Filed 8/28/14 P. v. Trejo CA5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                   F064073 & F064085
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F10905342)
                   v.

HECTOR TREJO et al.                                                                      OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Kat Kozik, under appointment by the Court of Appeal, for Hector Trejo,
Defendant and Appellant.
         Solomon Wollack, under appointment by the Court of Appeal, for Manuel
Villanueva, Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Paul
A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Carlos Rodriguez (Carlos) and Eduardo Alvarado (Eduardo), members of a Sureño
gang, were fatally shot in a drive-by shooting in Reedley. Both victims had just turned
16 years old. Appellants/defendants Hector Trejo and Manuel Villanueva, members of
the Norteño Vario East Side Reedley (VESR) gang, were arrested for the murders based
on information provided by Cesar Garcia, an informant within the VESR gang.
Defendants told Garcia they selected the victims at random and committed the murders in
retaliation for the unrelated murder of a young member of VESR by a Sureño.
       After a joint jury trial, defendants were convicted as charged of counts I and II,
first degree murder (Pen. Code, § 187, subd. (a)),1 and the jury found true the firearm
allegations (§ 12022.53, subds. (b), (c), (d), (e)(1); § 12022.5, subd. (a)(1)) and gang
enhancements (§ 186.22, subd. (b)(4)(B)). The jury also found true the special
circumstances of multiple murder, and that the murders were intentional and perpetrated
by means of discharging a firearm from a motor vehicle (§ 190.2, subds. (a)(3), (a)(21)).
       Both defendants were sentenced to life without parole (LWOP) for counts I and II,
plus 50 year for the firearm allegations.
       Defendants filed separate notices of appeal and appellate briefs. Their cases have
been administratively consolidated, and they have joined in each other’s appellate issues.
They contend the court erroneously denied their motions to exclude the testimony and
tape recordings provided by Cesar Garcia, the gang informant, about his separate
conversations with them, in which they implicated themselves and each other of
committing the murders. Defendants argue the informant’s evidence in this joint jury
trial violated their Sixth Amendment confrontation rights as set forth in People v. Aranda
(1965) 63 Cal.2d 518 (Aranda), Bruton v. United States (1968) 391 U.S. 123 (Bruton),
and Crawford v. Washington (2004) 541 U.S. 36, 61 (Crawford).
       Defendants also argue the court abused its discretion when it denied their motions
to exclude evidence that Villanueva was found in possession of a revolver during an
unrelated traffic stop, because the weapon was not conclusively linked to the murders.
       1   All further statutory citations are to the Penal Code unless otherwise indicated.



                                               2.
They raise several allegations of prosecutorial misconduct during closing rebuttal
argument, and assert these alleged cumulative trial errors violated their due process
rights.
          Finally, they contend their LWOP sentences must be reversed based on Miller v.
Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), which held that life sentences for
juveniles who are under the age of 18 years when they commit the offenses violate the
Eighth Amendment. Defendants assert they are within the classification of juveniles
contemplated by Miller because Trejo was 19 years old, and Villanueva was 18 years and
2 days old, when the murders were committed.
          We affirm.
                                            FACTS
          On the evening of April 1, 2009, M. was walking near Camacho Park in Reedley.
She noticed two boys were riding together on a single bicycle. They stopped at the
corner to wait for traffic to clear so they could cross the street. One boy stood on the
bicycle pedals and the other boy sat behind him. The boys were later identified as Carlos
Rodriguez (Carlos) and Eduardo Alvarado (Eduardo). Both were 16 years old and
members of the Sureño gang.
          M. also saw a white pickup truck drive past her at a high rate of speed. There
were two men in the truck. The driver was about 18 or 20 years old. The truck had a
blue pinstripe along the side. It also had two metal “tubes” or bars in the back, and she
thought there might have been lights on top of the bars.
          The truck headed toward where the boys were waiting to cross the street. When
the truck was within five feet of the boys, M. saw and heard gunshots fired from the
driver’s side of the truck. The driver used a black and chrome gun. She saw both boys
fall to the ground. The driver shouted something as he drove away at a high rate of
speed.



                                               3.
       M. told a neighbor to call the police and said the shots were fired from a white
truck with blue lines.
The victims
       Around 8:00 p.m., officers from the Reedley Police Department responded to the
shooting scene. Carlos and Eduardo were lying on the street, and they were
unresponsive.
       Carlos had suffered a single gunshot wound to the back of his head. The bullet
entered the right side of the back of his head and lodged in the brain. Carlos’s body was
still straddling his bicycle where he fell. He was wearing a white T-shirt and jeans.
       Eduardo was lying on his back, about five yards away from Carlos. He had a
single gunshot wound to his back. The bullet entered his back, near the right shoulder
blade, passed through the lungs and heart, lodged in his body, and caused internal
bleeding. He was wearing a white T-shirt over a black shirt, and khaki colored pants.
       Eduardo did not have a pulse, but Carlos was still breathing. Both victims were
transported to the hospital, where they later died.
Forensic evidence
       There were no expended bullet or cartridge casings found at the scene. A revolver
would not have left any casings.
       The fatal bullets fired into victims were recovered from their bodies. The
criminalist determined both were .22-caliber copper-washed lead bullets, with poor
measurable details. Eduardo had been killed with a hollow-point bullet fired from a gun
with a right twist. The bullet recovered from Carlos had less detail. Based on the
condition of the bullets, the criminalist believed they were fired from a gun that was
either worn and/or dirty.




                                             4.
                                   THE INFORMANT
       After the initial investigation, the police did not have any leads or suspects in the
murders. The situation changed after a confidential informant within the gang began to
work for law enforcement officers.
       At the time of trial, Cesar “Huero Loco” Garcia was 27 years old. He had been a
member of the VESR gang since he was 13 years old. He had prior convictions for
domestic violence, carrying loaded firearms, and driving under the influence, and served
time in prison. He had been included in the gang injunction in Reedley.
       Garcia testified the VESR gang sold marijuana, methamphetamine, heroin, and
cocaine. There were 80 to 120 members. Garcia testified the Norteños were part of
Nuestra Familia and had a very structured leadership and ranking system, across different
generations of members, both in jail and on the streets. Garcia achieved a leadership rank
from Nuestra Familia as the “overall” person in charge of the Norteños when he was at
the Fresno County Jail. After he was released, he was considered a “seasoned soldier” in
the streets. Garcia testified the Norteño system was “all just a bunch of propaganda they
feed you. They brainwash you.”
       After a senior Norteño was incarcerated, Garcia became a member of the VESR
“council,” along with Joey Luna and Pablo Chavez. The council governed the VESR
gang members in Reedley. Garcia’s council duties were to “basically keep the peace”
within the gang, “investigate all incident reports, to investigate everybody that’s getting
released from prison, from county jail, from juvenile hall, making sure that the paperwork
is legit. Making sure it is not fabricated. Making sure that people are not using hard
drugs in the streets … that people are not sleeping with other members’ wives. That
people are … giving in 10 percent of drugs and so on.”
       Garcia visited lots of Norteños to conduct these investigations, and he heard about
murders and other violent crimes committed for the VESR’s benefit. The council would
talk to all the interested parties and not “go off hearsay.” The council expected members

                                              5.
to state the facts truthfully and without bragging to assure gang loyalty, or risk expulsion.
If the council determined that a Norteño broke a gang rule, the disciplinary measures
could include a fine, an assault, or removal from the gang.
       Garcia testified the Southsiders, Sureños, and Bulldogs were the rivals of VESR.
“As a whole,” the Norteños fight for territory and elimination of rivals so “you can move
in and sell” drugs. When a Norteño commits a violent crime against a rival, it shows the
level of violence that person will commit, but will not increase that person’s rank within
the gang. However, “the more murders you commit … the better the chance the gang has
an opportunity to move into that neighborhood, blend in with that neighborhood and …
take over their drug trade.”
       Garcia testified it would not benefit a gang member if the council discovered that
he had lied about committing a murder or other violent crime.

       “[T]his organization … is a close knit race. That’s what it comes down to.
       We’re a collective. We’re a unit. We’re an army. [T]here’s no way in any
       shape or form that we would allow someone who is not loyal to us. We got
       to make sure those people are dedicated and committed to us, therefore, if
       we find out that a person would be lying, you know, we don’t need that
       type of person, because it is not what you do for the gang, it is where you
       stand.”
A Norteño who lied about committing a crime would be removed from the gang.
“Removal” could mean an assault, stabbing, or death.
Garcia’s request for witness protection
       In January 2010, Garcia had just been released from prison and decided that he
wanted to get out of the gang for the sake of his family. Garcia contacted Detective Kyle
Kramer, a gang investigator, and said he was willing to risk his life to inform on the
Norteños to change things for himself. Garcia did not ask for money or to work off any
pending charges. Garica knew it was an act of treason to inform against the gang, he
could be killed for it, and he would be a target for the rest of his life.



