Vasquez

*612 Opinion

Defendant Jose Federico Vasquez accosted Wilson Rodriguz 1 with a gun, threatened to kill Rodriguz and forced Rodriguz to take off his clothes. Defendant then struck Rodriguz on the head with the gun, causing lacerations and bleeding, and took Rodriguz’s clothes and other belongings.

Defendant does not dispute that he robbed, assaulted and threatened Rodriguz. His defense was that he did not use a gun in committing the crimes.

Defendant contends that the trial court erred by excluding codefendant Manuel Guerrero’s out-of-court statement to the police, which defendant claims was admissible under the declaration against interest exception to the hearsay rule. In particular, defendant contends (1) the trial court erred in determining that the portions of Guerrero’s statement defendant sought to introduce were not against Guerrero’s penal interests, (2) exclusion of Guerrero’s statement violated defendant’s due process rights, and (3) the trial court erred in excluding Guerrero’s statement under Evidence Code section 352. Defendant also contends that the trial court erred by failing to instruct the jury on the lesser included offense of simple assault.

In the…