Filed 2/3/16 P. v. Snell CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B256698

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA126746)
         v.

DARNELL SNELL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur M. Lew, Judge. Affirmed as modified.


         J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Michael C. Keller and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.


                                __________________________________
       Darnell Snell appeals a judgment from a jury trial at which he was convicted of
second degree murder. He contends the evidence is insufficient to support his conviction,
and that the trial court erred in making three evidentiary rulings. Further, he contends his
40-years-to-life sentence violates constitutional juvenile sentencing rules established by
the United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48, 75 (Graham),
Miller v. Alabama (2012) ___ U.S. ___ , 132 S.Ct. 2455 (Miller) and related cases,
including People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) and People v.
Caballero (2012) 55 Cal.4th 262 (Caballero). We affirm the judgment.
                           PROCEDURAL BACKGROUND
       The People filed an information jointly charging Snell, Cordell Hawkins and
Marlon Williams, with murder. (Pen. Code, § 187, subd. (a).)1 It further alleged that the
murder was committed to benefit a criminal street gang. (§ 186.22, subd. (b).) The
information alleged that Williams personally used a firearm and that a principal used and
discharged a firearm which caused great bodily injury and death. (§ 12022.53, subds. (b),
(c), (d), & (e).)
       The charges against Williams were tried to jury in a separate trial.2 Hawkins and
Snell were tried together, with separate juries. The evidence at the Snell and Hawkins
trial showed that the murder was committed when two assailants got out of a car, shot,
and were then driven away in the awaiting car. Snell’s jury convicted him of second
degree murder based on an aiding and abetting theory. Specifically, that Hawkins drove
the three defendants into rival gang territory, Snell and Williams got out of the car
together and walked up to a group of people, including the victim, and Williams began
shooting. Snell may have tried to shoot as well, but failed to pull a gun out of his


1
       All further undesignated section references are to the Penal Code unless otherwise
specified.
2
        Williams’s jury convicted him of second degree murder and found the personal
firearm use allegations true, but the gang benefit allegation not true. Williams filed an
appeal. Last year, a panel of our court affirmed the judgment against Williams. (People
v. Williams (Oct. 6, 2015, B258741) [nonpub. opn.].)

                                             2
waistband. After the shooting, Snell and Williams ran back to the car and Hawkins drove
them away from the scene. Snell’s jury found the gang benefit and principal use firearm
allegations true.3
                                         FACTS
       Snell, Williams and Hawkins were members of the Bounty Hunter Bloods gang.
The Bounty Hunter Bloods gang and the Grape Street Crips gang were warring rivals.
Members of the Bounty Hunter Bloods commonly referred to members of the Grape
Street Crips as “crabs.” According to statements made by Snell while in a jail cell after
he was arrested, he and some of his “homeys” were involved in an altercation of some
kind with a “crab” on November 6, 2012. After the altercation, Snell told the others:
“Come on now. Like, we going to get the n-----, but not right now.”
       On November 6, 2012, at about 7:00 p.m., Hawkins drove Snell and Williams into
territory claimed by the Grape Street Crips. Hawkins drove past a group of about 8 to 10
people, and then parked the car on a nearby street. Snell and Williams got out of the car.
They were wearing black hoodie sweatshirts, with the hoods pulled up over their heads.
Snell and Williams walked back toward the group they had driven past. Williams said,
“Where y’all from?” and then immediately began shooting. At the same time, Snell
appeared to be “tugging at his waistband,” but he did not fire a shot. When Williams
began firing, the crowd scattered.4




3
        Hawkins’s jury convicted him of first degree murder based on an aiding and
abetting theory ––– that he drove Snell, and Williams, the shooter, to and from the scene
of the shooting. Hawkins’s jury likewise found the gang benefit and firearm allegations
true. Hawkins filed an appeal. Last year, a panel of our court affirmed the judgment
against Hawkins. (People v. Hawkins (June 8, 2015, B254416) [nonpub. opn.].)
4
       The shooting was witnessed by Robert McCovery and Anthony Craig, both of
whom testified at trial and described the shooting in general terms. They could not
identify the assailants. As we discuss in more detail below, the identities of the driver,
shooter and his cohort were developed from statements made by Snell and Williams after
being taken into custody.

