Filed 3/24/14 P. v. Spencer CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                              B241312

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. TA119454)
         v.

JAMAL LEE SPENCER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Paul A. Bacigalupo, Judge. Affirmed.
         Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Appellant Jamal Lee Spencer appeals from the judgment entered following his
conviction by jury of first degree murder (Pen. Code, § 187) with personal use of a
firearm, personal and intentional discharge of a firearm, and personal and intentional
discharge of a firearm causing great bodily injury and death (Pen. Code, § 12022.53,
subds. (b), (c), & (d)) with findings he committed the murder for the benefit of a criminal
street gang (Pen. Code, § 186.22, subd. (b)) and with court findings he suffered a prior
felony conviction (Pen. Code, § 667, subd. (d)) and a prior serious felony conviction
(Pen. Code, § 667, subd. (a)), and served a prior prison term (Pen. Code, § 667.5, subd.
(b)). The court sentenced appellant to prison for 55 years to life. We affirm the
judgment.
                                 FACTUAL SUMMARY
1. Ashley Brown’s Testimony.
       Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established that about 8:50 p.m. on October 11, 2010,
Ashley Brown was sitting on the porch of her home in the area of 109th and Figueroa.
She was across the street from an alley on 109th. Brown saw a male exit the alley. She
believed the male could have been a gang member. The male moved his pants in a way
that indicated to Brown that he might have had a gun. The man walked west to 109th and
Figueroa.
       Brown called to a person she referred to as Dog. The male met Dog and Rico at
109th and Figueroa. (Dog and Rico were later identified as Dwayne Crawford and
Enrico Willingham (the decedent), respectively.)
       Brown entered her house, then heard gunshots and ducked. After everything was
over, she looked out her window and saw Crawford in the street, Willingham running to
his door, and the male walking back towards the alley. She did not see the male enter a
car. She did not want to testify and was afraid for her safety.
       Brown told police who came to her home the male was five feet six inches to five
feet eight inches tall. She gave no further physical description because it was dark and


                                             2
she had not been paying attention to the male. Brown told detectives the male had a
brown or dark complexion. She also told detectives she had seen the male walk to a car,
but testified her statement was based on hearsay.
       In December 2010, Brown identified appellant during a photographic lineup
(appellant’s photograph was photograph No. 3), but told detectives she was not sure of
her identification. Brown thought she was under pressure and had to choose someone,
and she just guessed. Brown testified, “. . . I didn’t see the guy’s face, so how am I
supposed to pick a guy out? And it was like, what, 8:00 o’clock at night.” Brown denied
she felt the detectives pressured her, but they kept asking her if she was sure. Brown
testified, “So I just picked it, okay? I had stuff to do. I just picked it so I could go.”
       Brown denied she told detectives she saw a car proceeding eastbound on 109th
and containing two males who nodded as the car passed. However, Brown told
detectives there were three Black males in the car. Los Angeles Police Detective Michael
Levant testified Brown told him she saw a car pass by as its occupants nodded.
       This court has listened to the CD recording of the detectives’ interview during
which Brown identified appellant as part of the above photographic lineup. Levant
indicated to Brown the photographs might or might not depict the person who committed
the offense, and Brown indicated she understood. Another detective told Brown the
detectives did not want her to guess, and she indicated she understood. That detective
also told Brown to take her time. Brown told the detectives her best opinion was
photograph No. 3 depicted the person, although she was not sure. Brown commented,
“the boy supposed to have a tattoo right here.” Brown provided detectives with
additional information about the crime and, on her initiative, gave detectives her cell
phone number.
2. Crawford’s Testimony.
       Crawford testified as follows. When Crawford was younger, he was a member of
the Nickerson Garden Bounty Hunters gang. At one time, long before trial, he was
considered to be an original gangster. Crawford had suffered prior convictions and had


