Opinion
A132071
2014-04-9
The PEOPLE, Plaintiff and Respondent, v. Gamaliel ELIZALDE et al., Defendants and Appellants.
See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 123 et seq. Superior Court of Contra Costa County, Hon. John Kennedy. (Super. Ct. No. 050809038)
See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 123 et seq. Superior Court of Contra Costa County, Hon. John Kennedy. (Super. Ct. No. 050809038) Solomon Wollack, By Appointment of the Court of Appeal, under the First District Appellate Project, Independent Case System, Attorney for Appellant Gamaliel Elizalde.
Stephen B. Bedrick, Oakland, By Appointment of the Court of Appeal, under the First District Appellate Project, Independent Case System, Attorney for Appellant Jose Mota.
John Ward, By Appointment of the Court of Appeal, under the First District Appellate Project, Independent Case System, Attorney for Appellant Javier Gomez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, David M. Baskind, Deputy Attorney General, Attorneys for Respondent The People.
Haerle, Acting P.J.
I. INTRODUCTION
This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found true enhancements for participating in a criminal street gang and intentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota and Elizalde , guilty of the first degree murder of Centron, Perez and McIntosh and came back with an acquittal as to Lisa Thayer. The jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminal street gang. As to Mota, the jury found true an enhancement for intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat of force.
Because Gomez confessed to one of the murders and implicated Mota, the court ordered a single trial with two juries: one jury for Gomez and the second jury for Mota and Elizalde.
On appeal, Gomez argues that (1) the trial court had a sua sponte duty to instruct the jury that an unforeseeable supervening cause might have caused Rico McIntosh's death (Elizalde and Mota join in this argument); (2) the trial court did not properly answer the jury's questions regarding the elements of second degree murder (Elizalde joins in this argument); (3) the trial court erred in permitting testimony regarding threats to witnesses (Elizalde and Mota join in this argument); and (4) the trial court erred when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde and Mota join in this argument).
Mota argues that the trial court erred when it (1) found that there was no prima facie case of discrimination with regard to an African–American prospective juror (Elizalde joins in this argument); (2) gave the jury the task of determining whether four witnesses were accomplices (Gomez and Elizalde join in this argument); (3) admitted into evidence a statement Mota made during booking regarding his gang affiliation (Gomez and Elizalde join in this argument); (4) instructed the jury not to speculate about why unjoined perpetrators were not tried in the same trial (Gomez and Elizalde join in this argument); and (5) admitted evidence that Mota attacked Jorge Sanchez in jail (Gomez and Elizalde join in this argument). He also argues that (6) during his rebuttal to the defense's closing argument, the prosecutor committed misconduct (Elizalde joins in this argument); and (7) there was cumulative error.
Elizalde contends on appeal that (1) there is not substantial evidence to support the jury's conspiracy finding (Gomez and Mota join in this argument); (2) the trial court failed in admitting phone calls between Hector Molina and his mother under the co-conspirator exception to the hearsay rule (Gomez and Mota join in this argument); (3) trial counsel was ineffective for failing to seek redaction of a statement Elizalde made to Molina's mother during one of these jail calls; (4) the trial court erred when it instructed the jury, pursuant to CALJIC No. 3.13, that the required corroboration of the testimony of an accomplice may not be supplied by the testimony of any other accomplice (Gomez and Mota join in this argument); (5) the trial court erred when it admitted evidence that Elizalde possessed methamphetamine for sale to prove a predicate offense for the gang charge and enhancements (Gomez and Mota join in this argument); (6) counsel was ineffective for failing to object to other crimes evidence regarding the conspiracy to commit murders (Gomez and Mota join in this argument); and (7) there was cumulative error.
With the exception of the admission of Mota's un- Mirandized statements made when he was booked into jail, an error that was not prejudicial, we find no other error and affirm the judgments.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Murders
Defendants Mota and Elizalde were convicted of three murders that occurred over a four-month period between December 22, 2007, and April 25, 2008. Gomez was convicted of one of the three, that of Rico McIntosh. The most significant testimony regarding these murders came from fellow gang members and/or friends, Jorge Sanchez (Centron murder), Victor Cervantes (Centron murder), Oscar Menendez (McIntosh murder), and Larry Valencia (Perez murder).