                                               6.
       Garcia admitted he had an affair with the wife of another gang member. Garcia
denied that he faced possible retribution for this conduct, there was a “hit” placed on him,
or this was the reason he wanted to get out of the gang.
       Detective Kramer testified he agreed to use Garcia as an informant in exchange for
placing him in the witness relocation program. At Kramer’s direction, Garcia spent nine
months gathering information about the murders of Carlos and Eduardo. Kramer fitted
Garcia with a concealed recording device. Based on his position in the council, Garcia
contacted Trejo and Villanueva to talk about the murders. Garcia recorded every
conversation and turned them over to Detective Kramer. After he finished his
assignment, Garcia and his family were placed in the witness relocation program. At that
point, he received over $2,000 per month for relocation expenses for housing and food.
       Detective Kramer testified Garcia was not paid while he was gathering
information, except that Kramer gave him gas money. While Garcia was working for
Kramer, however, he was arrested for driving under the influence, driving without a
license, and evading arrest, and violated his parole. Garcia pleaded guilty to a
misdemeanor and he was released from custody. Kramer contacted parole authorities,
explained Garcia’s work as an informant and arranged for him to be placed on a GPS
tracker for the parole violation instead of being returned to prison.
Garcia’s first conversation with Trejo
       On April 19, 2010, Garcia and Pablo “Creeper” Chavez, another member of the
council, went to Trejo’s house near Reedley. Garcia knew that Trejo was a “full
functioning” Norteño. Garcia and Chavez talked to Trejo under the council’s authority.
There is no evidence that Chavez was an informant or aware of Garcia’s agreement with
the police.
       Garcia and Chavez had a lengthy conversation with Trejo about a variety of gang-
related and personal topics. Garcia also asked Trejo about the murders of the two boys in
Reedley. Trejo showed them a white truck with blue pinstripes that was parked at his

                                             7.
house. The truck had a metal rack mounted on the back for work purposes. Trejo said he
drove the truck that day, and he needed to get rid of it.
       Trejo said he was in the truck with “Little Homie, Manuel.” Garcia believed he
was referring to Villanueva, who was also a member of VESR. Garcia asked Trejo why
they “roll[ed] up on ‘em” and whether they had a plan. Trejo said they did not have a
plan, but they went to “down those … southsiders.” The Southsiders were right there,
and they shot “one of them in the face .… He turned around.” Trejo said the parents of
one victim worked for Trejo’s father as farm laborers.
Garcia’s second conversation with Trejo
       On April 27, 2010, Garcia again met Trejo while he was wearing the recording
device. The recording was played for the jury. Garcia and Trejo talked about several
other gang matters.
       Garcia changed the subject to the Reedley murders, and asked Trejo to again
explain how they had pulled it off. Trejo said he and “little homie Manuel,” referring to
Villanueva, went around “just looking for fools.”2 Trejo said they were looking for
“Penguin,” a rival Sureño gang member, for some target practice. Trejo said he was
driving and Villanueva was sitting on the passenger side. Trejo told Villanueva that they
would drive around to find a rival gang member, and one of them would shoot depending
on which side of the truck the rival was. Villanueva responded, “ ‘Mando,’ ” which
meant “mandatory.”
       Trejo said they saw Penguin with two other people. Villanueva opened the truck’s
door and said he was going to “dome” Penguin, meaning that he was going to shoot him

       2During both conversations with Garcia, Trejo referred to his associate as “little
homie Manuel.” Garcia testified he believed Trejo was talking about defendant Manuel
Villanueva. In this second conversation, Garcia asked Trejo if Manuel was known as
“Bookworm,” which was the moniker of Villanueva’s brother, Ricardo. Trejo replied:
“Nah, Manuel, his bro, his little brother,” clarifying that “little homie Manuel” was
defendant Villanueva.


                                              8.
in the head. Trejo said not to shoot because there were witnesses.3 Trejo said he decided
to drive into the country so they could smoke marijuana, but “we saw some fools
mobbing on a bike.”
       Trejo said the two “fools” were waiting to cross the street. Trejo said he pulled up
close to them and he started shooting. Trejo said he shot the first “fool,” who was
pedaling the bike. Trejo said he hit him “in the dome,” referring to his head, and he fell
down. Trejo thought he hit the first victim in the face or cheek. The “other fool” was
“booking it” down the street, and he quickly fired additional shots.
       Trejo said after the shooting, he shook hands with Villanueva and declared “that
was for Joel, bro,” referring to Joel Medina, a teenage Norteño who was killed by
Sureños in 2008. Villanueva replied, “mando,” meaning mandatory.4
       Garcia told Trejo that he needed to get rid of the white truck. Trejo again said the
father of one of the victim’s worked for Trejo’s father, and he feared the victim’s father
would bring Sureños there to check it out.
Villanueva’s revolver
       On June 23, 2010, over a year after the murders, Tulare County Sheriff’s Deputy
Hector Rodriguez performed a traffic stop on a sedan in Sultana because he noticed the
passenger vehicle had a commercial license plate.
       There were two people in the car. Ricardo Villanueva was driving, and his
brother, defendant Manuel Villanueva, was the passenger. Deputy Rodriguez asked the
occupants to get out of the car, and whether they had any contraband or weapons.
Defendant Villanueva said he had something in his pocket. Rodriguez conducted a
patdown search and found an unloaded .22-caliber Sentinel cylinder revolver in

       3Detective Kramer testified the only “Penguin” he knew was a Sureño named
Jose Urritia. However, Urritia was in jail on April 1, 2009, the day of the murders.
       4   Carlos and Eduardo, the victims in this case, were never suspects in Medina’s
murder.


                                              9.
defendant Villanueva’s pocket, and small bag which contained eight live .22-caliber
rounds. Rodriguez determined the license plate was not registered to that vehicle, but the
car was not stolen.
         The criminalist testified Villanueva’s handgun was a black .22-caliber revolver,
with a nine-cartridge cylinder and a brown grip. It did not automatically expel bullet or
cartridge casings. It was not clean, and contained gun powder in the chamber and heavy
lead “fouling” in the barrel. The criminalist test-fired the weapon and determined it
operated normally. The gun barrel had a right twist. The fired bullets were of poor
measurable detail because of the gun’s dirty condition.
         The criminalist could not eliminate the .22-caliber revolver as firing the fatal
bullets. However, she could not conclusively make that determination based on the
conditions of the gun and the bullets. The criminalist conceded that a right twist was
more common than a left twist on a .22-caliber revolver. The criminalist further
conceded there were approximately 250 kinds of .22-caliber pistols, and thousands and
possibly millions of these firearms in circulation.
Garcia talks to Villanueva
         The record implies that Villanueva was not held in custody after the traffic stop.
In the meantime, Garcia decided to talk to Villanueva about the information provided by
Trejo.
         On August 2, 2010, Garcia asked Villanueva to come to his house because he was
investigating a turf conflict between Villanueva and another person. Trejo was not
present during this conversation.
         During their conversation, Garcia asked Villanueva about the murders of the two
boys. Villanueva said they didn’t really plan it, but they just decided to see “what’s
cracking, see if we catch anyone” to use as a target. Villanueva said it happened “last
year,” in 2009, on “the first or second of April,” and it was by “Camacho Park.”



                                               10.
       Garcia asked if they were in Villanueva’s burgundy car. Villanueva said they used
Trejo’s work truck.5 Villanueva described the shooting: “Just circled around the block
and … we seen them fools on the bike. And it was either going to be on this side or on
Hector [Trejo’s] side, but it was on Hector’s side.” Villanueva said both “Southsiders”
were on one bicycle, and the passenger was on the back pegs. “We just seen them and
popped them.” The “fool” sitting in the front of the bicycle was shot first, “in the dome I
think,” referring to his head. “[T]he other fool took off running and got popped in the
back twice.” Villanueva thought Trejo fired four or five rounds. Villanueva said Trejo
had “good accuracy.” After Trejo fired, he asked Villanueva if he got them and
Villanueva said, “Mando.”
       Garcia asked Villanueva if they used a .44-caliber gun. Villanueva said it was a
.22-caliber revolver. Garcia asked what happened to it. Villanueva initially said he did
not know what Trejo did with the gun. As the conversation continued, Villanueva said
Trejo gave the gun to “Baby Ene.”
The arrests and searches
       On October 26, 2010, Villanueva was arrested and the police searched his
residence pursuant to a warrant. They found evidence of Norteño gang membership,
including references for Joel Medina to rest in peace.
       On the same day, Trejo was also arrested, and the SWAT team executed a search
warrant at his parents’ house. The police found an inert grenade launcher, an assault
rifle, a 20-gauge shotgun, and cases of ammunition and shells. They also found a loaded
.22-caliber revolver, but the prosecution never claimed this was the murder weapon.




       5 Garcia testified that he knew that Trejo had already identified the white truck,
but he asked the question to see Villanueva’s reaction.



                                            11.
Expert testimony
       Investigator Kramer testified as the prosecution’s gang expert, and explained
VESR is a Norteño gang in Fresno County. The VESR’s primary activities are drug
possession, drug sales, drive-by shootings, assaults with deadly weapons, and murders.
       The Bulldog Sureños were the rivals to the Norteño VESR. Carlos and Eduardo
were both Sureño gang members. There was no evidence of prior personal conflicts
between defendants and the victims.
       Investigator Kramer testified the Norteño gang is as structured as a military
organization. It would not benefit a young gang member to lie to a senior Norteño about
his criminal activities because of the strong likelihood that his lie would be discovered.
       Investigator Kramer testified to his opinion that Trejo and Villanueva were active
members of the VESR Norteños, based on their prior self-admissions, possession of gang
paraphernalia, tattoos, and jail classifications. He believed they committed the drive-by
shooting of Carlos and Eduardo for the benefit of the Norteños, primarily in retaliation
for the Sureños’ murder of Joel Medina.
                                 DEFENSE EVIDENCE
       Villanueva did not testify or introduce any defense evidence.
       Trejo did not testify but introduced evidence in support of an alibi defense from
his parents, relatives, and friends, who testified Trejo was at a family party on the
afternoon and evening of the Reedley murders.
       Trejo also called Eddie Amaya, who worked for Trejo’s father. Amaya testified
he saw the drive-by shooting of Carlos and Eduardo. The gunman was in a white Tahoe
SUV. Amaya was familiar with Trejo’s white pickup truck, and insisted the gunman was
not in that vehicle. Amaya testified there were two men and a woman in the white
Tahoe. The gunman fired from the back seat and shot the two boys on the bicycle. A
black car was also in the area and appeared to be with the white Tahoe. Both vehicles
burned rubber as they drove away. Amaya claimed he tried to talk to the police that night

