Filed 9/5/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SHANE WASHINGTON,

Defendant and Appellant.

 B270506

 (Los Angeles County

 Super. Ct. No. TA135789)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Eleanor J. Hunter, Judge. Affirmed.

Ralph H. Goldsen, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Steven D. Matthews, Supervising Deputy 

Attorney General, and Joseph P. Lee and Ryan M. Smith, Deputy

Attorneys General, for Plaintiff and Respondent.

* * * * * *

* 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.
2

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).
10

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.
19

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.*

GOODMAN

* Retired judge of the Los Angeles Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.