Filed 12/6/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN



THE PEOPLE,                         B269034

       Plaintiff and Respondent,    (Los Angeles County
                                    Super. Ct. No. TA134117)
       v.

ANGEL GALLARDO et al.,

       Defendants and Appellants.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin Filer, Judge. Affirmed as to defendant
Angel Gallardo. Reversed as to defendants Smith Garcia and
Michael Gallardo.
      Neil Rosenbaum, under appointment by the Court of
Appeal, for Defendant and Appellant Angel Gallardo.
      Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant Michael Gallardo.
      Tracy J. Dressner, under appointment by the Court of
Appeal, for Defendant and Appellant Smith Garcia.
      Xavier Becerra, Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Lance E. Winters, Senior Assistant
Attorney General; Stacy S. Schwartz, Deputy Attorney General;
and John Yang, Deputy Attorney General, for Plaintiff and
Respondent.
                  __________________________

       Appellants Angel Gallardo, Michael Gallardo and Smith
Garcia were charged with one count of murder, two counts of
attempted murder and one count of shooting at an occupied car.
The prosecution alleged the appellants and a fourth co-defendant,
Felipe Ramos, had jointly conducted a drive-by shooting of three
rival gang members, one of whom died. The primary piece of
evidence at trial was a surreptitiously-recorded jailhouse
conversation between Angel Gallardo and two paid informants
who were posing as inmates. During the conversation, Angel
claimed that Michael drove Garcia to shoot the victims, while he
waited around the corner in a second “getaway” vehicle. Co-
defendant Ramos was not mentioned on the tape.
       The jury convicted Smith Garcia of first degree murder,
and Angel and Michael Gallardo of second degree murder. The
jury also found appellants guilty of the remaining three counts.
The jury could not reach a verdict with respect to Ramos.
       On appeal, Garcia and Michael Gallardo argue the
admission of Angel’s jailhouse statement violated their Sixth
Amendment rights under Crawford v. Washington (2004) 541
U.S. 36 (Crawford) and Bruton v. United States (1968) 391 U.S.
123 (Bruton). Alternatively, they contend that portions of Angel’s
jailhouse statements which implicate them in the crime were
improperly admitted against them as declarations against




                                2
Angel’s penal interest. Angel Gallardo argues the court should
have excluded the entire recording under Penal Code section
4001.1, which places limits on law enforcement’s use of in-
custody informants. He further contends the court erred in
instructing the jury on attempted premeditated murder.
      We reverse the judgments against Garcia and Michael
Gallardo, concluding that certain statements Angel made to
informants regarding his co-defendants’ role in the shooting
constituted inadmissible hearsay. We affirm the judgment as to
Angel.
                   FACTUAL BACKGROUND

      A. Summary of Facts Preceding Trial

          1. Summary of the shooting
       On November 8, 2013, Antonio Flores, Raul Rodriguez and
Raymond Rodriguez traveled to the Lumar Recycling Center on
Alameda Avenue in Compton, California. All three men were
affiliated with the “Lynwood Varrio Paragons” gang. Raul
Rodriguez had several gang tattoos visible on his body, including
the letters “LVP” on one arm and one leg, and the letter “P” on
the right side of his neck.
       At 3:09 p.m., the three men left the recycling facility in a
white truck, and traveled northward on Alameda Avenue. Raul
Rodriguez was driving the vehicle, Flores was in the front
passenger seat and Raymond Rodriguez was seated in the back.
Approximately two blocks north of the recycling facility, several
bullets struck the driver side of their vehicle. Raul Rodriguez
suffered gunshot wounds to his head, neck and chest, and died
from his injuries. Flores was hit three times in his back, but
survived his injuries; Raymond Rodriguez was not injured.




                                 3
Immediately after the shooting, their vehicle collided with a car
in front of them, and then crashed into a storefront.
       Jacko Esqueda was a passenger in a truck headed north on
Alameda Avenue at the time of the shooting. After hearing
several gunshots, the driver stopped the truck. Esqueda saw a
“silver-colored SUV” pass on the right side, and then turn right
from Alameda Avenue onto El Segundo Avenue. Esqueda then
felt a vehicle collide into the rear of the truck. Rachel Hilchey,
who was also driving north on Alameda at the time of the
shooting, heard several gunshots, and then saw a white truck
crash into a storefront. Shortly after the crash, Hilchey saw a
black car pass at a high rate of speed. Law enforcement found
five nine-millimeter bullet casings at the scene of the shooting.

         2. Summary of police investigation

             a. Surveillance videos
      The lead investigating officer, Los Angeles Sheriff’s
Department Sergeant Ken Perry, obtained surveillance video
from the recycling facility that showed a gray Ford Explorer
pulling into the parking area at 2:28 p.m., approximately 40
minutes before the shooting occurred. At 2:30 p.m., Felipe Ramos
and Michael Gallardo were standing together inside the facility.
Three minutes later, a white Ford Expedition pulled into the lot
near the gray Ford Explorer. At 2:36 p.m., Raul Rodriguez,
Raymond Rodriguez and Flores arrived at the facility in a
smaller white SUV, which parked behind the gray Ford Explorer,
and next to the white Expedition. The three men removed
various items from their vehicle, walked past the Explorer and
Expedition and then entered the facility. Shortly thereafter, the
white Expedition left the recycling facility, and headed north on




                                4
Alameda Avenue. At 2:48 p.m., the cashier paid Felipe Ramos for
the recyclable items he had deposited. Three minutes later, the
gray Explorer left the facility, and headed north on Alameda
Avenue.
       At 3:07 p.m., Raymond Rodriguez received payment for his
recyclable items. Two minutes later, at 3:09 p.m., the white
truck Raymond, Raul and Flores had arrived in left the facility,
and headed north on Alameda Avenue. Shortly after they pulled
out, a gray Ford Explorer turned right onto Alameda Avenue
from a cross street located south of the recycling facility, and then
continued traveling north on Alameda Avenue, past the recycling
facility, at a high rate of speed. The video did not capture any
image of the driver or the license plate.
       Sergeant Perry also obtained surveillance video from a
store located on the corner of El Segundo Avenue, which
intersects with Alameda Avenue two blocks north of the recycling
facility, and Santa Fe Avenue, which runs parallel to Alameda
Avenue, one block to the east. At 2:54 p.m., the video showed a
gray Ford Explorer traveling closely behind a white Ford
Expedition, heading eastward on El Segundo Avenue toward
Santa Fe Avenue. Based on the videos, Sergeant Perry suspected
that the gray Ford Explorer left the recycling facility with the
white Expedition, and then circled back to the recycling facility,
and committed the shooting.

             b. Collection of evidence implicating defendants
       Sergeant Perry obtained a copy of a purchase ticket from
the recycling facility reflecting Felipe Ramos’s transaction on the
day of the shooting. Perry directed another officer to the address
Ramos had provided to the recycling facility, and instructed the
officer to search for a gray Explorer. The officer traveled to the




                                 5
address, and saw a gray Explorer parked near Ramos’s house.
The vehicle was registered to the mother of Michael Gallardo.
Using a government license plate scanning system, Perry
determined the same vehicle had been parked outside the home
of Michael Gallardo’s girlfriend on the morning of the shooting.
Law enforcement also determined Angel Gallardo owned a white
Expedition.
       On January 23, 2014, a Long Beach police officer conducted
a search of a residence where Smith Garcia, who went by the
name “Happy,” and Angel Gallardo were present. The officer
found a nine-millimeter handgun in the backyard of the property,
and recovered Garcia’s cell phone from a vehicle parked at the
house. Subsequent ballistics testing showed the handgun was
the same weapon that had fired the bullet casings found at the
scene of the shooting.
       Law enforcement downloaded data from Garcia’s cell
phone, which showed he had made numerous calls to numbers
associated with Michael Gallardo and Angel Gallardo.1 The data
also showed that in the days after the shooting, Garcia’s phone
had been used to conduct several searches on YouTube
referencing “Compton shooting,” “Compton car to car shooting”
and “Compton shooting 11-8-13.”
       Law enforcement also obtained data from cell phone
numbers associated with Angel, Michael and Ramos. The data
showed that between 2:24 p.m. and 3:30 p.m. on the day of the
shooting, all of the phones had placed calls that were received on
cell phone towers in the area of the shooting. Between 2:36 p.m.

1     Because defendants Angel Gallardo and Michael Gallardo
share the last name, for purposes of simplicity, we hereafter refer
to them each by his first name.




                                 6
and 2:44 p.m., Michael and Ramos had exchanged a series of text
messages, and between 2:47 p.m. and 2:50 p.m., Michael and
Angel had exchanged multiple calls. Ramos’s phone was also
found to contain photographs of Angel and Michael; Garcia’s
phone contained pictures of himself, Angel and others throwing
gang signs. Facebook data found on Angel’s phone contained
chats asserting he was with “Happy.”

