Date: 09-08-2017

Case Style: The People v. Michael Shane Washington

Case Number: B270506

Judge: Hoffstadt

Court: California Court of Appeals Second Appellate District Division Two on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Ralph H. Goldsen

Defendant's Attorney: Xavier Becerra, Gerald A. Engler, Lance E. Winters, Steven D. Matthews and Joseph P. Lee and Ryan M. Smith

Description: * Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of Part III. of the Discussion section.

Under the so-called Aranda/Bruton doctrine, a trial court
may generally not allow a jury in a joint criminal trial of a
defendant and codefendant to hear the unredacted confession of
the codefendant that also directly implicates the defendant—even
if the jury is instructed not to consider the confession as evidence
against the defendant. (People v. Aranda (1965) 63 Cal.2d 518,
529-531 (Aranda), abrogated in part by Cal. Const., art. I, § 28,
subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136
(Bruton).) Such a confession is so “powerfully incriminating,” the
doctrine provides, that the jury cannot be expected to heed the
court’s instruction and put it out of its collective mind when
evaluating the defendant’s guilt. (Bruton, at pp. 129, 135.) Thus,
unless the codefendant testifies and is subject to crossexamination,
the admission of the codefendant’s unredacted
confession at the joint trial violates the defendant’s Sixth
Amendment right to confront and cross-examine witnesses.
(Bruton, at pp. 128-136; Aranda, at pp. 529-531.) Has the United
States Supreme Court’s subsequent narrowing of the Sixth
Amendment right to confront and cross-examine witnesses to
protect against only “testimonial” statements—as accomplished
in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its
progeny—also narrowed the Aranda/Bruton doctrine? We hold
that the answer is “yes.” We further hold that the admission of
the codefendant’s unredacted confession at a joint trial with an
appropriate limiting instruction does not violate due process. In
the unpublished portion of the opinion, we finally hold that
severance of the trials in this case would not have been
warranted. Consequently, we affirm defendant’s murder
conviction in this case.
3
FACTS AND PROCEDURAL BACKGROUND
I. Facts
At almost midnight on a Saturday night in November 2014,
Michael Shane Washington (defendant) walked into the Avalon
Gardens housing complex in Los Angeles, knocked on the door of
an apartment, asked the 20-year-old man who answered, “Where
you from?,” and when the man responded, “Avalon,” defendant
shot him through the chest and killed him.
Defendant was at the time a member of the 89 Family
Swans street gang, which is affiliated with the Bloods street
gang. The Avalon Gardens Crips gang claimed the Avalon
Gardens housing complex as its territory, and the victim’s
response to defendant’s question indicated that the victim was
aligned with the Avalon Gardens Crips street gang. The 89
Family Swans and the Avalon Gardens Crips are rivals.
Four months before the shooting, defendant posted on his
Facebook account, “On bl89d”—“blood” using an “89” instead of
“oo”—“ima have to kill a nigga.”
Defendant was with two others, Keon Scott (Scott) and
Kevin Kendricks (Kendricks), at the time of the shooting. Scott
and Kendricks were members of the West Side Piru street gang,
which is a Bloods street gang allied with the 89 Family Swans.
Defendant was arrested minutes after the shooting fleeing
from the Avalon Gardens housing complex. He was wearing red
shorts, a color affiliated with the Bloods street gang. He was also
carrying a gun with cartridges that matched the cartridge found
near the victim’s body. When questioned by police after his
arrest, defendant told the police that he traveled to Los Angeles
that day to meet a girl he met over the Internet, that he found
the gun police recovered from him somewhere near the girl’s
4
house, that he had never been to the Avalon Gardens housing
complex, and that he did not know Scott or Kendricks.
Scott and Kendricks were also arrested soon after the
shooting and were placed in the same jail cell along with a hidden
recording device. During the 55 hours they were in the cell, they
made several statements implicating themselves and defendant
in the shooting: At one point, Kendricks said, “That nigga said,
[‘]Blood, where you from?[’] He said, “[‘]I’m from’” either
“‘Outlaw’” or “‘Avalon’”; in another exchange, Scott asked, “Did
you even see where he hit him though?” and Kendricks
responded, “In the chest.” Scott commented, “like I ain’t trying to
throw Shaggy under the bus like that, but he threw his self [sic]
under the bus.” Defendant goes by the name “Shaggy.”