                                               3
been to prison many times. Crawford was in custody at time of trial and testified “they’re
trying to give me 35 to life.”
       About 8:50 p.m. on October 11, 2010, Crawford was in the area of 109th and
Figueroa when he saw Willingham. Crawford asked if Willingham wanted a beer and
Willingham agreed to accompany him. Crawford was drunk. Crawford heard girls tell
him, “Dog, look out.” Crawford turned and saw a male walking up the street.
Willingham stood behind Crawford, and the male approached the two. Crawford testified
“we [were] on the corner,” there were streetlights, and it was dark. The male asked if
Willingham and Crawford were from Lane. (Lane was a reference to the Denver Lanes,
a Bloods gang.) Crawford replied no. The male asked where the Lanes were, and
Crawford replied he did not know. Willingham lived nearby.
       The male said he was from PDL, i.e., the Pasadena Denver Lanes. (PDL was
another Bloods gang.) The male also said he had just been chased by Raymonds. (The
Raymonds were a Crips gang.) Crawford told the male if he were from PDL, he should
know where the Lanes were. Crawford approached the male, who told Crawford, “Get
up off me, O.G.” Willingham told the male that the male had heard what Crawford had
said, they were not from Denver Lanes, and they were from the Bounty Hunters. The
male pulled out a gun and fired twice. Crawford was about five feet from the male.
Willingham, mortally wounded, fled down 109th towards his house. Someone ran down
the middle of the street, entered a black car, and drove away on 109th. The male had
tattoos under his left eye. Crawford also testified they were teardrop tattoos.1
       In December 2010, Crawford selected photograph No. 3 during a photographic
lineup. He told detectives “[i]t appeared similar to the dude that looked like the shooter.”
Crawford testified he probably told detectives “[Crawford] bet [his] life that that was
him.” The prosecutor asked, “Did you tell them that you looked at [the photograph] and
pushed it away and said you don’t need to go any further, that’s him?” Crawford replied,

1
        The prosecutor commented during jury argument that a photograph of appellant
taken at a 45-degree angle supported Crawford’s testimony appellant had a tattoo near his
left eye.
                                             4
“Yeah, I probably did that night.” Crawford denied at the preliminary hearing he saw the
shooter, and Crawford denied at the preliminary hearing and at trial that appellant was the
shooter.
3. Testimony by Levant and Forensic Evidence.
       Levant testified that when he and his partner conducted the photographic lineup
with Crawford, Crawford looked at photograph No. 3 (appellant’s photograph) for a brief
moment. Crawford then pushed it away, sat back in his chair, turned away, and
essentially told detectives, “Man, I don’t even have to look any further. It’s no. 3,
homie.” Crawford repeatedly said he would be willing to bet his life on it. Levant and
his partner interviewed Crawford three times and he was very cooperative, but
Crawford’s demeanor completely changed at the preliminary hearing.
       Levant testified appellant was five feet six inches tall. Appellant had the name
Lera tattooed under his left temple, and a tattoo of a star with flames on his neck. Kashad
Benedic (discussed post) was six feet one inch tall.
       During an interview, appellant told Levant the following. On October 11, 2010,
appellant was at home with his mother. Lera was the name of appellant’s grandmother or
great-grandmother. In October 2010, appellant’s brother was the victim of a gang-related
stabbing.
       In December 2010, Levant searched appellant’s residence and found, inter alia,
gang paraphernalia, including a book that had “Bolo” on the front. Appellant’s brother,
Dwayne Brooks, was present during the search, and his moniker was Little Baby Bolo.
Grand was about a block from Figueroa, and one could proceed straight from 109th and
Grand onto the southbound 110 Freeway.
       Jeffrey Gutstadt, a deputy medical examiner, testified Willingham died as a result
of two gunshot wounds, one to his right upper back, and the other to his left lower back.
Gutstadt recovered from Willingham’s body the bullet that caused the wound to his left
lower back. A criminalist testified the recovered bullet was a .32-caliber bullet.