                                             12.
but the officer wasn’t interested. Amaya conceded he did not tell anyone about this
information until a few weeks before Trejo’s trial.
Defense expert
       Martin Sanchez-Jankowski testified as the defense expert in criminal street gangs.
He was a professor of sociology with an emphasis on poverty and violence. He did not
know anything about the VESR gang but testified generally about the behavior of the
Norteño and Sureño gangs. He believed it was not unusual for a young gang member to
lie about committing a crime to earn respect, stature, and female attention. The gang
member would decide the benefits of lying were greater than the risks, depending on the
likelihood of discovery. The Norteños did not have an incentive to investigate false
claims if they did not negatively impact the gang. A false claim about killing a Sureño
would benefit the gang. Even if the lie was discovered, there might not be consequences
if sufficient time has passed. He conceded the gang member could be severely punished
if he lied to a senior member. If the lie negatively impacted the gang or attracted police
attention, the liar could be beaten or killed. He conceded, however, that evidence
gathered by an undercover informant within a gang would be the most reliable
information about the gang’s activities.
                                      DISCUSSION
   I. Admission of Garcia’s testimony and recordings
       Both defendants contend the court committed prejudicial error when it denied their
motions to exclude Garcia’s testimony and recordings of his extrajudicial conversations
with them. Defendants argue the admission of the evidence violated their confrontation
rights in this joint jury trial pursuant to the Sixth Amendment and Aranda/Bruton,
because Trejo’s statements to Garcia implicated Villanueva, Villanueva’s statements to
Garcia implicated Trejo, both defendants declined to testify, and they were not subject to
cross-examination. Defendants further argue the inculpatory extrajudicial statements
were inadmissible testimonial hearsay under Crawford. In the alternative, defendants

                                            13.
argue that even if their statements to Garcia were not testimonial, the hearsay statements
were inadmissible as declarations against interest because their statements were
unreliable.
   A. Background
       Trejo filed a pretrial motion to exclude Garcia’s recording of his conversation with
Villanueva on August 2, 2010, where Villanueva implicated Trejo in the murders.
Villanueva similarly moved to exclude Garcia’s recordings of his two conversations with
Trejo, on April 17 and 27, 2010, where Trejo implicated Villanueva. In the alternative,
Villanueva moved for severance of their joint trial because of the prejudice inherent in
Garcia’s evidence against them.6
       The court heard extensive arguments from the parties on these issues over the
course of two hearings, and asked for and received additional briefing. Both defendants
argued Garcia’s recordings violated their right to confront and cross-examine witnesses,
as set forth in Bruton. They also argued their hearsay statements were testimonial and
inadmissible under Crawford because Garcia was a paid agent of the police, and engaged
in an orchestrated attempt to get the defendants to implicate themselves in the murders.
       In opposition, the prosecutor argued the defendants’ extrajudicial statements to
Garcia did not violate Crawford or Bruton because they were not testimonial, and their
hearsay statements were admissible as declarations against the defendants’ penal
interests. The prosecutor conceded Garcia acted as an agent of law enforcement officers
to obtain information from the defendants. However, the prosecutor cited to federal

       6 Both defendants also objected to the introduction of the statements they made to
the police during their postarrest interrogations, in which they also inculpated each other.
The prosecutor initially stated it would not introduce the defendants’ postarrest
interviews and conceded these were testimonial statements. The prosecutor subsequently
attempted to introduce a redacted version of Villanueva’s postarrest statement. In
response, both defendants renewed their Bruton objections and severance motions. The
postarrest statements were never admitted.



                                            14.
circuit cases which held that statements made to an unknown informant were not
testimonial.
       The court denied defendants’ motions to exclude Garcia’s testimony and the
recordings. In doing so, the court primarily relied on People v. Arceo (2011) 195
Cal.App.4th 556 [rev. den., cert. den.] (Arceo) and a series of post-Crawford cases, which
held that Bruton’s confrontation clause concerns did not apply when the declarant’s
extrajudicial statements were not testimonial, and a declarant’s statements to an unknown
informant were not testimonial because such statements were trustworthy and reliable if
made between friends in a noncoercive setting.
       The court found the defendants’ made these statements to Garcia in noncoercive
settings, such as their own homes and Garcia’s home. The defendants did not believe
they were speaking to a police officer, but they were talking among friends and associates
about what they did.
       The court further held defendants’ nontestimonial hearsay statements, in which
they implicated each other, were admissible as declarations against their penal interests
pursuant to Evidence Code section 1230. Their statements were trustworthy because in
addition to implicating each other, each defendant admitted and described his own role in
the murders. The court also denied Villanueva’s motion for severance, since it was based
on the Bruton/Crawford issues.
       In response to the court’s ruling, defendants argued their respective statements to
Garcia were not trustworthy because Trejo said he shot the first boy in the cheek, but the
evidence showed the first victim was shot in the back of the head. Trejo also claimed
they were looking for and found a gang member, Penguin, in the street, and decided not
to shoot him because witnesses were present. However, the police determined that
Penguin was in custody on the night of the murders.
       The court noted there were other portions of the defendants’ statements which
indicated they were reliable and trustworthy, particularly the description of the two

                                            15.
victims on one bicycle, the first victim was pedaling, he was shot and immediately fell on
his bicycle, the second victim tried to run away, and he was shot in the back as he ran.
   B. Bruton
       We begin with the Bruton rule. “A criminal defendant has a right, guaranteed by
the confrontation clause of the Sixth Amendment to the United States Constitution, to
confront adverse witnesses. The right to confrontation includes the right to cross-
examination. [Citation.] A problem arises when a codefendant’s confession implicating
the defendant is introduced into evidence at their joint trial. If the declarant codefendant
invokes the Fifth Amendment right against self-incrimination and declines to testify, the
implicated defendant is unable to cross-examine the declarant codefendant regarding the
content of the confession.” (People v. Lewis (2008) 43 Cal.4th 415, 453, disapproved on
other grounds in People v. Black (2014) 58 Cal.4th 912.)
       “In Bruton, the United States Supreme Court held that the admission into evidence
at a joint trial of a nontestifying codefendant’s confession implicating the defendant
violates the defendant’s right to cross-examination guaranteed by the confrontation
clause, even if the jury is instructed to disregard the confession in determining the guilt or
innocence of the defendant. [Citation.] The high court reasoned that although juries
ordinarily can and will follow a judge’s instructions to disregard inadmissible evidence,
‘there are some contexts in which the risk that the jury will not, or cannot, follow
instructions is so great, and the consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be ignored.’ [Citation.] Such a
context is presented when ‘the powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defendant, are deliberately spread
before the jury in a joint trial.’ [Citation.]” (People v. Lewis, supra, 43 Cal.4th at
p. 453.)
       “Broadly stated, the rule of Bruton … – which is rooted in the confrontation clause
and accordingly governs state as well as federal prosecutions [citation] – declares that a

                                             16.
nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the
other defendant is generally unreliable and hence inadmissible as violative of that
defendant’s right of confrontation and cross-examination, even if a limiting instruction is
given. [Citation.]” (People v. Anderson (1987) 43 Cal.3d 1104, 1120, superceded by
statute on other grounds as explained in People v. Letner and Tobin (2010) 50 Cal.4th 99,
163, fn. 20.)7
       In contrast, statements that incriminate a codefendant “only when linked with
evidence introduced later at trial” can be admitted if references to the codefendant are
redacted and the jury is instructed not to consider the statement against any defendant
other than the declarant. (Richardson v. Marsh (1987) 481 U.S. 200, 208, 211.) In that
situation, the jury is presumed to follow the instructions and consider the statement only
for the proper purpose (assessing the declarant’s guilt) and not the improper purpose
(assessing the codefendant’s guilt). (Id. at pp. 206–207.)
       In this case, Garcia’s testimony and recordings included his two conversations
with Trejo, where he implicated himself and Villanueva in the murders; and Garcia’s
single conversation with Villanueva, where he implicated himself and Trejo in the
murders. It would thus appear the confrontation clause concerns addressed by Bruton
would be potentially relevant in a joint trial.


       7  In Aranda, supra, 63 Cal.2d 518, the California Supreme Court “anticipated the
effect of Bruton” and held that “even if a limiting instruction is given it is error to admit
at a joint trial a codefendant’s extrajudicial self-incriminating statement when such
statement inculpates another defendant.” (People v. Anderson, supra, 43 Cal.3d at p.
1121.) “The premise of Aranda is essentially the same as that of Bruton: jurors should
not be permitted to be influenced by evidence that as a matter of law they cannot consider
but as a matter of fact they cannot ignore. [Citation.]” (Ibid.) To the extent that Aranda
“constitutes a rule governing the admissibility of evidence, and to the extent this rule of
evidence requires the exclusion of relevant evidence that need not be excluded under
federal constitutional law, it was abrogated in 1982 by the ‘truth-in-evidence’ provision
of Proposition 8 [citation].” (People v. Fletcher (1996) 13 Cal.4th 451, 465, fn. omitted.)


                                              17.
   C. Crawford
       As recognized by the trial court, the application of Bruton’s confrontation clause
concerns has been somewhat limited by Crawford, supra, 541 U.S. 36. In Crawford, “the
United States Supreme Court held that the introduction of ‘testimonial’ hearsay
statements against a criminal defendant violates the Sixth Amendment right to confront
and cross-examine witnesses, unless the witness is unavailable at trial and the defendant
has had a prior opportunity for cross-examination. [Citation.]” (People v. Vargas (2009)
178 Cal.App.4th 647, 653.) “Under Crawford, the crucial determination about whether
the admission of an out-of-court statement violates the confrontation clause is whether
the out-of-court statement is testimonial or nontestimonial.” (People v. Geier (2007) 41
Cal.4th 555, 597, italics added.)
       While Crawford mentioned Bruton, the court did not expressly address whether
Crawford’s discussion of testimonial hearsay overruled or replaced Bruton’s analysis of
the confrontation clause. (Crawford, supra, 541 U.S. at p. 57.) However, there is dicta in
Crawford which strongly suggested the confrontation clause did not apply to
nontestimionial statements. (Id. at pp. 60–61.)
       While Crawford did not address Bruton, the United States Supreme Court has
since held that Crawford eliminated “Confrontation Clause protection against the
admission of unreliable out-of-court nontestimonial statements.” (Whorton v. Bockting
(2007) 549 U.S. 406, 420 (Whorton).) Under Crawford, the Confrontation Clause has no
application to “an out-of-court nontestimonial statement not subject to prior cross-
examination,” and such evidence is admissible “even if they lack indicia of reliability.”
(Whorton, supra, at p. 420.) Only testimonial statements “cause the declarant to be a
‘witness’ within the meaning of the Confrontation Clause.” (Davis v. Washington (2006)
547 U.S. 813, 821 (Davis).) In contrast, nontestimonial statements do not “cause the
declarant to be a ‘witness’ ” within the meaning of the Sixth Amendment and thus are
“not subject to the Confrontation Clause.” (Ibid.)

