Filed 10/6/15 P. v. Williams 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B258741

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

MARLON WILLIAMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kelvin D. Filer, Judge. Affirmed.


      John Lanahan, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General and Lance E. Winters, Assistant Attorney General, Michael C. Keller and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Defendant and appellant Marlon Williams appeals from a judgment following a
jury trial in which he was convicted of second-degree murder. On appeal, he challenges
the admission of certain hearsay statements against him as a violation of his right to
confront witness against him (U.S. Const., 6th Amend.) as well as the particular hearsay
exceptions under which the evidence was admitted. We affirm.

                           PROCEDURAL BACKGROUND

       On May 23, 2013, defendant and his two comrades, Darnell Snell and Cordell
Hawkins, were charged by information with the murder (Pen. Code, § 187, subd. (a)) of
Ashton Croswell. It was alleged that defendant personally and intentionally discharged a
firearm, which caused great bodily injury or death to the victim. (Pen. Code, § 12022.53,
subd. (d).) It was further alleged that the offense was committed for the benefit of a
criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b).
       Defendant’s motion to sever his trial from that of Snell and Hawkins was granted.
Defendant’s trial initially resulted in a deadlocked jury and a mistrial was declared.1 At
his retrial, the jury convicted defendant of murder, and found the murder to be in the
second degree. The jury found the firearm enhancement true, but the gang enhancement
not true. Defendant was sentenced to a term of 15 years to life for the murder with a
consecutive term of 25 years to life for the firearm enhancement. Defendant filed a
timely notice of appeal.

                                          FACTS

       Defendant, Snell and Hawkins are all members of the Bounty Hunter Bloods gang.
The main rival gang of the Bounty Hunter Bloods is the Grape Street Crips. The rivalry



1      In defendant’s opening brief on appeal, he states that “two mistrials had been
declared.” The record does not support this conclusion. Defendant’s motion to sever was
granted during jury selection in the initial joint trial. He was then permitted to start trial
anew with a new jury panel. There is no indication that a mistrial was declared when
severance was granted.
                                              2
between Bounty Hunter Bloods and Grape Street Crips is “the most heated and violent
gang rivalry” known to the prosecution’s gang expert. Although there were relative
periods of calm between the two gangs, there had been a confrontation between Bounty
Hunter Bloods and Grape Street Crips on Halloween 2012 in which three people were
shot.
        The shooting in this case occurred on November 6, 2012 – less than a week after
the Halloween shooting – when crimes between the two gangs were escalating. Although
some of the details of the present shooting were disputed, the main facts were these.
Three men were involved in the shooting: a shooter, another gunman who did not shoot,
and a driver. At around 7:00 p.m., when it was dark, the driver drove into Grape Street
Crip territory and parked on a side street near where 10-12 Grape Street members had
congregated. The shooter and the other gunman got out of the car. They were wearing
dark clothes, including black hoodie sweatshirts, with the hoods pulled up over their
heads. They approached the group. The shooter said, “What set you from?” and
immediately began shooting. The other gunman tried to remove his gun from his
waistband, but never got off a shot. The crowd immediately scattered as soon as the
shooter began firing. When the shooter finished, he and the other gunman ran back to the
car; the driver had the car running and waiting for them.
        Ashton Croswell, a Grape Street Crips associate, was shot in the buttocks. The
bullet exited his torso and reentered his right arm. He was taken to the hospital, where he
died eight days later as a consequence of blood loss caused by the shooting.
        No physical evidence or eyewitness testimony tied defendant, Snell, or Hawkins to
the crime. Initially, the police had some reason to suspect a Bounty Hunter Bloods
member named Dameon.2 They arrested Dameon, who was placed in a jail cell with a
confidential informant working in an undercover capacity for the Los Angeles Police
Department. Dameon confided to the informant that defendant had been the shooter.