                                             5
4. Telephone Calls From Jail.
       Appellant, in jail, spoke to an unidentified male (male) by phone. A transcript of
the conversation reflects as follows. Appellant told the male that appellant was “in jail
for a hot one.” Appellant indicated “they”2 were saying Rat Tone and Shotty (Shotty was
Benedic’s moniker) were telling on appellant. Appellant asked the male what that meant.
Appellant also indicated Shotty was in jail. Appellant asked, “But like if somebody
telling . . . say somebody is telling right? Can you find a person guilty if somebody
telling[?]” The male replied, “Yeah . . . if you fight, take it all the way to trial, yeah.”
       Appellant then said, “. . . the gun got to be there to [sic] though right? Appellant
indicated “they” were saying “they” had videotape. Appellant also indicated “they”
showed three CD’s to him. Appellant suggested someone was “trying to get off by
saying [appellant] did it.” Appellant later said, “They need the gun and all that other shit
to [sic] huh?
       Appellant subsequently said, “. . . they said they got, . . . photos of me, and all
people pointing me out . . . but homies though . . . that could be a lie to [sic] huh?” The
male told appellant to wait until appellant talked with his counsel, appellant’s counsel
would tell appellant “everything that they got,” and appellant could then make his
decision on “how [appellant] play[s] . . . the ball game.”
       On October 23, 2010, Benedic, in jail, spoke by phone to appellant and Robert
Espree (aka Tiny Face).
5. Benedic’s Statement to Richard Gentle.
       On October 19, 2010, Benedic made certain jailhouse statements to Richard
Gentle, another Hoover member. We discuss them post.




2
       Levant testified appellant made telephone calls shortly after Levant interviewed
him.

                                               6
6. Gang Evidence.
       Los Angeles Police Officer Jason Sharman, a gang expert, testified as follows.
The Hoover gang was once, but was no longer, a Crips gang. Hoover cliques included
the 9-Deuce or 9-2 clique and the 107 clique. Hoover’s symbols included a star.3
Hoover’s rivals included the Denver Lane Bloods and the Raymond Avenue Crips. The
last two gangs were rivals of each other. The Willingham shooting occurred in territory
claimed by Denver Lane.
       Appellant was a member of the 9-Deuce clique of Hoover and his moniker was
Baby Bolo. A photograph of appellant depicted a five-pointed star, a Hoover symbol, on
the left side of his neck. Benedic was a member of the 107 or Selo clique of the Hoovers
and his moniker was Shotty. Gentle was a member of the 9-Deuce or Dulo clique of
Hoover. In response to a hypothetical question based on evidence, Sharman opined the
present offense was committed to benefit, or in association with, a criminal street gang.
       Appellant presented no defense evidence.
                                          ISSUE
       Appellant claims the trial court erred by admitting into evidence Benedic’s
statement to Gentle.
                                      DISCUSSION
1. The Trial Court Properly Admitted Into Evidence Benedic’s Statement to Gentle.
       a. Pertinent Facts.
       On October 19, 2010, Levant learned Benedic was in jail following his arrest.
Levant spoke with Gentle, who was also in jail following his arrest on an unrelated gun
charge. Levant discussed shootings with Gentle, including the Willingham shooting.



3
      Sharman testified the gang phrases “on the set,” “on Hoovers,” and “on vers,”
meant “I swear.” Hoover members used the words “groove” and “groovy” to greet one
another or to refer to another member. The word “crimies” referred to persons with
whom crimes were committed. To “do missions” meant to go and actively commit
crimes, such as shootings and murders.

                                             7
Levant arranged to have Benedic and Gentle placed in a cell where their statements
would be surreptitiously recorded.
       During the People’s case-in-chief, the prosecutor, having granted Benedic use
immunity, called him as a witness, but he refused to testify and the court concluded he
was unavailable as a witness. The prosecutor then moved to admit into evidence
Benedic’s redacted jailhouse statement to Gentle (Benedic’s statement) that had been
surreptitiously recorded when the two were in the monitored cell. The prosecutor argued
the statement was hearsay that fell within the declaration against interest hearsay
exception of Evidence Code section 1230. The prosecutor indicated Benedic was a
suspect in this case but did not know that, and Benedic was in custody on another matter.
       Appellant objected Benedic’s statement was not a declaration against Benedic’s
interest because the statement was not specifically disserving to Benedic and it
incriminated appellant. Appellant conceded Benedic’s statement was nontestimonial but
nonetheless objected to it on Sixth Amendment grounds.
       The court indicated as follows. Benedic did not know that he was a suspect, that
he was being charged, or that his statement was being recorded. He spoke confidentially
to a fellow gang member. Benedic spoke in code and laid out his role in a crime. The
court suggested Benedic would not have done so if he had thought Gentle was going to
disclose Benedic’s statement. The court ruled Benedic’s statement was admissible.
       Benedic’s statement is reflected in CD recordings and transcripts admitted into
evidence. We discuss portions of Benedic’s statement where pertinent below.




