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Criminal Law Aranda-Burton Rule
(People_v Song)

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Criminal Law Aranda Bruton Rule Constitutional Law
(People v.Song)

In People v. Aranda, supra, 63 Cal.2d 518, 530-531 (hereafter Aranda), the California Supreme Court held that when the prosecution seeks to introduce an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of three procedures: (1) in a joint trial, effectively delete direct and indirect identifications of codefendants; (2) grant a severance of trials; or (3) if severance has been denied and effective deletion is not possible, exclude the statement. In the absence of a holding by the United States Supreme Court, the Aranda court declared these rules were not constitutionally compelled, but judicially declared to implement the provisions for joint and separate trials of Penal Code section 1098. (63 Cal.2d at p. 530.)

A decision by the United States Supreme Court came three years later. In Bruton v. United States, supra, 391 U.S. 123 [20 L.Ed.2d 476] (hereafter Bruton), the high court held that introduction of an incriminating extrajudicial statement by a codefendant violates the defendant’s right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant’s guilt or innocence.

Aranda, supra, 63 Cal.2d 518 is now recognized as a constitutionally based doctrine, at least in part. (People v. Mitcham (1992) 1 Cal.4th 1027, 1045.) “To the extent Aranda corresponds to the Bruton rule, it was not abrogated by the 1982 adoption of Proposition 8 (specifically section 28, subdivision (d) of article I of the California Constitution, the ‘Truth-in-Evidence provision.)’” (Id. at p. 1045, fn. 6.) Aranda-Bruton error is not reversible per se; because it implicates a constitutional right, it is scrutinized under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (Brown v. United States (1973) 411 U.S. 223, 231-232 [36 L.Ed.2d 208, 215]; People v. Anderson (1987) 43 Cal.3d 1104, 1128.)

Despite the trial court’s explicit warning to avoid eliciting a statement from one defendant that inculpated another, the prosecutor did just that. Officer Nickelson testified Vang told him he saw defendant force the victim into the car. Defendant contends, and the Attorney General properly concedes, this was Aranda-Bruton error. They disagree on whether it was prejudicial. Defendant contends it was prejudicial because it corroborated and bolstered the credibility of the victim. The Attorney General contends it was not because Vang’s observation was neutral, supporting defendant’s theory that the incident was only horseplay, as well as the prosecution’s theory that it was kidnapping.

Before determining whether the admission of Vang’s statement was harmless, we requested supplemental briefing on whether it was error to admit all of the statements of Vang and Lor, not just those that implicated defendant, under the recent case Crawford v. Washington, supra, 541 U.S. ___ [158 L.Ed.2d 177]. In Crawford, the United States Supreme Court held out-of-court statements that are testimonial must be excluded under the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Id. at p. __ [158 L.Ed.2d at p. 203].) A statement elicited during a police interrogation is testimonial. (Ibid.) A new rule for the conduct of criminal prosecutions is applied retroactively to all cases pending on appeal or not yet final, even if the new rule presents a “clear break” with the past. (Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L.Ed.2d 649, 661].) Admission of an extrajudicial statement in violation of defendant’s rights under the confrontation clause is subject to Chapman harmless error analysis. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140 [144 L.Ed.2d 117, 136].)

The Attorney General declined to address whether there was Crawford error. Instead, he argues any error was harmless beyond a reasonable doubt. He contends the victim’s story was compelling and given without any motive to lie; it provided overwhelming evidence of defendant’s guilt. In the Attorney General’s view the statements of Vang and Lor were not crucial pieces of evidence.

Defendant disagrees, contending the admission of the statements of Vang and Lor was prejudicial error. He asserts the statements served the crucial role of corroborating the victim’s testimony, corroboration that was needed because the victim’s credibility was “shaky.”

Had the statements by Vang and Lor been admitted against defendant, that admission would be Crawford error. Here, however, the trial court instructed that statements by any defendant after his arrest were not to be considered against any other defendant. The Sixth Amendment’s confrontation clause provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” (U.S. Const., 6th Amend.) The question is whether the limiting instruction cured any confrontation clause problem because it mandated that Vang and Lor were not witnesses against defendant.

A similar admonition is insufficient where the statement is a confession or admission that directly incriminates defendant. A limiting instruction does not cure Aranda-Bruton error because courts have repudiated the premise that it is reasonably possible for a jury to follow an instruction to disregard evidence that expressly incriminates the defendant. (Bruton, supra, 391 U.S. at p. 126 [20 L.Ed.2d 476, 479].) A limiting instruction is not a substitute for defendant’s constitutional right of cross-examination. (Id. at p. 137.) As Justice Traynor observed in Aranda, supra, 63 Cal.2d 518, 529, a joint trial poses a particular difficulty in following the command of a limiting instruction. “A jury cannot ‘segregate evidence into separate intellectual boxes.’ [Citation.] It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.”

The scope of Bruton, supra, 391 U.S. 123 [20 L.Ed.2d 476] was limited in Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176] (Richardson). The high court held “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 212, fn. omitted.) The court distinguished the redacted confession from the confession at issue in Bruton because the redacted confession was not incriminating on its face, but only when linked to other evidence. (Richardson, supra, 481 U.S. at p. 208.) Express incrimination is more vivid than inferential incrimination and more difficult to thrust out of the mind. While the express incrimination of the confession in Bruton justified the belief the jury will likely disobey the instruction not to consider the evidence, there is no overwhelming probability the jury will not obey the limiting instruction to disregard the confession in assessing defendant’s guilt when the confession incriminates only by inference. (Richardson, supra, 481 U.S. at p. 208.)