II. Procedural Background
The People charged defendant, Scott, and Kendricks with
murder (Pen. Code, § 187, subd. (a)).1 The People further alleged
that defendant personally discharged a firearm causing death or
great bodily injury (§ 12022.53, subd. (d)), and that the murder
had been committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subds. (b)(1)(C)
& (b)(5)). The People additionally alleged that defendant had
served a prior prison term for his 2012 assault with a deadly
weapon conviction (§ 667.5, subd. (b)).
The trial court admitted snippets of the jailhouse
recordings of Scott’s and Kendricks’s conversations, but only
against Scott and Kendricks; the court expressly instructed the
jury not to consider the recordings against defendant.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
5
Defendant took the stand in his own defense.
Contradicting his postarrest statement, defendant testified that
he had traveled to Los Angeles with Scott and Kendricks to see if
he could stay with his cousin; that he brought the gun with him;
that the three of them went to the Avalon Gardens housing
complex to buy marijuana; that a 20-year-old man was on one
apartment’s porch and, when he saw defendant, asked, “Where
you from?”; that the 20-year-old man became “very aggressive”
when Scott and Kendricks rounded a corner and came into view;
and that defendant responded by firing off a single shot in a
random direction as he fled.
The court instructed the jury on first and second degree
murder, on voluntary manslaughter due to imperfect self-defense,
and on perfect self-defense.
The jury convicted defendant of first degree murder and
found true all of the firearm and gang allegations.2
The trial court sentenced defendant to prison for 51 years
to life. The court imposed a base sentence of 25 years to life for
first degree murder, plus an additional 25 years to life for the
firearm enhancement, plus one additional year for the prior
prison term.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that his trial counsel was
constitutionally ineffective for not moving to sever defendant’s
trial from that of his codefendants Scott and Kendricks. We
independently review claims of ineffective assistance. (People
v. Mayfield (1993) 5 Cal.4th 142, 199.)
2 The jury was unable to reach verdicts on Scott or
Kendricks. Neither Scott nor Kendricks is part of this appeal.
6
To establish that counsel was constitutionally ineffective, a
criminal defendant must show that (1) counsel’s performance was
“deficient” because it “‘“‘“fell below an objective standard of
reasonableness . . . under prevailing professional norms”’”’”; and
(2) but for that deficient performance, there is a “reasonable
probability . . . the outcome of the proceeding would have been
different.” (People v. Mickel (2016) 2 Cal.5th 181, 198, citing
Strickland v. Washington (1984) 466 U.S. 668, 687-692.) It is
especially “difficult” to prove ineffective assistance “on direct
appeal” because courts “presum[e] that counsel’s actions” are
reasonable and because the “record on appeal may not explain
why counsel chose to act as he or she did.” (Mickel, at p. 198.)
Because the decision not to make a meritless request is neither
deficient performance nor prejudicial (People v. Lucero (2000)
23 Cal.4th 692, 732 [“‘[c]ounsel may not be deemed incompetent
for failure to make meritless objections’”]), defendant’s ineffective
assistance claim turns on whether a request for severance would
have been well taken and, thus, on whether defendant was
entitled to severance in the first place.
Defendant seems to suggest he was entitled to severance
(1) under the Aranda/Bruton doctrine, (2) as a matter of due
process, and (3) under section 1098, the statute governing
severance. We review defendant’s first two claims de novo
because they turn on questions of constitutional interpretation.
(In re Taylor (2015) 60 Cal.4th 1019, 1035.) We review
defendant’s third claim for an abuse of discretion.
(People v. Jackson (2016) 1 Cal.5th 269, 298-299.)
