admissible under the admissions exception and hence the testimony of those who heard the threats from the victim alone could be considered merely cumulative. Nevertheless, the court’s rationale in sustaining the admissibility of the double hearsay threats was in conflict with this court’s decisions in People v. Atchley (1959) 53 Cal.2d 160, 172 [346 P.2d 764], and People v. Purvis (1961) 56 Cal.2d 93, 97-98 [13 Cal.Rptr. 801, 362 P.2d 713], and is disapproved.
Karen’s parents testified that she had a “fear of guns.’’ This evidence, though hearsay, was deemed admissible because it was relevant to the.issue .of. whether Karen would have been likely to handle the gun, as 'defendant claimed. In this casé his defense of accidental shooting made Karen’s attitúde toward guns a material issue.'- None of the hearsay statements with which we--are concerned: bears "on Karen’s asserted fear of fire.ams,.
This ease went to trial before the provisions of the new Evidence Code became effective. Section 1250, which sets forth the state-of-mind exception, is in all essential respects a codification of the common law then existing in this jurisdiction. The legislative committee comment demonstrates that the reasoning herein is in complete accord with section 1250: ‘ ‘ Statements of a decedent's then existing fear—i.e., his state of mind— may be offered under Section 1250, as under existing law, either to prove that fear when it is itself in issue or to prove or explain the decedent’s subsequent conduct. Statements of a decedent narrating threats or brutal conduct by some other person may also be used as circumstantial evidence of the decedent’s fear—his state of mind—when that fear is itself in issue or when it is relevant to prove or explain the decedent’s subsequent conduct; and, for that purpose, the evidence is not subject to a hearsay objection because it is not offered to prove the truth of the matter stated. . . . But when such evidence is used as a basis for inferring that the alleged threatener must have made threats, the evidence falls within the language of Section 1850(b) and is inadmissible hearsay evidence.” (Italics added.)