THE PEOPLE v. JEFFERSON

Filed 1/7/08

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed as modified.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Kevin Jefferson.

Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant Curtis Staten.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Joseph P. Lee and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

This case is about a retaliatory drive-by shooting. A jury convicted appellants Kevin Jefferson and Curtis Staten of the first degree murder of one person and of the attempted murder of another. There was no reversible error. We modify the abstracts of judgment to correct uncontested technical errors. As so modified, we affirm.

I

Tazmania Bernard was a member of the Compton Fruit Town Piru street gang. Someone shot him to death on July 30, 2005. Fellow gang members blamed Bernards murder on a rival Compton gang called the Varrio Tortilla Flats. Retaliation for Bernards death was the motive for the deadly acts that followed.

A

The next day Anthony Staniforth and his fiance Dalinda Penaloza returned from Universal City Walk. Staniforth and Penaloza had nothing to do with gangs. It was Staniforths 24th birthday. Staniforth and Penaloza sat in his Jeep near her place around 11 at night, talking about their plans to marry. Penaloza was in the passenger seat. Staniforth was in the drivers seat.

Anyone driving by Staniforth could see his arm tattoos, on account of his short sleeves that summer night. Penaloza identified the tattoos. Penaloza said Staniforth had no gang tattoos and was not in a gang. One of his tattoos was V.H., however, which stood for Staniforths favorite band Van Halen. The coroner later opined Staniforths tattoo could have been V.F. instead of V.H. Defense counsel suggested that a V.F. tattoo on Staniforth might stand for Varrio Flats. The suggestion was an alleged variant of Compton Varrio Tortilla Flats, the rival gang supposedly responsible for shooting Tazmania Bernard. So Staniforth may have died simply due to a mix up over a Van Halen tattoo.

A white Suburban drove by. It stopped about one or two car lengths ahead. Penaloza heard the driver put it in reverse. The Suburban backed up to Staniforths Jeep. The front passenger window was part way down. Penaloza thought the people were going to ask for an address or something, but they never spoke. Instead, the front passenger bent over and came up with something silver. Penaloza saw a handgun. The man started shooting at Staniforth. Penaloza wanted to scream but could not. She heard at least 10 shots. Other evidence showed at least 15 shots. Penaloza saw only one gun but thought from the sounds there had to be more. The coroner recovered seven bullet fragments from Staniforths body. Three shots were fatal. Two severed his abdominal aortic artery. The third tore through his skull and sprayed brain matter over the Jeep interior. Only broken glass hit Penaloza. She never got a good look at any shooter.

Sergeant John Corina was the investigating officer on this case. At the crime scene Corina found Staniforth still belted into the Jeeps driver seat. Corina located broken glass on the street nearby. The glass had factory tinting and apparently was from the Suburban.

A gun expert found a fired cartridge case at the scene. It was 762 by 39 millimeters and had been shot from either an AK-47 rifle or a SKS automatic rifle. The expert recovered several slugs from inside the Jeep. The bullets were .38 or .357 caliber, a common revolver caliber. Several bullets also hit the house behind Staniforths Jeep. One bullet penetrated the front window and lodged in a bedroom wall.

Corina began searching for a white Suburban with a broken tinted window. He found a matching Suburban in Fruit Town Piru gang territory. The Suburban belonged to appellant Curtis Staten.

Officers impounded the Suburban. There were three fired 762 by 39 millimeter casings between the seatback and seat bottom of the Suburbans right rear passenger seat. The gun expert matched these three cartridge casings with the single casing from the murder scene. The same gun had fired all four. The expert tried but failed to gather gunshot residue from the Suburban.

B

Four days after the shooting, officers arrested appellants Curtis Staten and Kevin Jefferson. Corina and his partner talked to Staten for about 20 minutes at the police station. The officers mentioned some evidence they had. They told Staten they thought the shooting was retaliation for the shooting death the day before of Tazmania Bernard. Staten was being held for murder, they said. The officers told Staten falsely that they had found gunshot residue in his Suburban. They told Staten they thought he was the driver but not a shooter. The officers also said they had talked to Statens cousin. That cousins name, Smurf, came into the conversation. The officers read Staten his Miranda rights, which Staten refused to waive. The officers put Staten in a holding cell and left.