I. The Aranda/Bruton Doctrine
As a “general rule,” courts presume that juries can and will
dutifully follow the instructions they are given, including
7
instructions that limit a jury’s consideration of evidence for
certain purposes or against certain parties. (Richardson
v. Marsh (1987) 481 U.S. 200, 208, 211 (Richardson); Francis
v. Franklin (1985) 471 U.S. 307, 324-325, fn. 9; People v. Winbush
(2017) 2 Cal.5th 402, 457 (Winbush).) In a handful of
“extraordinary situations,” however, courts have recognized
“narrow exception[s]” to the general rule. (Richardson, at p. 207;
Francis, at pp. 324-325, fn. 9.)
One of those narrow exceptions is designed to protect (and
thereby honor) a criminal defendant’s Sixth Amendment right to
confront and cross-examine witnesses. (Bruton, supra, 391 U.S.
at p. 137.) The Sixth Amendment secures a defendant’s right,
“[i]n all criminal prosecutions . . . [,] to be confronted with the
witnesses against him” (U.S. Const., 6th amend.), and “the right
of cross-examination is included in the right . . . to
confront . . . witnesses” (Pointer v. Texas (1965) 380 U.S. 400,
404). If, in a joint trial, the jury is allowed to hear a
codefendant’s confession directly implicating the defendant but
the codefendant does not take the witness stand, then the
defendant cannot cross-examine the codefendant due to the
codefendant’s privilege against self-incrimination. (Richardson,
supra, 481 U.S. at p. 206.) Although, in theory, an instruction
telling the jury not to consider the codefendant’s confession
against the defendant would obviate any Sixth Amendment
violation because “a witness whose testimony is introduced at a
joint trial is not considered to be a witness ‘against’ a defendant if
the jury is instructed to consider that testimony only against a
codefendant” (ibid.), courts view a codefendant’s confession
directly implicating a defendant as such “powerfully
incriminating” evidence that jurors are deemed incapable of
8
“‘put[ting it] out of their minds’” even when given an instruction
to do so (Bruton, supra, 391 U.S. at pp. 129, 135; accord, People
v. Lewis (2008) 43 Cal.4th 415, 453, overruled on other grounds
by People v. Black (2014) 58 Cal.4th 912, 919-920).
As a result, a trial court faced with a prosecutor’s request
to admit a codefendant’s confession at a joint trial must resort to
other options beyond a limiting instruction, such as (1) redacting
the codefendant’s confession in a way that both omits the
defendant but does not prejudice the codefendant (Aranda, supra,
63 Cal.2d at p. 530; Richardson, supra, 481 U.S. at pp. 201-202;
cf. Gray v. Maryland (1998) 523 U.S. 185, 189-190 [simply using
“deleted” in place of defendant’s name insufficient]); (2) severing
the trial or using separate juries for each defendant (Aranda,
at p. 530; Gray, at p. 192); or (3) excluding the evidence
altogether (Aranda, at p. 530).
The Aranda/Bruton doctrine rests exclusively on the Sixth
Amendment. Bruton itself is grounded on the confrontation
clause alone. (Bruton, supra, 391 U.S. at pp. 136-137.) Aranda
itself did not view its rule “as constitutionally compelled,” but
rather as a “judicially declared rule[] of practice to implement
section 1098.” (Aranda, supra, 63 Cal.2d at p. 530; accord, People
v. Anderson (1987) 43 Cal.3d 1104, 1121 [noting that Aranda
court “declined to rest on constitutional grounds”], superseded on
other grounds by § 190.2, subds. (c) & (d).) However, the voters’
enactment in 1982 of the “truth-in-evidence” provision of
Proposition 8 overturned all judicially crafted exclusionary rules
not compelled by federal constitutional law and, in so doing,
abrogated Aranda. (Cal. Const., art. I, § 28, subd. (d); People
v. Fletcher (1996) 13 Cal.4th 451, 465; People v. Capistrano (2014)
59 Cal.4th 830, 868, fn. 10.) Both Bruton and Aranda flirted with
9
the notion that admitting a codefendant’s confession under these
circumstances might be a denial of due process, but neither case
ultimately relied upon due process. (Bruton, at p. 130; Aranda,
at p. 530.)
