Kons

Mark Johnson made two statements to police officers about who shot him. In the first statement, made immediately after he was shot, Johnson identified the person who shot him as “Mad Ball.” One or two days later, Johnson gave a recorded statement to a police officer in the hospital. In the second statement, Johnson picked out defendant Michael Christopher Kons as the shooter from a photographic lineup. This second statement was the only evidence at trial that established defendant was the shooter. Because Johnson did not testify at trial, both statements were admitted under Evidence Code section 1370.

Defendant challenges the admission of these two statements. Because we conclude the admission of the second statement violated defendant’s constitutional right to confront the witnesses against him, we shall reverse defendant’s convictions for attempted murder and assault with a firearm and remand for retrial.

Introduction

I

Procedural Background

By information, the People charged defendant with the attempted murder of Mark Johnson, assault on Johnson with a firearm and resisting arrest. (Pen. Code, §§ 187, subd. (a), 664, 245, subd. (a)(2), 69.) On the attempted murder…