1. Antonio Centron Murder
Jorge Sanchez testified that in exchange for his testimony he pled to accessory after the fact to murder, and received a three-year suspended sentence. Sanchez, who was not in the country legally, also had a “parole in place” arrangement with Immigrationand Customs Enforcement and, as a result, wore an ankle bracelet monitor. Sanchez testified that he was a member of Varrio Frontero Loco , a subset of the Sureño gang, which is active in Contra Costa County.
As one of the prosecution witnesses explained, Varrio Frontero Loco “just stands for it's a hood, you know, no matter from where country you are from, you are in the hood.”
The evening of December 22, 2007, Francisco Romero, who was also a Varrio Frontero Loco, gathered together a number of people and went to North Richmond. When he arrived, Molina phoned defendant Gamaliel (Gama) Elizalde “because supposedly he was going to put a meeting to go up there, just fight them [the Richmond Sur Trace members].” After speaking to Romero, Elizalde came to North Richmond. Elizalde then tried to call a Richmond Sur Trace member in order to arrange a fight but was not able to reach anyone.
Preceding this gathering, there had been altercations between members of Varrio Frontero Loco and another Sureño gang called Richmond Sur Trace as well as with rival Norteño gang members.
We identify the witnesses, victims, defendants and other participants in this trial by their full names rather than their gang nicknames. Where necessary for clarification, we will indicate the full name of any person identified in testimony solely by his gang nickname.
After the failed effort to engage the Richmond Sur Trace, Sanchez, Romero and Molina eventually drove to the Broadway area of San Pablo, which was known to be Norteño territory. Sanchez understood that if they found Norteños there they would beat them up or shoot them. He understood this “was part of the deal of being a ... [Varrio Frontero Loco] Sureño at this time.”
That same evening, the victim, Antonio Centron, along with two friends, Neil Wixson and Adrian Espinoza, attended a party in the Broadway area of San Pablo. They stayed at the party for a couple of hours and then walked down Lake Street, toward 19th Street to buy beer. This area of San Pablo was a stronghold of the Norteño gang. Wixson and Centron wore red shirts, a color associated with Norteños. Centron walked a little ahead of his friends.
Romero drove by Centron, Wixson and Espinoza. Molina, who was in the right front passenger seat, told Romero he knew one of the three men. Molina pulled out a handgun and directed Romero to park down the next street. Romero parked and Molina ran out, and hid behind a fence, waiting for Centron, Wixson and Espinoza to come to the corner. When they did, Molina told them he was “VFL” and emptied his gun in their direction. His first shot hit Centron in the head. Centron died almost immediately. Nine more shots hit Espinoza in the back. Molina's final shot hit Wixson in the arm. Espinoza, who was still conscious (and ultimately survived his injuries) called 911.
After killing and wounding the men he believed were rival gang members, Molina ran back to the car and they sped off. In the car, Molina was jumpy and excited. According to Sanchez, Molina said “to watch the newspaper. That's—that was going to be his trophy.” A newspaper article about a killing was “[l]ike a signature that you did it.” The killing would give Molina “more respect” in the gang. Molina called Elizalde to tell him what he'd done. Elizalde arrived “and just started telling him just be quiet, stop, you know, screaming and just lay low.”
The next day, the police detained and searched Molina. They found in his possession a .45 caliber chrome Colt semiautomatic handgun, a blue bandana, and a blue baseball hat. The police arrested him and charged him with possession of a concealed firearm. Molina was released from jail four days later.
Victor Cervantes testified that right after Molina got out of jail, he called Cervantes and asked for a ride home. Molina told him that he'd killed one man and another was in a coma. He also told Cervantes that he'd been with Francisco Romero when he'd killed the man. Cervantes asked him how he got out of jail when he'd been caught with a gun. Molina told him that he got caught with a different gun than the one used in the killing and, as a result, he had gotten away with murder.
In an interview with the police, Luis Ruelas testified that Molina admitted to him that he was in the car with Romero and Sanchez that evening and that Molina said he had shot at three men and killed one of them.
Defendants Elizalde and Mota were found guilty of Centron's murder as co-conspirators.
2. Luis Perez Murder
Larry Valencia was one of the prosecution's main witnesses with regard to the murder of Luis Perez. Valencia had not made a plea bargain with the District Attorney's office, nor was he receiving any witness protection or money from the District Attorney's office.