The Sixth Amendment right to confront and cross-examine
witnesses has evolved since the Aranda/Bruton doctrine came
into being. For many years, the confrontation clause barred the
admission of any out-of-court statement admitted for its truth if
the hearsay declarant was not available for cross-examination,
unless the statement bore “adequate ‘indicia of reliability’”—that
is, unless (1) the evidence fell within a “firmly rooted hearsay
exception,” or (2) the evidence otherwise had “particularized
guarantees of trustworthiness.” (Ohio v. Roberts (1980) 448 U.S.
56, 66, overruled by Crawford, supra, 541 U.S. 36.) In 2004,
Crawford dramatically reshaped the confrontation clause:
It narrowed the clause’s reach from all out-of-court statements
admitted for their truth to only those out-of-court statements
that qualify as “testimonial,” but completely barred the
admission of such testimonial statements—irrespective of their
reliability—absent the defendant’s current or prior opportunity to
cross-examine the declarant. (Crawford, at pp. 51, 53-54.)
Although Crawford itself defined “testimonial” statements as the
clause’s “core concern[]” but held open the possibility that the
clause might still apply to “nontestimonial” statements (id.
at pp. 51, 68), the Court in subsequent cases held that
testimonial statements “mark out not merely [the clause’s] ‘core,’
but [also] its perimeter” (Davis v. Washington (2006) 547 U.S.
813, 824 (Davis)), and thus definitively held that clause “has no
application” to nontestimonial statements (Whorton v. Bockting
(2007) 549 U.S. 406, 420; Davis, at p. 821).
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The jailhouse conversation between Scott and Kendricks
qualifies as nontestimonial under Crawford and its progeny.
Whether an out-of-court statement is testimonial turns on
whether the “objective evidence” indicates that the statement was
obtained for the “primary purpose” of “establish[ing] or prov[ing]
past events potentially relevant to later criminal prosecution.”
(Davis, supra, 547 U.S. at p. 822; Michigan v. Bryant (2011)
562 U.S. 344, 356-357, 367.) Under this definition, “statements
from one prisoner to another” or “made unwittingly to a
[g]overnment informant” are not testimonial. (Davis, p. 825;
People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214 [“Private
communications between inmates are not testimonial”]; see also
People v. Arauz (2012) 210 Cal.App.4th 1394, 1402.) Scott’s and
Kendricks’s jailhouse conversation is not testimonial under
Crawford, as defendant concedes.
This case therefore squarely presents the question: Did
Crawford’s narrowing the reach of the confrontation clause have
the effect of narrowing the reach of the Aranda/Bruton doctrine?
Defendant strenuously argues Crawford did not.
Specifically, he asserts that a codefendant’s confession that
directly implicates a defendant is just as “powerfully
incriminating”—and, thus, is just as difficult for a jury to put out
of its mind notwithstanding an instruction to do so—regardless of
whether that confession qualifies as testimonial or
nontestimonial under Crawford. Drawing such a distinction,
defendant reasons, is “illogical.”
This argument is not without persuasive force, but
ultimately lacks merit because the Aranda/Bruton doctrine is
grounded exclusively in the confrontation clause and can extend
no farther than the metes and bounds of the clause defined by the
11
United States Supreme Court. (U.S. v. Berrios (3d Cir. 2012)
676 F.3d 118, 128 [“Bruton is no more than a by-product of the
Confrontation Clause”]; U.S. v. Johnson (6th Cir. 2009) 581 F.3d
320, 326 [noting that “the Bruton rule” “is premised on the
Confrontation Clause”].) This is the analysis adopted by the only
other published California case on this issue (People v. Arceo
(2011) 195 Cal.App.4th 556, 575) as well as by the majority of the
federal circuit courts. (U.S. v. Figueroa-Cartagena (1st Cir. 2010)
612 F.3d 69, 85; U.S. v. Williams (2d Cir. 2007) 506 F.3d 151,
156; U.S. v. Berrios, at pp. 128-129 [overruling U.S. v. Mussare
(3d Cir. 2005) 405 F.3d 161, 168]; U.S. v. Dargan (4th Cir. 2013)
738 F.3d 643, 651; U.S. v. Vasquez (5th Cir. 2014) 766 F.3d 373,
378-379; U.S. v. Johnson, at p. 326; U.S. v. Dale (8th Cir. 2010)
614 F.3d 942, 958-959; U.S. v. Clark (10th Cir. 2013) 717 F.3d
790, 815-816; cf. Adamson v. Cathel (3d Cir. 2011) 633 F.3d 248,
258-259 [applying pre-Crawford law].) We add our voice to this
chorus, and reject defendant’s confrontation clause-based
argument.