                                             3
       Ashton Croswell, an associate of the Grape Street Crips, was shot in the buttocks.
The bullet traveled upward, perforated his colon, exited his torso and re-entered his right
arm. He died eight days later from blood loss caused by his wounds. The bullet was
recovered from Croswell’s arm. That bullet and another bullet recovered from the scene
of the shooting were examined by a police ballistics expert who concluded that they were
consistent with being fired from a nine-millimeter firearm.
       After the shooting, Williams and Snell ran back to the car. Hawkins had the car
running, waiting for their return, and the three assailants drove away from the scene.
       During the course of the investigation of the shooting, police took Williams and
Snell into custody, and placed them separately in a jails cell with a former gang member
who was working undercover for the Los Angeles Police Department. The conversations
were recorded. During the conversations, Williams and Snell each admitted Williams
was the shooter, a “9” was used, Hawkins was the driver, Snell got out of the car with
Williams, they were both wearing hoodies, and that both walked up to the targets where
Williams started shooting. Snell told the informant that the police did not have any
“pictures,” and were “just guessing” about the shooting. Further, he stated that, “even if
it was me,” the police did not “go find the burner,” and were “not going to find it,”
explaining: “We smashed that mother fucker. . . . We got that mother fucker wilted.”
       The People filed an information charging Williams, Hawkins and Snell as noted
above. The charges against Hawkins and Snell were tried together to separate juries in
November 2013, at which time the prosecution presented evidence establishing the facts
summarized above. There was no direct eyewitness testimony or ballistics evidence
connecting Snell to the murder; the evidence showing his involvement came primarily
from the statements by Snell and Williams to the jailhouse informant. Snell’s defense
evidence consisted of a showing that he lived with his mother, and occasionally would
visit his grandmother at her residence. His trial counsel argued that Snell’s statements
were vague, and did not truly show that he was a willing participant in the shooting.
The trial court instructed the jury on first and second degree murder. Snell was convicted
of murder, and the jury found the allegation that the murder was premeditated and

                                             4
deliberate not true.5 The jury found the gang and principal use firearm allegations to be
true.6
         The trial court sentenced Snell to an aggregate term of 40 years to life as follows:
an indeterminate term of 15 years to life for the murder, plus an indeterminate term of 25
years to life for the firearm enhancement imposed under section 12022.53, subdivision
(d). The court awarded Snell a total of 486 days of actual custody credit.
         Snell filed a timely notice of appeal.
                                        DISCUSSION
I.       Sufficiency of the Evidence
         Snell contends his murder conviction must be reversed because the evidence was
insufficient to support the jury’s finding that he aided and abetted the murder. He argues
the evidence shows no more than that he accompanied his cohorts on a drive, and that it
does not show that he asked or urged anyone to shoot. Further, the evidence showed that
he admitted he got scared and did nothing when Williams started shooting. We disagree.
When examined in light of the usual standard of review, we find the evidence supports
the jury’s conclusion that Snell aided and abetted the murder.
         When presented with a contention on appeal that a jury’s verdict is not supported
by substantial evidence, we follow well-settled standards of review. We must examine
the evidence in the light most favorable to the jury’s decision, and presume in support of
that decision the existence of every fact the jury could reasonably deduce from the
evidence; further, we may not substitute our own conclusions for those reached by the
jury, nor may we substitute our assessment of the credibility of a witness in place of the
jury’s credibility calls. (See generally, People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
With regard to the predominant issue raised by Snell’s sufficiency of the evidence claim,

5
      We note that the abstract of judgment incorrectly indicates that Snell stands
convicted of “murder – 1st degree.” We order that it be corrected and a copy sent to the
Department of Corrections and Rehabilitation.
6
       As noted above, Hawkins’s jury convicted him of first degree murder, and found
the gang benefit and principal use firearm allegations to be true.

                                                  5
namely, whether he intended to aid and abet in the shooting of the victim, the law
recognizes that, because a defendant’s intent is rarely admitted or otherwise shown by
direct proof, a jury may infer intent from the circumstances surrounding the charged
offense, and we must affirm a jury’s intent determination when a reasonable inference
drawn by the jury from the circumstances of the offense supports the jury’s
determination. (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
        A person who aids and abets a crime has the same criminal liability as the actual
perpetrator. (§ 31; People v. Montoya (1994) 7 Cal.4th 1027, 1038-1039.) A person aids
and abets the commission of a crime when he or she has knowledge of the unlawful
purpose of the perpetrator, and with the intent or purpose of committing, facilitating or
encouraging commission of the crime, “ ‘by act or advice aids, promotes, encourages or
instigates the commission of the crime.’ ” (People v. Prettyman (1996) 14 Cal.4th 248,
259.)
        The evidence at trial, when viewed in the light favorable to the jury’s verdicts,
established that Snell was involved in an altercation with a “crab n ---,” a member of the
Grape Street Crips, on the day of November 6, 2012, and that he said at that time that he
and his homeys were “going to get the n-----, but not right [then].” At 7:00 p.m. later that
day, he, Hawkins and Williams drove into Grape Street Crips territory, where they first
drove past and observed a group of gang members, then parked. After parking, Williams
and Snell got out of the car together wearing hoodies, while Hawkins kept the car’s
engine running. Williams and Snell walked up the group they had just passed, and
Williams started shooting. According to an eyewitness, Snell appeared to be “tugging” at
his waistband. After the shooting, Snell and Williams ran back to the waiting car, and the
three assailants fled the scene in the car. Williams and Snell destroyed the “burner” so it
could not be found by police. Based on the totality of the evidence, the jury reasonably
could have, and did, find that Snell intended to aid in the shooting, that he had an active
role in going to the shooting and participating, at a minimum acting as a back- up to
Williams, the actual shooter. The jury was not required to accept Snell’s statements that
he backed out of the shooting.