                                            18.
       The federal circuits have further developed this distinction. “The
Bruton/Richardson framework presupposes that the aggrieved co-defendant has a Sixth
Amendment right to confront the declarant in the first place. If none of the co-defendants
has a constitutional right to confront the declarant, none can complain that his right has
been denied. It is thus necessary to view Bruton through the lens of Crawford and Davis.
The threshold question in every case is whether the challenged statement is testimonial.
If it is not, the Confrontation Clause ‘has no application.’ [Citations.]” (United States v.
Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85, fn. omitted.) “Because it is
premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause
itself, does not apply to nontestimonial statements. [Citations.]” (United States v.
Johnson (6th Cir. 2009) 581 F.3d 320, 326; see also United States v. Smalls (10th Cir.
2010) 605 F.3d 765, 768, fn. 2 (Smalls); United States v. Vargas (8th Cir. 2009) 570 F.3d
1004, 1008–1009.)
       The California Supreme Court has held a defendant’s confrontation clause rights
are violated only with the admission of testimonial hearsay statements made by a
declarant/codefendant. (People v. Loy (2011) 52 Cal.4th 46, 65–67.) “Not all erroneous
admissions of hearsay violate the confrontation clause. [Citation.] … Only the
admission of testimonial hearsay statements violates the confrontation clause ....”
(People v. Gutierrez (2009) 45 Cal.4th 789, 812, italics added.)
       In Arceo, supra, 195 Cal.App.4th 556, the court addressed the application of
Crawford’s discussion of testimonial hearsay in light of Bruton. It reviewed the federal
authorities discussed above, and noted that “a number of federal courts have expressly
held that the Bruton rule does not apply to nontestimonial statements. [Citations.]”
(Arceo at p. 574.)

              “In sum, from this body of law we can draw only one conclusion.
       Crawford, Davis, and Whorton mean what they say – the confrontation
       clause applies only to testimonial statements – and nothing in the cases
       applying that principle to extrajudicial statements by nontestifying

                                            19.
       codefendants is inconsistent with or purports ‘to overrule Bruton,’ which
       itself did not address ‘any recognized exception to the hearsay rule.’
       [Citation.] Accordingly, if [the declarant’s] statements to [the witnesses]
       … were admissible under state law as exceptions to the hearsay rule, there
       was no error in the admission of that testimony. And, as California courts
       have held, ‘ “a declaration against interest may be admitted in a joint trial
       so long as the statement satisfies the statutory definition and otherwise
       satisfies the constitutional requirement of trustworthiness.” ’ [Citations.]”
       (Id. at pp. 575–576.)
       Analysis
       As applied to the instant case, the superior court properly held the threshold
question as to defendants’ confrontation clause objections, based on Bruton and
Crawford, was whether defendants’ extrajudicial statements to Garcia were testimonial or
nontestimonial. Davis, Whorton, and the federal circuit’s post-Crawford opinions have
clearly distinguished confrontation clause issues depending upon whether the statements
are testimonial or nontestimonial. If the defendants’ extrajudicial statements to Garcia
were testimonial, then defendants’ confrontation clause and severance objections were
potentially valid. If the evidence was nontestimonial, however, the confrontation clause
was not implicated and the evidence was admissible if the statements otherwise satisfied
a hearsay exception.
       Defendants complain that the superior court improperly denied their Bruton
objections by solely relying on Arceo, a “lower court” case which, they claim,
erroneously held that Bruton had been overruled by Crawford. Defendants argue that
Arceo was bound to follow the United States Supreme Court’s holding in Bruton unless it
is expressly overruled. While defendants concede that Arceo relied on the post-Crawford
case of Whorton, they assert that Whorton did not “squarely address[]” whether Crawford
had limited Bruton, and insist that Bruton’s analysis of the confrontation clause cannot be
ignored unless it is specifically disapproved by the United States Supreme Court.
       In making this argument, however, defendants have not addressed the fact that the
United States Supreme Court denied a petition for writ of certiorari in Arceo.


                                            20.
Defendants’ attack on Arceo also ignores the federal authorities which have concluded
that Crawford limited Bruton’s confrontation clause concerns to testimonial statements.
Defendants have not addressed Whorton’s specific finding that Crawford eliminated
“Confrontation Clause protection against the admission of unreliable out-of-court
nontestimionial statements,” and that the confrontation clause has no application to “an
out-of-court nontestimonial statement” even if the statement lacks reliability. (Whorton,
supra, 549 U.S. at p. 420.) Defendants also fail to address Davis’s declaration that only
testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the
Confrontation Clause,” and nontestimonial statements do not “cause the declarant to be a
‘witness’ ” within the meaning of the Sixth Amendment and thus are “not subject to the
Confrontation Clause.” (Davis, supra, 547 U.S. at p. 821.)
   D. Testimonial statements and informants
       We thus turn to the question of whether the defendants’ extrajudicial statements to
Garcia were testimonial or nontestimonial. Crawford offered a limited definition of what
constitutes a testimonial statement for purposes of the confrontation clause:

              “Various formulations of this core class of ‘testimonial’ statements
       exist: ‘ex parte in-court testimony or its functional equivalent – that is,
       material such as affidavits, custodial examinations, prior testimony that the
       defendant was unable to cross-examine, or similar pretrial statements that
       declarants would reasonably expect to be used prosecutorially,’ [citation];
       ‘extrajudicial statements ... contained in formalized testimonial materials,
       such as affidavits, depositions, prior testimony, or confessions,’ [citation];
       ‘statements that were made under circumstances which would lead an
       objective witness reasonably to believe that the statement would be
       available for use at a later trial.’ [Citation.]” (Crawford, supra, 541 U.S. at
       pp. 51–52.)
       In the course of its analysis, Crawford cited Bourjaily v. United States (1987) 483
U.S. 171 (Bourjaily), which involved a declarant/codefendant’s unwitting statements to
an FBI informant. In that case, the declarant implicated the defendant during
conversations with the informant, which were recorded without the declarant’s


                                             21.
knowledge. Bourjaily held the admission of the declarant’s statements did not violate the
defendant’s confrontation rights, even though the defendant did not have the opportunity
to cross-examine the declarant, and the declarant was unavailable to testify at trial. (Id. at
pp. 173–174, 182.)
       Crawford approvingly cited Bourjaily as an example of an earlier case which was
“consistent with” the principles that the confrontation clause permitted with the
admission of nontestimonial statements, in the absence of a prior opportunity for cross-
examination. (Crawford, supra, 541 U.S. at p. 58.)
       Crawford’s definition of testimonial statement was further addressed in Davis,
which held certain statements made in response to questions from a 911 operator during
an emergency were not testimonial: “Statements are nontestimonial when made in the
course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547
U.S. at p. 822, fn. omitted.)
       As in Crawford, Davis approvingly cited Bourjaily and held that “statements made
unwittingly to a Government informant” are “clearly nontestimonial.” (Davis, supra, 547
U.S. at p. 825.)
       In light of Davis, the California Supreme Court “derive[d] several basic
principles” to define statements as testimonial, including that “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[,]” and “the 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



                                             22.
conversation.” (People v. Cage (2007) 40 Cal.4th 965, 984, italics in original, fn.
omitted.)
        There are a series of cases which discuss whether the statements of a
declarant/codefendant to a confidential informant are testimonial within the meaning of
Crawford. In United States v. Saget (2d Cir. 2004) 377 F.3d 223 (Saget), the court cited
Crawford’s approval of Bourjaily and held that “a declarant’s statements to a confidential
informant, whose true status is unknown to the declarant, do not constitute testimony
within the meaning of Crawford” and were not testimonial. (Saget, supra, at pp. 229–
230.)
        Saget further held that the declarant’s statements to the informant which
implicated the defendant were reliable and admissible against the defendant. The
declarant’s statements to the informant were made “in circumstances that confer adequate
indicia of reliability,” since the declarant “believed he was speaking to a friend – their
conversations included discussions of personal issues such as child support as well as
details of [a] gun-running scheme – in a private setting. [Citation.]” (Saget, supra, 377
F.3d at p. 230.) The declarant described the methods he and the defendant used to
operate their weapons scheme, and he was not “attempting to shift criminal culpability
from himself to [defendant].” (Ibid.)
        Saget rejected the defendant’s claim that the declarant’s statements were not
reliable because the declarant purportedly had a motive to exaggerate his statements, so
he could convince the informant to join the gun-running operation. (Saget, supra, 377
F.3d at p. 230.)

        “Although the CI asked [the declarant] fairly detailed questions about the
        logistics of the gun-running scheme, he never expressed doubt about the
        veracity of [the declarant’s] statements or misgivings about joining the
        illegal activity. Moreover, those statements that incriminate [the defendant]
        … are factual in nature. Those elements of the statements that [declarant]
        might have exaggerated, such as the amount of money their partners made
        or the number of guns they purchased at once, are immaterial to [the


                                             23.
       declarant’s] central assertion, that he and [the defendant] participated in the
       gun-running scheme….” (Id. at pp. 230–231.)
       In United States v. Hendricks (3d Cir. 2005) 395 F.3d 173, the court relied on
Saget and Crawford’s approval of Bourjaily, and similarly held that “surreptitiously
monitored conversations and statements contained in [wiretapped telephone calls and
other] recordings are not ‘testimonial’ for purposes of Crawford. [Citations.]” (United
States v. Hendricks, supra, at p. 181.)
       In United States v. Underwood (11th Cir. 2006) 446 F.3d 1340 (Underwood), the
court relied on Saget and noted that Crawford’s definition of testimonial statements
involved “statements made under circumstances which would lead the declarant to
believe that the statement would be available for use at a later trial. [Citation.]”
(Underwood, supra, at p. 1347, italics added.) Underwood held the declarant’s recorded
statements to a confidential informant were not testimonial under the circumstances:

               “In this case, the challenged evidence consisted of recorded
       conversations between the confidential informant [Hopps] and Darryl [the
       declarant] in which arrangements were made for the confidential informant
       to purchase cocaine. This evidence is neither testimony at a preliminary
       hearing, nor testimony before a grand jury, nor testimony at a former trial,
       nor a statement made during a police interrogation. Moreover, the
       challenged evidence does not fall within any of the formulations which
       Crawford suggested as potential candidates for ‘testimonial’ status.
       [Citation.] Darryl, the declarant in the challenged evidence, made
       statements to Hopps in furtherance of the criminal conspiracy. His
       statements clearly were not made under circumstances which would have
       led him reasonably to believe that his statement would be available for use
       at a later trial. Had Darryl known that Hopps was a confidential
       informant, it is clear that he never would have spoken to her in the first
       place.” (Id. at p. 1347, italics added.)
       In Smalls, supra, 605 F.3d 765, an inmate worked as a confidential informant and
secretly recorded conversations with Cook, the defendant’s accomplice who was also an
inmate. Cook revealed details about the defendant’s commission of murders. The
defendant argued Cook’s statements to the informant were testimonial because the



                                             24.
informant acted as an agent of the police and “interrogated” the accomplice. (Id. at
pp. 778–779.) Smalls rejected this argument:

       “Cook’s recorded statement to CI, known to Cook only as a fellow inmate,
       is unquestionably nontestimonial.… We cannot properly label Cook’s
       encounter with CI as a custodial interrogation because ‘[t]he essential
       ingredients of a “police-dominated atmosphere” and compulsion are not
       present when an incarcerated person speaks freely to someone whom he
       believes to be a fellow inmate.’ [Citations.]