         3. Statements from Angel and Felipe Ramos

          a. Angel’s jailhouse conversation
      On May 21, 2014, Angel was being held in a county jail on
charges unrelated to the shooting.2 Sergeant Perry arranged to
have two informants, both former members of the “Sureno” gang,
placed in the cell with Angel to elicit information about the
shooting. Perry provided the informants with details about the
investigation so that they would be familiar with some of the
names they might hear Angel use, and “know when they might be
on the right track.” Each informant was wearing a recording
device, and was paid for their services.
       After being placed in the cell, the informants initially
talked to each other about their respective charges. They then
asked Angel where he was from. Angel responded that he was
from “Compton Largo,” and went by “Sneaks.” The informants
asked “Where’s Happy at?,” to which Angel responded: “Happy,
that’s my cousin.”
       Angel was then removed from the cell, and interrogated by
police about the shooting. After being brought back into the cell,


2     Angel was not arrested in relation to the shooting until
July of 2014.




                                7
the informants asked Angel what the officers had said to him,
and whether they had added a charge. Angel stated that “the fool
wants me to drop down what happened,” and complained that
“somebody’s been snitching on me. Somebody’s trying to say I’m
the shooter and shit.” When asked what evidence the police had,
Angel stated “they got the gun,” which he identified as a “nine
glock.” Angel also told the informants the police interrogator had
claimed Angel and Happy’s fingerprints were found on the
weapon. An informant then asked Angel if he “knew what
happened,” to which Angel responded “yeah.” The informant
then asked “who was that on?,” and Angel responded “the
Paragons.”
       Angel also told the informants the police interrogator had
claimed officers overheard cell phone conversations between
Angel and Garcia at the time of the shooting. At that point, one
of the informants interjected: “So you’re telling me you were
driving and Happy was the shooter?” Angel responded “yeah.”
The other informant then asked whether Happy had shot from
the car Angel was driving, to which Angel again responded
“yeah,” and described the car as a “gray Ford Explorer.” Angel
then renewed his complaints that someone was “snitching” on
him, and “trying to pin it on me.”
       The informants asked Angel whether he had told anyone
what happened. Angel said some people “knew” because “that
fool, Happy, was telling people,” and again complained that
somebody “from the hood [wa]s trying to pin it on me.” In
response, the informant asked “But who . . . is the actual shooter
though?” Angel stated “My cousin.” An informant then told
Angel “I’m pretty sure you can fight it,” and inquired whether the
police had “the car.” After Angel acknowledged “they got the




                                8
car,” an informant asked what time and street the shooting had
happened on. Angel explained that the incident occurred around
“3:00 or 4:00 p.m.,” and that “they” had been driving on Alameda,
and then went right onto El Segundo.
       When an informant asked why they kept the gun, Angel
said that “Happy fucking . . . . They wanted to keep it as a
trophy.” The informant stated that although the gun would “hurt
[Angel],” the fact that the weapon was not “under your guys pad”
was a “good thing,” further stating “I don’t think they got shit on
you, fool.”
       The informants then resumed questioning Angel about the
specifics of the shooting, inquiring whether they “caught some
fool slipping,” or whether they had “stopped somewhere.” Angel
explained that they “just got the fool” at the “recycling center.”
Angel further explained that they had arrived at the recycling
facility in a “white Expedition,” and then left to do the “jale” in
the gray car. Contrary to his earlier statement, Angel claimed he
was driving the white vehicle, and “Happy was driving the gray
one. And he got off and shot him. . . . I was waiting for them. He
got in that Expedition and we took off.”
       The informants asked Angel how they had known where
the “guys” were from, and he responded “because they had it
tattooed right here.” Angel then complained again that
“somebody” was accusing him of the being the shooter, and was
“trying to pin it on [him].” The informants told Angel he
“shouldn’t trip” because the police did not have “shit” on him. An
informant then suggested that the person who was snitching
must be the person who was driving the gray car, and asked who
that person was. Angel said “the homey Mike.” Angel then
provided a third version of what had occurred, claiming that




                                 9
“Mike” was driving the gray vehicle with Garcia, and that Angel
had been “waiting around the corner for them fools.” The
informant then asked: “Mike drove Happy and did the shooting?”
Angel said “yeah,” and confirmed he was “just the getaway
driver.” An informant stated that “Mike” must be the snitch,
because he was the only other person who “knew the details.”
       An informant then summarized his understanding of the
facts: “Happy and Mike took off. . . . Happy shoots him. They –
shoot him. . . . Mike . . . drops off Happy. So he – you’re not – all
you are is fucking – you didn’t do anything there.” Angel
responded “Yeah.” The informants then responded that “he
should be good,” which led to the following exchange:

INFORMANT:        One thing that’s wrong [with the
                  detective’s story] is that you’re not the
                  shooter.
ANGEL:            I’m not the shooter.
INFORMANT:        You’re the getaway driver.
ANGEL:            I’m the getaway driver.

            b. Interrogation of Felipe Ramos
      On July 9, 2014, the police interviewed Felipe Ramos, who
admitted he had arrived at the recycling facility on the day of the
shooting in the gray Ford Explorer shown in the surveillance
video. He also admitted he had left the recycling facility in that
vehicle, and then followed a white Expedition. According to
Ramos, the white Expedition had traveled north on Alameda
Avenue, then turned right onto El Segundo Avenue, and right
onto Santa Fe Avenue, where the car “waited.” The Explorer,
however, drove back past the recycling facility. Ramos said he




                                 10
heard gunshots, and saw a car hit the back of another car.
Ramos then turned right onto El Segundo Avenue.

        4. The information
      The District Attorney for the County of Los Angeles filed an
information charging Angel, Michael, Garcia and Ramos with one
count of murder (Pen. Code, § 187, subd. (a)3), two counts of
attempted murder (§§ 664, 187, subd. (a)) and one count of
shooting at an occupied vehicle (§ 246). The information
contained special allegations asserting the attempted murders
had been willful, deliberate and premeditated (see § 664, subd.
(a)), and numerous firearm allegations asserting Garcia had
personally and intentionally discharged a firearm in the
commission of each offense, and that a principal had discharged a
firearm in the commission of each offense. (See § 12022.53,
subds. (a)-(e).) The information also alleged each defendant had
committed all four counts for the benefit of a criminal street
gang. (See § 186.22.)4

      B. Trial Court Proceedings

         1. The admission of Angel’s jailhouse conversation
      Prior to trial, counsel for Garcia and Michael objected to
the admission of Angel’s jailhouse conversation on Sixth


3     Unless otherwise noted, all further statutory citations are
to the Penal Code.

4     The information included additional special allegations
asserting each defendant had suffered one or more prior prison
term felonies (see § 667.5, subd. (b)), and was ineligible for
parole. (§ 1203, subd. (e).)




                                11
Amendment grounds, asserting that under Crawford v.
Washington (2004) 541 U.S. 36 (Crawford), his statements were
“testimonial” in nature because they had been elicited by paid
informants for the express purpose of aiding in the investigation.
Alternatively, counsel argued that numerous statements Angel
had made during the conversation, including those in which he
identified Garcia as the shooter and Michael as the driver, did
not qualify as declarations against Angel’s interest, and therefore
constituted inadmissible hearsay. According to counsel, Angel’s
statements effectively minimized his own role in the offense, and
shifted blame toward Garcia and Michael. Defense counsel also
argued that under People v. Duarte (2000) 24 Cal.4th 603
(Duarte), the court could not admit the entire conversation based
solely on the fact that it contained some statements that were
against Angel’s interest, but rather was required to
independently assess whether each statement within the
transcript was against his interest.
       Counsel also argued Angel’s statements lacked
“trustworthiness” because he had provided three different
versions of his story, initially claiming he was the driver of the
vehicle Garcia had fired from, then claiming Garcia was the
driver and the shooter, and finally asserting Michael had driven
while Garcia fired, and that Angel had waited around the corner
in a different vehicle. Michael’s counsel argued Angel’s
statements regarding his client were particularly unreliable
because they were made only after informants had suggested
Michael was the snitch.
       Angel’s counsel also objected to portions of the transcript on
hearsay grounds, noting that many of his statements appeared to
recount information he had been told by other people. Counsel




                                 12
also asserted the transcript contained numerous narratives and
hypothetical questions the informants had posed to Angel, which
did not qualify as admissible evidence.
       The prosecution argued that Angel’s statements were not
“testimonial” within the meaning of Crawford because there was
no evidence that Angel knew he was speaking to informants, or
that the answers he was providing might be used against him at
trial. The prosecution also argued that all of Angel’s statements
qualified as declarations against his interest because he was
“admitting he is part of a conspiracy to kill people and admitting
at the very least to helping get away.”
       The court admitted Angel’s jailhouse conversation in its
entirety against all of the defendants under the declaration
against penal interest exception.5 The court explained there was
“sufficient indicia of reliability [to allow all of Angel’s]
statements.” In support, the court noted that Angel had provided
a substantial amount of detail regarding the shooting, including
the identity of the shooter, the route the assailants had taken
during the commission of the offense and specific information
about the victims. The court also concluded the Sixth
Amendment was inapplicable, noting that numerous prior cases
had found statements made to undercover informants were not
“testimonial” within the meaning of Crawford.




5      The hearing transcript indicates the trial court did exclude
other conversations Angel had with the informants discussing his
relationship with various Largo gang members who were not
involved in the shootings. The court excluded these statements
under Evidence Code section 352.




                                13
          2. Witness testimony
      At trial, Raymond Rodriguez testified that he had traveled
to the recycling facility with Flores and Raul on the day of the
shooting. Raymond said they did not get into any verbal or
physical altercations while at the facility. Raymond admitted he
and Flores were members of the Paragons gang, and that Largo
was a rival gang. He denied, however, making any reference to
his gang while at the facility. Shortly after leaving the facility,
the car he was traveling in with Flores and Raul was fired upon.
Raymond did not see where the shots came from.6
       Several witnesses who were driving on Alameda Avenue at
the time of the shooting, including Jacko Esqueda and Rachel
Hilchey, testified that they had heard gunshots while driving on
Alameda Avenue, and had then seen a silver or black colored
vehicle drive by them. Only one witness, David Hilchey, who had
been driving a semi-truck in front of his wife Rachel at the time
of the shootings, testified that he had actually seen the shooting.
David claimed he had seen two shooters of “Mexican heritage”
leaning out of a silver car firing multiple weapons while looking
“happy.” He did not, however, identify any of the defendants as
the shooters. Hilchey’s claim that he had seen the shooting
directly conflicted with statements he had made to officers
immediately after the incident, and at the preliminary hearing.
When asked at trial to clarify these discrepancies, Hilchey stated
that, at the time of the shooting, he had been awake for 22 hours,
which affected his memory. Hilchey also testified he was taking



6     Flores provided similar testimony, but denied membership
in any gang, and denied any knowledge regarding Raul or
Raymond’s status as gang members.




                                14
“hydrocodeine about every four hours” to treat “gunshot wounds”
suffered in Vietnam.
       Sergeant Perry testified about his role in the investigation,
including his use of the paid informants to gather information
from Angel. The prosecution played the jury a recording of the
jailhouse conversations, and provided it with a transcript. The
jury also heard the police interview of Felipe Ramos, but was
instructed that it could only consider such statements against
Ramos, and not against any of the other defendants.
       Several other law enforcement agents and personnel who
participated in the investigation also testified, including multiple
officers who had aided Perry in gathering evidence, a ballistics
expert who had tested the firearm found at the residence where
Garcia and Angel were located, the medical examiner who had
reviewed Raul’s autopsy results and a criminalist who had
created a computer-generated “cell tower video” based on the cell
phone data law enforcement had retrieved from the defendants’
phones. The video purported to show that all four defendants
were in the area of the recycling facility at the time the shootings
occurred.
       The prosecutor also called detective Marc Boisvert to testify
as a gang expert. Boisvert stated that the recycling facility fell
within the territory of the Compton Varrio Largo gang, which
was a rival of the Lynwood Varrio Paragons. Based on various
tattoos, photos and self-admissions, Boisvert identified Angel,
Michael and Garcia as members of the Largo gang, and the three
victims of the shootings as members of the Paragons gang.
When presented with a hypothetical scenario reflecting the
evidence in the case (almost all of which was based on Angel’s
jailhouse statements), Boisvert opined that the crimes had been




                                15
committed for the benefit of, in association with and at the
direction of a criminal street gang.
       Michael also called a gang expert, Martin Flores, who had
listened to the recording of Angel’s jailhouse statements. Flores
testified that based on other cases he had worked on, he
recognized the paid informants as two former high ranking
members of the Mexican Mafia who now routinely served as paid
agents for law enforcement. Flores also asserted that although
no threats could be heard on the transcript, the informants may
have attempted to force Angel into confessing through non-verbal
visual threats.

          3. Jury verdicts
      The jury found Angel and Michael guilty of second degree
murder, two counts of attempted murder and one count of
shooting at an occupied vehicle. The jury further found that the
attempted murders had been premeditated, and that all the
crimes had been committed for the benefit of a street gang. The
jury rejected, however, special allegations asserting a principal
had personally and intentionally discharged a firearm in the
commission of each offense.7
      The jury found Garcia guilty of first degree murder, two
counts of attempted murder and one count of shooting at an
occupied vehicle. The jury found both attempted murders had

7
       Angel and Michael Gallardo received identical sentences of
15 years to life in prison on count one, plus a one-year
enhancement for their respective prior prison term felonies under
section 667.5, subdivision (b). They received 15 years to life in
prison on counts two and three, and 15 years in prison on count
four, all of which were to be served concurrently to their
sentences on count one.




                                16
been premeditated, that Garcia had personally and intentionally
discharged a firearm in the commission of each offense, resulting
in great bodily injury, and that he had committed each crime for
the benefit of a street gang.8
      The jury was unable to reach a verdict with respect to
defendant Felipe Ramos, and the trial court declared a mistrial in
his case.

                          DISCUSSION

      A. The Admission of Angel’s Jailhouse Conversation
         Did Not Violate his Co-Defendants’ Sixth
         Amendment Right to Confrontation

      Garcia and Michael argue that the admission of Angel’s
statements to jailhouse informants violated their Sixth
Amendment right to confrontation under both Crawford, supra,
541 U.S. 36, and Bruton, supra, 391 U.S. 123.




8     The court sentenced Garcia to 50 years to life in prison on
count one, which consisted of a base offense of 25 years to life,
plus an additional 25 years for the firearm enhancement under
section 12022.53, subdivision (d). On counts two and three, the
court sentenced Garcia to terms of 40 years to life in prison,
consisting of a base offense of 15 years to life in prison, plus an
additional 25 years under section 12022.53, subdivision (d). The
court imposed a sentence of 40 years on count four, which it
stayed pursuant to section 654. The court further ruled that the
sentences in counts one through three were to be served
consecutively, plus two additional years for two prior prison
felonies under section 667.5, subdivision (b), for a total term of
132 years to life in prison.




                                 17
         1. Angel’s statements were not testimonial within the
            meaning of Crawford

               a. Summary of relevant law
        “The Sixth Amendment’s Confrontation Clause provides
that, ‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’”
(Crawford, supra, 541 U.S. at p. 42.) In Ohio v. Roberts (1980)
448 U.S. 56 (Roberts), the United States Supreme Court held that
“the hearsay statement of a declarant not present for cross-
examination at trial was admissible under the confrontation
clause only if (1) the declarant was truly unavailable to testify
and (2) the statement bore adequate indicia of reliability. Under
this test, ‘reliability [could] be inferred without more in a case
where the evidence [fell] within a firmly rooted hearsay
exception.” (People v. Cage (2007) 40 Cal.4th 965, 975 (Cage).)
        In Crawford, supra, 541 U.S. 36, however, the Court
“announced a new standard for determining when the
confrontation clause of the Sixth Amendment prohibits the use of
hearsay evidence.” (Cage, supra, 40 Cal.4th at p. 969.) The
Court conducted a “historical analysis to ascertain the common
understanding of the scope of the right to confront witnesses,”
and concluded that “the clause’s express reference to ‘witnesses’
reflects its focus on those who ‘“bear testimony,”’ which typically
is ‘“[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.”’ [Citation.] ‘An accuser who
makes a formal statement to government officers,’ said the
[C]ourt, ‘bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not.’ [Citation.]” (Id. at
pp. 977-978.)




                                18
       Applying this historical definition of the term “witnesses,”
Crawford “held that the admission of ‘testimonial’ out-of-court
statements violates a criminal defendant’s confrontation rights
unless the declarant is unavailable to testify and the defendant
had a prior opportunity for cross-examination [citation], or
waived that right by his own wrongdoing [citation].” (People v.
Leon (2015) 61 Cal.4th 569, 602-603 (Leon).) The Court further
held that the admission of “nontestimonial” statements “is the
concern of state and federal rules of evidence, not the
Confrontation Clause.” (Michigan v. Bryant (2011) 562 U.S. 344,
359 (Bryant); see also Crawford, supra, 541 U.S. at p. 68.)
       Although Crawford and its progeny have “not settled on a
clear definition of what makes a statement testimonial, [our state
Supreme Court has] discerned two requirements. First, ‘the out-
of-court statement must have been made with some degree of
formality or solemnity.’ [Citation]. Second, the primary purpose
of the statement must ‘pertain [] in some fashion to a criminal
prosecution.’ [Citation.]” (Lopez, supra, 55 Cal.4th at p. 581.)
Thus, “the statement must have been given and taken primarily
for the purpose ascribed to testimony – to establish or prove some
past fact for possible use in a criminal trial. . . . [T]he primary
purpose for which a statement was given and taken is to be
determined ‘objectively,’ considering all the circumstances that
might reasonably bear on the intent of the participants in the
conversation.” (Cage, supra, 40 Cal.4th at p. 984.)

             b. Angel’s jailhouse statements were nontestimonial
      Michael and Garcia contend Angel’s jailhouse statements
were “testimonial in nature” because the questions the
informants asked him were specifically designed “to establish
past facts to prove in a criminal prosecution.” The Attorney




                                19
General, however, argues that Angel’s statements were
nontestimonial because the circumstances under which the
statements were given indicate he did not know he was speaking
with police informants, or that his statements would possibly be
used at trial.
       In People v Arauz (2012) 210 Cal.App.4th 1394 (Arauz),
Division Six of this District concluded that statements given
under essentially identical circumstances were nontestimonial,
and therefore not subject to the confrontation clause. The
defendants in Arauz were charged with two counts of attempted
murder in connection with a gang-related, drive-by shooting.
During the pendency of the investigation, the defendants’
suspected accomplice, Jose Velasquez, was arrested for an
unrelated drug offense, and placed in a cell next to a paid
informant. The informant claimed he was a member of the
“Mexican Mafia,” and asked Velasquez about the shootings.
(Id. at p. 1399.) In response, Velasquez told the informant he had
driven the defendants to the area where the shooting occurred,
and that the defendants then shot the victims.
       On appeal, defendants argued the admission of Velasquez’s
jailhouse statements violated their Sixth Amendment right of
confrontation, contending that the informant had been “‘prepped’
by the police and conducted a de facto interrogation.” (Arauz,
supra, 210 Cal.App.4th at p. 1402.) The court, however,
concluded the statements were nontestimonial because,
regardless of the informant’s intent in asking the questions, there
was no evidence Velasquez knew or suspected that the informant
was a government agent, or that his comments might be used at
trial. (Ibid.) In support of its holding, Arauz cited dicta from a
parenthetical citation in Davis v. Washington (2006) 547 U.S. 813




                                20
(Davis) indicating that “‘statements made unwittingly to a
Government informant’” are “nontestimonial.” (Arauz, supra,
210 Cal.App.4th at p. 1402 [citing and quoting Davis, supra, 547
U.S. at p. 825].) Arauz is in accord with numerous federal court
decisions that have found statements made to informants under
analogous circumstances to be nontestimonial. (See U.S. v. Dale
(8th Cir. 2010) 614 F.3d 942, 956; U.S. v. Udeozor (4th Cir. 2008)
515 F.3d 260, 269-270; U.S. v. Watson (7th Cir. 2008) 525 F.3d
583, 589; U.S. v. Underwood (11th Cir. 2006) 446 F.3d 1340,
1347-1348; U.S. v. Hendricks (3d Cir. 2005) 395 F.3d 173, 182-
184; U.S. v. Saget (2d Cir. 2004) 377 F.3d 223, 229-230].)
       We agree with the reasoning of these authorities.
As clarified by our Supreme Court, to be “testimonial” under
Crawford, the statement must have been “given and taken
primarily for the purpose [of] . . . establish[ing] or prov[ing] some
past fact for possible use in a criminal trial.” (Cage, supra, 40
Cal.4th at p. 984 [emphasis added].) Although the declarant and
the interrogator’s perspectives are both relevant to determining
the “primary purpose” of the statement (Bryant, supra, 562 U.S.
at p. 367 & fn. 11 [Crawford “requires a combined inquiry that
accounts for both the declarant and the interrogator”]), it is “‘in
the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires
us to evaluate.’ [Citation.]” (Id. at p. 367, fn. 11.) The Sixth
Amendment applies when the statement, rather than the
question that elicited it, was made “with some degree of formality
or solemnity.” (Lopez, supra, 55 Cal.4th at p. 581 [“the out-of-
court statement must have been made with some degree of
formality or solemnity”].)




                                 21
      In this case, there is no evidence indicating Angel knew he
was speaking to police informants, or otherwise anticipated his
statements would “be used prosecutorially.” (Crawford, supra,
541 U.S. at p. 51.) Accordingly, his statements were
nontestimonial, and do not implicate the Sixth Amendment right
to confrontation.9

            c. Bruton does not apply to nontestimonial
               statements

      Michael and Garcia also argue that even if Angel’s
jailhouse statements were nontestimonial within the meaning of
Crawford, the admission of such statements nonetheless violated
their Sixth Amendment right to confrontation under Bruton,
supra, 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518
(Aranda). Broadly stated, the Aranda/Bruton rule declares that
a defendant is deprived of his or her Sixth Amendment right to


9      In their appellate briefs, Michael and Garcia appear to
argue that the record does contain some evidence suggesting that
Angel knew his statements to the informants might be used
against him at a future trial. In support, they cite a portion of
the record indicating that while previously being held on an
unrelated charge, Angel and Garcia had covered their heads with
a blanket while speaking to each other, suggesting they knew
that their conversation was being recorded. We do not agree that
Angel’s behavior while being held in a different facility, at a
different time, with a different person is sufficient to show he
suspected the informants in this case were gathering information
against him, or that their conversation was being recorded. The
fact that Angel made a series of highly incriminating remarks to
the informants, essentially admitting his complicity in the
shootings, provides persuasive evidence that he did not know his
statements might be used at trial.




                               22
confront witnesses when a facially incriminating statement of a
nontestifying co-defendant is introduced at their joint trial, even
if the jury is instructed to consider the statement only against the
declarant. (See People v. Anderson (1987) 43 Cal.3d 1104, 1121.)
Under those circumstances, the trial court must grant separate
trials, exclude the statement or excise all references to the
nondeclarant defendant. (Aranda, supra, 63 Cal.2d at pp. 530–
531; see also People v. Mitcham (1992) 1 Cal.4th 1027, 1045.)
       Bruton and Aranda, however, predate Crawford, which
narrowed the scope of the right to confrontation to testimonial
statements. (See Cage, supra, 40 Cal.4th at p. 981 [under
Crawford “the confrontation clause is concerned solely with
hearsay statements that are testimonial”].) The Attorney
General argues that by narrowing the right of confrontation
generally, Crawford necessarily limited the rule of Bruton to
incriminating statements of a nontestifying co-defendant that are
testimonial in nature. Defendants, however, assert that
“notwithstanding what Crawford said about testimonial hearsay,
the United States Supreme Court has never explicitly
overruled . . . Bruton or [its] progeny and [it] remains good law.”
       Our Supreme Court’s recent decision in People v. Cortez
(2016) 63 Cal.4th 101 (Cortez) resolves this previously unsettled
issue. The defendant in Cortez argued that the admission of an
accomplice’s incriminating out-of-court statements violated her
Sixth Amendment right to confrontation under Bruton. The
Court rejected the argument, explaining: “The [United States]
Supreme Court has unequivocally held ‘that the confrontation
clause applies only to testimonial hearsay statements and not to
[hearsay] statements that are nontestimonial.’ [Citation.] [The
accomplice’s] statements to [the third-party] were unquestionably




                                23
nontestimonial. . . . Thus, binding high court precedent requires
us to hold that the Sixth Amendment is inapplicable and that
defendant’s confrontation clause claim therefore fails.” (Cortez,
supra, 63 Cal.4th at p. 129.)10
      As discussed above, Angel’s statements to the informants
were nontestimonial in nature. Under our high court’s holding in
Cortez, this determination necessarily forecloses any claim under
Bruton.11

10    Other published California decisions that have addressed
Crawford’s effect on Bruton, which were decided either before
Cortez or do not specifically reference its holding, reached the
same conclusion. (People v. Washington (2017) 15 Cal.App.5th
19, 28 [Crawford “narrow[ed] the reach of . . . the [] Bruton
doctrine” to testimonial statements]; People v. Arceo (2011) 195
Cal.App.4th 556, 575 (Arceo).) Numerous federal circuit court
decisions are in accord. (See U.S. v. Vasquez (5th Cir. 2014) 766
F.3d 373, 378-379 [“Many circuit courts have held that Bruton
applies only to statements by co-defendants that are testimonial
under Crawford”]; U.S. v. Dargan (4th Cir. 2013) 738 F.3d 643,
650-651; U.S. v. Clark (10th Cir. 2013) 717 F.3d 790, 815-816;
U.S. v. Berrios (3d Cir. 2012) 676 F.3d 118 128-129; Dale, supra,
614 F.3d at pp. 958-959; U.S. v. Figueroa-Cartagena (1st Cir.
2010) 612 F.3d 69, 85; U.S. v. Johnson (6th Cir. 2009) 581 F.3d
320, 326; U.S. v. Williams (2d Cir. 2007) 506 F.3d 151, 156.)

11     A section of Michael’s appellate brief addressing the
declaration against interest exception includes a sentence
asserting that he was denied “due process by the admission of
Angel’s tape-recorded statements.” Michael’s brief, however, does
not provide any legal argument in support of his conclusory
assertion that the admission of Angel’s statements violated his
right to due process. We therefore deem his due process claim
waived. (See Silva v. See’s Candy Shops, Inc. (2016) 7
Cal.App.5th 235, 250 [“a conclusory statement is insufficient to




                                24
      B. The Trial Court Committed Prejudicial Error
         When It Admitted Angel’s Statements Identifying
         Garcia as the Shooter and Michael as the Driver
         Under the Declaration Against Interest Exception

      Michael and Garcia argue that even if the admission of
Angel’s jailhouse confession did not violate their Sixth
Amendment right to confrontation, numerous statements Angel
made to the informants regarding their role in the shooting,
including his assertions that Garcia was the shooter and that
Michael drove the car Garcia fired from, should have been
excluded on hearsay grounds. Michael and Garcia argue that
because these statements effectively served only to minimize
Angel’s role in the shooting, and shift blame to his co-defendants,
they did not qualify as declarations against his interest. (See
Evid. Code, § 1230.)

         1. Summary of relevant law
      “[He]arsay statements are generally inadmissible under
California law[.]” (People v. Grimes (2016) 1 Cal.5th 698, 710-711
(Grimes).) “‘The chief reasons for this general rule of
inadmissibility are that the statements are not made under oath,
the adverse party has no opportunity to cross-examine the


challenge a court’s evidentiary ruling”]; Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852 [“When an appellant
fails to raise a point, or asserts it but fails to support it with
reasoned argument . . . we treat the point as waived”]; City of
Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“we may
disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt”].)




                                25
declarant, and the jury cannot observe the declarant’s demeanor
while making the statements.’ [Citation.]” (Duarte, supra, 24
Cal.4th at p. 610.) “[T]he rule[, however,] has a number of
exceptions.” (Grimes, supra, 1 Cal.5th at p. 710.) One such
exception, set forth in Evidence Code section 1230, permits the
admission of any statement that “when made, . . . so far subjected
[the declarant] to the risk of . . . criminal liability . . . that a
reasonable man in his position would not have made the
statement unless he believed it to be true.” “[T]he rationale
underlying [this] exception is that ‘a person’s interest against
being criminally implicated gives reasonable assurance of the
veracity of his statement against that interest,’ thereby
mitigating the dangers usually associated with the admission of
out-of-court statements.” (Grimes, supra, 1 Cal.5th at p. 711.)
      “To demonstrate that an out-of-court declaration is
admissible as a declaration against interest, ‘[t]he proponent of
such evidence must show that the declarant is unavailable, that
the declaration was against the declarant’s penal interest when
made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.’ [Citation.]”
(Grimes, supra, 1 Cal.5th at p. 711.)
      Regarding the second requirement, our Supreme Court has
admonished that “[o]nly statements that are specifically
disserving to the hearsay declarant’s penal interests are
admissible as statements against penal interests. [Citation.]”
(People v. Vasquez (2012) 205 Cal.App.4th 609, 621 [citing
Duarte, supra, 24 Cal.4th at p. 612 [exception “‘inapplicable to
evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant’”]; see also
People v. Leach (1975) 15 Cal.3d 419, 441.) Section 1230 does not




                                 26
authorize the admission of “those portions of a third party’s
confession that are self-serving or otherwise appear to shift
responsibility to others.” (Grimes, supra, 1 Cal.5th at p. 715.)
Nor “does [it] not allow admission of non-self-inculpatory
statements . . . made within a broader narrative that is generally
self-inculpatory.” (Williamson v. U.S. (1994) 512 U.S. 594, 600-
601; see Grimes, supra, 1 Cal.5th at p. 715 [citing with approval
Williamson’s interpretation of the “analogous exception to the
federal hearsay rule”].)
       “That a hearsay statement may be facially inculpatory or
neutral cannot always be relied upon to indicate whether it is
‘truly self-inculpatory, rather than merely [an] attempt [ ] to shift
blame or curry favor.’ [Citation.] Even a hearsay statement that
is facially inculpatory of the declarant may, when considered in
context, also be exculpatory or have a net exculpatory effect.”
(Duarte, supra, 24 Cal.4th at pp. 611-612.) A “statement ‘which
is in part inculpatory and in part exculpatory (e.g., one which
admits some complicity but places the major responsibility on
others) . . . is . . . inadmissible.’ [Citation.]” (Id. at p. 612.) Thus,
“‘an approach which would find a declarant’s statement wholly
credible solely because it incorporates an admission of criminal
culpability is inadequate.’ [Citation.]” (Id. at p. 611.)
       “This is not to say that a statement that incriminates the
declarant and also inculpates the nondeclarant cannot be
specifically disserving of the declarant’s penal interest.” (People
v. Greenberger (1997) 58 Cal.App.4th 298, 335.) Our Supreme
Court recently explained, for example, that the exception permits
the “admission of those portions of a confession that, though not
independently disserving of the declarant’s penal interests, also
are not merely ‘self-serving,’ but ‘inextricably tied to and part of a




                                   27
specific statement against penal interest.’ [Citation.]” (Grimes,
supra, 1 Cal.5th at p. 716.)
       “Whether a statement is self-inculpatory or not can only be
determined by viewing the statement in context.” (Grimes, supra,
1 Cal.5th at p. 716.) “[T]he court may take into account not just
the words but the circumstances under which they were uttered,
the possible motivation of the declarant, and the declarant’s
relationship to the defendant.’ [Citation.]” (Id. at p. 711.)
“Ultimately, courts must consider each statement in context in
order to answer the ultimate question under Evidence Code
section 1230: Whether the statement, even if not independently
inculpatory of the declarant, is nevertheless against the
declarant’s interest, such that ‘a reasonable man in [the
declarant’s] position would not have made the statement unless
he believed it to be true.’ . . . . [S]uch a statement is more likely to
satisfy the against-interest exception when the declarant accepts
responsibility and denies or diminishes others’ responsibility, as
in the example ‘“I robbed the store alone,”’ as opposed to
attempting to assign greater blame to others, as in the example,
‘“I did it, but X is guiltier than I am.”’ [Citation.]” (Id. at p. 716.)
       “We review a trial court’s decision whether a statement is
admissible under Evidence Code section 1230 for abuse of
discretion. [Citation.].” (Grimes, supra, 1 Cal.5th at pp. 711-
712.)
            2. The trial court erred in admitting Angel’s statements
               identifying Garcia as the shooter and Michael as the
               driver

      There is no dispute that Angel was not available to testify
as a witness because he had exercised his Fifth Amendment right




                                  28
not to incriminate himself. (See Duarte, supra, 24 Cal.4th at p.
609 [“Having invoked his Fifth Amendment right not to
incriminate himself, [the co-defendant] was, for hearsay rule
purposes, not available as a witness”].) Michael and Garcia
argue, however, that the prosecution failed to establish numerous
statements Angel made to the informants regarding his co-
defendants’ role in the shootings were “against [his] penal
interest when made.” (Grimes, supra, 1 Cal.5th at p. 711.)
       When ruling on the admissibility of Angel’s jailhouse
confession, the trial court did not independently assess whether
each statement implicating Garcia and Michael was in fact
against Angel’s penal interest at the time he made it. Instead,
the trial court elected to admit the entire 40-page transcript
because it found certain details Angel had provided to the
informants regarding the crime (including his identification of
Garcia as the shooter, his description of the vehicles used and the
route they drove) showed his entire statement was sufficiently
trustworthy to warrant its inclusion as a declaration against
interest. The court’s implied conclusion—in effect a decision that
every statement Angel made implicating his co-defendants was
sufficiently against his penal interest—cannot withstand scrutiny
even under the deferential abuse of discretion standard.
       Although Michael and Garcia’s appellate brief challenge a
wide array of statements that implicate them in the shootings,
we limit our analysis to two categories of statements that appear
in the 40-page transcript: Angel’s affirmative responses to the
informants’ inquiries regarding whether Garcia was the shooter,
and Angel’s identification of Michael as the driver of the vehicle
from which the shots were fired. To properly assess whether
these two categories of statement were against Angel’s penal




                                29
interest, we must first review the circumstances under which the
statements were made, and the actual content of the remarks.
       As explained in more detail in the factual summary above,
shortly after police interrogators had questioned Angel about the
shootings, law enforcement placed him in a cell with two paid
informants who had been briefed on the investigation, and
instructed to elicit incriminating information. The informants
initiated conversation with Angel by asking where he was from,
and what the investigating officers had told him about his
charges. Angel immediately expressed frustration that somebody
had been “snitching,” and was “trying to say I’m the shooter.” He
made numerous similar remarks throughout the conversation,
repeatedly asserting that law enforcement and a “snitch” were
trying to “pin” the entire crime on him.
       The informants were the first party to bring up Garcia,
asking Angel, “Who is Happy?,” and were also the first party to
raise the possibility that Garcia was the shooter. Specifically,
after Angel told the informants the police had found the weapon
used to commit the offense, one of the informants asked: “So
you’re telling me you were driving and Happy was the shooter?”
Angel responded “yeah.” The second informant then asked if
Angel was driving the car Garcia had fired from, to which Angel
again responded “yeah,” and described the car as a gray Explorer.
When Angel again complained that someone was trying to pin the
crime on him, the informants immediately asked “But who . . .
was the actual shooter?”, to which Angel responded “my cousin.”
       As the informants continued asking questions, Angel
provided details that appeared to conflict with his initial
statements. Angel said “they” had arrived at the recycling
facility in two cars, a white Expedition and a gray Explorer.




                               30
Angel then claimed that when they left the recycling facility to do
the “jale” (an apparent reference to the shooting), Garcia drove
the gray Explorer and “got off and shot him,” while Angel waited
in the white Expedition.
       Angel did not make any reference to Michael until after one
of the informants indicated the “snitch” had to be someone else
who participated in the crime other than Garcia. When Angel
expressed further frustration that someone was trying to pin the
crime on him, an informant indicated the snitch must have been
the person who was driving the gray car, and asked Angel to
identify that person. In response, Angel stated “the homey Mike”
drove Garcia in the gray car, while Angel “wait[ed] around the
corner” in the “getaway” car. An informant then narrated his
understanding of what had occurred, stating that “Happy and
Mike” had committed the shooting, then Mike dropped Happy off
at Angel’s vehicle, adding: “you didn’t do anything there.” Angel
responded “Yeah,” and affirmatively stated, “I’m not the shooter,”
“I’m the getaway driver.”
       Considering the content of the statements and the context
in which they were made, we conclude Angel’s assertions that
Garcia was the shooter, and that Michael drove the car involved
in the shooting, were too “‘self-serving and unreliable’” (Duarte,
supra, 24 Cal.4th 611) to qualify as declarations against his penal
interest. Although these statements did effectively “admit[] some
complicity” (id. at p. 612) by demonstrating Angel had knowledge
of what had occurred (a characteristic common to most
accomplice statements implicating a co-defendant), the
statements nonetheless “plac[ed] the major responsibility” on his
co-defendants. (Ibid.) These are the exact type of statements our
Supreme Court has instructed to view with caution when




                                31
assessing the applicability of the against interest exception.
(Ibid.; Grimes, supra, 1 Cal.5th at p. 716 [“a statement is more
likely to satisfy the against-interest exception when the declarant
accepts responsibility . . . as opposed to attempting to assign
greater blame to others, as in the example, ‘“I did it, but X is
guiltier than I am.”’”].)
       Moreover, at the time Angel identified Garcia as the
shooter and Michael as the driver, he had already made a series
of highly incriminating statements to the informants that
essentially acknowledged his participation in the crime: He had
identified himself as a member of the Largo gang; he had
revealed the police found the gun used to commit the crime; he
had described the make and model of the weapon; he had
admitted he “knew what happened”; and he had identified the
victims as “Paragons.” In light of those prior admissions,
identifying Garcia as the shooter and Michael as the driver of the
vehicle from which the shots were fired did little to increase
Angel’s criminal culpability, and served primarily to “minimize
[his] role and place the blame . . . on [his] accomplice[s].” (People
v. Smith (2017) 12 Cal.App.5th 766, 805, fn. 4.)
       Numerous factors regarding the circumstances under
which the statements were made also raise questions about their
reliability. First, at the outset of his discussion with the
informants, Angel complained that law enforcement and a
“snitch” were trying to pin all of the blame for the offenses on
him, a sentiment he repeated throughout the conversation. It
may be reasonably inferred from these statements that Angel’s
subsequent descriptions of his co-defendants’ role in the crimes
were intended, at least in part, to mitigate his own
blameworthiness.




                                 32
       Second, Angel provided conflicting descriptions of his and
his co-defendants’ respective role in the offense, initially claiming
that he drove the vehicle that Garcia had fired from, then
claiming that Garcia was the driver and the shooter, and finally
claiming that Michael drove Garcia to conduct the shooting while
he waited around the corner in a second vehicle.
       Third, all of Angel’s statements identifying Garcia as the
shooter and Michael as the driver were proceeded by leading
questions or narrative statements by the informants. As noted
above, Angel first identified Garcia as the shooter when an
informant abruptly asked, “So you are telling me Happy was the
shooter and you were the driver,” to which he simply said “yeah.”
He only identified Michael as the driver after the informant
indicated the driver of the gray Explorer had to be the snitch, and
then asked Garcia to clarify who was driving that vehicle. Each
time Angel identified Garcia as the shooter or Michael as the
driver, it was at the specific prompting of the informants.
       This is not a case where, without ever attempting to shift
blame, the declarant merely implicated a co-defendant while
discussing the details of a crime with a friend or family member.
(Compare Cortez, supra, 63 Cal.4th at p. 128 [statements
regarding defendant’s role in the offense admissible where
declarant “‘consistently assigned the most blame to himself[,] . . .
never attempted to shift blame to [defendant]’” and had made the
statements to close family members in the family home]; Arceo,
supra, 195 Cal.App.4th at p. 577 [declarant’s statement that he
shot one victim, and was about to shoot the second victim, when
the defendant requested that he be permitted to do so, admissible
because the statement did not “remotely . . . ‘ . . . shift or spread
the blame’ to another,” and was made during a “‘“conversation . . .




                                 33
between friends in a noncoercive setting that foster[ed]
uninhibited disclosure”’”].) Nor is this a case where the declarant
implicated the defendant while “candid[ly]” “bragging” about his
own role in the offense. (Compare Arauz, supra, 210 Cal.App.4th
at pp. 1400-1401 [statement admissible where declarant had
“bragged” to jailhouse informant that he had driven two co-
defendants to shoot the victims, had been “candid about his role
in the shooting” and never tried to “shift the blame to
appellants”].)
      Instead, the transcript of the jailhouse conversation shows
Angel was angry that authorities were attempting to blame him
for the entire crime, and only identified Garcia as the shooter and
Michael as the driver at the prompting of the informants, and
after already having implicated himself in the crime. Moreover,
throughout the discussion he provided conflicting versions of
what had occurred, further mitigating his role in the offense with
each successive telling. Under such circumstances, we conclude
Angel’s statements identifying Garcia as the shooter and Michael
as the driver of the vehicle from which the shots were fired, were
not admissible as declarations against his interest.12


12    Numerous other statements in the 40-page transcript
(some of which reference the co-defendants), do not appear to fall
within the against interest exception. For example, the
transcript includes numerous (sometimes lengthy) exchanges
between the informants that essentially narrate their
understanding of what happened. In other portions of the
transcript, Angel relates information law enforcement had told
him about the investigation. In still other portions, Angel makes
statements that do not appear inculpatory in any way. For the
purposes of appeal, we need not address whether these additional
categories of statements were properly admitted as declarations




                                34
          3. The error was not harmless
       The Attorney General argues that even if we conclude the
court erred in admitting the portions of Angel’s confession that
identified Garcia as the shooter and Michael as the driver, the
error was harmless. Evidentiary rulings are generally subject to
harmless error review under the standard in People v. Watson
(1956) 46 Cal.2d 818, 836 (see People v. DeHoyos (2013) 57
Cal.4th 79, 120; see People v. Page (2008) 44 Cal.4th 1, 42), which
requires us to determine “if a reasonable probability exists that
the jury would have reached a different result had this evidence
been excluded.” (People v. Whitson (1998) 17 Cal.4th 229, 251.)
       Several factors convince us that the evidentiary error in
this case cannot be deemed harmless. First, Angel’s erroneously
admitted statements were highly prejudicial, directly identifying
Garcia as the shooter and Michael as the driver of the vehicle.
Second, apart from Angel’s jailhouse confession, all of the
prosecution’s evidence of guilt was circumstantial in nature.
Although the prosecution’s evidence indicated the co-defendants
were in the area together when the shootings occurred, and that
a vehicle matching the make and model of Michael’s car was
seen, there were no eyewitnesses, nor was there any surveillance
footage of the actual shooting. There was no fingerprint or DNA
evidence directly linking any of the defendants to the firearm
that was used to commit the offense. In sum, while the
circumstantial evidence was certainly incriminating, we do not
agree with the prosecution’s assertion that it was
“overwhelming.”



against interest (or on some other basis). Garcia and Michael
are, however, free to raise these issues at any subsequent retrial.




                                35
      Third, the jury’s verdicts provide persuasive evidence that
Angel’s statements played a pivotal role in their deliberations.
The jury found Garcia guilty of first degree murder, Angel and
Michael guilty of second degree murder, and did not reach a
verdict with respect to Felipe Ramos, who was the only defendant
not referenced in Angel’s statement. We may reasonably infer
that the jury convicted Garcia of first degree murder because it
believed he was the shooter. The only evidence of that fact,
however, consisted of Angel’s statements identifying him as the
shooter. It is also reasonable to infer that part of the reason the
jury could not reach a verdict with respect to Felipe Ramos was
because he was not mentioned in Angel’s jailhouse statement.
      Based on the highly incriminating nature of Angel’s
statements, the lack of any other evidence directly tying Garcia
and Michael to the crime and the jury’s verdicts, there is a
reasonable probability the jury would have reached a different
result had the statements been excluded. (See generally People v.
Mendoza (1967) 251 Cal.App.2d 554, 559 [“When the
extrajudicial statement of a codefendant is [erroneously]
admitted in evidence . . ., and the said statement inculpates the
nondeclarant as [a] central figure in the commission of the crime,
and the other evidence as to the guilt of the non-declarant
presents a close question, the error must be considered as
prejudicial”].) We therefore reverse the judgments of conviction
against defendants Garcia and Michael.
      If the prosecution elects to retry Garcia and Michael, and
seeks to admit portions of Angel’s jailhouse statement other than
those we have found inadmissible, the trial court should conduct
an individualized inquiry to determine whether each statement
the prosecution seeks to admit was sufficiently against Angel’s




                                36
penal interest to warrant admission under section 1230, or is
otherwise admissible against Garcia and Michael on some other
basis. (See Grimes, supra, 1 Cal.5th at p. 716 [“Ultimately,
courts must consider each statement in context in order to
[determine admissibility under section 1230]”]; U.S. v. Smalls
(10th Cir. 2010) 605 F.3d 765, 786 [trial court erred by excluding
entire confession that included some statements that were
admissible as against penal interest, and remanding with
directions to “determine what parts of [defendant’s] extended
confession are sufficiently against his penal interest and
therefore admissible”].)

      C. Angel’s Jailhouse Statements Are not Inadmissible
         Under Penal Code Section 4001.1

      Although Angel has not asserted any hearsay or
confrontation clause challenges to the admission of his jailhouse
statements against him, he contends his entire conversation
should have been excluded pursuant to Penal Code section
4001.1, subdivision (b):13

      (b) No law enforcement agency and no in-custody
      informant acting as an agent for the agency, may
      take some action, beyond merely listening to
      statements of a defendant, that is deliberately
      designed to elicit incriminating remarks.

      Angel does not dispute the informants in this case were
merely posing as inmates, and therefore do not qualify as “in-
custody informants acting as an agent for the agency.” (See §§


13    Michael and Garcia join Angel’s argument on this issue.




                                37
4001.1, subd. (c); 1127 [defining “in-custody informant” as “a
person . . . whose testimony is based upon statements made by
the defendant while both the defendant and the informant are
held within a correctional institution”].) Angel contends,
however, that subdivision (b) nonetheless applies because the
investigating law enforcement agency took an “action”–hiring
paid informants to interrogate Angel–that was deliberately
designed to elicit incriminatory remarks.
        Even if we assume section 4001.1 applies to informants
who were merely posing as inmates, it is clear the statute does
not apply where, as here, the conduct at issue was intended to
elicit incriminating remarks about uncharged offenses. Section
4001.1 was added by Stats. 1989, c. 901, which includes the
following provision: ““It is the intent of the Legislature that
subdivision (b) of Section 4001.1 of the Penal Code is a
restatement of existing case law and where the language in that
subdivision conflicts with the language of that case law, the
decisions of Kuhlmann v. Wilson, 91 L.Ed.2d 364, and United
States v. Henry, 65 L.Ed.2d 115, and other United States
Supreme Court decisions which have been decided at the time
this act is enacted shall be controlling.” Kuhlmann and Henry
both involved an application of the Supreme Court’s ruling in
Massiah v. United States (1964) 377 U.S. 201, which “held that,
once a defendant’s Sixth Amendment right to counsel has
attached, he is denied that right when federal agents
‘deliberately elicit’ incriminating statements from him in the
absence of his lawyer.” (Kuhlmann v. Wilson (1986) 477 U.S.
436, 457 (Kuhlmann).)
        In Henry (1980) 447 U.S. 264 (Henry), the Court held the
defendant’s Sixth Amendment right to counsel had been violated




                               38
when a government jailhouse informant deliberately elicited
incriminating information about a charged offense. (Id. at pp.
269-270.) In Kuhlmann, supra, 477 U.S.436, however, the Court
concluded no Sixth Amendment violation had occurred where the
police had instructed an informant to merely listen to the
defendant, and report any incriminating information he might
disclose regarding a charged offense. (Id. at pp. 459-460.)
       The prohibition set forth in Massiah and its progeny
(including Henry and Kuhlmann) “is offense-specific; that is, it
applies only to ‘“offenses as to which adversary judicial criminal
proceedings have been initiated”’ [citations], such proceedings
including ‘“formal charge, preliminary hearing, indictment,
information, or arraignment.”’ [Citation.]” (People v. Thornton
(2007) 41 Cal.4th 391, 434.) Thus, Massiah does not apply to
“[i]ncriminating statements pertaining to . . . uncharged offenses,
as to which the Sixth Amendment right has not yet attached[.]”
(People v. Bradford (1997) 15 Cal.4th 1229, 1313; see also Maine
v. Moulton (1985) 474 U.S. 159, 180.)
       Given the Legislature’s express pronouncement that
section 4001.1, subdivision (b) is intended to codify principles of
law reflected in Henry and Kuhlmann, we decline to extend the
statute to law enforcement conduct that is designed to elicit
incriminatory remarks regarding uncharged offenses. Because
Angel’s conversation with the informants occurred before he had
been charged with any of the offenses at issue in this case,
section 4001.1 is inapplicable.14



14    Angel also argues all of his statements to the informants
were “involuntary,” and therefore inadmissible under the due
process clause, because there is evidence in the record that: (1) he




                                39
      D. The Court Did Not Commit Bruton Error in
         Admitting the Custodial Statement of Felipe
         Ramos

      Garcia and Michael argue the trial court violated the
Aranda/Bruton rule by admitting certain statements co-
defendant Felipe Ramos provided to law enforcement during a
custodial interrogation. Specifically, Michael objects to the
admission of Ramos’s statements that Ramos arrived at the

felt compelled to speak to the informants, who “appeared to be
active, high ranking Surenos” gang members; and (2) the
informants “pretend[ed] to be his allies and repeatedly assured
him he had no need to worry about being prosecuted.” As Angel
acknowledges in his appellate brief, however, neither he nor any
other defendant raised this objection in the trial court
proceedings. “[A] claim of involuntariness generally will not be
addressed for the first time on appeal.” (People v. Ray (1996) 13
Cal.4th 313, 339; see also People v. Kennedy (2005) 36 Cal.4th
595, 612 [disapproved on other ground in People v. Williams
(2010) 49 Cal.4th 405, 458-459].) Angel has provided no
argument why that general rule is inapplicable here. We
therefore deem this due process claim to be forfeited.
       Angel further asserts that if a forfeiture occurred, his trial
counsel’s failure to raise an involuntariness objection constituted
ineffective assistance. “On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding.” (People v. Hung Thanh Mai (2013) 57 Cal.4th 986,
1009.) Angel has not shown any of these factors apply to his
ineffective assistance claim. His claim is therefore more
appropriate for resolution in a habeas proceeding.




                                 40
recycling facility in a gray Ford Explorer, and that he entered the
passenger side of the vehicle when leaving the facility. Michael
contends such statements implicated him in the crime because
his mother owned a gray Explorer, and also because the
statements implied Ramos was at the recycling facility with at
least one other person. Garcia objects to Ramos’s statements that
a white Ford Expedition was also present at the recycling facility,
and that after leaving the facility, Ramos followed the white
Expedition to Santa Fe Avenue. Garcia contends these
statements directly implicated him in the crime because other
evidence at trial established he owned a white Expedition. The
court declined to excise these portions of the transcript, but
instructed the jury that it could only consider Ramos’s
statements against Ramos, and no other defendant.
       The Attorney General does not dispute Ramos’s statements
to law enforcement were testimonial, and that the
Aranda/Bruton rule therefore precluded the trial court from
admitting any portion of Ramos’s statement that facially
incriminated his co-defendants. The Attorney General argues,
however, that none of the information Ramos provided in the
challenged statement was sufficiently incriminatory toward
Michael or Garcia to warrant its exclusion under Bruton.
       In Richardson v. Marsh (1987) 481 U.S. 200, the United
States Supreme Court clarified the scope of its holding in Bruton:
“In Bruton . . . [w]e held that a defendant is deprived of his Sixth
Amendment right of confrontation when the facially
incriminating confession of a nontestifying codefendant is
introduced at their joint trial, even if the jury is instructed to
consider the confession only against the codefendant.” (Id. at
p. 207.) The Court further clarified, however, that the rule of




                                41
Bruton was inapplicable where “the confession was not
incriminating on its face, and became so only when linked with
evidence introduced later at trial. . . . [¶] Where the necessity of
such linkage is involved, it is a less valid generalization that the
jury will not likely obey the instruction to disregard the evidence.
Specific testimony that ‘the defendant helped me commit the
crime’ is more vivid than inferential incrimination, and hence
more difficult to thrust out of mind. . . .” (Id. at p. 208.) Under
Marsh, “[t]he class of inferentially incriminating statements [that
are subject to the Bruton rule] is limited to ‘obvious[ ]’ ones,
‘inferences that a jury ordinarily could make immediately, even
were the confession the very first item introduced at trial.’
[Citation.]” (People v. Montes (2014) 58 Cal.4th 809, 867.)
       Ramos’s statements that he drove to the recycling facility
in a gray Ford Explorer, that he entered the passenger side of the
vehicle when leaving the facility and that he then followed a
white Expedition to Santa Fe Avenue did not “facially
incriminate” Michael or Garcia, nor did the statements create an
“obvious inference” that those co-defendants participated in the
shooting. Ramos never admitted his vehicle or the vehicle he
followed were involved in the shooting. Moreover, Ramos did not
make any specific reference to any of his co-defendants, or
provide any other identifying information about who he was
driving with, or who he was following. To the extent Ramos’s
statements were incriminating toward Michael and Garcia, they
became so only when linked with a substantial amount of
additional evidence related to the crimes.




                                42
      E. The Trial Court Correctly Concluded that
         Accomplice Testimony Admitted Under the
         Declaration Against Interest Exception Does Not
         Require Corroboration

      Garcia and Michael argue the trial court erred when it
denied their request to instruct the jury on the need for
corroboration of accomplice testimony. (See CALCRIM No. 335.)
In the trial court proceedings, Garcia and Michael argued the
instruction was necessary in light of the court’s decision to admit
Angel’s jailhouse statement against them. The court declined to
provide the instruction, explaining that the corroboration
requirement, codified in Penal Code section 1111,15 applies only
to “testimony,” and is therefore inapplicable to “out-of-court
statements that were . . . . declarations against interest.”
       To the extent the trial court concluded the corroboration
requirement does not apply to any form of out-of-court
statements, it was mistaken. Our Supreme Court has explained
that the term “‘[t]estimony,’ as used in section 1111, includes ‘“all
out-of-court statements of accomplices . . . used as substantive
evidence of guilt which are made under suspect circumstances.
The most obvious suspect circumstances occur when the
accomplice has been arrested or is questioned by the police.”’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 555.) The
trial court was correct, however, that section 1111’s corroboration


15     Section 1111 states, in relevant part: “A conviction cannot
be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission
of the offense or the circumstances thereof.”




                                 43
requirement is inapplicable to an out-of-court statement that is
admissible as a declaration against interest. (See Brown, supra,
31 Cal.4th 518 [where an accomplice’s statement is admissible as
a declaration against interest, “no corroboration [is] necessary,
and the court [is] not required to instruct the jury to view [the
[accomplice’s] statements with caution and to require
corroboration”].)
      We have already found that Garcia and Michael’s
convictions must be reversed based on the trial court’s erroneous
admission of portions of Angel’s jailhouse statements. At any
retrial of those defendants, the trial court need not instruct the
jury on corroboration of accomplice testimony with respect to any
out-of-court statement admitted against them under the
declaration against interest exception. In assessing the need for
such an instruction with respect to any other form of accomplice
statements that may be admitted against them, the trial court
must comply with Brown, supra, 31 Cal.4th 518.

      F. The Trial Court Did Not Err in Instructing the
         Jury on Attempted Premeditated Murder

     Angel contends the trial court erred in instructing the jury
on whether the attempted murders were willful, deliberate and
premeditated.16 Angel objects to the italicized portion of the
instruction below, which is patterned on CALCRIM No. 601:
      “The attempted murder was done willfully and with
      deliberation and premeditation if the defendant or the
      defendant Smith Garcia or both of them acted with
      that state of mind.”