                                              6
II.    The Dying Declaration Issue
       Snell contends his murder conviction must be reversed because the trial court
erred in ruling that a statement made by victim Croswell at the scene of the shooting was
not admissible under the dying declaration exception to the hearsay rule. (See Evid.
Code, §§ 1240, 1242.) We disagree.
Background
       Before Williams’s case was severed, there was a pretrial discussion between the
trial court and all of the parties’ lawyers. At the hearing, Williams’ defense counsel
represented to the court that eyewitness McCovery had provided information about
certain events at the scene of the shooting, as follows. After the shooting ended,
McCovery went up to Croswell, who was on the ground, and asked, “Were you shot?”
Croswell answered, “I shot in my ass. It feels like it’s going in my stomach. Damn.
Man. It was the nigga Damion. Bounty Hunters, man. Man, I been -- I was into it with
Damion, man, from Bounty Hunters. That nigga said he was going to come get me, big
homie, man.”
       Williams’ counsel argued that victim Croswell’s statements to McCovery should
be admitted as a dying declaration. Further, that the general substance of Croswell’s
dying declaration was supported by two other witnesses, Tyrone Lewis and Craig.
Specifically, counsel asserted that Lewis saw Damion Jackson shoot Croswell. Lewis
could not be reached, however, because he fled to New York after the shooting. Counsel
further represented that Craig would testify that the shooter was six feet tall, and argued
that this was closer to Jackson’s height than Williams’ height, who is much shorter.
Counsel asserted that Jackson had taken credit for the shooting on his Facebook page, but
then deleted the posting. Further, that the community knew Jackson had taken credit for
the shooting, that the detective testified at the preliminary hearing that Jackson insinuated
he was the shooter, and that Jackson had also said that Williams was the shooter. Jackson
was initially arrested for the murder, but later released. Williams admitted to the
undercover former gang member that they had the wrong man in custody because he was,
in fact, the shooter.

                                              7
       At a later pretrial hearing, after the charges against Williams had been severed,
Snell’s trial attorney advised the trial court that Snell “would like to join in all motions
made by [Williams’s counsel],” including the issue of “third-party liability wherein the
victim indicates that somebody else did the shooting . . . .” Eventually, the court ruled
that the statement was inadmissible. It explained that the statement was not a dying
declaration “because there was no foundation for any firsthand knowledge [and] no
foundation that [victim Croswell] was of the opinion that death was imminent.”
Analysis
       Snell argues the trial court erred in finding victim Croswell’s statements were not
a dying declaration and, thus, in excluding his statements that a third-party had shot him.
We reject Snell’s arguments because we cannot say that the trial court’s ruling amounted
to an abuse of discretion.
       Hearsay evidence –– evidence of an out-of-court statement offered to prove the
truth of the matter stated –– is inadmissible unless an exception applies. (Evid. Code,
§ 1200.) Under the dying declaration exception to the hearsay rule, a person’s out-of-
court statement “respecting the cause and circumstances of his death” is admissible
“if the statement was made upon his personal knowledge and under a sense of
immediately impending death.” (Evid. Code, § 1242.) “‘To be admissible in evidence as
dying declarations, the statements of the decedent must have been made at a time when
he had abandoned all hope of life so that he believed that death inevitably must follow.
This sense of impending death may be shown in any satisfactory mode, by the express
language of the declarant, or be inspired from his evident danger, or the opinions of
medical or other attendants stated to him, or from his conduct, or other circumstances in
the case, all of which are resorted to in order to ascertain the state of the declarant’s
mind.’ ” (People v. Tahl (1967) 65 Cal.2d 719, 725 (Tahl).) It is not required that the
declarant “expressed in words the belief that he was about to die.” (People v. Vukojevich
(1914) 25 Cal.App. 459, 462.) Rather, a statement is admissible as a dying declaration
where the evidence shows that it was made under the knowing “sanction” of immediately
impending death, “ ‘whether it be directly proved by the express language of the