                                             8
       b. Analysis.
       Appellant claims the trial court erred by admitting into evidence Benedic’s
statement. Appellant argues Benedic’s statement was not admissible under the Evidence
Code section 12304 declaration against interest hearsay exception, and admission of the
statement into evidence violated appellant’s federal constitutional right to confrontation.
We reject both arguments.
              (1) Benedic’s Statement Was a Declaration Against His Interest.
       “The proponent of [evidence of a declaration against penal interest] 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.” (People v. Duarte (2000) 24 Cal.4th 603, 610-611
(Duarte).)
       “[A]s the high court has noted, ‘whether a statement is self-inculpatory or not can
only be determined by viewing it in context.’ [Citation.]” (Duarte, supra, 24 Cal.4th at
p. 612.) “There is no litmus test for the determination of whether a statement is
trustworthy and falls within the declaration against interest exception. The trial court
must look to the totality of the circumstances in which the statement was made, whether
the declarant spoke from personal knowledge, the possible motivation of the declarant,
what was actually said by the declarant and anything else relevant to the inquiry.”
(People v. Greenberger (1997) 58 Cal.App.4th 298, 334.)
       In People v. Tran (2013) 215 Cal.App.4th 1207, the defendant committed murder.
Tommy, the defendant’s brother, later told Trieu (1) Tommy had helped the defendant

4
        Evidence Code section 1230 states, “Evidence 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 liability, . . . or created such a risk of making him
an object of hatred, ridicule, or social disgrace in the community, that a reasonable man
in his position would not have made the statement unless he believed it to be true.”
(Italics added.) There is no dispute Benedic was “unavailable as a witness” within the
meaning of section 1230.

                                               9
burn a car (that contained incriminating evidence of the murder); (2) the defendant had
done something really bad, and (3) the defendant had shot someone. The trial court
concluded the declaration against interest hearsay exception applied to the statements,
and the defendant appealed. (Id. at pp. 1210, 1215.)
       Tran concluded the first statement was against Tommy’s interest because he
admitted committing arson. (People v. Tran, supra, 215 Cal.App.4th at p. 1218.) Tran
acknowledged the second and third statements, standing alone, were not against
Tommy’s interest. (Ibid.) However, Tran stated, “. . . we must view those assertions in
context. [Citations.] . . . Tommy’s three assertions taken together as a single statement
were incriminating because they rendered him potentially liable as an accessory to
murder. [Citation.]” (Id. at pp. 1218-1219, italics added.)
       Tran continued, “Specifically, the entire statement was compelling evidence that
Tommy knowingly and purposefully assisted defendant in destroying evidence to help
defendant escape arrest, prosecution, and punishment for a shooting. Indeed, Tommy’s
two assertions about what defendant had done were an inextricable part of what made his
entire statement to Trieu contrary to his penal interests. (See People v. Samuels (2005)
36 Cal.4th 96, 120–121 [incriminating references to another person were inextricably tied
to specific statement against declarant’s penal interest].)” (Tran, supra, 215 Cal.App.4th
at p. 1219, italics added.)
       If the declaration against interest hearsay exception otherwise applies to a
statement, the mere fact the statement also inculpates a nondeclarant, including a
defendant, does not render the exception inapplicable. (Tran, supra, 215 Cal.App.4th at
pp. 1218-1220.) We review for abuse of discretion a trial court’s ruling as to whether the
declaration against interest hearsay exception applies. (People v. Gordon (1990)
50 Cal.3d 1223, 1250-1251.)
       We note at the outset the prosecutor’s theory of this case was appellant, Benedic,
and Espree committed the present crime, appellant was the shooter, and Benedic and
Espree were in the car. We consider below various individual statements of Benedic, and