The officers then spoke to Jefferson. They showed him pictures of members of the Fruit Town Piru gang they thought were involved. The officers identified each by moniker. One picture was of a Ricky Smith. The officers told Jefferson that at least three people were involved and that Jefferson had been one of the shooters. They speculated the other shooter was a gang member called O.T. The officers lied that they found Jeffersons fingerprints inside the Suburban as well as on bullets recovered from it.

They asked Jefferson how he knew Staten. Staten belonged to the Crips, while Jefferson was in the Bloods. Jefferson said he was dating Statens cousin and that Staten and his family had been living in the neighborhood for ages. For about 20 minutes the officers went over their evidence with Jefferson. Then they read him his Miranda rights. Jefferson refused to waive his rights or to speak any more. The officers put Jefferson in the cell with Staten and left.

C

This cell was bugged. As Corina had hoped, Staten and Jefferson started talking about the shooting. Both made incriminating statements. Many comments revealed their damning knowledge of the crimes details. At their joint trial, the jury heard their taped conversation. The tape lasted over an hour. This tape is an issue in this appeal. We do not quote it verbatim, but some detail will give a sense of Statens and Jeffersons long and unguarded exchange.

On the tape, Staten and Jefferson said someone must have snitched to the police. They were shocked to learn police knew the gang members monikers. They also were surprised to learn how much evidence the police had already gathered against them. They wondered if someone was talking, and whether it was Statens cousin Smurf.

Staten understood how police could link him to the shooting. His Suburban and its tinted glass from the scene made that connection. But the two could not see how police knew to arrest Jefferson. That seemed to confirm a snitch. Staten told Jefferson, Thats fucking scandalous man. . . . [I]f, however this shit go, . . . whether I get 10 years I can deal, 8 years, I can deal, 30 years I can deal, . . . all Im going to say is this, look Im not ever, ever, fittin to do no shit like that again, and when I do you can believe me . . . Im only going with only one or two mother fuckers. Im not going with no car load. Man, Im telling you man, I guarantee you. . . . Where we, where mother fuckers fucked up at, I dont know who it was, but mother fuckers talking to[o] much of what mother fuckers done. . . .  Jefferson said Yeah. Staten continued that [o]nly person that should have really know was us three, you see what Im saying? Mother fuckers come back, bragging about it, talking about it, and then no telling what Rick and them told, you see what Im saying? Cause you know they done told somebody.

Jefferson reminded Staten three hot Ks, meaning AK-47s, were then at Ricks house. Jefferson worried whether Rick would get rid of the guns, would move them to safety, or would lose his house if police found hot guns there. Jefferson wished he could warn the others to move the guns. Jefferson also expressed concern about whether the police would find his bag of .357 caliber bullets. Staten asked Jefferson if he put the bullets in the glove compartment of the Suburban. Jefferson said no. Jefferson said he meant a bag of .357 caliber unfired bullets he kept at his house. Staten responded, I thought maybe you was talking about the bullets from the bust. Corina testified that bullets from the bust meant bullets from the shooting. Jefferson assured Staten he meant unfired bullets. Jefferson said he had not put shell casings in the Suburbans glove compartment.

Staten and Jefferson each had thought about moving into a motel or getting away for a while. They discussed these ideas. Staten wasnt expecting these mother fuckers to put the smash down that quick. It all had been within four days. Jefferson concurred: This shit is unbelievable. They began to worry anew about a snitch. Staten said the police told me this, I dont know how true it is, but they said its going to be hard for them to try and really convict us because dude is dead and the home girl already said she didnt really see nothing, dont really know nothing. Now all of a sudden they know every fucking thing.

The two discussed the Suburban. Staten said that due to the ballistics all of a sudden they know that was the truck used. Jefferson replied that, [d]amn, you should have left that mother fucker parked and got the window fixed though. Staten criticized Jeffersons suggestion: Just think about it. . . . If I would have done that we would probably be in a worse situation. . . . If I wouldnt have gone and did nothing to that car until I got the window fixed, . . . there still would be shells in there . . . .

Staten told Jefferson the police said murder victim Staniforth was from South Gate and was not a gang member. Staten said, Okay, he from South Gate, but they trying to say he didnt bang. But I know, Ive seen tattoos on this mother fucker. Staten continued, Dog, I dont know what to do now. All I know is now I feel good cause I know they aint find no shell casings in that mother fucker.

The jury had the tape transcript, which included this exchange:

Jefferson: I aint worried about it. Were gonna beat that shit.

Staten: Huh?

Jefferson: Gonna beat that shit.

Staten: Why?

Jefferson: Beat that hot one. They aint, they aint got enough to go on cause they got have some suspicion of evidence to be booking me on a hot one. Unless them mother fuckers be coming to court and be snitching.

Staten told Jefferson I refuse to keep putting my life on the line just for your own to rat you out man.

Staten also said police could not have found their fingerprints. See, I know he lying when he said fingerprint. Dog, mother fuckers had gloves on from the gate, which according to Corina meant from the beginning of the crime. Corina said police did not know the shooters in the Suburban had used gloves.

Statens aunt later visited him. The police microphone also captured this conversation. The prosecution played a small portion of this exchange for the jury. Staten told his aunt, they know. They got his name all in the report. They got his name, the other dude, they know where all the stuff come from and everything. They know what all its about. Statens aunt was dismayed. Staten assured her, Yep. They know everything auntie. From, like if they was there. They, so somebody, somebody thats close told them something.

D

Detective Q. Rodriguez testified as a gang expert. He investigated violent gang crimes in Compton. He had been a police officer for 17 years and had spent nine years in the gang unit.

Rodriguez testified Fruit Town Piru is a Blood gang located in the middle of Compton. The gang claimed some 290 members. Fruit Town Pirus territory had once overlapped with the Compton Tortilla Flats gangs territory. For this reason the two gangs were involved in standing wars with each other. Rodriguez identified Staten as a member of the Palmer Block Crips whose gang moniker is To Jo. Jefferson is a member of Fruit Town Piru whose gang moniker is killa Kev or killer Kev. Jefferson had a gun tattoo on his arm. Rodriguez noted Crips and Bloods are traditional rivals. For this reason he thought it unusual for Staten and Jefferson to associate. The expert was familiar with Fruit Town Piru gang member Gregory Williams, known as O.T. He also knew Rick Smith to be a Fruit Town Piru gang member.

Rodriguez testified that gaining respect is important for criminal street gangs. Gangs, he claimed, gain respect by committing violent acts or other crimes. The more violent the act the more respect a member expects to earn from fellow members, the public, and law enforcement. Respect equals status, both for the gang as a whole and for the individual committing the violent or criminal act. The expert said it is immaterial whether the victim of an assault is a rival gang member because status and respect flow from the act itself. The gang expert also interpreted some terms Jefferson and Staten used on the tape.

This gang expert opined the shooting in this case helped the Fruit Town Piru street gang. Rodriguez testified the shooting was an obvious retaliation for the murder of Tazmania Bernard the previous day. Fruit Town Piru gang members thought rival gang Tortilla Flats was responsible for that murder. Fruit Town Piru gang members drove to the Tortilla Flats area, saw a Hispanic-looking person, took him for a gang member, and shot him to death.

E

An information charged Jefferson and Staten in count one with Staniforths murder. (Pen. Code, 187, subd. (a); further statutory references are to the Penal Code unless otherwise noted.) In count two, the information charged Jefferson and Staten with the willful, deliberate, and premeditated attempted murder of Penaloza. ( 664/187, subd. (a).) As to both counts, the information alleged a principal personally and intentionally discharged a firearm causing great bodily injury or death. ( 12022.53, subds. (b), (c), (d) and (e)(1).) It further alleged the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang. ( 186.22, subd. (b)(1)(A).) As to Jefferson only, the information alleged he personally and intentionally discharged a firearm causing great bodily injury or death, ( 12022.53, subds. (b), (c) and (d)) and that he had served a prior prison term. ( 667.5, subd. (b).)

Jefferson and Statens first jury hung. On retrial, the prosecution spent more time explaining and emphasizing the tape. The second jury found both Jefferson and Staten guilty of murder in count one and fixed the degree of murder at first degree. That jury also found both men guilty in count two of willful, deliberate, and premeditated attempted murder. The jury found true the allegation that a principal personally and intentionally discharged a firearm causing death. The jury likewise found the gang enhancement allegation to be true. As to Jefferson, the jury found not true the allegations he personally and intentionally discharged a firearm causing death.

In a bifurcated proceeding, the trial court found true the allegation Jefferson had served a prior prison term. The trial court sentenced Jefferson to an aggregate term of 76 years-to-life in state prison with the possibility of parole. Statens overall sentence was 75 years to life in state prison with the possibility of parole.

Jefferson and Staten appeal from judgments of conviction.

II

First we address the tape issues. When Jefferson and Staten stopped talking to police, police put them in a bugged cell hoping they would talk to each other. Thinking they were alone, Jefferson and Staten did. The jury heard that tape, as well as a part of another tape of Staten talking to his aunt.

Jefferson and Staten say it was constitutional error to admit the tape of their conversation. They claim its admission violated due process, their Fifth Amendment rights, and their rights of confrontation and cross-examination under the Sixth Amendment. Jefferson also argues admission of Statens recorded statements to his aunt violated Jeffersons Sixth Amendment rights of confrontation and cross-examination under Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. Jefferson points out Staten invoked his right not to testify at trial and thus could not be cross-examined about those statements. These claims all lack merit.

A

In Miranda, the United States Supreme Court sought to protect a defendants Fifth and Fourteenth Amendment privilege against compulsory self-incrimination during custodial interrogation. The Miranda court outlined procedural safeguards for this purpose, including the familiar Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436, 473-474, 479.) When suspects invoke their Miranda rights, police must respect those decisions to remain silent. (Id. at p. 474.)

The officers properly gave Jefferson and Staten their Miranda rights. Jefferson and Staten both invoked these rights. Jefferson and Staten were in custody in the jail cell. The issue here thus is whether Jefferson and Staten were interrogated in violation of their Miranda rights because, unbeknownst to them, police got them on tape.

Jefferson and Staten correctly observe that interrogation is not limited to direct questioning by the police. There also is interrogation when police subject a person in custody to its functional equivalent. In the context of custodial interrogation, the functional equivalent of express questioning includes any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Rhode Island v. Innis (1980) 446 U.S. 291, 301.) In making this determination, the focus is on the perceptions of the suspect, rather than the police. (Ibid.)

Jefferson and Staten acknowledge their situation was not the paradigm Miranda violation, where the suspect invokes but the police keep asking questions anyway. Jefferson and Staten instead argue the officers knew that placing them together in a microphoned cell was reasonably likely to elicit an incriminating response. This form of interrogation, they say, procured their statements in violation of their Fifth Amendment and Miranda rights. Jefferson and Staten conclude the tape was inadmissible at trial.

This is incorrect. Settled law shows that Jefferson and Staten were not interrogated. Interrogation requires a measure of compulsion above and beyond that inherent in custody itself. (Rhode Island v. Innis, supra, 446 U.S. at p. 300.) That compulsion is missing when a suspect speaks freely to someone the suspect thinks is a fellow cellmate. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. (Illinois v. Perkins (1990) 496 U.S. 292, 296, 300 [undercover law enforcement officer posing as a fellow inmate need not provide Miranda warnings before asking questions likely to elicit an incriminating response]; see also, Kuhlman v. Wilson (1986) 477 U.S. 436, 459 [to establish a Sixth Amendment violation of the right to counsel, a defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks]; People v. Williams (1988) 44 Cal.3d 1127, 1141-1142 [no Miranda violation where jail house informant acted as mere listening post].)

Jefferson and Staten were more than just fellow cellmates. They were friends and neighbors. They spoke freely too freely, they now realize. From their perspective, the problem was the opposite of compulsion. They were candid because they thought no one else was listening, not because they were getting the third degree. It was, as the officers hoped, a spontaneous and natural conversation between friends with a dilemma on their minds. These statements were voluntary. Volunteered statements of any kind are not barred by the Fifth Amendment . . . . (Rhode Island v. Innis, supra, 446 U.S. at p. 300, citation and quotation marks omitted.)

It does not matter that Jefferson and Staten were in jail and not a restaurant or some other place of leisurely liberty. The Supreme Court in Perkins v. Illinois, supra, 496 U.S. at p. 297 wrote that Miranda forbids coercion, not mere strategic deception by taking advantage of a suspects misplaced trust. . . . There are many applications of this rule. For example, in People v. Mayfield (1997) 14 Cal.4th 668 the defendant invoked his Miranda rights but asked to speak with his father. Officers secretly taped the defendants incriminating statements at that meeting. (People v. Mayfield, supra, 14 Cal.4th at p. 757.) The Supreme Court upheld the practice, reciting that it is clear that defendants conversations with his own visitors are not the constitutional equivalent of police interrogation. (Id. at p. 758, citation and quotation marks omitted.) If conversations with undercover police do not trigger Miranda concerns, reasoned our high court, then a conversation with your father is even less of a problem. (Id. at p. 758.)

The situation was similar in People v. Thornton (2007) 41 Cal.4th 391. Defendant Thornton invoked Miranda. Police officers arranged for his grandmother to visit him in jail. Police taped their conversation and the prosecutor introduced the incriminating statements at trial. The Supreme Court rejected Thorntons claim that this was custodial interrogation. Conversations with your own visitors are not the constitutional equivalent of police interrogation. (Id. at p. 433.)

Conversations with undercover police agents posing as fellow cellmates do not implicate Fifth Amendment Miranda concerns. Much less do conversations with a cellmate who is your neighbor and friend. There was no interrogation. There was no Miranda violation.

B

The trial court admitted the tape as Jeffersons and Statens admissions and adoptive admissions. In this court, Jefferson and Staten next argue that the trial court thereby violated their Sixth Amendment rights. In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . . (U.S. Const., 6th Amend.) On retrial before a different trial judge unfamiliar with the first courts rulings, Jefferson and Staten failed to renew this specific constitutional objection. Assuming without deciding the issue is preserved for appellate review (see People v. Jurado (2006) 38 Cal.4th 72, 117; People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6), the claim is without merit.

The Supreme Court of the United States in Crawford v. Washington (2004) 541 U.S. 36 set out that the Sixth Amendment applies to witnesses against the accused in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. (Id. at p. 51, citations, quotation marks, and bracket omitted, italics added.) For this reason, the Sixth Amendment applies only to testimonial evidence. (Id. at p. 68.) The Sixth Amendment does not apply to the tape of Staten and Jefferson because their statements were not formal statement[s] to government officers and thus were not testimonial.

Jefferson and Staten made no formal statement to government officers because they never intended to speak to anyone connected with the government. This was no interrogation. No official with an agenda was asking questions and taking notes. No government player was inserting veiled threats or subtle cues to get the goods on these two. Jefferson and Staten were friends. They thought the police were gone and they could talk freely. On their own, they were trying to size up a frightening and perplexing situation. The last thing Jefferson and Staten thought they were doing was testifying. Their conversation was not testimonial because it was not a formal statement to government officers. (See also, Davis v. Washington (2006) 547 U.S. ___, 126 S.Ct. 2266, 2278, fn. 5 [formality is indeed essential to testimonial utterance]; cf. Crawford v. Washington, supra, 541 U.S. at p. 51 [An off-hand, overheard remark . . . bears little resemblance to the civil-law abuses the Confrontation Clause targeted.].)

Beyond this language about a formal statement to government officers, the Crawford court offered two other complementary definitions of testimonial statements. The same results obtain with each. The second Crawford definition of testimonial statements is extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[.] (Crawford v. Washington, supra, 541 U.S. at pp. 51-52; see also, People v. Cage (2007) 40 Cal.4th 965, 984 [to be testimonial, a statement must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony].) There was nothing formalized about Jeffersons and Statens meandering and profane conversation. The government did not direct or organize the talking. The police hid the mikes, rolled the tape, and hoped to trick Staten and Jefferson into saying what was on their minds. How and what Staten and Jefferson said was entirely up to Staten and Jefferson. There was no structured police questioning (Crawford v. Washington, supra, 541 U.S. at p. 53, fn. 4) and no Crawford problem. (Cf. Davis v. Washington, supra, 547 U.S. ___, 126 S.Ct. at p. 2276 [statements in response to 911 operators questions were not testimonial when questions were not designed primarily to prove some past fact]; People v. Cage, supra, 40 Cal.4th at p. 984 [to be testimonial, statements must be given and taken primarily for the purpose ascribed to testimony: to establish or prove some past fact for possible use in a criminal trial]; People v. Geier (2007) 41 Cal.4th 555, 605 [it is the involvement of government officers in the production of testimonial evidence that implicates confrontation clause concerns, citation and quotation marks omitted].)

The third Crawford definition of a testimonial statement was statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. (Crawford v. Washington, supra, 541 U.S. at p. 52, internal citation and quotation marks omitted, italics added.) Here the proper focus is on an objective person in Jeffersons and Statens situation because they are the speakers whose words the jury later heard. Jefferson and Staten would be the witnesses who would bear testimony. (Id.at 51; see also, People v. Cage, supra, 40 Cal.4th at p. 984 [the primary purpose for which a statement was given and taken is to be determined objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation, italics added].) The circumstances would not lead an objective person in Jeffersons and Statens shoes to believe their conversation would be available for use at a later trial. The statements would not be available because Jefferson and Staten thought theirconversation was secret. They trusted each other to keep silent or else they would not have talked so candidly. And they thought no one else could hear. When people speak confidentially, their trusting expectation of confidentiality is the opposite of expecting that a trial will publicize their private words. Once again, there is no Crawford problem.

This result makes sense. The Crawford court wrote about the prosecutorial abuse that the Sixth Amendment aimed to combat. Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse a fact borne out time and again throughout a history with which the Framers were keenly familiar. (Crawford v. Washington, supra, 541 U.S. at p. 56, fn. 7; see also, id. at p. 51 [flagrant inquisitorial practices].) Jefferson and Staten were not like Cobham under duress. (See id. at pp. 44, 51, 52, 62 [using hearsay of Lord Cobham in 1603 trial of Sir Walter Raleigh as epitome of the prosecutorial abuse that Sixth Amendment sought to prevent].) Jefferson and Staten were friends who felt at liberty to speak freely. No prosecutorial abuse or government coercion prompted their damning words. The Sixth Amendment did not apply to this recording.

C

Jefferson also argues a different Sixth Amendment point. He says the tape of Staten and his aunt violated his Sixth Amendment rights of confrontation and cross-examination. This claim fails. After the extremely damaging tape of the long conversation between Jefferson and Staten, any error from the brief tape of Statens comments to his aunt was harmless.

Recall that Statens statement to his aunt referred to the other dude whose name [was] all in the report. Other evidence suggested three people probably had been involved in the shooting: Jefferson, Staten, and someone named O.T.

The pertinent doctrine is the Aranda/Bruton line of cases. These cases apply when there is more than one defendant at a single trial. Suppose there are two defendants. Call them A and B. Suppose also A confesses to the crime after arrest but then decides not to testify at trial. If As confession incriminates not just A but also B, then it is Aranda/Bruton error to tell the jury what A said. This evidence would violate Bs Sixth Amendment right of confrontation, because As decision to remain silent at trial deprives B of the power to confront and cross-examine A. (See Bruton v. United States, supra, 391 U.S. 123, 127-128; People v. Aranda, supra, 63 Cal.2d 518, 530.)

One standard way to avoid Aranda/Bruton error is redaction. If the court redacts As confession to eliminate not only [Bs] name, but any reference to his or her existence, then the prosecution may use As redacted confession in a trial where A and B are codefendants. (Richardson v. Marsh (1987) 481 U.S. 200, 211.) This is proper even though As redacted confession may incriminate B when considered in conjunction with other evidence against B. (Id. at p. 208.)

Our Supreme Court provided guidance for reviewing redacted confessions in People v. Fletcher (1996) 13 Cal.4th 451, 468-469. Courts must judge the efficacy of this type of redaction case by case and in light of other evidence at trial. The redaction will be insufficient if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession . . . . (Id. at p. 456.) By contrast, a confession that is redacted to substitute pronouns or similar neutral and nonidentifying terms for the name of a codefendant will be sufficient if the codefendant was just one of a large group of individuals any one of whom could equally well have been the coparticipant mentioned in the confession. (Id. at p. 466, italics added.)

Here, the group of coparticipants mentioned in the confession numbered only three: Jefferson, Staten, and O.T. A group of three is not a large group. It is barely larger than the smallest possible group. So this large group exception would not seem to apply here. The other possibility is the other dude in Statens statement was a direct reference to Jefferson. If so, it would be error to admit this portion of Statens statement.

Nevertheless, any error here was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Cage, supra, 40 Cal.4th 965, 991-992 [applying Chapmans harmless error analysis to Sixth Amendment error].) It was proper to admit Jeffersons own recorded statements and his own adoptive admissions from his talk with Staten. This proper evidence amply established Jeffersons guilt. These statements described the shooting victim, for example, as well as the guns and the Suburban used in the shooting. The overwhelming proof from all the proper evidence means any error in admitting Statens statement about the other dude was harmless beyond a reasonable doubt. (See People v. Schmaus (2003) 109 Cal.App.4th 846, 859 [error in admitting statement implicating a nontestifying defendant was harmless because it was cumulative of other properly admitted evidence overwhelmingly proving guilt].)

III

Jefferson and Staten contend the trial courts murder instructions violated due process and rendered their trial fundamentally unfair. Specifically, they claim the instructions permitted the jury to convict them of first degree murder without finding express malice. This is incorrect. On this record, there is no reasonable possibility the jury convicted Jefferson and Staten of first degree murder without also finding express malice and an intent to kill. (See Boyde v. California (1990) 494 U.S. 370, 380 [proper inquiry on review is whether there is reasonable likelihood jury misapplied the challenged instruction when an instruction is potentially subject to erroneous interpretation].)

Among other instructions, the court recited CALJIC No. 8.11, which defined malice aforethought as follows:

Malice may be either express or implied. [] Malice is express when there is manifested an intention unlawfully to kill a human being.

Malice is implied when: [] 1. the killing resulted from an intentional act; [] 2. The natural consequences of the act are dangerous to human life; and [] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.

The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

The word aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.

The problem, Jefferson and Staten argue, is that no instruction limited the implied malice theory to second degree murder, and so the jury may have convicted them of the nonexistent crime of implied malice first degree murder. Jefferson and Staten cite Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 667-668 (reversing conviction based on nonexistent theory of felony-murder during an assault with a deadly weapon) and People v. Guiton (1993) 4 Cal.4th 1116, 1129 (conviction must be reversed if it is impossible to determine whether jurys verdict is based on a legally valid or legally invalid theory of conviction).

This argument is incorrect. To reach first degree murder, the balance of the courts instructions required a finding of an express intent to kill. The court instructed about first degree murder on two theories. The first was based on a willful, deliberate, and premeditated killing. (CALJIC No. 8.20.) This instruction was that, to find first degree murder, the jurors had to find express malice aforethought. Express malice and an intent to kill are functional equivalents. (People v. Moon (2005) 37 Cal.4th 1, 29.) The second theory of first degree murder was drive-by murder. (CALJIC No. 8.25.1.) The drive-by murder instruction required the jury to find the defendant specifically intended to kill a human being. Both first degree murder theories thus required an express intent to kill.

The courts instructions made clear, moreover, that unpremeditated murder is second degree murder. (CALJIC No. 8.30.) If jurors had a reasonable doubt whether the murder was first or second degree, they had to find second degree murder and to reject first degree murder. (CALJIC No. 8.71.)

These instructions, taken as a whole, adequately required express malice and an intent to kill as conditions of first degree murder. (See People v. Combs (2004) 34 Cal.4th 821, 856-857 [rejecting claim jury might have erroneously convicted defendant of first degree murder based on an implied malice theory where instructions as a whole clearly conveyed that implied malice did not apply to first degree murder].)

Even had there been error here, it would be harmless. (Chapman v. California, supra, 386 U.S. 18.) There was no doubt this murder was intentional, deliberate, and premeditated. The motive was retaliation. Staten and Jefferson went on a hunt for someone to kill. They headed for rival gang territory. They found a target. Staten stopped the Suburban and backed up to get closer. No one spoke before shooting. There was no provocation or heat of passion. Two shooters fired many bullets at close range. Staten and Jefferson set out to take a life for a life. They accomplished their mission. On these facts, debate about express intent to kill instructions is academic.

We also reject the claim about a misreading of instructions. The transcript reports that the court defined second degree murder as the unlawful killing of a human being with malice aforethought when the perpetrator intended lawfully to kill a human being . . . . (CALJIC No. 8.30, italics added.) The proper wording is when the perpetrator intended unlawfully to kill a human being.  Apparently the court simply misspoke. None of the three experienced counsel objected or requested a correction,however, and in any event, the court gave jurors written copies of the instructions. These written instructions were correct. The courts unnoticed oral misstatement is not reversible error.

IV

The court correctly imposed the applicable section 12022.53, subdivision (d) and (e) enhancement of 25 years-to-life on both counts for both Jefferson and Staten based on the jurys findings a principal intentionally discharged a firearm causing death in a gang related crime. The court then imposed and stayed execution of the 10-year terms under section 12022.53, subdivision (b) and the 20-year terms under section 12022.53, subdivision (c).

Jefferson and Staten contend the court was required to strike, rather than stay execution of, the additional enhancements the jury found true under section 12022.53, subdivisions (b) and (c). They rely on the decision in People v. Gonzales to support their argument the trial court was required to strike the lesser enhancements under section 12022.53 found true by the jury. The Gonzales decision is no longer authority for their argument, however, as the California Supreme Court has granted review to resolve the issue. (People v. Gonzales, review granted March 14, 2007, S149898.)

Division Four of this court rejected Jefferson and Statens precise argument in People v. Bracamonte (2003) 106 Cal.App.4th 704. The Bracamonte court held any duplicative enhancements under section 12022.53 must be imposed and stayed. (Id. at p. 713.) The court reasoned the mandate in section 12022.53, subdivision (h) prohibiting the striking of additional enhancements required a court to impose, but stay, the lesser punishment. (Ibid.; accord, People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062.)

Following Bracamonte, we conclude the trial court did not err in staying rather than striking the lesser firearm enhancements found true under section 12022.53.

V

Staten contends the consecutive terms of 25 years-to-life imposed on the murder and attempted murder counts for the vicarious use of a firearm under section 12022.53, subdivisions (d) and (e)(1) violated equal protection and due process. He argues 12022.53, subdivision (e)(1) singles out aiders and abettors for drastically increased punishment in cases in which a criminal street gang enhancement is pleaded and proved. He contends this different treatment violates equal protection because other similarly situated aiders and abettors of shooting deaths are subject to far less punishment. Staten contends section 12022.53, subdivision (e)(1) also violates due process because it authorizes the 25 years-to-life enhancement without requiring a finding that the aider and abettor knew the perpetrators criminal purpose and shared the perpetrators intent. The courts have rejected these arguments. (People v. Gonzales (2001) 87 Cal.App.4th 1, 12-15; People v. Hernandez (2005) 134 Cal.App.4th 474, 480-483.)

VI

The trial court imposed a court security fee of $20 each on both Jefferson and Staten. The People point out the court should have imposed security fees in the amount of $20 for each conviction instead. Neither Jefferson nor Staten contests the point.

Section 1465.8, subdivision (a)(1) provides: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . . This section unambiguously requires a fee to be imposed for each of defendants convictions. Under this statute, a court security fee attaches to every conviction for a criminal offense. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) We will order the judgment modified to reflect the applicable court security fees.

The People further note that Statens abstract of judgment erroneously includes a one-year term under section 667.5, subdivision (b) for having served a prior prison term. At least as regards Staten, this particular enhancement was not charged, was not found true, and was not imposed by the trial court. We will strike the one-year enhancement and order Statens abstract of judgment corrected.

VII

In Statens case, the cause is remanded to the superior court with directions to prepare a new abstract of judgment striking the one-year term imposed under section 667.5, subdivision (b) and imposing an aggregate court security fee of $40 for his two convictions, and to forward the modified judgment to the corrections officials. As so modified, the judgment as to Staten is affirmed.

In Jeffersons case, the cause is remanded with directions to the superior court to prepare a new abstract of judgment imposing an aggregate court security fee of $40 for his two convictions and to forward the modified judgment to the corrections officials. As so modified, the judgment as to Jefferson is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

WILEY, J.*

We concur:

PERLUSS, P. J.

ZELON, J.

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* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts III through VI.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.