                                               8
declarant, or be inferred from his evident danger, . . . or from his conduct, or other
circumstances . . . ,’ ” all of which may be considered in “ ‘ascertain[ing] the state of the
declarant’s mind.’ ” (Id. at pp. 462-463.)
       A trial court’s ruling on the admissibility of a statement as a dying declaration is
subject to review under the abuse of discretion standard. (People v. Monterroso (2004)
34 Cal.4th 743, 763 (Monterroso); People v. Mayo (2006) 140 Cal.App.4th 535, 553
(Mayo).) Under this standard, a trial court’s evidentiary ruling cannot be disturbed on
appeal unless it is shown that the court exercised its discretion in an arbitrary, capricious
or absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124.)
       Here, the trial court did not abuse its discretion in excluding Croswell’s statement,
finding that he did not make his statements “at a time when he had abandoned all hope of
life so that he believed that death inevitably must follow.” (Tahl, supra, 65 Cal.2d at p.
725.) Croswell plainly knew that he had been shot in his derriere and that it felt like the
bullet had travelled into his “stomach,” but the surrounding circumstances did not show
that he was of the mental state that his wound was likely to be immediately fatal. He did
not say anything or act in a manner which suggested that he thought he was dying.
McCovery’s advice to Croswell not to try to speak “because you’re bleeding real bad”
came after Croswell had already made his statements, and thus cannot be a basis for
imparting a belief that Croswell was going to die. Further, the trial court reasonably
could have found that McCovery’s statement was an expression of his concern for
Croswell’s welfare, not a prompt for Croswell to believe that he was in an immediate
danger of death.
       Snell’s reliance on the coroner’s testimony is also not persuasive. The coroner’s
expert opinion explained what caused Croswell to die eight days after being shot, but we
do not know from this information that Croswell necessarily understood at the scene of
the shooting that he had been fatally wounded so that death was immediately upon him.
Since a dying victim must himself have had a personal sense of his immediately pending



                                              9
death, the coroner’s opinion made after the victim died does not establish that Croswell
believed his death was impending.
       In Mayo, supra, 140 Cal.App.4th 535, a declarant was in the living room of
another man’s apartment when he was shot by an assailant. He “screamed to [the man
who was then in the kitchen and did not directly witness the shooting], ‘Why did you let
“Q” [the defendant’s nickname] blast me?’ ” (Id. at pp. 540, 553.) The trial court
admitted the declarant’s statement as a dying declaration to prove that the defendant was
the shooter. Division Seven of our court affirmed the ruling, rejecting the defendant’s
arguments that the declarant “never gave any indication he thought he was dying and
made no pleas that his life be saved.” The court found the evidence supported the trial
court’s conclusion that the declarant had thought he was dying because he “was shot
multiple times from close range, suffering 11 gunshot wounds to his back, arms, legs, and
hips . . . .” (Id. at p. 553.) Further, the declarant had said that he “felt really hot and
wanted a fan to cool himself down . . . [and] sensed the gravity of his condition, asking
[the man] whether he had been shot in the head.” (Id. at p. 554.)
       The types of gunshot wounds supporting admissibility of the statements in Mayo
as a dying declaration are not of the extent and kind suffered by Croswell in Snell’s
current case. Here, Croswell suffered a single gunshot wound and, while knowing that he
had been shot, did not make the type of further statements as did the victim in Mayo.
       In Monterroso, supra, 34 Cal.4th 743, the Supreme Court affirmed a trial court’s
ruling admitting a robbery and shooting victim’s statements as a dying declaration to
prove the prosecution’s case against the defendant under the following factual showing:
“[T]he prosecution established the objective severity of [the declarant]’s] fatal wounds as
well as his subjective awareness of those wounds. . . . In this case, the prosecutor relied
on the declarant’s statements, demeanor, and conduct, as well as his evident injuries.
The gunshot pierced [the declarant’s] respiratory system, his gastrointestinal system, and
his liver. The chest wound and the liver damage were each ‘of a great magnitude and
dangerous in itself.’ These wounds were the cause of death, which occurred 11 days
later. Further, Officer Cheryl Murphy testified that at the time the statements were made,

                                               10
[the declarant] knew he had been shot, was in great pain and on the ground in a fetal
position, was fearful of dying, and never spoke again.” (Monterroso, supra, 34 Cal.4th at
p. 763.)
       We reiterate that here, Croswell suffered a single gunshot wound. While he knew
he had been shot, he did not make the type of further statements as did the victim in
Mayo. The facts in this case did not establish that Croswell “was fearful of dying,”
(Monterroso, supra, 34 Cal.4th at p. 763), but only that he had been seriously wounded
Under the abuse of discretion standard of review, we cannot say the trial court erred by
excluding Croswell’s statements in Snell’s current case.
       Lastly, Snell contends the exclusion of Croswell’s statements constituted an error
of constitutional magnitude because it violated his due process right to present a defense,
namely a defense of third-party culpability. We are not persuaded. First, as Snell
concedes in his opening brief, his trial counsel did not object to the exclusion of
Croswell’s statements on the ground it would violate his constitutional right to present a
defense. This said, we agree with Snell that we may examine whether his trial ultimately
was fundamentally unfair as a result of the trial court’s ruling. (People v. Partida (2005)
37 Cal.4th 428, 436-438.) We do not find a due process violation in Snell’s trial because
a third-party culpability defense based on Croswell’s statements would not have been
particularly beneficial to Snell. Croswell’s statements, at best, may have tended to
undercut Williams’s identity as the actual shooter. There was nothing in Croswell’s
statements tending to have any effect on Snell’s identity as the second assailant who
drove to the scene, walked up to the targets with the shooter, and then fled with the
shooter.
       Finally, we would find any error in the exclusion of Croswell’s statements
harmless error under both the state evidentiary standard of People v. Watson (1956)
46 Cal.2d 818, 836, and Chapman v. California (1967) 386 U.S. 18, 24, for the reasons
discussed in the immediately preceding paragraph. The most that could have been gained
from the proffered third party culpability evidence through Croswell’s dying declaration
would have been confusion as to the identity of the actual shooter. It would not have had