II. Due Process
The Aranda/Bruton doctrine is not the only “extraordinary
situation[]” in which a jury is deemed incapable of adhering to a
jury instruction directing the jury to put evidence out of its
collective mind. In Jackson v. Denno (1964) 378 U.S. 368, 379-
391 (Jackson), the United States Supreme Court held that New
York’s procedure that allowed a jury to determine whether a
defendant’s confession was involuntary and, if it so determined,
required the trial court to instruct the very same jury to
disregard the confession while considering the defendant’s guilt,
violated due process. “If [the jury] finds the confession
involuntary,” the Court reasoned, “does the jury—indeed, can it—
12
then disregard the confession in accordance with its
instructions?” (Id. at p. 388.) Both Aranda and Bruton found
Jackson to be a helpful analogy when they were constructing
what would become the Aranda/Bruton doctrine: “If it is a denial
of due process to rely on a jury’s presumed ability to disregard an
involuntary confession [in Jackson],” both cases noted, “it may
also be a denial of due process to rely on a jury’s presumed ability
to disregard a codefendant’s confession implicating another
defendant when it is determining that defendant’s guilt or
innocence.” (Bruton, supra, 391 U.S. at p. 130; Aranda, supra,
63 Cal.2d at pp. 528-529.)
Although, as noted above, neither Aranda nor Bruton
ultimately relied upon due process as the basis for the rule they
announced, defendant invites us to fashion a due process-based
Aranda/Bruton doctrine. We respectfully decline this invitation,
and do so for four reasons.
First, doing so would, in effect, breathe life back into the
Aranda/Bruton doctrine when the codefendant’s confession is
nontestimonial. This would put us at odds with the weight of
California and federal authority, discussed above, that has held
to the contrary.
Second, redesignating the Aranda/Bruton doctrine—at
least as applied to nontestimonial statements—as a due processbased
doctrine instead of a confrontation clause-based doctrine
would run afoul of the general maxim of constitutional
jurisprudence that “[w]here a particular Amendment ‘provides an
explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not the
more generalized notion of ‘substantive due process,’ must be the
guide for analyzing these claims.” (Albright v. Oliver (1994)
13
510 U.S. 266, 273, quoting Graham v. Connor (1989) 490 U.S.
386, 395; see also Portuondo v. Agard (2000) 529 U.S. 61, 74.)
Although these cases speak to substantive due process, the
maxim they embody would seem to apply with equal force to
preclude the recognition of a procedural due process right when a
“particular Amendment” already speaks to—and rejects—a
procedural protection. That is the case here. (Accord, People
v. Garcia (2008) 168 Cal.App.4th 261, 280 [“the determination of
whether the defendant was denied due process generally centers
on whether the admission violated the defendant’s rights
under . . . Aranda . . . and Bruton”].)
Third, the danger posed by a jury’s consideration of
nontestimonial statements is ostensibly less severe than the
danger posed by a jury’s consideration of an involuntary
confession in Jackson. Involuntary confessions are by definition
coerced and thus “inherent[ly] untrustworth[y].” (Jackson, supra,
378 U.S. at p. 383.) A jury that does not heed an instruction to
ignore such a confession will be considering evidence that is
unreliable. By contrast, statements that are nontestimonial—
and especially ones like the jailhouse conversation between Scott
and Kendricks in this case—are, by definition, more likely to be
trustworthy because “conversations . . . between friends in a
noncoercive setting” are more likely to “foster[] uninhibited”—
and hence, reliable—“disclosures.” (People v. Greenberger (1997)
58 Cal.App.4th 298, 335 (Greenberger); People v. Cervantes (2004)
118 Cal.App.4th 162, 175 (Cervantes) [same]; cf. People v. Duarte
(2000) 24 Cal.4th 603, 617 (Duarte) [statements “made to police
shortly after” arrest less likely to be trustworthy].) Because due
process is often concerned with safeguarding the reliability of
evidence (e.g., Perry v. New Hampshire (2012) 565 U.S. 228, 240-
14
241 [noting that “reliability is the linchpin of admissibility under
the Due Process Clause”]; White v. Illinois (1992) 502 U.S. 346,
363-364 [“Reliability is more properly a due process concern”]),
the diminished risk of the jury’s exposure to unreliable evidence
in the context of nontestimonial statements counsels against the
wholesale importation of Jackson’s due process concerns into this
context.