                                            10
what -- when they are considered in the context of his entire statement and the evidence
in this case -- they reasonably implied he was saying based on personal knowledge.
       At the beginning of the conversation between Benedic and Gentle, both identified
themselves as from the Hoover gang. Benedic said he was from 107th Street, and Gentle
indicated he was from 92nd Street. Benedic indicated his moniker was Shotty, and
Gentle indicated his moniker was Tiny Deuce Star.
       At one point, Benedic stated, “Couple of . . . nigga’s that you mentioned when we
first started talking, two on one (unintelligible) that was a crazy day, though, on the set.”
This statement implied that, based on Benedic’s personal knowledge concerning the
shooting in this case, he was describing the day of the shooting as a crazy day involving,
on the one hand, Crawford and Willingham as “two” Bounty Hunter members and, on the
other, appellant as the “one” Hoover member and shooter. This court has listened to the
recording of the above statement; when Benedic made this particular statement he spoke
in hushed tones, evidencing consciousness of wrongdoing.
       Later, Gentle indicated a person had been shot in the leg. Benedic stated, “Hell
no.” After Gentle indicated he knew nothing about it, Benedic said, “No leg. Two to the
head. For nine two.” These statements implied Benedic was correcting Gentle
concerning the location of Willingham’s two gunshot wounds by accurately telling
Gentle they were not in Willingham’s leg,5 and that the shooting had been done for the 9-
2 Deuce clique of Hoover (a clique of which appellant was a member).
       Moreover, this court has listened to the CD recording of the above statements by
Benedic. Benedic’s tone when he stated, “Hell no” was emphatic and corrective. His
tone when he stated, “No leg. Two to the head. For nine two” was deliberate, emphatic,
and implied certainty about what he was saying. His tone indicated personal knowledge
of the events.


5
       During jury argument, the prosecutor commented appellant shot Willingham in the
upper back, and “[appellant] doesn’t stick around to inspect [Willingham’s] body to see
where exactly the shots hit.” After the shooting, Brown observed Willingham fleeing.
                                             11
       The following also occurred: “[Benedic]: You know who did it, and you know
his two crimies. [¶] Gentle: You mentioned them, nigga. [¶] [Benedic]: Yeah? What
did I say? [¶] Gentle: Come on groovie I know, nigger, on ver, nigger, on hoover,
because I asked the (unintelligible) on ver. Had to do that for a little. [¶] [Benedic]:
That was crazy, though. That whole scenario, Darktown, that was supposed to be my kill
but that wasn’t my 32, it was his shit. Knock, knock, eerrr, on the way to Gardena.”
       The above statement implied Benedic was indicating he knew the shooter and the
shooter’s two accomplices, the shooting in this case presented a crazy situation, Benedic
was the person who was supposed to have killed Willingham, but Benedic did not do so
because the .32-caliber gun used to kill Willingham belonged to the shooter (appellant),
not Benedic. We note a .32-caliber bullet was recovered from Willingham’s body. The
statement implied that, prior to the killing of Willingham, Benedic had discussed with his
fellow gang members and/or appellant the topic of Benedic killing Willingham.
       Moreover, this court has listened to the CD recording of Benedic’s statement,
“Knock, knock, eerrr, on the way to Gardena.” Benedic spoke in hushed tones when he
said it, evidencing consciousness of wrongdoing. Moreover, the words “Knock, knock,”
sounded like Benedic imitating gunshots, and his expression “eerrr” sounded like him
imitating sounds of screeching tires. That is, this statement was evidence Benedic was
reciting from personal knowledge, based on his sensory perception of the events, what
happened during the shooting. We also note Willingham was shot near the southbound
110 Freeway, and Benedic suggested that, after the shooting, the car containing the
shooter went to Gardena. This too provided evidence of Benedic’s personal knowledge
of what had happened.
       The following also occurred: “[Benedic]: That nigga uhh, Baby Bolo, they got
that 32? [¶] Gentle: Yeah. Thought I didn’t know nigger, I’m a 9-Deuce. [¶]
[Benedic]: Deuce. Yeah, I’m goo talking about he’s talking about he wasn’t gon tell
nobody goo. [¶] Gentle: Yeah. [¶] [Benedic]: he like ‘on baby monster goo, . . . on 9-
Deuce goo . . . Gardena, me and Tiny face . . . .” (Italics added.) The following occurred


                                             12
shortly thereafter: “[Benedic]: Baby Bolo on 9-Deuce, I’m a get me, I’m a get me one.
I’m going to get me one for my -- [¶] . . . [¶] Gentle: Yeah, . . . L-I-L.[6] [¶] [Benedic]:
Like yeah?”
       Benedic’s first question implied a reference to the .32-caliber gun used by Baby
Bolo, i.e., appellant, to shoot Willingham. Benedic next indicated appellant had told
Benedic that appellant was not going to tell anyone what had happened. Benedic’s
statement implied he was surprised appellant had told anyone. That is, Benedic
expressed surprise appellant had indicated to anyone outside the group of those
involved—appellant, Benedic, and Espree—what had happened. Benedic also indicated
appellant had referred to 9-Deuce, Gardena, Benedic, and Tiny Face (i.e., Espree).
       This court has listened to the CD recording of the above statements. When
Benedic referred to Baby Bolo, Benedic did so barely audibly, evidencing consciousness
of wrongdoing. Moreover, the statements of Benedic and Gentle implied appellant had
told Benedic that appellant was going to “get me one” for “L-I-L,” i.e., appellant was
going to retaliate for the shooting of his brother, Little Baby Bolo. Benedic replied “Like
yeah?” in an approving tone. Benedic’s statements reflected knowledge and involvement
in the shooting of Willingham.
       Benedic later said, “I love Baby Bolo, though. He a man of his word.” Benedic
said Baby Bolo was a “[Selo] . . . [who did] missions with us and everything” and Baby
Bolo told Benedic that Baby Bolo was “going to get put on [Selo] . . . .” These
statements reflected Benedic’s gang affiliations and active participation in committing
gang crimes with appellant.
       Benedic said, “Baby told me recently after we did that little shit he talking about
he going to get put on Ce-Low . . . cause that 32, T bone, big T bone gave it to grove.
After he did that . . . .” This statement implied appellant recently had told Benedic (after

6
       Earlier during Benedic’s statement, Benedic indicated appellant (Baby Bolo) had a
brother named Little Baby Bolo. Gentle indicated Little Baby Bolo had been a shooting
victim.

                                             13
Benedic and appellant committed the shooting of Willingham) that appellant was going
to be put into the Selo clique, and a person named T-bone had given to another gang
member the .32-caliber gun previously used to shoot Willingham.
       Benedic said, “They said they going to call the people and see if that’s . . . my
fingerprint. [¶] . . . [¶] . . . They probably want to check my fingerprints on that gun. If
not, I’m about to beat this case tomorrow now.” Benedic did not here state that police
would not find his fingerprints on the gun. Benedic’s statement suggested that at some
point he may have touched the gun used to kill Willingham.
       The following also occurred: “[Benedic]: That’s what they really got you down
here for? [¶] Gentle: On do low. On Hoover. Nigger, on the set. Asking me
questions[7] about . . . Little Bolo shooting. . . . [¶] [Benedic]: Little Bolo or Little Baby
Bolo? [¶] Gentle: Little Baby Bolo. [¶] [Benedic]: From when they shot him? [¶]
Gentle: Yeah. On ver, because I got pulled over. I was right there. . . . [¶] [Benedic]:
Oh, that’s what they trying to do. [¶] . . . [¶] . . . Because it was a 9-Deuce and two Ce-
Lows that went to go do that mission so now they got 9-Deuce, one Ce-Low and they
said that -- they told T-Loc that he fit the description and I’m the only tall one that was
out of them two. So I hope, this shit confusing, I hope . . . whatever it is whatever the
fuck ain’t got no new case, they got no case, they don’t know nothing cause I’m trying to
slide up out of here.” (Italics added.)
       This statement implied appellant was saying (1) a 9-Deuce gang member and two
Selo members were involved in a shooting involving Little Baby Bolo, (2) police were
suggesting that by process of elimination Benedic was one of the two Selo members, i.e.,
the tall one, but (3) because police allegedly knew nothing, police had no case against
Benedic. Benedic did not then deny he may have been involved; if he was, it provided
evidence of Benedic’s motive in the present case. Moreover, this court has listened to the




