Sometimes. California’s coconspirator hearsay exception does not admit every statement by someone accused of acting with you. The prosecution must establish an independent foundation that the speaker made the statement while participating in a conspiracy, to further its objective, and before or during your participation—not after you left.
What the judge must decide
Evidence Code section 1223 allows the statement only when there is sufficient evidence of the preliminary facts, admitted before the statement or conditionally later in the court’s discretion. The statement itself cannot supply its own foundation. Identify the speaker, exact words, listener, date, alleged objective, and evidence independent of that statement connecting the speaker to a continuing plan and connecting your participation to the relevant time.
A statement that advances a still-active plan is different from a narrative after the objective ended. People v. Leach requires independent evidence that the conspiracy continued when a later statement was made. Concealment to avoid detection does not automatically extend it, though another separately supported objective may matter. The prosecutor must establish the applicable foundation; a conspiracy charge or a speaker’s label is not enough by itself.
The jury’s finding is not a guilt finding
If the statement is admitted under section 1223 and the issue is submitted to jurors, CALCRIM No. 418 describes a separate finding by a preponderance of the evidence based on evidence independent of the statement. That question is not whether the defendant is guilty beyond a reasonable doubt. The court generally gives that instruction on request when applicable; do not assume it is automatic in every case.
Even if section 1223’s state hearsay requirements are met, a testimonial statement can raise a separate confrontation question. Section 1223 does not resolve every other objection to the statement. Preserve the complete message or recording and surrounding chronology, not an isolated excerpt, so the court can evaluate timing, context, and what the statement was offered to prove.
A useful review compares when the alleged objective began and ended, when you allegedly joined, and when the statement was made. If the court conditionally admitted it, track whether the promised foundation was later supplied. For information about the separate elements of a conspiracy charge, see the firm’s California conspiracy page. The Law Offices of David S. Chesley handles serious California criminal cases. Call (800) 755-5174 to discuss the evidence and its timing.