                                             11
any effect on Snell’s identity as the second assailant at the scene, who walked up to the
targets with the shooter, and fled with the shooter.
III.   The Admissibility of Snell’s Own Statements
       Snell contends his murder conviction must be reversed because the trial court
erred in admitting his statements to the undercover former gang member informant in
the jail cell. We disagree.
       Snell argues that his statements to the police informant were “testimonial” in
nature and, as such, should have been excluded under Confrontation Clause principles as
explained in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Apparently, Snell
is arguing that his own inculpatory statements should not have been admitted because he
could not confront or cross-examine himself. The respondent’s brief submitted by the
People argues Crawford in kind.
       As a preliminary matter, we express reservation with an issue not openly
recognized in the parties’ briefs, namely, whether Confrontation Clause principles have
any applicability to the issue of the admissibility of a defendant’s own statements against
his interest. The Sixth Amendment provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
When a defendant’s own statements are admitted against him at trial, the defendant is
free to testify and rebut the hearsay statements made against him or her, thus obviating
any Confrontation Clause problem. Further, in the published cases dealing with the use
of a co-defendant’s statements implicating a different defendant (see, e.g., People v.
Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123
(Bruton)), the courts seem to accept implicitly that the co-defendant’s statements would
be admissible against the co-defendant himself or herself without violating the
Confrontation Clause.
       But even assuming that Confrontation Clause principles and Crawford apply to the
use of Snell’s statements against his own interest, we find no error. In Crawford, the
Supreme Court ruled that the Confrontation Clause protects a defendant against the use of
evidence that is “testimonial” in nature. (Crawford, supra, 541 U.S. at p. 51.) If the

                                             12
evidence is not testimonial, it is not subject to the Confrontation Clause. (People v. Cage
(2007) 40 Cal.4th 965, 981, fn. 10.) Evidence of a testimonial nature includes formal
testimony, and statements which resemble testimony, such as responses to express police
interrogation undertaken to develop evidence to be used at trial. (Crawford, supra, 541
U.S. at pp. 51-52; Davis v. Washington (2006) 547 U.S. 813, 830 (Davis).) Thus,
remarks made to friends or “off-hand” are not testimonial. (Crawford, supra, 541 U.S. at
p. 51.)
          For reasons in agreement with those expressed in People v. Arauz (2012) 210
Cal.App.4th 1394 (Arauz), we find Snell’s statements to the police informant were not
testimonial, and not made inadmissible by Crawford. As explained in Arauz, an out-of-
court statement can be divided after Crawford into one of two broad categories:
responses to police-like interrogations, which are viewed as “testimonial” hearsay, or,
alternatively, statements in which no interrogation takes place, which are viewed as
“nontestimonial” hearsay. The use of nontestimonial hearsay “is subject only to
‘traditional limitations upon hearsay evidence,’ and does not implicate the Sixth
Amendment right of confrontation. (Arauz, supra, 210 Cal.App.4th at pp. 1401-1402,
quoting Davis, supra, 547 U.S. at p. 821.) Arauz further noted that, in Davis, supra, the
United States Supreme Court “gave examples of nontestimonial statements: ‘statements
made unwittingly to a Government informant’ and ‘statements from one prisoner to
another.’” (Arauz, supra, 210 Cal.App.4th at p. 1402, quoting Davis, supra, 547 U.S. at
p. 825.)
          Arauz then went on, and examined the nature of the declarant’s statements at issue
there: “Velasquez thought he was answering to the Mexican Mafia. He had no belief
that his statements were being monitored and would be used in a subsequent trial.
[Citation.] Federal courts have repeatedly held that statements unwittingly made to an
informant are not ‘testimonial’ for confrontation clause purposes. [Citations.] We agree
with the rule and rationale of these cases. We hold that statements unwittingly made to
an informant are not ‘testimonial’ within the meaning of the confrontation clause. The