              “Nor may we properly label CI’s ‘questioning’ of Cook outside a
       custodial context as interrogation under any generally accepted definition or
       in any formal sense of that term. [Citations.] As we very recently
       explained in the companion case … [¶] “[T]here is no question that Cook
       spoke freely with the cooperating informant, was not coerced, and the
       circumstances surrounding their conversation were nothing akin to police
       interrogation. In our view, such casual questioning by a fellow inmate does
       not equate to “police interrogation,” even though the government
       coordinated the placement of the fellow inmate and encouraged him to
       question Cook.” (Id. at pp. 778–779.)
       Smalls held the critical factors was not the nature of the informant’s questions,
“but on the nature of Cook’s responses,” based on Davis’s holding that “ ‘even when
interrogation exists, it is in the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires us to evaluate.’
[Citations.]” (Smalls, supra, 605 F.3d at p. 779, italics added in original.) Smalls held
Cook’s statements were not formal declarations, “even to the slightest degree,” and he
did not make his statements to the informant “for the ‘primary purpose’ of establishing or
proving facts relevant to a criminal prosecution. [Citations.]” (Id. at p. 779.)

       “Obviously, Cook would not have shared what he did had he known the
       Government was recording his statement or that his cellmate was a CI.
       [Citations.] Objectively viewed from Cook’s standpoint, his statement was
       much more akin to casual remarks to an acquaintance than formal
       declarations to an official. [Citation.] Cook in no sense intended to bear
       testimony against Defendant Smalls; Cook in no manner sought to establish
       facts for use in a criminal investigation or prosecution. [Citation.] Cook
       boasted of the details of a cold-blooded murder in response to ‘casual


                                              25.
       questioning’ by a fellow inmate and apparent friend. [Citation.] Cook’s
       statement is undoubtedly nontestimonial under any legitimate view of the
       law.” (Id. at pp. 779–780.)
       In Arceo, witnesses testified about inculpatory statements made to them by the
nontestifying codefendants which implicated defendant in murders. The defendant
argued the witnesses’ testimony about the declarants’ extrajudicial statements violated
Bruton and Crawford. As explained ante, Arceo held that the confrontation clause
objections did not apply to nontestimonial statements. Arceo further held the
codefendants’ hearsay statements, as recounted by witnesses’ trial testimony, were
admissible as declarations against interest. (Arceo, supra, 195 Cal.App.4th at p. 571.)
       Analysis
       Defendants argue that even if Bruton is limited to testimonial statements, their
statements to Garcia were still testimonial and inadmissible within the meaning of
Crawford because Garcia was acting as a police agent pursuant to an agreement with the
police to obtain information about gang crimes; he targeted defendants as suspects in the
Reedley murders; he secretly recorded the conversations in exchange for placement in the
witness relocation program; and he complied with Detective Kramer’s instructions to
gather more information from the defendants about the murders. As demonstrated by the
cases discussed above, statements made to a confidential informant in casual
circumstances, and not subject to the formality of a police interrogation, are not
testimonial, even if the informant is working for the government and follows instructions
to ask specific questions about specific crimes. Defendants engaged in casual
conversations about a variety of topics, including the Reedley murders. These meetings
occurred in noncoercive residential locations. There is no evidence that Garcia
threatened or forced defendants to talk about certain issues, even in his position as a gang
council member.
       Defendants assert the lower federal court rulings about informants are inconsistent
with a series of United States Supreme Court cases about whether particular forensic


                                            26.
investigatory evidence and reports, obtained and prepared by law enforcement agencies,
are testimonial within the meaning of Crawford. Defendants particularly cite to Justice
Thomas’s concurring opinions in these cases. (Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305 (Melendez-Diaz); Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221].)
Defendants also rely on Michigan v. Bryant (2011) 562 U.S. __ [131 S.Ct. 1143], and the
court’s reliance on an objective test for the “primary purpose” of a statement, to
determine if it is testimonial.
       As the California Supreme Court has more recently observed, however, the United
States Supreme Court has consistently relied on certain factors in defining testimonial
statements, none of which are implicated in this case:

               “The question of what out-of-court statements are and are not
       testimonial has divided the justices of the United States Supreme Court,
       whose decisions have not yet yielded a clear definition or test. But the
       justices have consistently considered two factors in deciding whether a
       given statement sufficiently resembles the English court abuses that gave
       rise to the confrontation clause, primarily the use at trial of witness
       statements obtained through ex parte examination: (1) the degree of
       formality or solemnity with which the statement was made and (2) the
       degree to which it was produced for use at trial. The more a statement
       resembles the ‘ “solemn declaration or affirmation” ’ that is testimony,
       commonly understood, and the more it was expected, when made, ‘ “to be
       used prosecutorially” ... “at a later trial,” ’ the more centrally it is located
       within the ‘core class of “testimonial” statements.’ [Citation.]

               “Throughout the high court’s exploration of the issue, Justice
       Thomas has maintained that solemnity or formality is the sine qua non of
       the testimonial statement.… Other opinions, primarily majority opinions,
       have relied on this factor as well. [Citations.]” (People v. Dungo (2012) 55
       Cal.4th 608, 622–623, italics added.)
       For the reasons explained in People v. Dungo, defendants’ reliance upon Bryant,
Williams, and Melendez-Diaz is misplaced given the circumstances of the instant case,
where the extrajudicial statements were made to a senior gang member, during
conversations in noncoercive settings, without any degree of solemnity or formality. The



                                              27.
trial court properly denied defendants’ Bruton and Crawford objections to Garcia’s
evidence.
   E. Hearsay – Admissions
       While defendants’ statements to Garcia were not testimonial, the rules of evidence
still apply to nontestimonial statements. Thus, the evidence was admissible against each
defendant only if their statements to Garcia were admissible under state law as exceptions
to the hearsay rule. (Arceo, supra, 195 Cal.App.4th at pp. 573–574.)
       Defendants’ hearsay statements to Garcia which implicated themselves constituted
admissions. “The hearsay rule does not bar statements when offered against the declarant
in an action in which the declarant is a party. (Evid. Code, § 1220.) ‘The evidence was
of statements, defendant was the declarant, the statements were offered against him, and
he was a party to the action. Accordingly, the hearsay rule does not make the statements
inadmissible.’ [Citation.]” (People v. Horning (2004) 34 Cal.4th 871, 898, fn. omitted.)
This exception “covers all statements of a party, whether or not they might otherwise be
characterized as admissions. [Citations.]” (Id. at p. 898, fn. 5, italics in original.)
       Trejo’s statements to Garcia, in which he admitted that he drove the truck around
to look for a Sureño, and he fired the fatal shots at both boys on the bicycle, were
admissions as to Trejo. Villanueva’s statements to Garcia, in which he admitted that he
was present when the two victims were shot, were also admissions as to Villanueva.
   F. Hearsay – Declarations against interest
       Defendants argue their hearsay statements which implicated each other were
inadmissible: Trejo’s statements to Garcia which implicated Villanueva, and
Villanueva’s to Garcia which implicated Trejo. However, the applicable hearsay
exception in this case is found in Evidence Code section 1230, which provides, in
relevant part, “[e]vidence of a statement by a declarant having sufficient knowledge of
the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as
a witness and the statement, when made, ... so far subjected him to the risk of ... criminal

                                              28.
liability ... that a reasonable man in his position would not have made the statement
unless he believed it to be true.”
       “The 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.]” (People v. Duarte (2000) 24 Cal.4th 603, 610–611.)
       “ ‘The focus of the declaration against interest exception to the hearsay rule is the
basic trustworthiness of the declaration. [Citations.] In determining whether a statement
is truly against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the 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.] ‘[E]ven
when a hearsay statement runs generally against the declarant’s penal interest and
redaction has excised exculpatory portions, the statement may, in light of circumstances,
lack sufficient indicia of trustworthiness to qualify for admission.... [¶] ...We have
recognized that, in this context, assessing trustworthiness “ ‘requires the court to apply to
the peculiar facts of the individual case a broad and deep acquaintance with the ways
human beings actually conduct themselves in the circumstances material under the
exception.’ ” ’ [Citation.]” (People v. Geier, supra, 41 Cal.4th at p. 584, implicitly
abrogated on another point in Melendez-Diaz, supra, 557 U.S. 305, as acknowledged in
People v. Houston (2012) 54 Cal.4th 1186, 1220.)
       “Clearly the least reliable circumstance is one in which the declarant has been
arrested and attempts to improve his situation with the police by deflecting criminal
responsibility onto others. ‘Once partners in crime recognize that the “jig is up,” they
tend to lose any identity of interest and immediately become antagonists, rather than
accomplices.’ [Citation.] However, the most reliable circumstance is one in which the
conversation occurs between friends in a noncoercive setting that fosters uninhibited