Valencia testified that late on the night of February 16, 2008, he decided to visit friends in North Richmond. After an evening of drinking beer, smoking marijuana and taking Ecstasy someone said, “[l]et's jump for a ride. Let's go find some females to party.” Hector Molina, Jorge Camacho, and Jose Mota got into Mota's black, two-door Kia. Molina sat in the driver's seat, with Jorge Camacho next to him in the passenger seat and Mota in the back. Cole Azamar and Luii Hernandez got into Azamar's car, with Azamar driving and Hernandez sitting in the passenger seat. All five men were members of Varrio Frontero Loco. They encouraged Larry Valencia (who testified that he was not a gang member) to join them and he got into the back seat of Azamar's car. After the two cars drove around for a while, with Azamar following Molina, they arrived in San Pablo. Valencia was aware that this was Norteño territory.
Molina stopped the car and Valencia saw the people in Mota's car arguing with a man in a red jacket—the victim, Luis Perez—who was standing next to the car. He saw Camacho get out of the car and say to the man, “[s]how me your hands, show me your hands.” The man yelled “[w]hat the fuck is going on?” Valencia heard three loud shots and saw Camacho shoot the man three or four times. In fact, Camacho hit Perez seven times: two bullets to the abdomen, two to the back and three to the back of his arms. The bullets passed through Perez's lungs, heart and liver. Perez died en route to John Muir Hospital in Walnut Creek.
Camacho got back into the car with Molina and Mota and Molina drove away. Valencia had never seen anyone killed before. Valencia told Azamar to take him back to his car so he could go home.
Mota was found guilty of Perez's murder on an aider and abettor theory. Elizalde was found guilty as a co-conspirator.
3. Lisa Thayer
The third victim, Lisa Thayer, died when Jorge Camacho, a member of Varrio Frontero Loco, exchanged shots with several unidentified men in a Toyota minivan.
This altercation began late in the afternoon of February 27, 2008. Camacho and his friend Antonio Solomon, were walking on San Pablo Avenue in San Pablo. Solomon was wearing a New York Yankees hat. In that area, that kind of hat was understood to stand for “Young Narfer,” a reference to North Richmond, which was Sureño territory.
Much of the evidence regarding this incident came from an interview between Solomon and the police.
A burgundy Toyota minivan with a Hispanic driver and front seat passenger and African–American passenger in the back seat passed Solomon and Camacho. Solomon and Camacho ran.
The men in the minivan chased them. Eventually, the minivan pulled up behind Solomon and Camacho. The side door opened, revealing that the back seat passenger had a gun. Camacho shot at the van with the same 9 mm semiautomatic handgun he used to kill Perez. He fired nine times. The man in the van also fired a .40 caliber semiautomatic handgun several times.
Lisa Thayer, who was walking on San Pablo about half a block from the shooting, was hit by a bullet. The bullet hit her in the back, went through her right lung and came out at her chest. Thayer died soon afterwards.
Solomon and Camacho ran from the scene with the van following them. Someone in the van fired several more shots at them. Soloman and Camacho climbed a fence and ran to the apartment of a friend—Ignacio Mendoza. When Mendoza's mother told them to leave, Camacho gave his gun to Mendoza and left with Solomon. The police arrived nearby, a witness pointed them out and they were arrested. Camacho had a blue bandana in his pocket.
The jury found defendants Mota and Elizalde not guilty of Thayer's murder.
4. Rico McIntosh
The fourth shooting occurred in the early morning hours of April 26, 2008. Oscar Menendez, who was present at the shooting, testified that he had pleaded to accessory to the murder of McIntosh with a gang enhancement. He was given three years probation. As a condition of his plea, he agreed to testify in court. At the time he testified he was in “parole in place,” which meant he wore an ankle monitor required by Immigrations, Customs and Enforcement. The People were assisting him in obtaining a work permit. Menendez had not violated any of the terms of his probation or the terms and conditions imposed by Immigration, Customs and Enforcement. He did not receive any money from the District Attorney's office.
Menendez testified that he had known Mota for several years. Mota was a member of Varrio Frontero Loco. Menendez also knew Javier Gomez. The three of them hung out together and “sometimes we used to get in the car and just cruise around.” Gomez belonged to a Sureño subset called Mexican Loco. Menendez had been at parties where members of the two Sureño subsets would brag “about crimes they have done during the week or, you know, any stuff that they doing, you know, like beating somebody up or robbing people or whatever crimes they do, they used to brag about all of the time.” Six months before the McIntosh murder, Menendez became a Sureño.
