People v. Washington

• Decision Date: 05 September 2017
• Docket Number: B270506
• Citation: 15 Cal.App.5th 19,222 Cal.Rptr.3d 772
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Shane WASHINGTON, Defendant and Appellant.

15 Cal.App.5th 19

222 Cal.Rptr.3d 772

The PEOPLE, Plaintiff and Respondent,

v.Michael Shane WASHINGTON, Defendant and Appellant.

B270506

Court of Appeal, Second District, Division 2, California.

Filed September 5, 2017

Certified for Partial Publication.^*

Ralph H. Goldsen, Goleta, 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.

HOFFSTADT, J.

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, 47 Cal.Rptr. 353, 407 P.2d 265 ( Aranda ), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136, 88 S.Ct. 1620, 20 L.Ed.2d 476 ( 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, 88 S.Ct. 1620.) Thus, unless the codefendant testifies and is subject to cross-examination, 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, 88 S.Ct. 1620 ; Aranda , at pp. 529-531, 47 Cal.Rptr. 353, 407 P.2d 265.) 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, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( 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.

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 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.

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, 19 Cal.Rptr.2d 836, 852 P.2d 331.)

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, 211 Cal.Rptr.3d 601, 385 P.3d 796, citing Strickland v. Washington (1984) 466 U.S. 668, 687-692, 104 S.Ct. 2052, 80 L.Ed.2d 674.) 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, 211 Cal.Rptr.3d 601, 385 P.3d 796.) Because the decision not to make a meritless request is neither deficient performance nor prejudicial ( People v. Lucero (2000) 23 Cal.4th 692, 732, 97 Cal.Rptr.2d 871, 3 P.3d 248 [" ‘[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, 184 Cal.Rptr.3d 682, 343 P.3d 867.) We review defendant's third claim for an abuse of discretion. ( People v. Jackson (2016) 1 Cal.5th 269, 298-299, 205 Cal.Rptr.3d 386, 376 P.3d 528.)

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) 481 U.S. 200, 208, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 ( Richardson ); Francis v. Franklin (1985) 471 U.S. 307, 324-325, fn. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 ; People v. Winbush (2017) 2 Cal.5th 402, 457, 213 Cal.Rptr.3d 1, 387 P.3d 1187 ( Winbush ).) In a handful of "extraordinary situations," however, courts have recognized "narrow exception[s]" to the general rule. ( Richardson , at p. 207, 107 S.Ct. 1702 ; Francis , at pp. 324-325, fn. 9, 105 S.Ct. 1965.)

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