                                             29.
disclosures. [Citations.] [¶] When examining what was actually said by the declarant
special attention must be paid to any statements that tend to inculpate the nondeclarant.
This is so because a statement’s content is most reliable in that portion which inculpates
the declarant. It is least reliable in that portion which shifts responsibility. Controversy
necessarily arises when the declarant makes statements which are self-inculpatory as well
as inculpatory of another. This is why Evidence Code section 1230 only permits an
exception to the hearsay rule for statements that are specifically disserving of the
declarant’s penal interest. [Citation.] 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. Such a determination necessarily depends upon a careful
analysis of what was said and the totality of the circumstances. [Citations.]” (People v.
Greenberger (1997) 58 Cal.App.4th 298, 335; People v. Tran (2013) 215 Cal.App.4th
1207, 1217.)
       The court’s evidentiary ruling is reviewed for an abuse of discretion, but we
independently review the court’s preliminary determination of trustworthiness. (People
v. Tran, supra, 215 Cal.App.4th at p. 1218.)
       1. Analysis
       Defendants’ statements which implicated each other were declarations against
their penal interests. Both defendants were unavailable as witnesses because they
exercised their privileges against self-incrimination and did not testify at their joint trial.
In addition, their statements subjected themselves to risks of criminal liability – Trejo
admitted he fired the fatal shots and Villanueva was with him, and Villanueva talked
about how he drove around with Trejo to look for some Sureños, that Trejo fired these
shots, and that they shook hands on it after the murders. Both defendants admitted they
intended to commit the murders, they were fully aware of the details, and they
consistently described the role each of them played before, during, and after the fatal
shootings.

                                              30.
       Defendants argue their statements were not trustworthy or reliable to constitute
declarations against interest because of discrepancies between their accounts and the
prosecution’s evidence about the murders, and they had motives to brag about their
conduct because they believed Garcia was a senior gang member gathering information
about their gang-related activities. Trejo argues Villanueva’s statements, which
implicated him as the gunman, were not reliable or trustworthy because he blamed Trejo
for the murders as the gunman, and tried to minimize his own involvement as being
limited to passively sitting in the truck while Trejo killed the two victims. Trejo argues
Villanueva had ample motive to lie because he wanted Garcia, the senior VESR gang
leader, to believe he was present during the double murder.
       As Trejo concedes, however, the California Supreme Court addressed a similar
issue in People v. Valdez (2012) 55 Cal.4th 82, when it held that statements made in
private between gang members had sufficient indicia of trustworthiness to be admissible
as declarations against interest. Valdez rejected the claim that a gang member would
have no reason to believe a statement he made in private to another gang member could
expose him to criminal prosecution. (Id. at p. 144.)

       “ ‘The question as to such declarations is whether under the circumstances
       the declarant would have been unlikely to say it had it not been true. To be
       against penal interest under the rule, the statement need not be made to
       persons who are likely to use it against the declarant in court proceedings.
       Declarations against penal interest are received notwithstanding that they
       were spoken in confidence in the expectation they would not be repeated to
       the authorities. [Citations.] Indeed, that makes such declarations more
       trustworthy.’ [Citation.]” (Ibid.)
       In this case, during the course of Garcia’s conversations with both defendants,
neither Trejo nor Villanueva attempted to absolve themselves or shift blame to the other
person. (Cf. People v. Duarte, supra, 24 Cal.4th at p. 615.) Instead, each defendant
explained how, what, where, and why they murdered the two victims: They drove
around to look for any Sureño. They wanted to avenge the murder of a young Norteño


                                            31.
friend, and they would decide which of them would fire based on which side of the car
they found someone. They were looking for and found someone they believed was
Penguin, but there were too many witnesses around. They saw two Sureños riding
together on one bicycle. Trejo shot the front rider, and he collapsed on his bicycle. The
second victim tried to run away, and Trejo fired additional shots into his back.
       Defendants point to factual discrepancies in their statements as undermining their
reliability and trustworthiness, primarily Trejo’s declaration to Garcia that he shot the
first victim in the face or cheek, and he shot the second victim twice in the back. These
are minor factual distinctions based on the totality of the circumstances. Carlos, who was
pedaling the bicycle, was shot once in the back of the head and fell to the ground while
still straddling the bicycle seat. Eduardo, who was sitting behind Carlos, was found
further away from the bicycle, consistent with trying to flee, and he had been shot once in
the back. The witness at the scene described the gunman’s truck as speeding away after
the final shots were fired. Given the circumstances, Trejo’s statements that he shot
Carlos in the face or check, and he shot Eduardo twice in the back, were not lacking
indicia of reliability even though Carlos was actually shot in the head and Eduardo was
shot once in the back. Trejo was shooting and driving at a high rate of speed, which
might explain his lack of precise accuracy, but he was correct about the general location
of the fatal gunshots.
       There was also no evidence that defendants had motives to exaggerate their
descriptions of the murders to Garcia. Garcia never expressed doubts or rejected the
veracity of their accounts. He even added misleading details, such as whether they used a
.44-caliber gun or another car, just to get their reactions, and defendants clarified that
they were in the white truck and used a .22-caliber revolver.
       We thus conclude defendants’ statements to Garcia were not testimonial within the
meaning of Bruton and Crawford, the hearsay statements constituted admissions and



                                             32.
declarations against interest, and the court properly denied defendants’ Sixth Amendment
objections.8
II.      Admission of Villanueva’s revolver
         As set forth in the factual statement, Villanueva was found in possession of a .22-
caliber revolver during a traffic stop that occurred over a year after the Reedley murders.
         Villanueva, joined by Trejo, contends the court should have granted his motion to
exclude evidence that he was found in possession of the revolver during the traffic stop.
He argues the evidence was prejudicial and violated his due process rights because the
revolver was never connected to the murders, and the jury could have relied on the
weapon to conclude Villanueva had the propensity to carry guns while traveling in cars.
      A. Pretrial motions
         Villanueva filed a pretrial motion to suppress the .22-caliber revolver which was
found in his possession during the traffic stop. Villanueva argued the traffic stop was
pretextual, and the patdown search was illegal and unconstitutional. The court conducted
an evidentiary hearing, found the traffic stop and patdown search did not violate the
Fourth Amendment, and denied Villanueva’s suppression motion.
         Villanueva separately argued that even if the revolver was legally seized, it should
be excluded from evidence because his possession of the gun was unduly prejudicial
pursuant to Evidence Code section 352, since the weapon was never linked to the
murders. The prosecutor conceded the revolver could not be conclusively connected to
the murders, but argued the impact of the evidence went to its weight and not
admissibility.
         The court denied Villanueva’s motion to exclude the revolver as prejudicial:



         8
        Villanueva has not renewed his argument that the trial court should have granted
his motion for severance.


                                              33.
       “I find that the firearm does have probative value, although it may be
       limited, it is not minimal, and it appears to be. And I understand the offer
       of proof, it will be established that there was a .22 caliber pistol involved in
       the shooting, [Villanueva is] found in possession of a .22 caliber pistol, and
       there are certain rifling characteristics of the pistol that, while they do not
       conclusively establish it is the same firearm, they offer additional
       consistencies that make the probative value of the firearm appropriate. If
       the evidence changes, I’ll consider further motions.”
       Trejo also moved to exclude the revolver as evidence against him. Trejo argued
the revolver was highly prejudicial because it was only connected to Villanueva and his
brother, and there was no evidence which linked Trejo to the gun. The court replied that
Trejo did not have standing to challenge the constitutionality of the search, and its
prejudice analysis was equally applicable to Trejo.
       After further pretrial motions, Villanueva renewed his prejudice objection to the
revolver:

       “[T]he issue is and it’s [Evidence Code section] 1101 evidence … and also
       under [section] 352 is how does this police officer get on the witness stand
       and details what happened [during the traffic stop]? And my concern is
       that … afterwards, so I have proposed a stipulation for [the prosecutor] to
       consider, but … I’m very concerned about having this officer get on the
       witness stand post-crime and start talking about the detention and so forth.”
       Villanueva argued that while his possession of the revolver may be relevant, the
underlying facts about the traffic detention and patdown search were irrelevant and
prejudicial. Villanueva also argued it would be prejudicial for the jury to learn that he
possessed a revolver while he was in a car.
       The court denied Villanueva’s renewed motion:

       “[T]here’s no allegation there was any other illegal conduct involved,
       except for the nonregistration attributed to the driver. There’s no allegation
       [Villanueva] in any way was engaged in criminal behavior of the stop
       except he was coincidentally the passenger in the car and had the firearm in
       his possession, so from that perspective, I’ll deny the motion.”




                                              34.
   B. Trial objections
       During trial, Villanueva renewed his objections to the introduction of the revolver,
and argued the evidence should be limited to show that he had the pistol in his pocket,
and not that he possessed a firearm in a vehicle. The court replied:

       “… I don’t see the prejudicial value at that point substantially outweighs
       the probative value? I think – I understand your concern, but I have made it
       clear that I will not allow either – other counsel to argue to this jury to ask
       them to infer that one who carries a gun in his pocket in a car must have
       been carrying a gun in his pocket in a truck 14 months earlier. That is an
       improper argument. I won’t allow it.”
       The court further held the proposed evidence did not consistent of inadmissible
prior acts evidence pursuant to Evidence Code section 1101, subdivision (b), because
“riding in a car with a gun is – unfortunately, in today’s society, I think most people don’t
view that as something unusual.”

              “Many jurors admitted they have guns. None of them admitted they
       have them in cars, but I don’t think it is prejudicial when a juror hears that
       he was – had a gun in a car. He wasn’t using it illegally. There is not
       going to be allegation[s] that he was brandishing it or using it for any other
       purpose, except he was carrying it in the car.

              “I will further, unless I hear other arguments allowing it, I will not
       allow argument that that in and of itself is a violation of the la[w], unless
       you open the door. So I will not allow argument, ‘Well, it is illegal to carry
       a gun in the car?’ That borders on being prejudicial.