Lastly, both the United States and California Supreme
Courts have stopped short of ruling that due process bars a jury’s
exposure to a codefendant’s confession directly implicating the
defendant notwithstanding a jury instruction to the contrary. We
are reluctant to take a step that neither of these two Courts has
yet to take.
III. Severance Under Section 1098
When “two or more defendants are jointly charged with any
public offense,” “they must be tried jointly[] unless the [trial]
court order[s] separate trials” through severance. (§ 1098.) The
preference for joint trials is a “strong” one (Winbush, supra,
2 Cal.5th at p. 455), and rests upon considerations of judicial
economy as well as a desire not to subject victims and witnesses
to the “inconvenience (and sometimes trauma)” of having to
testify in multiple trials (Richardson, supra, 481 U.S. at pp. 209-
210; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40
(Coffman and Marlow)).
Where, as here, “‘defendants are charged with having
committed “common crimes involving common events and
victims,” . . . the court is presented with a “‘classic case’” for a
joint trial.’” (Winbush, supra, 2 Cal.5th at p. 456, quoting People
v. Keenan (1988) 46 Cal.3d 478, 499-500.) Our Supreme Court
has set forth two alternative tests for evaluating whether
15
severance may nevertheless be appropriate. Under the first test,
a trial court is to evaluate whether one or more of the following
dangers exists: “‘[1] an incriminating confession, [2] prejudicial
association with codefendants, [3] likely confusion resulting from
evidence on multiple counts, [4] conflicting defenses, or [5] the
possibility that at a separate trial a codefendant would give
exonerating testimony.’” (Coffman and Marlow, supra,
34 Cal.4th at p. 40, quoting People v. Massie (1967) 66 Cal.2d
899, 917; People v. Souza (2012) 54 Cal.4th 90, 109.) Under the
second test, the court is to ask whether “‘there is a serious risk
that a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.’ [Citation.]” (Coffman and
Marlow, at p. 40; Souza, at p. 109.) The denial of severance
warrants reversal only if (1) the trial court was wrong to deny
severance at the time it was requested, and “it is reasonably
probable the defendant would have obtained a more favorable
result at a separate trial”; or (2) the trial court was right to deny
severance at the time it was requested, but subsequent events
reveal that the joint trial “‘resulted in “gross unfairness”
amounting to a denial of due process.’” (People v. Burney (2009)
47 Cal.4th 203, 237 (Burney).)
The trial court would not have abused its discretion had it
denied severance of defendant’s trial under either applicable test.
Under the first multifactor test, only the first factor—an
incriminating confession—counsels in favor of severance.
However, the admission of a codefendant’s “extrajudicial
statement[] implicating [the defendant]” does not dictate
severance where the defendant’s confrontation clause rights are
not otherwise violated (Coffman and Marlow, supra, 34 Cal.4th
16
at p. 43), and for the reasons described above, here they were not.
The remaining factors do not favor severance because defendant’s
association with Scott and Kendricks was not longstanding and
was not prejudicial to defendant (because defendant was the
shooter), there were not multiple counts, defendant’s defense of
self-defense did not conflict with Scott’s or Kendricks’s defenses
that defendant acted on his own, and there is nothing to suggest
Scott or Kendricks would have given exonerating testimony to
support defendant. Under the second test, the joint trial did not
compromise defendant’s confrontation clause rights because the
Aranda/Bruton doctrine does not apply here; nor did the joint
trial prevent the jury from making a reliable judgment about
guilt or innocence because, as described above, the
surreptitiously recorded jailhouse conversation did not produce
unreliable evidence. What is more, the trial court expressly
instructed the jury to consider the evidence against each
defendant separately, and we presume that the jury followed that
instruction. (People v. Letner and Tobin (2010) 50 Cal.4th 99,
152.)