16    Michael joins Angel’s argument on this issue.




                                44
Angel argues this instruction erroneously permitted the “jury to
find [him] guilty of premeditated, deliberate attempted murder
based on [his co-defendant’s ] state of mind.” Angel acknowledges
the California Supreme Court has previously held that an
accomplice may be found criminally liable for attempted
premeditated murder based on the mental state of the principal
(see People v. Lee (2003) 31 Cal.4th 613), but contends that
decision is no longer valid in light of two subsequent decisions,
People v. Chiu (2014) 59 Cal.4th 155 (Chiu), and Alleyne v.
United States (2013) 133 S.Ct. 2151.

          1. Summary of relevant law
      “Subdivision (a) of section 664 of the Penal Code (section
664(a)) provides that, as a general matter, a person guilty of
attempted murder must be punished by imprisonment for five,
seven, or nine years. It goes on to provide, however, that, ‘if the
[murder] attempted is willful, deliberate, and premeditated . . .,
the person guilty of that attempt shall be punished by
imprisonment . . . for life. . . .’” (Lee, supra, 31 Cal.4th at p. 615.)
Section 664(a)’s increased punishment for attempted
premeditated murder “does not create a greater degree of
attempted murder, but rather constitutes a penalty provision
increasing the punishment for attempted murder beyond the
maximum otherwise prescribed, when the murder attempted was
willful, deliberate, and premeditated.” (Ibid.)
      In Lee, supra, 31 Cal.4th 613, the Court addressed
“whether section 664(a) requires that in order to be punished
with life imprisonment for attempted murder as an aider and
abettor, an individual must personally act with willfulness,
deliberation, and premeditation.” (Id. at p. 616.) The Court
concluded the statute did not include any such requirement,




                                  45
explaining: “[S]ection 664(a) makes no distinction between an
attempted murderer who is guilty as a direct perpetrator and an
attempted murderer who is guilty as an aider and abettor, nor
does it draw any distinction between an attempted murderer who
personally acted with willfulness, deliberation, and
premeditation and an attempted murderer who did not so act.”
(Id. at p. 623.) Thus, the Court continued, “section 664(a)
properly must be interpreted to require only that the murder
attempted was willful, deliberate, and premeditated, but not to
require that an attempted murderer personally acted with
willfulness, deliberation, and premeditation, even if he or she is
guilty as an aider and abettor.” (Id. at p. 627.)
       In People v. Favor (2012) 54 Cal.4th 868, the Court
extended Lee to aider and abettor liability for attempted
premeditated murder under the natural and probable
consequences doctrine. The defendant in Favor was charged with
attempted premeditated, murder. “Under the prosecution’s
theory at trial, defendant was guilty of the target offense of
robbery as an aider and abettor, and of the nontarget offense of
attempted murder as a natural and probable consequence of the
robbery.” (Id. at p. 874.) The trial court instructed the jury that
to find defendant guilty of attempted murder, it had to find he
committed a robbery; that during the commission of the robbery,
a co-participant committed the crime of attempted murder; and
that “‘a reasonable person in the defendant’s position would have
known that the commission of attempted murder was a natural
and probable consequence of the commission of the robbery.’”
(Id. at p. 875.) On the premeditation allegation, the court
instructed the jury under CALCRIM No. 601, explaining that
“[t]he attempted murder was done willfully and with deliberation




                                46
and premeditation if either the defendant or a principal or both of
them acted with that state of mind.” (Ibid.)
       On appeal, the defendant argued “that the trial court failed
to instruct that the jury had to find, not only that the attempted
murder was a natural and probable consequence of the robberies,
but also that the perpetrator’s willfulness, deliberation, and
premeditation were natural and probable consequences.” (Favor,
supra, 54 Cal.4th at p. 875.) The Court, relying in part on its
prior holding in Lee, rejected the argument: “Because section
664(a) ‘requires only that the attempted murder itself was willful,
deliberate, and premeditated’ [citation], it is only necessary that
the attempted murder ‘be committed by one of the perpetrators
with the requisite state of mind.’ [Citation.] Moreover, the jury
does not decide the truth of the penalty premeditation allegation
until it first has reached a verdict on the substantive offense of
attempted murder. [Citation.] Thus, with respect to the natural
and probable consequences doctrine as applied to the
premeditation allegation under section 664(a), attempted
murder–not attempted premeditated murder–qualifies as the
nontarget offense to which the jury must find foreseeability.
Accordingly, once the jury finds that an aider and abettor, in
general or under the natural and probable consequences doctrine,
has committed an attempted murder, it separately determines
whether the attempted murder was willful, deliberate, and
premeditated.” (Id. at pp. 879-880.)
       Two years later, in Chiu, supra, 59 Cal.4th 155, the Court
addressed whether a defendant may be convicted of “first degree
premeditated murder under the natural and probable
consequences doctrine.” (Id. at p. 162.) After examining the
doctrinal bases of the natural and probable consequences




                                47
doctrine, the Court concluded that this vicarious form of aider
and abettor culpability was incompatible with premeditated
murder, which involves “a mental state [that] is uniquely
subjective and personal.” (Id. at p. 167.) The Court further
explained that “the connection between the defendant’s
culpability and the perpetrator’s premeditative state is too
attenuated to impose aider and abettor liability for first degree
murder under the natural and probable consequences doctrine,
especially in light of the severe penalty involved.” (Ibid.)
       In its analysis, Chiu distinguished Lee and Favor,
explaining that those decisions had involved a “determination of
legislative intent as to whom [section 664(a)] applies.” (Chiu,
supra, 59 Cal.4th at p. 163.) The Court identified multiple
additional reasons why Favor was “not dispositive” (id. at p. 163):
“[U]nlike Favor, which involved the determination of
premeditation as a requirement for a statutory penalty provision,
premeditation and deliberation as it relates to murder is an
element of first degree murder. . . . Finally, the consequence of
imposing liability for the penalty provision in Favor is
considerably less severe than in imposing liability for first degree
murder under the natural and probable consequences doctrine.”
(Ibid.)
          2. The court did not err in instructing the jury on
              attempted premeditated murder
       As summarized above, both Lee and Favor have approved
the portion of the CALCRIM No. 601 that Angel now challenges,
holding that “an aider and abettor need not share the heightened
mental state of the direct perpetrator for the applicability of
section 664(a)’s penalty provision. [Citation].” (Favor, supra, 54
Cal.4th at p. 879; see also Lee, supra, 31 Cal.4th at p. 627.)




                                48
       Although Angel acknowledges these prior holdings, he
contends Chiu effectively overruled those decisions. According to
Angel, under Chiu, a defendant may not be subject to section
664(a)’s enhanced penalty provision unless the jury finds he or
she personally acted with willfulness, deliberation, and
premeditation. As our summary of Chiu makes clear, however,
that decision addressed only whether a person may be convicted
of first degree premeditated murder under the natural and
probable consequences doctrine, and specifically distinguished
Lee and Favor. Simply put, there is no language in Chiu that
overrules or otherwise questions the continuing validity of Lee or
Favor.
       Angel also argues Lee’s holding that an accomplice may be
subjected to an enhanced penalty for attempted premeditated
murder based on the direct perpetrator’s state of mind is “open to
question in light . . . of . . . the United States Supreme Court’s
decision in Alleyne, supra, 133 S.Ct. 2151.” In Alleyne, the Court
held that any fact which increases a mandatory minimum
sentence qualifies as an element of the crime that must be
submitted to the jury. (Id. at p. 2155.) According to Angel, under
Alleyne, “the distinction [the California Supreme Court has]
drawn between the status of premeditation and deliberation as
an element of first degree murder and the status of those same
mental states as merely an increased penalty provision of
attempted murder contravenes the United State Constitution and
is therefore invalid.”
       Alleyne was decided approximately one year before Chiu.
Although Chiu addressed Lee and Favor at length, it did not
mention Alleyne, or provide any indication that Alleyne had




                               49
undermined its prior holdings in those cases. We presume the
Supreme Court was aware of Alleyne when it issued Chiu.17
      Moreover, at least as applied in this case, we fail to see how
section 664(a)’s sentencing enhancement for attempted
premeditated murder violates the rule of Alleyne. Under the
statute, a defendant cannot be subjected to the enhanced penalty
provision unless the jury finds two facts beyond a reasonable
doubt: (1) the defendant committed an attempted murder; and (2)
the defendant or his accomplice committed the attempted murder
with premedication. Indeed, section 664(a) expressly provides
that the “additional term provided . . . for attempted willful,
deliberate, and premeditated murder shall not be imposed unless
the fact that the attempted murder was willful, deliberate, and
premeditated is . . . found to be true by the trier of fact.’” Thus,
an enhanced penalty cannot be imposed under section 664(a)
unless the jury makes a true finding on the question of
premeditation.



17     The effect of Alleyne on Favor, if any, is currently under
review in People v. Mateo (Feb. 10, 2016) B258333, review
granted May 11, 2016, S232674. The informal description of
the question before the Court in Mateo reads, “In order to
convict an aider and abettor of attempted willful, deliberate
and premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to
murder have been a natural and probable consequence of
the target offense? In other words, should People v. Favor
(2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v.
United States (2013)____U.S.____[113 S.Ct. 2151] and
People v. Chiu (2014) 59 Cal.4th 155” (Available at
http://www.courts.ca.gov/documents/OCT1317crimpend.pdf, as
of December 2017.)




                                50
                         DISPOSITION

      The judgments of Smith Garcia and Michael Gallardo are
reversed, and those matters are remanded for further
proceedings. The judgment of Angel Gallardo is affirmed.



                                     ZELON, J.



We concur:



      PERLUSS, P. J.



      BENSINGER, J.





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                51