               “Now, if it is made relevant by a question, I will reconsider, but I
       will modify my ruling to say, as well, parties cannot argue that it is – he
       was committing the illegal act of a firearm in a car, so he – he is in the habit
       of illegally carrying firearms in cars.”
       Neither defendant asked for any limiting instructions to the jury.
   C. Analysis
       Defendants argue there was no relevant or probative value to the revolver found in
Villanueva’s possession 15 months after the Reedley murders, given the criminalist’s
inability to conclusively link the weapon to the victims’ fatal wounds, and the


                                             35.
criminalist’s concession that there could be millions of .22-caliber revolvers with similar
firing characteristics. Defendants further argue the jury could have improperly relied on
Villanueva’s possession of the revolver while riding in a car as impermissible character
evidence – that he had the propensity to carry a firearm to perform a drive-by shooting.
       The trial court has the discretion to exclude relevant evidence if its probative value
is substantially outweighed by the probability that its admission will necessitate undue
consumption of time or create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury. (Evid.Code, § 352; People v. Lee (2011) 51 Cal.4th
620, 643; People v. Jones (2013) 57 Cal.4th 899, 948.) “ ‘Evidence is substantially more
prejudicial than probative ... [only] if, broadly stated, it poses an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome” [citation].’ [Citation.]”
(People v. Tran (2011) 51 Cal.4th 1040, 1047.) The prejudice to which Evidence Code
section 352 refers concerns evidence that tends to evoke an emotional bias against the
defendant as an individual and which has little effect upon the issues. (People v. Lopez
(2013) 56 Cal.4th 1028, 1059.)
       We review the trial court’s rulings pursuant to Evidence Code 352 for an abuse of
discretion. (People v. Lopez, supra, 56 Cal.4th at p. 1059.) The court’s evidentiary
rulings will be reversed only if it exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a miscarriage of justice pursuant to People v.
Watson (1956) 46 Cal.2d 818. (People v. Rogers (2013) 57 Cal.4th 296, 326; People v.
Von Villas (1992) 10 Cal.App.4th 201, 269.)
       In this case, however, defendants argue the court’s purported evidentiary error
violated their due process rights to a fair trial and is subject to harmless error review
under Chapman v. California (1967) 386 U.S. 18. “The routine and proper application of
state evidentiary law does not impinge on a defendant’s due process rights. [Citation.]”
(People v. Riccardi (2012) 54 Cal.4th 758, 809.) The erroneous admission of evidence



                                              36.
violates a defendant’s federal due process rights only if its admission rendered the trial
fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)
         Defendants renew the arguments they raised before the trial court – that the
revolver had no probative value and the evidence was unduly prejudicial because the gun
was never connected to the murders; that it only shared some characteristics with the fatal
bullets; that there were thousands and perhaps millions of similar models in circulation;
that Villanueva’s possession of the gun while traveling in a car showed his propensity to
arm himself in preparation for a drive-by shooting; and that the prosecution’s own
evidence refuted any claim the revolver was the murder weapon since Villanueva told
Garcia that Trejo gave the murder weapon to “Baby Ene.”
         The evidence regarding the revolver was potentially relevant because the
criminalist could not eliminate it as the murder weapon. There were no bullet or
cartridge casings found at the scene of the murders, which would have been consistent
with the fatal shots being fired from a revolver. The criminalist testified the victims were
killed with .22-caliber, copper-washed, lead bullets, with poor measurable details. The
intact projective recovered from Eduardo’s body had been fired from a gun with a right
twist, but the bullet found in Carlos’s body had less detail. The criminalist explained the
condition of the bullets meant they were fired from a gun which was either worn and/or
dirty.
         In light of this evidence, the weapon found in Villanueva’s possession was a .22-
caliber revolver which did not automatically expel bullet or cartridge casings. It was not
clean, there was gun powder in the chamber, and there was heavy lead fouling in the
barrel. The criminalist determined the revolver was operable and fired with a right twist.
The test-fired bullets were of poor measurable detail because the gun was dirty.
         Defendants’ argument that the admission of the revolver constituted reversible
error is meritless. We have already concluded the court properly admitted Garcia’s
testimony and the recordings of defendants’ inculpatory statements against each other.

                                             37.
The jury heard limited evidence about the traffic stop, the officer’s observations of the
license plate issue, and his determination that the vehicle was not stolen. There was no
evidence that the officer was concerned the occupants of the car were about to commit a
violent crime. The jury also heard that the revolver could not be conclusively linked to
the murders; that there were hundreds of different models of .22-caliber revolvers; that a
right twist was more common than a left twist; and that there were thousands and
possibly millions of these firearms in circulation.
       Defendants speculate the jury may have been troubled by Villanueva’s possession
of the revolver while traveling in a car; that the jury may have relied on the revolver as
propensity evidence that Villanueva regularly traveled with a firearm to commit drive-by
shootings; and that the jury’s improper conclusions similarly prejudiced Trejo. Even if
the court abused its discretion when it admitted this evidence, however, the jury would
have been equally troubled after hearing the admissible evidence of defendants’ detailed
statements to Garcia, in which they admitted that they randomly selected and murdered
two teenagers on a bicycle to avenge the unrelated murder of one of their fellow gang
members, and they were pleased and satisfied after performing the murders.
       Thus, in the context of the facts of this case, the potentially prejudicial evidence of
Villanueva’s revolver was not particularly inflammatory. (See, e.g., People v. Kipp
(1998) 18 Cal.4th 349, 372 [risk of prejudice “was not unusually grave” where the
disputed evidence was not “significantly more inflammatory than the [charged]
crimes”].) Moreover, there was overwhelming evidence of defendants’ guilt, and any
error in admitting this evidence was harmless under either Watson or Chapman.
       In the alternative, defendants argued their defense attorneys were prejudicially
ineffective for failing to ask the court to give a limiting instruction to the jury, that it
could not consider the revolver as evidence of Villanueva’s alleged propensity to possess
weapons in a vehicle and commit drive-by shootings.



                                               38.
       “In order to demonstrate ineffective assistance, a defendant must first show
counsel’s performance was deficient because the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.] Second, he
must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is
shown when there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. [Citation.]” (People v.
Williams (1997) 16 Cal.4th 153, 214–215.) For the same reasons, we find that the failure
of the defense attorneys to ask for any limiting instructions was similarly harmless given
the nature of the crimes, the admissibility of Garcia’s testimony, and the overwhelming
evidence of defendants’ guilt.
III.   The prosecutor did not commit misconduct during closing argument
       Trejo, joined by Villanueva, contends the prosecutor committed prejudicial
misconduct during several portions of his closing rebuttal argument. They assert the
prosecutor misstated the burden of proof, personally vouched for the strength of the
prosecution’s case, and improperly evoked sympathy for the victims. Defendants
concede their defense attorneys did not object to the prosecutor’s argument, and assert
ineffective assistance as an alternative argument.
   A. Prosecutorial misconduct
       We begin with the well-settled law on prosecutorial misconduct. “A prosecutor’s
misconduct violates the Fourteenth Amendment to the United States Constitution when it
‘infects the trial with such unfairness as to make the conviction a denial of due process.’
[Citations.] In other words, the misconduct must be ‘of sufficient significance to result in
the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct
that does not render a trial fundamentally unfair nevertheless violates California law if it
involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202.)

                                             39.
       “To preserve for appeal a claim of prosecutorial misconduct, the defense must
make a timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 447; People v. Silva
(2001) 25 Cal.4th 345, 373.)
       Defendants concede their attorneys did not make prosecutorial misconduct
objections or request admonitions to the instances which they now raise on appeal. Their
failures to object preclude their appellate claims of misconduct. (People v. Cunningham
(2001) 25 Cal.4th 926, 1000; People v. Cain (1995) 10 Cal.4th 1, 48.)
       In the alternative, however, defendants argue their attorneys were prejudicially
ineffective for failing to preserve the objections. We will thus examine the merits of
defendants’ claim to determine whether the defense attorneys’ failures to object were
prejudicial, i.e., if there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People
v. Williams, supra, 16 Cal.4th at pp. 214–215.)
   B. Reasonable doubt
       Defendants’ first claim of prosecutorial misconduct is based on the claim that the
prosecutor misstated his burden to prove the charged offenses beyond a reasonable doubt.
As we will explain, however, defendants rely on an isolated portion of the prosecutor’s
lengthy rebuttal argument. The entire context of the argument refutes the defendants’
claims of misconduct.
       The prosecutor began this portion of his rebuttal argument as follows:

              “There was this talk [in the defense summations] about reasonable
       doubt versus utmost certainty. I reiterate once again the People accept our
       obligation under the law to prove this case beyond a reasonable doubt.
       We’re not shirking that duty. That’s our responsibility and it is our job to



                                              40.
       prove to you, the jury, the truth of these charges beyond a reasonable doubt.
       [¶] … [¶]

              “You’ll see in the jury instructions the court gives you on reasonable
       doubt, the term utmost [certainty] isn’t mentioned in there. Again, a lot of
       – there was a lot of discussion about reasonable doubt.

               “Some of the stuff I actually agree with. Mr. Cherny [Villanueva’s
       attorney] said – not too long ago he mentioned the term possibilities.
       Possibilities versus reasonable doubt.… That’s a good analogy. Just
       coming in with a theory – coming up with some theory that goes to possible
       doubt. If a witness comes in and says yeah, this is possible, it’s possible
       that a gang member lies about his murder they didn’t commit, that’s a
       theory. If it is not backed up by evidence, that's all it is. It’s just a theory.
       That’s a possible doubt.

