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 streеt 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 оn his Facebook account, "On bl89d"-"blood" using an "89" instead of "oo"-"ima have to kill a nigga."
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 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 recоrding 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) ).
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.
Defendant took the stand in his own defense. Contradicting his postarrest statement, defendant testified that he had traveled to Los Angeles with Scott
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.
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 assistancе. ( People v. Mayfield (1993)
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)
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)
I. The Aranda / Bruton Doctrine
As a "general rule," courts presume that juries can and will dutifully follow the instructions they are given, including instructions that limit a jury's consideration of evidence for certain purposes or against certain parties. ( Richardson v. Marsh (1987)
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 ,
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 ,
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,
The Sixth Amendment right to confront and cross-examine witnesses has evolved since the Aranda / Bruton doctrine came into being. For many years, the confrоntation 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
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
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."
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)
Although, as noted above, neither Aranda nor Bruton ultimately relied upon due process as the basis for the rule they announced, defendant invites
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 process-based doctrine instead of a confrontation clause-based doctrine would run afoul of the general maxim of constitutional jurisprudence that "[w]here a particulаr 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)
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 ,
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
DISPOSITION
The judgment is affirmed.
We concur:
ASHMANN-GERST, Acting P.J.
GOODMAN, J.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach verdicts on Scott or Kendricks. Neither Scott nor Kendricks is part of this appeal.
See footnote *, ante.
Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
