People v. Snell CA2/8

Filed 9/29/16 P. v. Snell CA2/8 On remand NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

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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 state court cases, including People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) and People v. Caballero (2012) 55 Cal.4th 262 (Caballero). Earlier this year, we issued an opinion affirming the judgment. (People v. Snell (Feb. 3, 2016, B256698) [nonpub. opn.].) The Supreme Court granted review (S232846), and has now transferred the matter back to our court for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) Having again reviewed Snell’s claims, we affirm the judgment with a clerical modification to the abstract of 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,

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.].)

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 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

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.].)

appeared to be “tugging at his waistband,” but he did not fire a shot. When Williams began firing, the crowd scattered.4 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

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.

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 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 in state prison as follows: an indeterminate term of 15 years to life for the second degree murder, plus an indeterminate term of 25 years to life for the firearm enhancement 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.

5 We note that the abstract of judgment incorrectly indicates that Snell stands convicted of “murder – 1st degree.” We order that the abstract be corrected and that a copy, as corrected, be 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.

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, 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. 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. 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 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 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, [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 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 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 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. 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 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. VI. The Juvenile Sentencing Issue In a supplemental opening brief on appeal, Snell raised a claim that his sentence of 40 years to life is the functional equivalent of a sentence to 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 In our opinion earlier this year, we found no sentencing error. We concluded that Snell’s sentence does not “measure out” to the functional equivalent of an LWOP sentence because he will be eligible to seek parole during his natural lifetime, that is, sometime while still in his 50’s. (People v. Snell, supra, B256698, typed opn. at pp. 20-21.) In Franklin, supra, 63 Cal.4th 261, the Supreme Court clarified the rules for juvenile sentencing in our state. In light of Franklin, we now re-examine Snell’s claim of sentencing error. The Governing Sentencing Principles In Graham, the United States Supreme Court held that sentencing a juvenile to an LWOP term for a non-homicide offense violates the Eighth Amendment’s prohibition against “cruel and unusual punishments.” (Graham, supra, 560 U.S. at p. 59.) Central to this result was the court’s appreciation of 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.)

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

In Miller, supra, 132 S.Ct. 2455, the United States Supreme Court extended the reasoning underlying Graham to hold that imposition of a mandatory LWOP sentence on a juvenile convicted of murder also violates the Eighth Amendment. As the court stated, 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.” (Miller, 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 LWOP sentence for a juvenile. (Miler, at p. 2458 [opinion summary].) 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 an LWOP sentence. (Id. at pp. 1386-1387.) In Caballero, supra, 55 Cal.4th at page 268, the state Supreme Court held that 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 instead that,

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 explained, “the state may not deprive [a juvenile defendant] at sentencing of a meaningful opportunity to demonstrate [his or her] rehabilitation and fitness to reenter society in the future.” (Id. at p. 268.) Thus, a sentencing court must consider mitigating circumstances before considering 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.) In response to the developing juvenile sentencing rules under Miller, Graham, Gutierrez, Caballero and like cases, the Legislature enacted Senate Bill No. 260, which became effective January 1, 2014. (Franklin, supra, 63 Cal.4th at p. 276.) Senate Bill No. 260 added several new sections to the Penal Code dealing with the subject of juvenile sentencing. Most notably, section 3051 established procedures for a “youth offender parole hearing” for juvenile offenders who are sentenced to a life term. For a number of years thereafter, the issue of whether these post-sentence parole eligibility procedures sufficiently assuage the juvenile sentencing concerns discussed in Miller and the related cases was the subject of conflicting decisions in our state’s courts of appeal. Recently, in Franklin, supra, 63 Cal.4th 261, the Supreme Court provided guidance on this issue. In Franklin, the Supreme Court held that section 3051, which entitles juvenile defendants to a parole hearing in their 25th year in prison, had effectively “superseded” the lengthy sentence the defendant had originally received, rendered “moot” any challenge to the sentence under Miller. (Franklin, supra, 63 Cal.4th at pp. 276-280.) As the court explained: “Section 3051 . . . reflects the Legislature’s judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole.” (Franklin, at p. 278.) Further, Senate Bill No. 260 also enacted law requiring that the parole board, in conducting a youth offender parole hearing, not just consider, but “ ‘give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.’ ” (Franklin, at p. 277,

citing § 4801, subd. (c).) In summary: “For those juvenile offenders eligible for youth offender parole hearings, the provisions of Senate Bill No. 260 are designed to ensure they will have a meaningful opportunity for release no more than 25 years into their incarceration.” (Franklin, at p. 277.) Further, the court in Franklin held that section 3051 did not “envision that the original sentences of eligible youth offenders would be vacated and that new sentences would be imposed to reflect parole eligibility during the 15th, 20th, or 25th year of incarceration.” (Franklin, supra, 63 Cal.4th at p. 278.) “The continued operation of the original sentence is evident from the fact that an inmate remains bound by that sentence, with no eligibility for a youth offender parole hearing, if ‘subsequent to attaining 23 years of age’ the inmate ‘commits an additional crime for which malice aforethought is a necessary element . . . or for which the individual is sentenced to life in prison.’ (§ 3051, subd. (h); Stats. 2015, ch. 471.) But section 3051 has changed the manner in which the juvenile offender’s original sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole. The Legislature has effected this change by operation of law, with no additional resentencing procedure required. [Citation.]” (Id. at pp. 278-279.) For all of these reasons, the court in Franklin concluded that the defendant’s constitutional challenge to his sentence was moot: “In sum, the combined operation of section 3051, section 3046, subdivision (c), and section 4801 means that [the defendant] is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither LWOP nor its functional equivalent. Because [the defendant] is not serving an LWOP sentence or its functional equivalent, no Miller claim arises here. The Legislature’s enactment of Senate Bill No. 260 has rendered moot [the defendant’s] challenge to his original sentence under Miller.” (Franklin, supra, 63 Cal.4th at pp. 279-280.)

Analysis Under Franklin, Snell’s claim of unconstitutional sentencing error under Miller is now moot. He will be eligible for a youth offender parole hearing in his 25th year of his sentence, well within his expected natural lifetime. There is no functional equivalent of an LWOP sentence. As did the California Supreme Court in the Franklin case, we remand this matter to the trial court for the limited purpose of determining whether Snell was afforded an adequate opportunity to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801. 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. The matter is remanded to the trial court for the limited purpose of determining whether Snell was afforded an adequate opportunity to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801.

BIGELOW, P.J. We concur:

RUBIN, J.

GRIMES, J.