             “That’s not reasonable doubt. Reasonable doubts are doubts that are
       based on evidence that have been introduced in the case.” (Italics added.)
       The prosecutor reviewed the trial evidence and then returned to reasonable doubt:

              “Finally, there is zero evidence that the defendants lied about
       committing the murders, zero evidence to support that. That’s a theory, and
       I asked [the defense expert] and he admitted it is just a theory. He doesn’t
       have any evidence showing that the defendant lied about committing these
       murders and you don’t either. That’s simply a theory. That’s why that is a
       possible doubt. It is why it is not a reasonable doubt, because there is no
       evidence to back up and support that theory.” (Italics added.)
       Analysis
       Defendants contend the italicized statements demonstrate the prosecutor’s
misstatement of the reasonable doubt standard. Defendants assert the prosecutor’s
argument improperly conveyed to the jury that reasonable doubt must be based on
affirmative evidence presented by the defense, instead of being able to find reasonable
doubt based on the prosecution’s failure to present sufficiently persuasive evidence
presented by the prosecution.
       It is well-settled that while a prosecutor has broad discretion to discuss the legal
and factual merits of the case, it is improper to misstate the law, and “it is misconduct for
counsel to attempt to absolve the prosecution from its prima facie obligation to overcome


                                             41.
reasonable doubt on all elements. [Citation.]” (People v. Katzenberger (2009) 178
Cal.App.4th 1260, 1266.) That did not happen in this case. The prosecutor never
misstated the reasonable doubt standard. His comments, taken in context of this section
of his rebuttal argument, addressed the defense attorneys’ discussion of theories, and
urged the jury to review the evidence to determine whether the prosecution met its burden
of proving defendants’ guilt beyond a reasonable doubt.
   C. The prosecutor’s personal opinion/vouching
       Defendants next contend the prosecutor improperly vouched for the strength of his
case against the defendants. Their argument is based on the italicized phrase in the
course of the prosecutor’s lengthy rebuttal argument below.

               “If you believe that the defendant lied about seeing Penguin out
       there, that doesn’t mean he lied about committing the murders. What’s the
       key difference? How do we know – how can you, as a jury, have
       confidence that the evidence proves that the defendant’s statements prove
       about the murders that he’s the actual killer, that’s the one that committed
       the crimes? Because those statement[s], the statements of the defendants
       about the murders are corroborated. That is something as a jury you can
       have confidence in. That’s, as a prosecutor, when I’m looking at the case, I
       can have confidence in knowing that you’re taking a statement like both of
       the defendants gave about the murders that include details about the
       murders and that those statements about the murders are corroborated by
       other evidence in the case.

               “In this case, there’s a lot of corroboration. There is corroboration
       about the details that the defendants gave. They gave a lot of details in
       their statements. They said where it took place, when it took place, how it
       took place, which victim was shot first, where those victims were shot, who
       the other person was, who shot them [sic], who was with them, the other
       gang member, which side of the vehicle the shooting took place, what kind
       of weapon they used. And guess what? All of those details that they say
       corroborate with the physical evidence that we have in this case, that we
       know from the crime scene.” (Italics added.)




                                            42.
       Analysis
       Defendants cited the italicized phrase and assert the prosecutor improperly
vouched for the case and declared the evidence against them was “especially strong when
[he] compared it to the evidence in other cases.…” Again, it is well-settled that “[i]t is
misconduct for prosecutors to bolster their case ‘by invoking their personal prestige,
reputation, or depth of experience, or the prestige or reputation of their office, in support
of it.’ [Citation.] Similarly, it is misconduct ‘to suggest that evidence available to the
government, but not before the jury, corroborates the testimony of a witness.’ [Citation.]
The vice of such remarks is that they ‘may be understood by jurors to permit them to
avoid independently assessing witness credibility and to rely on the government’s view of
the evidence.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 336.)
       However, a prosecutor’s comments cannot be characterized as improper vouching
if the prosecutor’s assurances regarding the honesty or reliability of a prosecution
witness, or the strength of the case, are based on the facts of the record and inferences
reasonably drawn there from, rather than from any purported personal knowledge or
belief. (People v. Bonilla, supra, 41 Cal.4th at pp. 336–337.) Again, that is exactly what
the prosecutor argued in rebuttal – that defendants did not lie when they told Garcia about
the murders because their statements were independently corroborated by the witness
who saw the drive-by shootings and the physical evidence. The prosecutor did not
commit misconduct.
   D. Sympathy for the victims
       Defendants’ final claim of misconduct is that the prosecutor improperly called
upon the jury’s sympathies for the victims at the end of his rebuttal argument, which
likely prejudiced the jury against them.
       This issue is based on the court’s earlier evidentiary ruling that photographs of the
victims were admissible. These were photographs which showed the victims in life, and
not murder or autopsy photographs. The court described these photographs as “very

                                             43.
neutral .… They’re not depicted at any location. For all we know it could be anything
from high school yearbook to booking, to a party. It is just that case. There is not
context to the photographs at all, absent the faces.”
       At the conclusion of his rebuttal argument, the prosecutor displayed these
photographs to the jury for a few seconds and argued:

              “Now, folks, these are our victims, [Carlos and Eduardo]. The
       evidence in this case shows, without contradiction, that they were murdered
       in cold blood. There was no justification why they were murdered. They
       didn’t deserve for this to happen. [The defense] tried to make this about
       getting a conviction. This case is about – this isn’t me as a prosecutor. It is
       not about the defense attorneys. This case is about two victims that were
       murdered in cold-blooded murder who didn’t deserve for that to happen to
       them.

              “As a jury, your decisions reflect what we, as a community, value
       and care about. In this case, based on the evidence that proves these
       defendants are the ones who committed these two murders, we're asking
       that you find them guilty. Don’t let sympathy, don’t let thoughts of
       punishment guide your decision. Base it on the evidence, the defendants’
       own statements giving details about the murders and the evidence that
       corroborates their statements. Thank you.”
       After the completion of argument, the jury left the courtroom and the court
clarified the defense attorneys had lodged continuing objections to the prosecutor’s brief
display of the victims’ photographs. The court further noted: “By my calculation, they
were displayed between four and five seconds. I want the record to be clear they were
displayed and the amount of time they were displayed.”
       Analysis
       Defendants contend the prosecutor had no legitimate reason to display the victims’
photographs at the conclusion of his rebuttal argument, since there was no real dispute
about the victims’ identities, and the only reason was to improperly evoke sympathy for
the victims and obtain guilty verdicts.




                                             44.
       “Courts should be cautious ... about admitting photographs of murder victims
while alive, given the risk that the photograph will merely generate sympathy for the
victims. [Citation.] But the possibility that a photograph will generate sympathy does
not compel its exclusion if it is otherwise relevant. [Citation.] The decision to admit
victim photographs falls within the trial court’s discretion, and an appellate court will not
disturb its ruling unless the prejudicial effect of the photographs clearly outweighs their
probative value. [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 331–332; People
v. Smithey (1999) 20 Cal.4th 936, 974–975.)
       In this case, however, any error in admitting the photographs, and then having the
prosecutor display them to the jury at the close of his rebuttal argument, was harmless
under any standard. The evidence against both defendants was very strong, and it is
highly unlikely the jury was swayed by sympathy rather than the admissible evidence in
this case. (See, e.g., People v. DeSantis (1992) 2 Cal.4th 1198, 1231; People v. Osband
(1996) 13 Cal.4th 622, 677–678.)
IV.    Cumulative error
       Both defendants argue their convictions must be reversed for the purported
cumulative errors of the Aranda/Bruton violation, admission of the revolver, and the
purported prosecutorial misconduct. Having rejected these contentions, we similarly
reject their due process arguments.
V.     The LWOP Sentences
       Villanueva and Trejo argue their LWOP sentences which they received for the
multiple murders with special circumstances must be reversed based on Miller, supra,
132 S.Ct. 2455, which held that life sentences for juveniles who are under the age of 18
years when they commit the offenses violate the Eighth Amendment. Defendants assert
they are within the classification of juveniles contemplated by Miller because Trejo was
19 years old, and Villanueva was 18 years and two days old, when the murders were
committed.

                                             45.
       In Graham v. Florida (2010) 560 U.S. 48 (Graham), the United States Supreme
Court held: “The Constitution prohibits the imposition of a life without parole sentence
on a juvenile offender who did not commit homicide. A State need not guarantee the
offender eventual release, but if it imposes a sentence of life it must provide [the
defendant] with some realistic opportunity to obtain release before the end of that
term….” (Id. at p. 82)
       In Miller, supra, 132 S.Ct. 2455, the court subsequently added that the reasoning
in Graham “implicates any life without parole sentence imposed on a juvenile,” including
a sentence imposed upon a juvenile convicted of murder. (Miller, supra, at p. 2465.) A
state is not required to guarantee eventual freedom, but must provide meaningful
opportunity to obtain release based upon the defendant’s demonstrated maturity and
rehabilitation. (Id. at pp. 2469–2470.)
       As applied to this case, defendants concede they were over the age of 18 years
when they committed the murders in this case, and they were tried as adults. Defendants
argue they are close enough to being under the age of 18 years old that the concerns
about LWOP sentences for juvenile offenders should also apply to their situations. The
United States Supreme Court has anticipated such an argument. In Roper v. Simmons
(2005) 543 U.S. 551 (Roper), the defendant committed a murder when he was 17 years
old, and was convicted and sentenced to death when he was 18 years old. Roper held the
execution of individuals who were older than 15 years but under the age of 18 years when
the capital crime was committed is prohibited by the Eighth and Fourteenth
Amendments. (Id. at pp. 555, 568.) In reaching this holding, Roper further noted:

              “Drawing the line at 18 years of age is subject, of course, to the
       objections always raised against categorical rules. The qualities that
       distinguish juveniles from adults do not disappear when an individual turns
       18. By the same token, some under 18 have already attained a level of
       maturity some adults will never reach. For the reasons we have discussed,
       however, a line must be drawn. The plurality opinion in Thompson [v.
       Oklahoma (1988) 487 U.S. 815] drew the line at 16. In the intervening


                                             46.
      years the Thompson plurality’s conclusion that offenders under 16 may not
      be executed has not been challenged. The logic of Thompson extends to
      those who are under 18. The age of 18 is the point where society draws the
      line for many purposes between childhood and adulthood. It is, we
      conclude, the age at which the line for death eligibility ought to rest.” (Id.
      at p. 574; quoted with approval in People v. Gutierrez (2014) 58 Cal.4th
      1354, 1380; see also People v. Argenta (2012) 210 Cal.App.4th 1478,
      1482.)
      We are bound by the line drawn by Roper between juvenile status and adulthood
for purposes of criminal sentences, and decline to reverse defendants’ LWOP sentences
as violating the Eighth and Fourteenth Amendments.
                                    DISPOSITION
      The judgment is affirmed.

                                                               _____________________
                                                               Poochigian, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Gomes, J.




                                           47.