During a search of Gomez's home, the police collected evidence of Gomez's gang membership—four CD cases with “Sureño-type titles on them,” “six individual CDs with Sureño-type titles,” “[a]nother CD ... again, with Sureño-type titles,” “[t]wo blue bandanas.”
Menendez described an incident that occurred about a week and a half before the McIntosh murder. He, Gomez and Mota went to visit Gomez's cousin who lived in Montalvin, which was Norteño territory. Mota drove his Kia, and Gomez sat in the front passenger seat. Menendez sat in the back. The cousin wasn't home, so they turned around to return to Richmond. As they did so, Gomez and Mota saw a man wearing red who was fixing his car. Mota and Gomez “said he was a Buster. He was wearing red....” Menendez didn't agree and when he saw that Gomez and Mota had a gun in the front seat he told them to drop the gun. Menendez tried to grab the gun and in the ensuing scuffle, someone shot Menendez in the leg.
Menendez had found this gun earlier, but he gave it to Mota when Mota told him that he (Menendez) couldn't shoot it and “might as well just give it to him....”
Menendez was bleeding heavily, so Mota and Gomez took him to the hospital. The police questioned Menendez and he lied and told them that they had been jumped and he had been shot in the leg because he told his assailants that he didn't have any money.
Several weeks later, Gomez and Mota pulled up to where Menendez was hanging out with some friends and “they were calling me, right, and I went to the car and they say get in the car. I was like where are you guys going? They said don't trip.” As on the other occasion, Mota was driving and Gomez was in the front passenger seat. Menendez asked if his friend could go too, and Mota told him he couldn't. Menendez got in the car and they decided to go to a McDonald's on San Pablo near Broadway. Instead of turning right into the McDonald's, however, Mota turned left onto Broadway. Menendez asked Mota were he was going and he said “don't trip.” Mota kept driving. At this point, they were driving into Norteño territory and Menendez thought “they were looking for some Norteños ... or they were trying to do something again.”
Gomez spotted three men wearing red at a stop sign. Mota stopped the car and asked the men if they were “busters.” The men said they weren't, and Menendez recognized one of them and told Mota that “they don't bang....” Mota drove away but “he kept on mugging them.”
Menendez defined “mugging” as “like he look hellabad at him.”
Mota then spotted Rico McIntosh, who looked, to Menendez, like he was wearing a red bandana and had some “red on his pants, too.” Mota and Gomez thought he looked like a Norteño. They pulled alongside McIntosh and Gomez asked him “if he is a buster.” McIntosh said “what the fuck is a buster?” Menendez thought he heard Mota say “pull it out.” He then saw Gomez reach down toward his leg. McIntosh made a gesture as though to reach for something and Menendez thought it was a gun. Gomez began to fire the gun out of the window of the car. Menendez heard four or five shots. McIntosh fell and Mota and Gomez began to laugh. Menendez told them it wasn't funny and they told him he was a “pussy.” Menendez said he wanted to go home. “I told them what they just did, it was wrong because I never seen somebody kill another person like that.”
Mota and Gomez “seemed pretty happy, like they just won the lottery or something. They were really excited about it.” Mota and Gomez wanted to celebrate, but Menendez asked to go home. On the way, Mota and Gomez talked and said, “Oh, you know, what the homies are going to say when they find out, or was he good, was he bad, you know they were saying that it was like, you know, it was like perfect. Perfect is no one sees them. [¶] No one seen us when we were there. When that happened there was no people at all, just that guy.”
When they arrived at Menendez's house, Mota left the gun with Menendez. He told Menendez that he was on parole and couldn't have it.
A week or so later, Menendez went to a party with members of Varrio Frontero Loco and Mexican Loco. At the party, Gomez “started talking about it.” Ruelas was also present, along with a number of other Varrio Frontero Loco and Mexican Loco. Mota was also there.
Gomez confessed to the McIntosh murder. He told the police that Mota picked him up the night of the murder and the two of them went to look for Norteños. Mota gave him the gun he used to shoot Rico McIntosh. Mota's job was to drive until he saw a Norteño and then stop. Gomez didn't plan to shoot anyone who wasn't a Norteño. After driving around for a while Mota and Gomez picked up Menendez. Menendez sat in the back seat. They continued to look for Norteños, slowing down to look and then ruling out a number of groups of people who were out that night. Eventually, either Mota or Menendez spotted McIntosh, who was walking down the street. Mota told him that McIntosh had some red on. Gomez “asked him, are you a Buster? And he said, what the fuck is a buster? He, he had a hoodie. Then he like, he pulled the hoodie down as if he wanted to do something, so I just shot him.” He shot McIntosh until there were no bullets left in his gun.
