Cortez

MEMORANDUM *

The state has conceded that Cortez’s trial counsel was deficient. The only question before us is whether, under Strickland v. Washington, Cortez was prejudiced by that deficiency.

Had Cortez’s attorney taken the necessary steps to secure Morales’s presence at trial, the jury likely would have heard Morales’s confession to the crime for which Cortez was convicted. We reach this conclusion based on Morales’s repeated out-of-court confessions and his expressions of willingness to testify consistent with those confessions.

Even had Morales opted to invoke his Fifth Amendment rights, his earlier confessions would likely have come in under California’s exception to the hearsay rule for declarations contrary to the declarant’s penal interests. 2 True, Morales’s collateral statement that Cortez knew nothing about the drugs would likely not have been admissible as a declaration against Morales’s penal interest. 3 Morales’s statement that the drugs were his and his alone, however, most likely would have been admissible. Such a statement of exclusive ownership could have subjected Morales to a higher sentence under the California or *530 federal sentencing system. 4…