                                              13
last thing Velasquez expected was for his statement to be repeated in court. [Citation.]”
(Arauz, supra, 210 Cal.App.4th at p. 1402.)
       Our view of Snell’s statements is the same. He believed he was talking to an
older, more experienced, fellow gang member. The last thing Snell expected was for his
statements to be used against him in court.
       Snell proffers two responses to the conclusions rendered above. First, he argues
that Arauz was wrongly decided. We do not agree. We find Arauz correctly followed the
guidance of Davis, supra, 547 U.S. 813, and, thus, find it may properly be applied in
examining Snell’s current case. Statements to a jailhouse informant are not subject to
Confrontation Clause principles and Crawford because such statements are
nontestimonial.
       Second, Snell contends there is a nuanced fact which takes his case out of the
ambit of Arauz and other cases involving informants ––– that his statements to the jail
informant were recorded. According to Snell: “It is appellant’s contention that, because
the statements [he] made were recorded by a police agency, and police [deliberatively]
put an informant into appellant’s jail cell in order to elicit evidence to be used at trial, the
recorded statements are testimonial. Since [recorded statements obtained by] hidden
recording devices, like documented affidavits [prepared for use in court], were prepared
for the express purpose of getting a conviction at trial, statements recorded on these
devices are ‘testimonial’ under Crawford.” (Italics in original.) Snell cites Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305, 310 (Melendez-Diaz) in support of his
argument. We reject Snell’s argument.
       In Melendez-Diaz, a drug case, the United States Supreme Court ruled that lab
results recorded on “certificates of analysis” document showing that seized contraband
was, in fact, cocaine, constituted “testimonial” hearsay under Crawford because, “quite
plainly,” the “sole purpose” of the certificates was to prove the composition, quality and
net weight of the analyzed substance, which was used in proving guilt. (Melendez-Diaz,
supra, 557 U.S. at p. 310.) Snell likens his “recorded” statements to the certificates at
issue in Melendez-Diaz. We do not see the analogous connection.

                                               14
         The certificates at issue in Melendez-Diaz were “quite plainly” prepared to be used
against a defendant at trial. Snell’s statements to a jail cellmate informant, whether or not
they were recorded, were not understood by him to be open to being used against him at a
trial. The “recorded” aspect of Snell’s jailhouse statements strikes us as an irrelevant to
the Crawford analysis. The critical factor in the Crawford analysis is whether the person
making the statements at issue, in Melendez-Diaz, the lab tech, and in Snell’s case, Snell,
made “testimonial” statements. In the lab tech context, the lab tech was stating, in effect,
“Here is scientific evidence showing why you should convict the defendant.” In Snell’s
case, Snell was having a conversation with a jail mate. The former scenario is an
example of a testimonial statement; the latter is not.
IV.      Admissibility of Cohort Williams’ Statements Under Crawford
         Snell contends his murder conviction must be reversed because the trial court
erred in ruling that statements made by the shooter, Williams, to the undercover former
gang member in a jail cell were admissible. Again, Snell argues Crawford. We find no
error.
         As noted above, the Supreme Court ruled in Crawford that the Confrontation
Clause protects a defendant against the use of evidence that is “testimonial” in nature.
(Crawford, supra, 541 U.S. at p. 51.) Here, we again find Arauz, supra, 210 Cal.App.4th
1394 applicable. When Williams was speaking to the informant, he (Williams) did not
have any reason to believe that the statements he was making were being collected to be
used as evidence in any criminal prosecution. Williams believed he was conversing with
a fellow gang member.
V.       Admissibility of Cohort Williams’ Statements Under Aranda/Bruton
         Snell next contends his murder conviction must be reversed because the trial court
erred in ruling that statements made by the shooter, Williams, to the undercover former
gang member in a jail cell were admitted into evidence. Here, Snell argues it was error
under Aranda, supra, 63 Cal.2d 518 and Bruton, supra, 391 U.S. 123 (hereafter the
Aranda/Bruton rule) to admit the parts of Williams’s statements that implicated Snell in
the shooting. He argues the parts of Williams’s statements that implicated Snell in the

                                             15
shooting should have been redacted in accord with Richardson v. Marsh (1987) 481 U.S.
200 and Gray v. Maryland (1998) 523 U.S. 185. We disagree.
       Williams’ statement was redacted in many respects, as evidenced by the blacked
out portions of the transcript which was presented to the jury. Snell contends the trial
court’s redaction were insufficient because Williams’ statement included a reference to
the fact that he was with “other guys” at the shooting and that “it was the three of us,”
whom he referred to as “Barnell” and “DJ.” Snell contends “Cordell Hawkins and
Darnell Snell were the two people on trial in this case and appellant’s first name starts
with a “D.” Thus, it does not take additional evidence to conclude that Williams’
statement referenced appellant as “DJ.”
       The Aranda/Bruton rule bars admission at a joint trial of one defendant’s out-of-
court confession that powerfully and facially incriminates a co-defendant, even when the
court instructs the jury to consider the confession only against the confessing defendant.
(See Bruton, supra, 391 U.S. at pp. 135-136; Aranda, supra, 63 Cal.2d at pp. 529-530.)
The rule is based on the concern that jurors may be unable to obey the limiting instruction
when both defendants are in the courtroom, being tried for the same crime. In short, the
rule is intended to avoid the potential unfairness that the jury will improperly consider the
hearsay confession against the non-confessing co-defendant. (Bruton, supra, 391 U.S. at
pp. 135-136.) The Aranda/Bruton rule is rooted in a defendant’s Sixth Amendment right
of confrontation, which is unavailable to the defendant at a joint trial when his or her co-
defendant does not testify.
       Snell’s Aranda/Bruton argument fails because, in his case, there is no issue with a
co-defendant’s confession to police. Williams’s statements were not made to police in a
confession which he understood might be used against him at trial. Here, our discussion
folds back on our Crawford discussion above. Because Williams’s statements were not
testimonial in nature, their use simply did not implicate Snell’s Sixth Amendment right of
confrontation and thus did not fall under the ambit of the Aranda/Bruton rule.