After the shooting they went to a store and bought some beer and drank it at the cemetery. He gave the gun to Menendez. Menendez saw the whole thing from the backseat.
McIntosh was hit in the hip and buttocks. He was taken to John Muir Hospital and released on April 28, 2008. The next day, McIntosh collapsed and died after blood clots caused by the gunshot wounds traveled to his lungs.
Gomez was convicted of second degree murder. Mota was convicted of first degree murder as an aider and abettor and Elizalde was convicted as a co-conspirator.
B. Conspiracy and Gang Evidence
Several witnesses testified to a conspiracy on the part of Mota and Elizalde to commit murders of rival Norteño gang members in order to restore the reputation and fortunes of the Varrio Frontero Loco.
1. Jorge Sanchez
Jorge Sanchez was a member of Varrio Frontero Loco. He joined because his older brother was in the gang. Sanchez's brother was a member of the Mexican Loco, another Sureño gang, and he joined the Varrio Frontero Loco because he wanted his own “name.” He was “jumped in” to Varrio Frontero Loco, through a process he described as “[j]ust imagine three guys beating on one person, kicking him, beating him, just thumping on him” for 13 seconds. He had also helped jump people into the gang. Sanchez showed the jury a number of tattoos that signified his membership in Varrio Frontero Loco. Gang tattoos were important so people “won't mess with us.”
Of the witnesses who provided significant testimony regarding the workings of the Varrio Frontero Loco and Elizalde and Mota's positions and participation in the gang, Sanchez was the only one the court concluded was an accomplice as a matter of law. Accordingly, the jury was instructed to view his testimony with caution.
A Sureño who wanted to prove himself would “[j]ust go to the streets. Beat up any Norteño you can think of to start with.... [¶] Just you earn respect and your stripes. Start shooting or just doing whatever you want.” You would do this with other people “[t]o make sure you do it. Just to make sure you ain't lying about what you did.” When Sanchez went out to attack Norteños, he would take fellow Varrio Frontero Loco with him. He would do that for “backup.” He would also do it to “make sure they do it, too. Make sure they look at you.”
Sanchez understood that at the time of trial, Mota and Elizalde had “green lighted” him; that is, they had ordered him killed for talking to the police. Green lighting did not occur until the actual text of a statement made to the police was distributed “to the streets,” generally through a defendant who received the statement from his lawyer.
Sureños were enemies with Norteños because they were “mixed people”: “part Mexican ... they mix with Mexican black, Mexican white.” You could tell who they were by “[t]he hair, the clothes, the grill that is like the gold teeth they wear. [¶] And if they got tattoos you look at tattoos, belts.” In particular, Norteños had long hair, “all of the new clothes the black people be coming out with,” and wore the color red, including red belts. Sureños identified themselves with blue bandanas and blue belts.
Sanchez was familiar with a number of Norteño sub-gangs including West Side Berkeley, Montalvin, Varrio San Pablo. Each of them claimed a particular area. Varrio San Pablo claimed the area near Broadway and the Hilltop Mall.
As a Sureño, when he saw a Norteño he was supposed to “[t]ake off, just don't even think about it, just hit them up.... Just whoop his ass.”
Varrio Frontero Loco used violence to scare “[j]ust the people, Norteños whoever—everybody, the blacks, the whites, the Asians.” They did so “[j]ust so they won't mess with us.... [P]eople be picking on people. Sometimes people just look for a way out. And just make sure they scared of you instead of you being scared of them.”
Fame mattered because it was a way of “representing my hood,” “[j]ust to let people know ... where you are from.” You did that by “doing a lot of things, shooting, selling drugs, getting money, cars, just whoop—whooping people in front of other people.” A Varrio Frontero Loco would “throw it up” by telling someone who they were, just make sure they know it. Being feared by rival gang members was a good thing—“[y]ou can be walking the streets with no one, no one is trying to hit you up or something.”
Gang members would get together and brag about what they had done in order to let people know that “if they mess with you they will get the same ... treatment.” He would also get together with other Varrio Frontero Loco and plan future crimes “to get respect or to make people afraid.”