7
       Gentle suggested here that police were asking him questions.

                                              14
CD recording of this statement; Benedic said it in hushed tones, evidencing
consciousness of wrongdoing.
       The following also occurred: “[Benedic]: This shit confusing because that’s the
same shit T-Loc talking about. He said on 108th when he got locked up. He said that
shit happened on 108th and Hoover. You said 108th and Fig. [¶] Gentle: No, 108th and
Fig? [¶] [Benedic]: But T-Loc said 108th and Hoover. That’s what the police told him.
[¶] Gentle: Yeah. [¶] [Benedic]: And the shit really happened on 109th and Fig. [¶]
Gentle: No, they brought that up too. [¶] [Benedic]: That shit too? [¶] Gentle: And
they brought that shit up on 108th right at the liquor store. [¶] [Benedic]: Oh, that’s
deep. [¶] Gentle: Because I’m like liquor store -- [¶] [Benedic]: They don’t know who
did it, though. They don’t know what gang did it. [¶] Gentle: I know. [¶] [Benedic]:
Because we didn’t blab out nothing. Nigger Baby Bolo said ‘yeah I got chased by some
Raymonds’ so if anything they’re going to say there·was some Raymonds because he
bought a (unintelligible) he’s like when he told the niggers, talked to them, hey man, I
just got shot? I just got chased by some Raymonds man. I don’t bang. [¶] I just got hit
with some Raymonds so bitch ass nigger because it was two niggers. See, I know the
whole story.”
       This statement implied Benedic was saying T-Loc had indicated the present
offense occurred on 108th and Hoover, Gentle had indicated the present offense occurred
on 108th and Figueroa, but Benedic was correcting T-Loc and Gentle by saying the
present offense in fact had occurred at 109th and Figueroa. The statement also implied
the gang members involved in the present shooting, including the shooter (appellant) and
Benedic, knew the facts about the crime but police did not because those involved in the
crime had divulged nothing about it.
       Moreover, there was independent evidence appellant was a Hoover member in
territory claimed by a rival gang, the Denver Lane gang, when he shot Willingham. We
have also listened to the CD recording of the above statement. The statement reasonably
implied four things. First, appellant told Benedic that appellant had used a ruse. That is,


                                            15
appellant told Benedic that appellant falsely had told Crawford and Willingham that
(1) appellant was a Denver Lane gang member being chased by members of a rival gang,
i.e., the Raymond Avenue Crips gang and (2) appellant did not engage in gang activities.
       Second, Benedic implied that, as a result of the ruse, police would say, if anything,
that members of the Raymond Avenue Crips gang (not appellant) shot Willingham.
Third, Benedic himself was saying “it [sic] was two [persons],” i.e., Crawford and
Willingham, involved. Fourth, Benedic knew the whole story, i.e., he knew everything
that had happened in connection with the shooting of Willingham. Benedic’s statements
implied personal knowledge and involvement in the shooting.
       Finally, towards the conclusion of the redacted statement, the following occurred:
“[Benedic]: Hopefully I get the fuck out tomorrow. I don’t know nothing. I didn’t see
nothing. I wasn’t there. I’m not even a gang member. I just associate with the Hoovers.
I was born and raised in Hoovers. I don’t know nothing else. Therefore -- [¶] [Gentle]:
I don’t even know that. I don’t know nothing.”
       We have listened to the CD recording of the above statement. In contrast with the
frequently hushed tones employed during this conversation, Benedic and Gentle here
were speaking loudly and laughing. Benedic’s above statement implied a deceptive, self-
serving effort, in the event his statements were being monitored, to loudly proclaim his
ignorance of, and noninvolvement in, the shooting of Willingham. For example, despite
the trial evidence, including Benedic’s statement, that he was from the 107 clique of
Hoover, he denied in the above quoted statement that he was a gang member. He told
Gentle he knew the whole story about what had happened, but in the above statement
Benedic denied he knew anything. These facts too evidence consciousness of
wrongdoing.
       Appellant argues Benedic did not actually admit involvement in the shooting of
Willingham and it “is more likely that Benedic, as a gang member confined in the county
jail, wanted to do all he could to make himself look tough and important, and avoid being



                                            16
attacked by fellow inmates.” However, this alternative explanation, even if it were
plausible, went to the weight of the evidence, not its admissibility.
       Benedic’s various statements to Gentle, viewed in the context of Benedic’s entire
statement and the evidence in this case, reasonably implied Benedic was criminally
involved (as a conspirator and/or accomplice) in the shooting of Willingham; therefore,
Benedic’s statement was against his penal interest. We conclude the trial court did not
abuse its discretion by concluding Benedic’s statement was a declaration against his
penal interest. (Cf. Tran, supra, 215 Cal.App.4th at pp. 1218-1219.)
       Further, as to whether Benedic’s statement was sufficiently reliable, we note the
following. Benedic’s statement was a jailhouse statement he made to a fellow gang
member in confidence. Benedic was not talking to a police officer. The trial court
indicated at the admissibility hearing Benedic did not know he was a suspect, or being
charged, in this case, or that his statement was being recorded. The trial court noted
Benedic laid out his role in a crime, and the court suggested Benedic would not have
done so if he had thought Gentle was going to disclose Benedic’s statement.
       Further still, at various points during his statement, Benedic purported to correct
Gentle’s understanding of the facts of the present shooting. Although the record suggests
Benedic may have been aware of the possibility his statements were being monitored, he
elected to discuss the present case, cloaking the discussion in hushed tones, gang
language, and code. Benedic and Gentle frequently and laughingly discussed certain
gang activities and other gang-related matters; these discussions corroborated the
trustworthiness of Benedic’s statement.
       Although Benedic did not expressly admit to being the shooter in this case,
Benedic’s statement, fairly read, communicated his criminal involvement in the shooting
and did not simply try to shift blame to appellant. The trial court did not abuse its
discretion by concluding Benedic’s statement was trustworthy. (Cf. People v. Arauz
(2012) 210 Cal.App.4th 1394, 1400-1401.) Appellant, relying on Duarte, argues the fact
Benedic was in custody when he made his statement undercuts its reliability. Appellant’s


                                             17
reliance on Duarte is inapposite. In Duarte, the declarant made his statement to a police
officer. (Duarte, supra, 24 Cal.4th at pp. 609-610.) That is not true in the present case.
       We hold the trial court properly admitted into evidence Benedic’s statement on the
ground the Evidence Code section 1230 declaration against interest hearsay exception
applied to the statement.
       Moreover, even if the declaration against interest hearsay exception did not apply
to Benedic’s statement, it does not follow we must reverse the judgment. Brown and
Crawford identified appellant prior to trial. Brown’s fear of testifying and Crawford’s
prior gang affiliations explained any failures by Brown and Crawford, respectively, to
identify appellant at trial. Appellant had a neck tattoo, and Segura testified he saw one on
the man who had been in front of him.
       When appellant spoke to the unidentified male by phone, appellant focused on the
availability of evidence that appellant committed the crime, not whether appellant
committed it. During that phone conversation, appellant never expressly denied he
committed the crime. Appellant asked the male if “they” could have been lying when
they said (1) they had photographs of appellant and (2) people were identifying appellant.
However, if appellant did not commit the present crime, one would have expected him,
not merely to ask if “they” could have been lying when they said these various things, but
to declare unequivocally his innocence and that “they” must have been lying or at least
mistaken.
       Appellant was a Hoover member, and the murder of Willingham occurred in the
territory of a rival gang, i.e., the Denver Lane gang; therefore, appellant had a motive to
shoot Willingham. The fact appellant’s brother, Little Baby Bolo, apparently had been
the recent victim of a gang-related assault also provided a motive for appellant to shoot
Willingham in rival gang territory. Any trial court error in connection with its ruling that
the declaration against interest hearsay exception applied was not prejudicial.
(Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)



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               (2) No Violation of Appellant’s Right to Confrontation Occurred.
       Finally, the record demonstrates Benedic was talking with a fellow gang member
in confidence. The statements were made from one jail inmate to another. Appellant
concedes Benedic made his statements to a private person. The record fails to
demonstrate Benedic believed he was being monitored, or that his statement was
“ ‘ “made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.” ’ ([Crawford v.
Washington (2004) 541 U.S. 36], at pp. 51-52 [158 L.Ed.2d at p. 193].)” (Arauz, supra,
210 Cal.App.4th at p. 1401.) Appellant conceded to the trial court Benedic’s statement
was nontestimonial. We conclude Benedic’s statement was nontestimonial; therefore, the
trial court did not violate appellant’s right to confrontation (or right to a fair trial) by
admitting the statement into evidence. (Id. at pp. 1401-1402.)
                                        DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                    KITCHING, J.

We concur:




       KLEIN, P. J.




       ALDRICH, J.




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