                                             16
VI.    The Juvenile Sentencing Issue
       In a supplemental opening brief on appeal, Snell contends that his 40-years-to-life
sentence is tantamount to a sentence of life without the possibility of parole (LWOP), and
that, as such, it violates the juvenile sentencing principles embodied in Graham, supra,
560 U.S. 48, Miller, supra, 132 S.Ct. 2455, and its progeny, including Gutierrez, supra,
58 Cal.4th 1354 and Caballero, supra, 55 Cal.4th 262.7 We find no error.
The Governing Sentencing Principles
       In Graham, the United States Supreme Court held that sentencing a juvenile to life
without the possibility of parole for a nonhomicide offense violates the Eighth
Amendment’s prohibition of cruel and unusual punishment. (Graham, supra, 560 U.S. at
p. 82.) Central to this result was the Court’s appreciation for the “fundamental
differences between juvenile and adult minds” and its recognition that juveniles are
“more capable of change than are adults . . . .” (Id. at p. 68.) The court subsequently
extended the reasoning of Graham to hold imposition of a mandatory sentence of life
without parole on a juvenile convicted of murder also violates the Eighth Amendment.
(Miller v. Alabama, supra, 567 U.S. ___ ; 132 S.Ct. 2455].) As the court explained, such
penalties “preclude[] consideration of [an offender’s] chronological age and its hallmark
features – among them, immaturity, impetuosity, and failure to appreciate risks and
consequences.” (Id. at p. 2468.) In essence, the court concluded that Graham’s directive
to consider the unique characteristics and vulnerabilities of juveniles is not crime-specific
and that its reasoning implicates any life-without-parole sentence for a juvenile. (Id. at p.
2458 [opinion summary].) Article I, section 17 of the California Constitution contains a
similar prohibition of punishment “not only if it is inflicted by a cruel and unusual
method, but also if it is grossly disproportionate to the offense for which it is imposed.”
(People v. Dillon (1983) 34 Cal.3d 441, 478, fn. omitted.)




7
       Snell was born on January 25, 1995, making him 17 years and 9 months old on the
date of the murder.

                                             17
       In Gutierrez, supra, 58 Cal.4th 1354, our state Supreme Court harmonized section
190.5, subdivision (b), with Eighth Amendment protections as clarified by Miller. Under
section 190.5, subdivision (b), our state’s sentencing courts have discretion to sentence a
youthful offender to serve 25 years to life or LWOP, with no presumption in favor of the
LWOP option. (Gutierrez, supra, 58 Cal.4th at pp. 1371-1379.) Because the defendants
in Gutierrez had been sentenced under a prior sentencing scheme with a presumption in
favor of LWOP sentences for special circumstance murder, the Supreme Court held that
resentencing was required. (Ibid.) Further, the Supreme Court rejected the government’s
argument that the then-recent enactment of section 1170, subdivision (d)(2), providing a
procedural mechanism for a juvenile offender to petition to recall a sentence, removed the
sentencing issue from the concerns expressed in Miller. (Id. at p. 1386.) As the Supreme
Court explained in Gutierrez, Miller controls and requires a sentencing court to consider
the special characteristics of a juvenile offender before imposing a LWOP sentence. (Id.
at pp. 1386-1387.)
       In Caballero, supra, 55 Cal.4th at page 268, the California Supreme Court held a
110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses (three
gang-related attempted murders) was the functional equivalent of a life sentence without
the possibility of parole and was invalid in light of the decisions in Graham and Miller.
(Cabellero, at pp. 268-269.) The court rejected the argument that a cumulative sentence
for distinct crimes does not present an Eighth Amendment issue and found, when a
juvenile is sentenced to minimum terms that exceed his or her life expectancy, the
punishment is excessive under Graham and Miller. (Caballero, at pp. 268-269.) As the
court noted, “the state may not deprive [juveniles] at sentencing of a meaningful
opportunity to demonstrate their rehabilitation and fitness to reenter society in the
future.” (Id. at p. 268.) A sentencing court must consider mitigating circumstances
before determining at which point juveniles can seek parole, including their age, whether
they were a direct perpetrator or an aider and abettor, and their physical and mental
development. (Ibid.)



                                             18
       In response to the developing juvenile sentencing rules articulated in Miller,
Graham, Gutierrez, Caballero and similar cases, the Legislature enacted section 3051 to
establish procedures for a “youth offender parole hearing” for juvenile offenders who are
sentenced to a life term. The issue of whether post-sentence parole eligibility procedures
sufficiently assuage the juvenile sentencing concerns discussed in Miller and the related
cases is a subject of conflicting decisions in our state’s courts of appeal, and several cases
are pending in the Supreme Court. (See, e.g., In re Alatriste (2013) 220 Cal.App.4th
1232 (rev. granted Feb. 19, 2014, S214652); People v. Martin (2013) 222 Cal.App.4th 98
(rev. granted Mar. 6, 2014, S216139; People v. Franklin (2014) 224 Cal.App.4th 296
(rev. granted June 11, 2014, S217699.) This said, we do not need to decide whether the
availability of any particular post-sentence parole eligibility procedures is sufficient to
assuage the juvenile sentencing concerns discussed in Miller and the related cases.
We find this to be true because Snell’s sentence of 40 years to life is not, with or without
consideration of any special parole eligibility procedures for juvenile offenders, the
“functional equivalent” of an LWOP sentence within the meaning of Cabellero.
       A number of cases since Cabellero have addressed whether a sentence of a given
length is the “functional equivalent of an LWOP sentence.” Some cases have ruled that,
regardless of the length of a sentence, following Cabellero, the availability of juvenile
offender parole eligibility procedures under new hearings now overcomes the “functional
equivalent” of an LWOP issue discussed in Cabellero for purposes of the applicability of
Miller. Other cases have declined to find that the availability of special procedures for
parole for juvenile offender is enough to avoid examination of the factors discussed in
Miller –– in the first instance –– at the time of sentencing. In these cases, the courts of
appeal have looked at the length of a sentence and then made a measured determination
whether it amounted to the functional equivalent of an LWOP sentence because a
defendant would have no realistic possibility of ever seeking parole. It appears that all of
these juvenile sentencing cases, from whatever perspective, have been granted review in
the Supreme Court.



                                              19
The Sentencing Proceedings
       The prosecution filed a sentencing memorandum computing Snell’s sentence to be
40 years to life as follows: an indeterminate term of 15 years to life for the murder, plus
an indeterminate term of 25 years to life for the firearm enhancement. The prosecution
acknowledged that Snell was a juvenile offender, but argued that the prescribed term
would not violate Graham or Miller or Caballero. In making this argument, the
prosecution noted that Snell would be “entitled to submit a petition” to recall his sentence
pursuant to section 1170, subdivision (d)(2), after he had served “at least 15 years in
prison,” and that he would have subsequent opportunities “at the 20, 24, and 25 year
marks.” Snell filed a sentencing memorandum arguing that his sentence of 40 years
to life “amounted to LWOP,” and that such a sentence would violate the Eighth
Amendment.
       In response to Snell’s sentencing memorandum, the prosecution submitted a series
of actuarial tables showing that Snell’s life expectancy was 69-70 years of age. Based on
this foundation, the prosecution proposed that Snell would be 57 years of age when he
became eligible for parole, meaning that he would not effectively be sentenced to an
LWOP term if sentenced to 40 years to life. Further, the prosecution cited to section
3501, which provides for a youth offender early parole hearing. Snell filed a reply,
arguing that section 1170, subdivision (d)(2), “does not render a de facto juvenile life
sentence constitutional.”
       At the time of sentencing, the trial court expressly recognized that Snell was a
juvenile offender, Beyond this, the court stated that it found Snell “irreparably corrupt,”
and that “a sentence of 40 years to life in this case is not a de facto life sentence,” making
a reference to the juvenile offender early parole hearing laws. The court imposed a
sentence of 40 years to life without making any further balancing of reasons for imposing
a term of 40 years to life.
Analysis
       Here, we find the length of Snell’s sentence does not measure out to be the
functional equivalent of an LWOP sentence. Even without looking at the new juvenile

                                             20
offender parole eligibility statutes, long-enacted and generally applicable parole
provisions would allow Snell’s sentence of 40 years to life to be reduced by credits for
work time served, and he would be able to seek parole while still in his 50’s. (See, e.g.,
§ 2933.2 [a person who is convicted of a murder accrues no conduct credit; only actual
time credit].) The life expectancy tables offered by the prosecution in the trial court, to
which we see no objection by Snell, showed that his life expectancy was longer than his
50’s. Snell’s 40-years-to-life sentence is not measurably similar to the defendant’s
sentence in Cabellero. There, the defendant was sentenced to 110 years to life, and it
would have been virtually impossible for him to become eligible for parole within his
natural life expectancy. Here, Snell will be eligible in his expected natural life. The trial
court’s express finding that Snell’s sentence was not the equivalent of an LWOP
sentence, although premised on the newer statutes governing juvenile offender parole
procedures, is supported by the record.
       Because Snell was not sentenced to the functional equivalent of an LWOP
sentence as defined in Cabellero, the sentencing concerns expressed in Miller are not
implicated, and the trial court was not required to undertake the balancing examination of
factors that Miller contemplates. Snell’s sentence of 40 years to life comports with the
sentencing law and is not constitutionally infirm under Miller.
                                      DISPOSITION
       The abstract of judgment is ordered corrected to identify the murder conviction as
second, not first, degree murder. In all other respects, the judgment is affirmed.




                                                         BIGELOW, P.J.
We concur:




              RUBIN, J.                    GRIMES, J.



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