In Gray v. Maryland (1998) 523 U.S. 185 [140 L.Ed.2d 294], the court again considered the efficacy of a limiting instruction. The court found a confession that was redacted to replace defendant’s name with an obvious indication of deletion, such as a blank space, the word “deleted,” or a symbol, fell within the Bruton rule. (Gray v. Maryland, supra, at p. 192.) Whether Bruton, supra, 391 U.S. 123 [20 L.Ed.2d 476] or Richardson, supra, 481 U.S. 200 [95 L.Ed.2d 176] applied depended not on whether an inference was required to incriminate defendant, but on the type of inference required. Where the confession made a direct reference to a perpetrator other than the speaker and the jury could infer immediately that perpetrator was defendant, without considering other evidence, admission of the confession was Bruton error despite the limiting instruction. (Gray v. Maryland, supra, at p. 196.)

Addressing the Crawford issue for the first time in a petition for rehearing, the Attorney General contends there was no error in admitting the statements of Vang and Lor because they did not expressly incriminate defendant. Relying on Richardson, supra, 481 U.S. 200 [95 L.Ed.2d 176], the Attorney General argues the limiting instruction not to consider each defendant’s statements against the other defendants was sufficient to cure any confrontation problem.

If only those statements of Vang and Lor that did not directly incriminate defendant had been admitted at trial, we would agree it is reasonable to presume the jury followed the limiting instruction and defendant’s rights to confrontation were not implicated. That, however, is not the situation here. As the Bruton court recognized, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” (Bruton, supra, 391 U.S. 123, 135 [20 L.Ed.2d 476, 485].) One of those contexts is present here. Once Vang’s statement directly incriminating defendant -- that defendant forced the victim into the car -- was admitted, under Aranda, supra, 63 Cal.2d 518 and Bruton, we presume the jury did not or could not disregard that evidence in assessing defendant’s guilt. Having presumed the jury disobeyed the court’s instruction as to the most incriminating evidence, it is unreasonable to presume the jury then scrupulously followed the instruction as to other evidence from the same source.

The statements of Vang and Lor corroborated the victim’s testimony on a key point, whether she went with defendant out of force or fear. We believe it unlikely that the jury would be able to apply Vang and Lor’s statements that defendant forced the victim into the car, that she expressed her desire to go home, and that she did not want to be in the car --statements that corroborated the victim’s testimony and each other -- only in determining the culpability of Vang and Lor, but not that of defendant.

We conclude that in this case, where there is both Aranda-Bruton error and Crawford error, the limiting instruction is insufficient to eliminate Crawford error. A limiting instruction is not always an adequate substitute for a defendant’s constitutional right of cross-examination. The admission of the statements of Vang and Lor, in addition to the conceded Aranda-Bruton error, was Crawford error.

Under the Chapman test, Aranda-Bruton error is harmless where the properly admitted evidence against defendant is overwhelming and the improperly admitted evidence is merely cumulative. (Harrington v. California (1969) 395 U.S. 250, 254 [23 L.Ed.2d 284, 287].) To find the error harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432, 448], disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 [116 L.Ed.2d 385, 399].) We employ the same analysis for Crawford error since the Chapman test also applies.

The Attorney General contends both errors were harmless because the victim’s testimony was so compelling. The jury, however, did not accept the prosecution’s case entirely. It acquitted Vang and Lor despite the victim’s incriminating testimony. Instead, we look to the individual counts against defendant and the strength of the prosecution’s case as to each.

The prosecution’s case against defendant on the sex offenses was strong. Defendant did not deny the sex offenses took place or claim that the victim consented. His defense was that his actions were inappropriate but not criminal. The statements at issue did not speak much to the sex offenses. The only reference was Lor’s response, to a question about sexual assault, that there was no intercourse. As to the sex offenses, we find the admission of the statements of Vang and Lor was harmless beyond a reasonable doubt.

We reach a different conclusion as to the kidnapping charge and allegation. Here, the defense attacked the victim’s credibility, focusing on differences between her story on direct examination and that on cross-examination. The improperly admitted statements related to the central issue of the kidnapping, whether the victim went voluntarily with defendant. Vang said defendant forced the victim into the car. Both Vang and Lor said they knew the victim did not want to be there even though both believed the victim and defendant had a relationship. These statements were not merely cumulative but strongly corroborated the victim’s testimony on the key point of whether the victim left with defendant willingly, testimony that was challenged on cross-examination when she testified she told defendant she could not go only because her mother would not let her. The error in admitting the statements was compounded by the error, discussed below, in excluding evidence of the victim’s prior relationship with defendant. In these circumstances, we cannot find the error in admitting the statements of Vang and Lor was harmless beyond a reasonable doubt as to the kidnapping.

Although we reverse the kidnapping and “one strike” allegation, we address defendant’s remaining contentions for guidance to the trial court in case of a retrial.

People v Song. C042456A-12-08-2004-Aranda_Bruton Rule

Dec 08 2004

C042456A
[PDF] [DOC]

P. v. Song 12/2/04 CA3

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