Even if we assume that a timely motion by defense counsel
to sever the trial would have been well taken, reversal is not
warranted—and counsel’s deficiency was not prejudicial—
because, as noted above, there was no due process violation and
because it is not “reasonably probable the defendant would have
obtained a more favorable result at a separate trial.” (Burney,
supra, 47 Cal.4th at p. 237.) Defendant testified that he shot the
victim, and it is not reasonably probable that the jury would have
accepted his proffered defenses of perfect or imperfect selfdefense
had he been tried alone (and the snippets from the
jailhouse conversation between Scott and Kendricks been absent
17
from that trial). Defendant was an active 89 Family Swans gang
member who had boasted, “ima have to kill a nigga” months
before walking into a rival gang’s territory—wearing his gang
colors—and confronting his victim with a gang challenge. The
fact that defendant bolted and then lied to police with a story
that bore no resemblance to his trial testimony only reinforces
this conclusion. Even if defendant had not elected to testify, it is
unlikely the defenses of perfect and imperfect self-defense would
have been available, and defendant’s postarrest statement was
refuted by video footage from the Avalon Gardens housing
complex showing him striding into the complex with Scott and
Kendricks in tow.
Additionally, a separate trial would not have yielded a
different result for the simple reason that the jailhouse
conversation between Scott and Kendricks would have been
admissible against defendant at his separate trial anyway. That
is because the conversation is admissible as a declaration against
interest. This exception to the hearsay rule applies if (1) “the
declarant is unavailable,” (2) “the declaration was against the
declarant’s penal interest when made,” and (3) “the declaration
was sufficiently reliable to warrant admission despite its hearsay
character.” (Duarte, supra, 24 Cal.4th at pp. 610-611; People
v. Lawley (2002) 27 Cal.4th 102, 153.) To satisfy the third
element, the statement must be “‘truly self-inculpatory, rather
than merely [an] attempt[] to shift blame or curry favor.’”
(Duarte, at pp. 611-612, quoting Williamson v. United States
(1994) 512 U.S. 594, 603.) In this case, Scott and Kendricks were
unavailable to testify by virtue of their privilege against selfincrimination.
(Evid. Code, § 930.) Their statements recounting
what defendant said to the victim, where the defendant shot the
18
victim, and that defendant “threw his self [sic] under the bus” are
incriminating to Scott and Kendricks because those statements
place them with defendant during the shooting and support a
finding that they aided and abetted the charged murder. Lastly,
and as discussed more fully above, their statements were made to
one another without any knowledge they were being recorded; as
such, they are more reliable. (Greenberger, supra, 58 Cal.App.4th
at p. 335; Cervantes, supra, 118 Cal.App.4th at p. 175.) Because
a declaration against penal interest is admissible against all
defendants if admissible against any one (Greenberger,
at pp. 314, 334; Cervantes, at p. 177), the jailhouse conversation
was admissible against defendant as well.
Defendant makes two arguments resisting this analysis.
First, he argues that we may not evaluate whether the jailhouse
conversation is admissible against him because the People
conceded before the trial court that the conversation was
admissible only against Scott and Kendricks. However, we may
affirm a conviction on any ground supported by the record,
whether or not the trial court relied upon it. (People v. Chism
(2014) 58 Cal.4th 1266, 1295, fn. 12). Defendant cites People
v. Grimes (2016) 1 Cal.5th 698, 720-721, for the contrary
proposition, but that case dealt with forfeiture of issues on
appeal, not before the trial court. Second, defendant asserts that
the United States Supreme Court in Lilly v. Virginia (1999)
527 U.S. 116, held that declarations against penal interest did
not constitute a “firmly rooted hearsay exception” under preCrawford
confrontation clause law. This is true, but irrelevant to
the applicability to the hearsay exception for declarations against
penal interest under state law.

Outcome: The judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: