Filed 7/11/16
                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                              ----




THE PEOPLE,

                  Plaintiff and Respondent,                          C075731

        v.                                                  (Super. Ct. No. 09F07077)

JOSON VANG,

                  Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County,
Steve W. White, Judge. Modified and remanded with directions.

      Kat Kozik, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos Martinez, Chung Mi (Alexa) Choi, Deputy Attorneys General, for
Plaintiff and Respondent.



*       Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of part II of the discussion.


                                               1
       In this case, we conclude the death of a structure‟s inhabitant renders that structure
uninhabited within the meaning of the arson statute. This is so even where the arsonists
murder that inhabitant before setting fire to the structure.
       Defendant Joson Vang and his cousin, Ronnie Vang,1 broke into Keith Fessler‟s
house to steal some property. Fessler was home at the time. When he came out of a back
bedroom and confronted the burglars, they beat him, tied him up, and Ronnie executed
him with two shots to the back of the head. After taking several items from the house
and leaving with these items in Fessler‟s car, defendant and Ronnie came back and set
fire to the house. Defendant and Ronnie were tried together before separate juries.
Defendant‟s jury convicted him of first degree murder, first degree burglary, robbery,
arson of an inhabited structure, and the unauthorized taking or driving of a vehicle. With
respect to the murder, the jury found the crime was committed during the commission of
both a burglary and a robbery. The jury also found a principal was armed with a firearm
during the commission of the murder, burglary, and robbery. The trial court sentenced
defendant to serve life imprisonment without the possibility of parole, plus a consecutive
determinate term of nine years eight months.
       On appeal, defendant contends: (1) the evidence is insufficient to support his
arson of an inhabited structure conviction because Fessler was dead when he and Ronnie
set fire to Fessler‟s house and there was no evidence anyone else lived there or intended
to live there; and (2) the trial court violated the Aranda/Bruton rule,2 and thereby violated



1       Because defendant and his cousin have the same last name, to avoid confusion, we
refer to the latter by his first name throughout this opinion. Others who share this last
name shall also be referred to by their first names.
2     Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton); People v.
Aranda (1965) 63 Cal.2d 518 (Aranda).


                                              2
defendant‟s right of cross-examination under the Sixth Amendment‟s confrontation
clause, by admitting against defendant certain out-of-court statements Ronnie made to
two individuals that implicated defendant in the charged crimes and defendant conceded
were non-testimonial in nature.
       In the published portion of this opinion, we conclude defendant‟s arson of an
inhabited structure conviction must be modified to convict him of arson of a structure.
As we shall explain, Fessler‟s death rendered his house uninhabited. While it is troubling
defendant shall be subject to less punishment for what would otherwise be arson of an
inhabited structure because he and his cousin murdered the inhabitant before setting fire
to the house, we agree with various decisions of our fellow Courts of Appeal that the
statutory term “inhabited” requires a present intent to use the structure as a dwelling. The
dead simply cannot have such an intent. This is so regardless of how they came to be
deceased. Prior iterations of our arson statute would have allowed for conviction of arson
of an inhabited structure on these facts. Thus, if the Legislature is troubled by the
outcome of this case, it can amend the statute. But we are bound to apply the law as it is
presently written. We also note defendant incurred the harshest punishment available
short of the death penalty for Fessler‟s murder.
       In the unpublished portion of the opinion, we reject defendant‟s remaining claim
his confrontation rights were violated by the admission of certain statements made by
Ronnie. The concededly non-testimonial nature of these challenged statements ends the
inquiry under the confrontation clause.
                                          FACTS
       Defendant does not challenge the sufficiency of the evidence to support his
convictions, except for arson of an inhabited structure based on the undisputed fact
Fessler was dead when the fire was set. We therefore dispense with a detailed recitation




                                              3
of the evidence adduced against him at trial. The following brief summary of events will
suffice.
       The morning of June 23, 2009, defendant and Ronnie set out to burglarize houses
in the Meadowview neighborhood of Sacramento. After an unsuccessful attempt to gain
entry to one house, they moved their efforts to Fessler‟s adjacent house.
       Ronnie knocked loudly on Fessler‟s front door and did not receive a response.
Believing no one was home, Ronnie and defendant entered the house through either a
rear window or sliding glass door and began searching for property to steal. The burglars
apparently had masks, but Ronnie was not wearing his. When Fessler came out of his
bedroom and confronted them, Ronnie pulled a 9-millimeter handgun and pointed it at
him. Fessler pleaded for his life and told them to take whatever they wanted. Concerned
Fessler had seen his face and could identify him as one of the burglars, Ronnie decided to
kill him. Before doing so, Ronnie and defendant “roughed him up” and hog-tied him
with several of his neck ties. Ronnie then executed Fessler with two shots to the back of
the head.
       After murdering Fessler, defendant and Ronnie stole several of his guitars and
windsurfing boards, among other items, loaded them into Fessler‟s small SUV, and drove
away in the vehicle. They took the stolen property to a nearby house on Montecito Way
(Montecito house) that was routinely used as a gambling parlor by various people
associated with defendant and Ronnie, including Tom Vang and Ying Vue. Tom spent
the previous night at the Montecito house with his girlfriend. After the stolen property
was unloaded from the stolen SUV, defendant and Ronnie borrowed Tom‟s car and
returned to Fessler‟s house with some gasoline Ronnie used to set fire to the house to
eliminate any potential evidence.




                                             4
       Defendant and Ronnie then returned to the Montecito house, where defendant
called Vue and asked him to come over and bring shirts and gasoline. Vue did so. When
Vue arrived, both defendant and Ronnie were sweating and Ronnie was not wearing a
shirt. Ronnie washed his hands with the gasoline in the garage. At some point that
afternoon, Fessler‟s SUV was also moved from the Montecito house and parked a short
distance away on 67th Avenue. During the early morning hours of the following day,
defendant and Ronnie drove defendant‟s car to where the SUV was parked. Using some
of the gasoline Vue brought over, they also set that vehicle on fire.
       Without recounting all of the evidence admitted against defendant at trial, we note
he and Ronnie were identified as suspects in Fessler‟s murder after they attempted to sell
several of the stolen guitars to a pawn shop. Ronnie also made various incriminating
statements to Tom and Vue that implicated defendant in the burglary, murder, and
subsequent arson. We recount these statements in greater detail in the discussion portion
of the opinion. Finally, we also note defendant admitted to another cousin that he and
Ronnie “burned down the house and robbed a guy.” When asked why, defendant
responded, “we‟re just thugs.”
                                      DISCUSSION
                                              I
                             Arson of an Inhabited Structure
       Defendant contends the evidence is insufficient to support his arson of an
inhabited structure conviction because Fessler was dead when they set fire to his house
and there was no evidence anyone else lived there or intended to live there. We agree.
       “„To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,




                                             5
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.‟ [Citations.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v.
Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560].)
       Penal Code section 451 provides: “A person is guilty of arson when he or she
willfully and maliciously sets fire to or burns or causes to be burned or who aids,
counsels, or procures the burning of, any structure, forest land, or property.” Where the
structure or property burned is “inhabited,” the crime is “a felony punishable by
imprisonment in the state prison for three, five, or eight years.” (Pen. Code, § 451, subd.
(b).) “„Inhabited‟ means currently being used for dwelling purposes whether occupied or
not.” (Pen. Code, § 450, subd. (d).)
       Defendant does not challenge the sufficiency of the evidence to support the fact he
committed arson; he does dispute the structure burned was “inhabited.” Relying
primarily on People v. Jones (1988) 199 Cal.App.3d 543 (Jones) and People v. Ramos
(1997) 52 Cal.App.4th 300 (Ramos), and the undisputed fact Fessler was dead when
defendant and Ronnie set fire to his house, defendant argues Fessler lacked the present
intent to use the house as his dwelling and, therefore, the house was not inhabited.
Having found no published California decisions directly on point, we provide a detailed
explication of the case law we find to be analogous, including Jones and Ramos.
       In Jones, supra, 199 Cal.App.3d 543, the Court of Appeal held that in determining
whether or not a structure is “inhabited” for purposes of arson, “it is the present intent to
use the [structure] as a dwelling which is determinative.” (Id. at p. 548.) There, the
defendant and others resided in a rented house. The day after he and the others were
evicted, after the others had removed their belongings and left, the defendant set fire to
the house. (Id. at p. 545.) Rejecting the defendant‟s argument the house was not
inhabited because he and the other former tenants no longer had any possessory rights to




                                              6
the house following the eviction, the court explained, “[t]he question is whether the house
was inhabited, not whether the inhabitants had a legal right to be there.” (Id. at p. 546.)
Rejecting the Attorney General‟s argument whether “the purpose of the structure is to
serve as a dwelling” should control, the court explained such an interpretation of the
statute “would lead to results that are logically unacceptable and inconsistent with
legislative intent,” for example, “if the owner-occupant of a house died, the house would
be „inhabited‟ by a dead person.” (Ibid.)
       The court then supported its holding that the present intent to use the structure as a
dwelling controls the determination of whether or not the structure is “inhabited” with an
overview of the history of California arson statutes: “The first arson statute, enacted in
1850, made it a crime to burn „any dwelling house‟ but did not define the term „dwelling
house.‟ (Stats. 1850, ch. 99, § 56, pp. 234-235.) In 1856, arson was divided into degrees.
First degree arson included burning „in the nighttime, any dwelling-house in which there
shall be at the time some human being . . . .‟ Second degree arson included burning a
dwelling house in which no one was present. The statute further provided, „Every house .
. . which shall have been usually occupied by persons lodging therein at night, shall be
deemed a dwelling-house of any person so lodging therein . . . .‟ (Stats. 1856, ch. 110, §§
4, 6.) [¶] Subsequent amendments did not materially alter the statute until 1929. In that
year, section 447a was added to the Penal Code defining arson in part as burning „any
dwelling house‟ but the provisions defining a „dwelling house‟ were repealed. (Stats.
1929, ch. 25, § 1.) Finally, the arson statute was revised in 1979 to provide, „Arson that
causes an inhabited structure . . . to burn is a felony . . . .‟ (Pen. Code, § 451, subd. (b).)
The statute defines „structure‟ as a „building‟ and „inhabited‟ as „currently being used for
dwelling purposes whether occupied or not.‟ (Pen. Code, § 450, subds. (a) and (d); Stats.
1979, ch. 145, § 6.) [¶] . . . [¶] As can be seen from the review of the arson statute, the




                                               7
Legislature has taken various approaches to the burning of a dwelling. During some
periods it has left the term without a definition. During other periods it has defined it as a
building „usually occupied‟ or „currently being used.‟ The present requirement that the
building is „currently being used‟ is certainly more limiting than the mere reference to a
„dwelling house‟ and more restrictive than the 1856 requirement the building „shall have
been usually occupied by persons lodging therein . . . .‟” (Jones, supra, 199 Cal.App.3d
at pp. 547-548.)
       The court concluded: “If arson under [Penal Code] section 451, subdivision (b),
could be established by merely proving the defendant set fire to a „dwelling house‟ or a
building „usually occupied‟ as a dwelling then, clearly, [the] defendant‟s conviction
would have been proper. But, the requirement the structure be „currently used‟ for
dwelling purposes requires the People to prove at least one of the evicted tenants intended
to continue living in the house after the eviction.” (Jones, supra, 199 Cal.App.3d at
p. 548.) Finally, the court explained this conclusion was “consistent with the
interpretation given identical statutory language in [Penal Code] section 459 applying to
burglary,” citing analogous burglary cases holding “whether or not the structure was
„inhabited‟ depended on the intent of the tenants to continue living there.” (Ibid.)
       In Ramos, supra, 52 Cal.App.4th 300, a burglary case, the defendant entered a
house, believing no one was home, with the intent to steal property. Once inside, he
discovered the deceased body of the house‟s former inhabitant, Wagner, who apparently
died in his sleep. (Id. at pp. 301-302.) Reversing the defendant‟s first degree burglary
conviction for insufficient evidence, the Court of Appeal explained: “To prove first
degree burglary of an inhabited dwelling, the People must present evidence that the house
is „currently being used for dwelling purposes, whether occupied or not.‟ (Pen. Code,
§ 459.) What this means is that a dwelling is inhabited if the occupant is absent but




                                              8
intends to return and to use the house as a dwelling. [Citations.] To put it plainly, a dead
body is not using a house for a „dwelling‟ and there is no way to say that a dead [person]
is going to return or that he [or she] has an „intent‟ of any kind.” (Id. at p. 302.)
Rejecting the Attorney General‟s argument Wagner “„fully intend[ed] to remain in his
house‟” before he died, the court stated: “By the time Ramos got there, Wagner was dead
and, to the best of our knowledge, unable to entertain any intent of any kind. The house
was no longer occupied.” (Id. at p. 303, citing a number of out-of-state cases, including
one arson case involving a murder followed several days later by the burning of the
deceased victim‟s residence, State v. Ward (1989) 93 N.C.App. 682, in which the
appellate court held at page 686 that “the inhabitant‟s death certainly renders [a dwelling]
uninhabited since someone must „live‟ in a dwelling for it to be „inhabited‟”; but see
State v. Campbell (1992) 332 N.C. 116, 122 [while not disapproving of the foregoing
case, holding “for purposes of the [North Carolina] arson statute, a dwelling is „occupied‟
if the interval between the mortal blow and the arson is short, and the murder and arson
constitute parts of a continuous transaction”].)
       Douglas v. Jacquez (9th Cir. 2010) 626 F.3d 501 involved facts remarkably
similar to our own. There, the habeas petitioner and his brother broke into a house to
commit a robbery, murdered the house‟s inhabitant during the robbery, and then set the
house on fire. The petitioner was convicted here in California of first degree murder and
arson of an inhabited structure.3 The federal district court granted habeas relief on one
ground, i.e., insufficient evidence to support the petitioner‟s arson of an inhabited
structure conviction based on the undisputed fact the inhabitant of the house was dead at



3      We affirmed these convictions in an unpublished opinion. (People v. Douglas
(Mar. 31, 1994, C015431) [nonpub. opn.].) The issue of whether the arson of an
inhabited structure conviction was supported by substantial evidence was not before us.


                                               9
the time the fire was set. This determination was based on Ramos. (Id. at pp. 503-504.)
Because California did not appeal this ruling, the Ninth Circuit Court of Appeals
“proceed[ed] under the district court‟s interpretation of California law,” but commented
in a footnote: “We note, however, two distinctions between this case and Ramos. First,
Ramos was a burglary case, not an arson case. [Citation.] Second―and more
importantly―the already-deceased occupant in Ramos died of natural causes. [Citation.]
But here, Douglas murdered the inhabitant. Again, we proceed under the district court‟s
interpretation of California law. The extension of Ramos to these facts strikes us as
problematic, but not problematic enough to affect the ground for decision.” (Id. at p. 504,
fn. 1.) The court then turned to the issues raised on appeal, which are not relevant to our
case.
        Various appellate courts in other states have rejected such a result. For example,
as already mentioned, the North Carolina Supreme Court has held “a dwelling is
„occupied‟ [within the meaning of that state‟s arson statute] if the interval between the
mortal blow and the arson is short, and the murder and arson constitute parts of a
continuous transaction,” explaining: “To accept [the] defendant‟s argument would be to
say that he is less morally culpable―and hence deserves less punishment―because of his
success in killing the victim prior to setting the house on fire. We do not believe this to
be the intent of the legislature in enacting the arson statute, nor do we believe it to be
sound public policy.” (State v. Campbell, supra, 332 N.C. at pp. 121-122.) Similarly, in
State v. Edwards (Minn.App. 1999) 589 N.W.2d 807), a burglary case, the Minnesota
Court of Appeals held the apartment of a murdered tenant is a “dwelling,” a term defined
by that state‟s burglary statute to mean “„a building used as a permanent or temporary
residence‟” (id. at p. 810), as long as the apartment was so used “in the immediate past”
and “has not been abandoned.” (Id. at p. 811; see also People v. Barney (2002) 742




                                              10
N.Y.S.2d 451, 452-453 [294 A.D.2d 811, 812-813]; Cochran v. Commonwealth (Ky.
2003) 114 S.W.3d 837, 839.)
       It is not our place to opine on whether the foregoing out-of-state decisions
properly construed the arson or burglary statutes at issue therein. Our task is to construe
our own arson statute, which defines “inhabited” to mean “currently being used for
dwelling purposes whether occupied or not.” (Pen. Code, § 450, subd. (d), italics added.)
Merriam-Webster defines “current” to mean “presently elapsing” and “occurring in or
existing at the present time.” (Merriam-Webster‟s New Collegiate Dict. (11th ed. 2006)
p. 306, col. 2.) This temporal limitation distinguishes our statute from those interpreted
by the courts in State v. Edwards, supra, 589 N.W.2d 807, People v. Barney, supra, 294
A.D.2d 811, and Cochran v. Commonwealth, supra, 114 S.W.3d 837. Indeed, in the first
of these cases, the court specifically noted the Minnesota statute required only that the
building be “„used as a permanent or temporary residence‟” and explained, “[t]he word
„used‟ . . . has no fixed meaning in terms of time [and] can sound in the past, present, or
future tense.” (State v. Edwards, supra, 589 N.W.2d at pp. 810-811.) Conversely, the
word “currently” in our arson statute does have a fixed meaning in terms of time, i.e.,
occurring at the present time. With respect to the latter two cases, the New York statute
required only that the building be “„usually occupied by a person lodging therein at
night‟” (People v. Barney, supra, 294 A.D.2d at p. 812), and the Kentucky statute
similarly required that the building be “„usually occupied by a person lodging therein‟”
(Cochran v. Commonwealth, supra, 114 S.W.3d at p. 838), wording nearly identical to
the 1856 version of our own arson statute. (See Jones, supra, 199 Cal.App.3d at p. 547.)
But we are not interpreting this prior version of our statute. The current version requires
current inhabitation, i.e., that the structure be inhabited at the present time. The present
for purposes of arson is the time the fire is set. (See Pen. Code, § 451 [“person is guilty




                                              11
of arson when he or she willfully and maliciously sets fire to . . . any structure”].)
Borrowing from Jones: “If arson under [Penal Code] section 451, subdivision (b), could
be established by merely proving the defendant set fire to a „dwelling house‟ or a
building „usually occupied‟ as a dwelling then, clearly, [the] defendant‟s conviction
would have been proper. But, the requirement the structure be „currently used‟ for
dwelling purposes requires the People to prove at least one [person] intended to continue
living in the house . . . .” (Jones, supra, at p. 548.) Fessler‟s death prevented him from
having such an intent. Nor did the prosecution produce any evidence anyone other than
Fessler intended to live in the house when the fire was set.
       Finally, while the statute at issue in State v. Campbell, supra, 332 N.C. 116, does
appear to have a temporal requirement, i.e., first degree arson in North Carolina requires
that “„the dwelling burned was occupied at the time of the burning,‟” this statute left
the basic definition of arson to the common law and did not define either “dwelling” or
“occupied.” (Id. at p. 120, italics added.) Moreover, as previously mentioned, the
North Carolina Supreme Court did not disapprove of a prior appellate decision that held
an “inhabitant‟s death certainly renders [a dwelling] uninhabited since someone must
„live‟ in a dwelling for it to be „inhabited‟” (State v. Ward, supra, 93 N.C.App. at p. 686),
but in effect created an exception to that rule in cases where the arson immediately
follows the murder of the dwelling‟s inhabitant and the murder and arson can be said
to constitute a single continuous transaction. (State v. Campbell, supra, 332 N.C. at
pp. 121-122.) In creating this exception, the court extended a “continuous transaction
doctrine,” which already existed in North Carolina law and was previously applied to
robbery cases where the victim was murdered before the defendant formed the intent to
steal and sex offense cases where the victim was murdered before the prohibited sex
act occurred. (See, e.g., State v. Fields (1985) 315 N.C. 191, 201-203 [disagreeing




                                              12
with the defendant‟s argument an intent to steal formed after the victim‟s death vitiates
the crime of armed robbery in North Carolina and holding, “when the circumstances
of the alleged armed robbery reveal [the] defendant intended to permanently deprive
the owner of his [or her] property and the taking was effectuated by the use of a
dangerous weapon, it makes no difference whether the intent to steal was formulated
before the use of force or after it, so long as the theft and the use of force can be
perceived by the jury as constituting a single transaction”]; State v. Thomas (1991) 329
N.C. 423, 434 [holding when the prohibited sex act was part of a continuous transaction
that began while the victim was alive, it makes no difference whether that victim was
dead when the prohibited act occurred].)
       Here in California, however, an intent to take the victim‟s property formed after
that victim is dead does vitiate the crime of robbery. (See People v. Davis (2005) 36
Cal.4th 510, 561 [“some jurors may have had a reasonable doubt as to whether [the
victim] was still alive when the intent to take her rings was formed”].) Similarly, in
California, where a victim dies during the commission of an attempted rape, and the
defendant thereafter has intercourse with the dead body, the defendant is guilty of murder
and attempted rape, but not rape. (See People v. Kelly (1992) 1 Cal.4th 495, 524 [“Rape
requires a live victim”].) Accordingly, unlike North Carolina, we have a more specific
arson statute and no prior precedent from our Supreme Court that would allow us to
conclude the temporal limitation written into that statute may be ignored where a murder
prevents the prosecution from proving present inhabitation.
       Simply put, “present” does not mean “immediate past,” even where a murder
separates the two. We do acknowledge the outcome is somewhat troubling. What would
otherwise be arson of an inhabited structure is mitigated to arson of a structure because
the inhabitant was murdered shortly before his or her house was set on fire. However, we




                                              13
may not delete the word “currently” from the arson statute. Our role is to interpret, not to
rewrite statutes. (Code Civ. Proc., § 1858.) That is the province of the Legislature.
                                             II
                                  Aranda/Bruton Claim
       Defendant also claims the trial court violated the Aranda/Bruton rule, and
thereby violated his right of cross-examination under the Sixth Amendment‟s
confrontation clause, by allowing admission of Ronnie‟s out-of-court statements to
Tom and Vue, which “powerfully incriminated” defendant in the crimes involved
in this case, even though these statements were admittedly non-testimonial in nature.
He is mistaken.
                                            A.
                                 Additional Background
       Ronnie made incriminating statements to Tom and Vue that also implicated
defendant in the crimes involved in this case.
       Specifically, as Tom explained in his police interview, Ronnie told him that “they
broke into a house,” a man “came out of the back . . . bedroom,” at which point “they
kind of roughed him up” and “tied him up,” and then Ronnie “shot him.” Tom said he
also knew “they burned up the house,” but that was because his car smelled like gasoline
when they returned it to him after doing so. Tom further said he saw Ronnie and
defendant leave in defendant‟s car with gasoline early the next morning, at which point
“[t]hey just said they [were] gonna go burn the car.” In the context of the statement as a
whole, it was clear the “they” to whom Tom was referring were Ronnie and defendant.
Indeed, later in the interview, Tom contradicted something he said earlier by saying he
did not know whether Ronnie or defendant shot the man, but it was “one of them.” At
trial, Tom denied Ronnie made these statements and, depending on which statement,




                                            14
claimed either he did not tell the detectives otherwise, did not remember doing so, or was
lying when he did so.
       Vue testified defendant and Ronnie brought some guitars over to his house in late
June or early July of 2009 and tried to sell him the guitars. Inside the garage, Ronnie told
Vue he got the guitars “from a stolen vehicle” and then said he got them from “some
white guy‟s house.” After initially claiming not to remember the details of Ronnie‟s
statement, when confronted with prior statements he made during his police interview,
Vue testified Ronnie admitted he and defendant “broke into the house, took the guitars
and put them in the car that was in the garage and left.” According to Vue, Ronnie also
admitted that when he and defendant were confronted by the man whose house they
broke into, they tied him up and Ronnie shot him because “he forgot to put his mask on”
and “his face was seen.” Ronnie then admitted to setting the house on fire “to clean up
his steps so he wouldn‟t get caught.”
       The trial court allowed admission of Ronnie‟s statements to Tom and Vue against
both Ronnie and defendant, explaining: “The statements are relevant, non-testimonial
and constitute declarations against interest pursuant to Evidence Code section 1230. The
court is satisfied through individual review of these statements that they possess
sufficient indicia of reliability to plainly fall within the [Evidence Code] section 1230
hearsay exception as declarations against penal interest. As such they are admissible
against both defendants. An Evidence Code section 1230 exception to the rule against
hearsay does not implicate the Aranda-Bruton rule.” (Citing People v. Greenberger
(1997) 58 Cal.App.4th 298.) The trial court also ruled the statements were admissible
under Evidence Code section 352.




                                             15
                                              B.
                                          Analysis
       “The confrontation clause of the Sixth Amendment to the federal Constitution,
made applicable to the states through the Fourteenth Amendment, provides that „[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him [or her].‟ The right of confrontation includes the right of cross-
examination.” (People v. Fletcher (1996) 13 Cal.4th 451, 455, citing Pointer v. Texas
(1965) 380 U.S. 400, 404, 406-407 [13 L.Ed.2d 923, 926-927, 927-928].)
       The Aranda/Bruton rule generally prohibits the admission, at a joint trial, of one
defendant‟s out-of-court statement “that is „powerfully incriminating‟ as to a second
defendant when determining the latter‟s guilt.” (People v. Fletcher, supra, 13 Cal.4th at
p. 455.) In Aranda, supra, 63 Cal.2d 518, our Supreme Court held when the prosecution
seeks to introduce an out-of-court statement of one defendant that implicates another
defendant, “the trial court must adopt one of three procedures: (1) in a joint trial,
effectively delete direct and indirect identifications of codefendants; (2) grant a severance
of trials; or (3) if severance has been denied and effective deletion is not possible,
exclude the statement. In the absence of a holding by the United States Supreme Court,
the Aranda court declared these rules were not constitutionally compelled, but judicially
declared to implement the provisions for joint and separate trials of Penal Code section
1098.” (People v. Song (2004) 124 Cal.App.4th 973, 980-981, citing Aranda, supra, 63
Cal.2d at p. 530.) Three years later, the United States Supreme Court decided Bruton,
supra, 391 U.S. 123, holding the admission in a joint trial of an out-of-court statement
made by one defendant that is “powerfully incriminating” as to another defendant
violates the latter‟s right of cross-examination secured by the Sixth Amendment‟s




                                              16
confrontation clause even if the jury is instructed to consider the statement only against
the defendant by whom the statement was made. (Id. at p. 137.)
       The Aranda decision (supra, 63 Cal.2d 518) was abrogated in 1982 by the “Truth-
in-Evidence” provision of Proposition 8 (Cal. Const., art. I, § 28, former subd. (d), now
subd. (f)(2)) “to the extent [that decision] requires the exclusion of evidence that need not
be excluded under federal constitutional law.” (People v. Fletcher, supra, 13 Cal.4th at
p. 465.)
       Thereafter, in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]
(Crawford), the United States Supreme Court held the confrontation clause (1) applies
only to out-of-court statements that are “testimonial,” i.e., offering “testimony” against a
defendant (whether or not in a court proceeding), but (2) strictly requires the exclusion of
such statements, despite any applicable hearsay exception, unless the declarant is
unavailable and the defendant has had a prior opportunity for cross-examination (id. at
pp. 51-54, 59), overruling Ohio v. Roberts (1980) 448 U.S. 56 [65 L.Ed.2d 597] that held
hearsay evidence to be admissible if within a “„firmly rooted hearsay exception‟” or
bearing “„particularized guarantees of trustworthiness.‟” (Crawford, supra, 541 U.S. at
p. 60; see also Davis v. Washington (2006) 547 U.S. 813, 821 [165 L.Ed.2d 224] (Davis)
[only “„testimonial statements‟ . . . cause the declarant to be a „witness‟ within the
meaning of the Confrontation Clause”].)
       Defendant asserts the Aranda/Bruton rule survived Crawford, supra, 541 U.S. 36
unscathed, admission of Ronnie‟s statements to Tom and Vue “powerfully incriminated”
defendant, and therefore, the trial court violated his right of confrontation by allowing the
statements into evidence regardless of whether the statements were testimonial in nature.
Not so. After Crawford, “[o]nly the admission of testimonial hearsay statements violates
the confrontation clause―unless the declarant is unavailable and the defendant had a




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prior opportunity to cross-examine the declarant. [Citation.] While the high court [in
Crawford] declined to precisely define what constitutes a „testimonial‟ statement, it held
that, at a minimum, testimonial statements include „prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and . . . police interrogations.‟
[Citation.] The court explained that the confrontation clause addressed the specific
concern of „[a]n accuser who makes a formal statement to government officers‟ because
that person „bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.‟ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 812–
813.)
        Ronnie‟s statements to Tom and Vue were casual remarks and did not offer
testimony against defendant in any sense recognized by Crawford, supra, 541 U.S. 36
and its progeny. Defendant does not argue otherwise. Indeed, defendant‟s trial counsel
conceded at trial the statements were non-testimonial in nature. Because “the
confrontation clause applies only to testimonial statements,” as long as these statements
were admissible under state law evidentiary rules, there was no error in the admission of
the statements. (People v. Arceo (2011) 195 Cal.App.4th 556, 575; see also Crawford,
supra, 541 U.S. at p. 68 [non-testimonial hearsay governed by state law evidentiary rules,
not the Sixth Amendment]; Davis, supra, 547 U.S. at p. 821 [non-testimonial hearsay
“subject to traditional limitations upon hearsay evidence,” but “not subject to the
Confrontation Clause”].) Defendant does not argue the trial court erred in concluding the
statements were relevant and admissible under the hearsay exception for statements
against penal interest set forth in Evidence Code section 1230, or the trial court erred in
admitting the statements under Evidence Code section 352. Instead, he asserts Arceo was
“wrongly decided” and argues we are bound to apply Bruton, supra, 391 U.S. 123, to
non-testimonial statements following Crawford. However, as our colleagues at the




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Second Appellate District observed in Arceo, “a number of federal courts have expressly
held that the Bruton rule does not apply to nontestimonial statements.” (Arceo, supra,
195 Cal.App.4th at p. 574; see, e.g., United States v. Figueroa-Cartagena (1st Cir.2010)
612 F.3d 69, 85 [Bruton must be viewed “through the lens of Crawford and Davis”; if the
challenged statement is not testimonial, the confrontation clause does not apply]; United
States v. Johnson (6th Cir.2009) 581 F.3d 320, 326 [“Because it is premised on the
Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not
apply to nontestimonial statements”].) We agree with the Arceo court‟s reasoning, and
that of the foregoing federal decisions, and are not persuaded by defendant‟s arguments
to the contrary.
                                       DISPOSITION
       The judgment is modified by reducing defendant‟s conviction of arson of an
inhabited structure (Pen. Code, § 451, subd. (b)) to arson of a structure (id., subd. (c)).
As modified, the judgment is affirmed and the matter is remanded to the trial court with
directions to resentence the defendant on the modified judgment as provided by law and,
after resentencing, to issue an amended abstract of judgment.


                                                                /s/
                                                   HOCH, J.


We concur:


          /s/
RAYE, P. J.


         /s/
DUARTE, J.



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