2      Dameon was apparently linked to the shooting on social media, and Croswell may
have identified him at the scene in a spontaneous statement.
                                             3
       Police then arrested defendant. Defendant was placed in the cell with the same
undercover informant, who recorded their conversation. Believing the informant to be a
fellow gang member, defendant admitted to the informant that the police had previously
arrested the wrong person. Defendant told the informant that he, in fact, had been the
shooter. He identified Snell as the other gunman, who did not shoot, and Hawkins as the
driver. Neither Hawkins nor Snell was “Dameon.” Defendant recounted the
circumstances of the crime to the informant and, at one point, demonstrated how he had
pulled his hoodie over his head so he could not be seen.
       Prior to being placed in the cell, defendant had been permitted to use the
telephone. He called Snell; police recorded the telephone call. In the call, Snell said to
defendant that they needed to talk to Hawkins.
       Snell was arrested next. He, too, was placed in a cell with the confidential
informant, who recorded their conversation. Snell expressed concern that the police were
trying to charge him with murder even though he had not fired a weapon. He explained
that he was there at the time of the murder, but that he “punked out” and did not shoot.
He identified defendant as the shooter and Hawkins as the driver.
       At trial, defendant offered an alibi defense. Both defendant and his then-girlfriend
testified that defendant spent the entire night at the girlfriend’s house. The alibi was
questionable, given that, when defendant was arrested and questioned by police, he
offered the different alibi that he had been at home at the time of the shooting. As to the
admissions defendant made to the confidential informant, defendant testified that he was
frightened of the larger man, and was trying to fit in. As to defendant’s knowledge of the
way the crime had been committed, defendant explained that he had simply told the man
information about the crime that he had heard on the street and read about on Facebook.




                                              4
                                       DISCUSSION

1.     Snell’s Recorded Statement to the Informant

       Defendant contends the trial court erred in admitting into evidence Snell’s
recorded statement to the confidential informant. Defendant argues that the admission of
the statement violated both his constitutional right to confrontation and the California
Evidence Code.
       Defendant’s confrontation clause argument is easily addressed. The confrontation
clause is concerned with testimonial statements. (Crawford v. Washington (2004)
541 U.S. 36, 51.) If the statement is not testimonial, it is not subject to the confrontation
clause. (People v. Cage (2007) 40 Cal.4th 965, 981, fn. 10 (Cage).) We are here
concerned with a statement Snell made, while in a jail cell, to a man he believed to be a
fellow gang member, but who turned out to be a confidential informant working for the
police. Such statements are not testimonial. (People v. Arauz (2012) 210 Cal.App.4th
1394, 1402 (Arauz).) Defendant concedes the Arauz opinion defeats his argument, but
suggests that it was wrongly decided. We disagree. Arauz properly recognized that
informal statements made by an arrestee to an individual believed to be a fellow inmate
are not testimonial because they are not statements in which witnesses make solemn
declarations or affirmations for the purpose of proving some fact or which they expect to
be offered in evidence. (Cage at p. 981.) The last thing an inmate confiding in another
purported inmate expects is for his statement to be repeated in court. (Arauz at p. 1402.)
       Defendant next argues that Snell’s statement to the confidential informant was
improperly admitted under Evidence Code section 1230 as a declaration against interest. 3




3       Evidence Code section 1230 provides, “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, was so far
contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the
risk of civil or criminal liability, or so far tended to render invalid a claim by him against
another, or created such a risk of making him an object of hatred, ridicule, or social
                                              5
To be admissible under that provision, the proponent of the evidence must show that:
(1) the declarant is unavailable; (2) the declaration was against the declarant’s penal
interest when made; and (3) the declaration was sufficiently reliable to warrant admission
despite its hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) It is
undisputed that Snell was unavailable at defendant’s trial. Snell had been tried
separately, but his appeal was pending, and he asserted his Fifth Amendment privilege
against self-incrimination. We review a court’s decisions as to whether a statement is
against a defendant’s penal interest and whether it is sufficiently trustworthy for abuse of
discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153; People v. Greenberger (1997)
58 Cal.App.4th 298, 335.)
       We first consider whether Snell’s statement to the informant was a statement
against his penal interest. Snell admitted being with defendant when defendant shot
Croswell. He also admitted to having had a gun, and hiding it after the shooting. He
appeared to admit a gang motive for the shooting.4 All of these statements were
inculpatory, and the trial court did not abuse its discretion in determining they were
against Snell’s penal interest. Defendant suggests, however, that because Snell’s
statement tended to minimize his culpability – by pointing out that he did not shoot
because he “didn’t have the heart for it” – it was not against his interest. To be sure,
when a purported declaration against interest includes statements which tend to
sympathetically describe the declarant’s participation, minimize his responsibility for the
injuries caused, and imply others should bear a greater share of the responsibility, those


disgrace in the community, that a reasonable man in his position would not have made
the statement unless he believed it to be true.”

4       The transcript of Snell’s conversation with the informant is not entirely
intelligible. In the course of the conversation, Snell admitted to “snatching . . . chains.”
He said that when “we went to go turn the chain in we got into it with some” Grape Street
gang members and there was some level of a confrontation in which one of Snell’s
“hom[ies]” was shot in the leg. He told his cohorts that they would get revenge, but not
immediately.

                                              6
parts of the declaration should not be admitted. (People v. Duarte, supra, 24 Cal.4th at
p. 613.) But that rationale does not apply to a situation in which the declarant’s
participation was in fact lesser to that of the defendant. It was undisputed that there was
only one shooter and that the second gunman did not get off a shot. Moreover, defendant
admitted to being the shooter. In that circumstance, Snell’s statement that he did not
shoot was not an attempt to minimize his responsibility and gain sympathy, but an honest
admission of his lesser level of participation.5
       Next, the trial court did not abuse its discretion in concluding Snell’s statement
had sufficient indicia of reliability to be admitted. “ ‘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. [Citations.]’ [Citation].” (Arauz, supra,
210 Cal.App.4th at p. 1400.) Here, the context of Snell’s statement gives it reliability.
Snell had been questioned by police and given them a variety of different alibis and
explanations of his activities on the night of the shooting. He was then placed in a cell
with the confidential informant. Snell and the informant discussed their mutual gang
involvement, and when Snell said he was charged with murder, the informant stated that
he was charged with murder as well. The informant sympathetically discussed Snell’s
situation with him. Snell told the informant that he did not tell “them” (presumably the


5       A declaration against penal interest can be redacted to excise any statement or
portion of the statement that was not specifically disserving of the declarant’s penal
interest. (People v. Duarte, supra, 24 Cal.4th at pp. 612-613.) Defendant notes, on
appeal, that “[n]o attempt was made to redact [Snell’s] statement to limit it to his self-
incriminating statements, . . . .” To the extent this is intended as an assertion of error in
failing to redact Snell’s statement, it is unsupported by argument or authority, and the
contention is therefore considered abandoned. (Huntington Landmark Adult Community
Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1021.) In any event, defendant never
requested that the trial court redact Snell’s statement to the informant in any way. Thus,
the contention is waived.
                                               7
police) that he was at the shooting, but admitted to the informant that he actually had
been. This context gives rise to the inference that Snell’s statement to the informant was
reliable; Snell had been questioned at length by police, and had begun to cry when he was
told he was being booked for murder. Upset, and facing the possibility of a lengthy
prison term, Snell was placed in a cell with someone he believed to be a friend, and
unburdened himself in the hopes of obtaining advice.

2.     Snell’s Statement in a Recorded Telephone Call

       The prosecution successfully introduced Snell’s recorded conversation with the
informant into evidence. In response, defendant introduced as prior inconsistent
statements evidence of Snell’s responses to police interrogation in which Snell gave
various alibis for the evening.
       Prior inconsistent statements of a testifying witness are admissible under Evidence
Code sections 1235 and 770, which require the witness to have the opportunity to explain
or deny the statement. However, prior inconsistent statements of a hearsay declarant are
governed by Evidence Code section 1202. That section provides, in pertinent part,
“Evidence of a statement or other conduct by a declarant that is inconsistent with a
statement by such declarant received in evidence as hearsay evidence is not inadmissible
for the purpose of attacking the credibility of the declarant though he is not given and has
not had an opportunity to explain or to deny such inconsistent statement or other
conduct.” The trial court properly admitted Snell’s responses to police interrogation
under Evidence Code section 1202. Snell had given the police a wide variety of different
stories when questioned about the shooting, including that a couple guys had asked him
to go with them, but he refused and never saw the guys again that night.
       After defendant was permitted to introduce this evidence, the prosecutor sought to
introduce evidence of yet another statement of Snell’s. Specifically, the recording of a
telephone call Snell made the day after he was arrested. In the phone call, Snell spoke to
an unknown family member and stated that defendant came to his house that night and
admitted shooting someone. The prosecution’s theory was that the phone call was itself

                                             8
an inconsistent statement, admissible under Penal Code section 1202. The trial court
agreed.
       On appeal, defendant initially argued that the evidence of Snell’s phone call was
improperly admitted because it lacked sufficient indicia of reliability. The Attorney
General responded that the phone call was not admitted as a declaration against interest,
but as an inconsistent statement under Evidence Code section 1202. In his reply brief,
defendant concedes that the phone call was properly admitted if it impeached other
statements that were properly admitted. The phone call was admitted because it was
inconsistent with one of Snell’s statements to police, which was itself admitted at
defendant’s request, as being inconsistent with Snell’s statement to the informant. There
was therefore no error.

       3.     Croswell’s Statements to his Sister

       Defendant’s last contention is that the trial court erred in admitting into evidence
certain statements the victim, Croswell, made to his sister before he died. Those
statements were admitted as inconsistent statements of a hearsay declarant (Croswell)
under Evidence Code section 1202.
       At the crime scene, after he was shot, Croswell told a friend, Robert McCovery,
that “ ‘[i]t was . . . Dameon from Bounty Hunters, man. [He] said he was going to come
and get me.’ ” This statement was itself admitted as a prior inconsistent statement of
McCovery; McCovery denied at trial that Croswell ever told him this, although he
conceded that he told police that Croswell had. When asked why, McCovery explained
that he had heard on the street that Dameon was the shooter.
       As Croswell’s statement was itself a hearsay declaration, the prosecution sought to
admit other verbal and non-verbal statements Croswell made which undermined the
credibility of that statement. Two days after Croswell was first brought to the hospital,
his sister wanted to help determine who had shot him. Croswell had a tube down his
throat and could not speak, but his sister believed that he could hear her and respond.
Croswell’s sister showed Croswell some internet photos on her iPad – pictures of

                                             9
Dameon, defendant, and someone named Jason. She chose those three people based on
what she had heard on the street. She showed each picture to Croswell, and asked if he
knew the person pictured and if that person had shot him. Croswell’s sister showed him
only those three photographs, and Croswell nodded to each of the three. She did not
share this information with police at this time.
       The day before Croswell passed away, his sister had another conversation with
him. The tube had been removed, and Croswell was able to respond verbally. Croswell
said that Marlon had shot him, Dameon had been there, and he did not know who Jason
was. Croswell’s sister did not give this information to the police until one week later.
She wasn’t sure if what Croswell had told her was true, and she wanted to gather more
evidence. She listened to what people were saying on the street; the names she heard
were those of defendant, Snell, and Hawkins.
       On appeal, defendant challenges the admission into evidence of Croswell’s two
conversations with his sister, in which he identified defendant.6 As Croswell’s
identification of defendant as the shooter was contrary to his spontaneous statement at the
scene where he identified Dameon, the evidence was properly admitted under Evidence
Code section 1202.
       Defendant argues, however, that the statements Croswell made to his sister were
testimonial, and their admission violated his right to confrontation. A testimonial
statement is one in which a witness makes a solemn declaration or affirmation for the
purpose of proving some fact. (Cage, supra, 40 Cal.4th at p. 981.) To be sure, an
unsworn statement can be testimonial (id. at p. 982) but it must “have occurred under
circumstances that imparted, to some degree, the formality and solemnity characteristic
of testimony.” (Id. at p. 984.) Moreover, to be testimonial, the statement must have been
given and taken primarily for the purpose of testimony – to establish or prove some past
fact for possible use in a criminal trial. This is to be determined objectively, considering



6      Defendant makes no argument regarding the information Croswell’s sister heard
on the street.
                                             10
all circumstances that might reasonably bear on the intent of the participants in the
conversation. (Ibid.)
       It is apparent that, under this test, Croswell’s statements to his sister were not
testimonial. First, there was no formality and solemnity. This was not official police
questioning and nobody was even taking notes. This was simply Croswell’s sister
conducting her own informal investigation. Second, from an objective perspective, the
purpose of the statements was not to memorialize Croswell’s testimony for possible use
in a criminal trial. Croswell’s sister herself did not have that intent; she did not bring
Croswell’s statements to the police as evidence, but waited until she could confirm or
contradict them by speaking with other people. As Croswell’s informal statements to his
sister were not testimonial, there was no confrontation clause violation in admitting them.
       Defendant next argues that, even assuming the statements were not testimonial,
they were improperly admitted under Evidence Code section 1202 to impeach Croswell’s
previous statement that Dameon had shot him. Defendant’s theory is that Croswell did
not make a previous statement that Dameon had shot him; McCovery had lied to the
police when he told them that Croswell said Dameon was the shooter. While this is one
view of the evidence, it is not the only one. In a pretrial hearing, defendant argued for the
admission of Croswell’s statement to McCovery, over the prosecution’s objection, on the
basis that it was a spontaneous statement or dying declaration. The trial court overruled
the prosecutor’s objection and granted defendant’s request to use the statement. When
McCovery was called to testify, he denied that Croswell made any such declaration.
Defense counsel then elicited his admission that McCovery had, in fact, told the police
that Croswell made such a statement. This constituted a prior inconsistent statement of
McCovery which was admissible for the truth of the matter – i.e., that Croswell had, in
fact, made the statement identifying Dameon. (Evid. Code, § 1235; CALCRIM No. 318.)
As there was evidence that Croswell had made the spontaneous statement identifying




                                              11
Dameon, the prosecution was permitted to impeach Croswell’s credibility with
contradictory statements under Evidence Code section 1202.7

                                   DISPOSITION

      The judgment is affirmed.




                                               RUBIN, J.
WE CONCUR:



             BIGELOW, P. J.



             GRIMES, J.




7      There was no objection under Evidence Code section 352 that any probative value
of these statements was outweighed by the probability of undue prejudice or jury
confusion.
                                          12