With regard to non-gang members, it was important to “let them know that ... we don't mess with you and you just don't mess with us.”
Drug sales were a part of being a Varrio Frontero Loco. Sanchez “wasn't into that,” but he had seen fellow gang member Gamaliel Elizalde selling drugs out of his backyard.He would sometimes give drugs to Mota to sell and Mota would brag about it. The drug sales were run out of Elizalde's house.
Varrio Frontero Loco held meetings to “check in with each other, to make sure what was going on with each other and just what kind of problems, like people got problems with someone, different rivals or with a Norteño or something.” Sometimes the members would put money together for people in jail to use for “hygienes like toothpaste, soap, shampoo....” Elizalde was in charge of putting money “on the books” for the Varrio Frontero Loco members who were in jail. The meetings were not held often. Sometimes the meetings would take place at Victor Valencia's house and sometimes at Elizalde's house.
Occasionally, he and other members would “check,” or beat up, a member who was not “putting in work or he ain't kicking it with us a lot....”
At the time Sanchez joined Varrio Frontero Loco in 2005 or 2006, it was led by a number of men, including Gamaliel Elizalde. Elizalde was an “OG” or leader, “the one you look up to.... The one[ ] that you go ask for advice.” One of the benefits of being a leader was that he “get to kickback or just don't do a lot of things no more.” A leader would not “fight somebody or put a lot of work in the streets, shooting, whatever, just get to just relax and let the other generation do their work.”
Sanchez explained that “OG” meant “[j]ust like an old Cadillac, like an older guy, just the one who is like forties, thirties, forties.” You get to be an “OG” by going “through a lot.... They went through their stages, just like we went through our stages, we going through our stages.... [¶] ... [T]hey know more stuff than we do. They got more opportunities in their brain.”
A leader would have money from “things going on on the side .... [¶] ... like they were selling drugs....” The leaders would use the “pee wees” or younger members “to distribute it....”
In 2007, there were several subsets of Sureños with whom Sanchez was familiar: his own gang, Varrio Frontero Loco, another gang called Mexican Loco and a third called Richmond Sur Trece. Although they were all Sureños, they did not always get along. In 2007, a Varrio Frontero Loco leader called “Toby” shot a member of a Richmond Sur Trece and fled, along with his brothers, to avoid being killed in retaliation for murdering a fellow Sureño. This left a void in the leadership of Varrio Frontero Loco, which was filled by Elizalde. As Sanchez put it, after Toby fled, “everybody was just going to Gama, so that's the only one who we look up to and who was there with us.” Nevertheless, after Elizalde took over, Varrio Frontero Loco began to dissolve. “[E]verybody just try to take it their own way. It was—just disappeared. Some of them went to some other towns. People got scared because they got shot at, who was getting stomped on.” At this point, Varrio Frontero Loco were “getting hurt” and “things were bad.”
Sanchez testified that “we just had to get it back together.” He and others referred to this as “bring[ing] the hood back.” To do this, it was necessary to “recruit[ ] new people and try to do more damage to the Norteños, to the streets.” All of the Varrio Frontero Loco wanted to bring the hood back, including Elizalde. In terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez was directly under him along with Mota, Ruelas, and several others.
Elizalde told the Varrio Frontero Loco that they had to “put in more work,” “go to the streets, ride around the streets,” “[m]ake sure they [the Norteños and everybody] know we around, we ain't gone.” They would do this by “hit[ting] the streets, ride around, especially in Norteño territory.” Sanchez explained that this was effective because the Norteños “don't expect us to go. They think we going to be scared. They think we going to just lay back. And we go there and they go, oh, man, they coming back and they coming back hard.” In Norteño territory, [i]f you see them just shoot them or whoop them, whatever you got. If you don't got no gun you just get out and do what you got.”
Sanchez discussed this plan with all the Varrio Frontero Loco, including Mota. He didn't talk to Elizalde about why he wanted to bring the hood back; he only knew that Elizalde “wanted it done.”
According to Sanchez, he and Mota, along with Luis Ruelas, Luii Hernandez, and Cole Azamar were “the ones who was going to bring them back ... just the ones who got to take care of everything.” They covered different parts of Richmond. In addition to attacking Norteños, they also recruited and “guided” “pee wees.” Elizalde wanted them to “get into the high schools and expand the Sureños and hurt the Norteños.”
Shortly before Sanchez was arrested, Mota came to his house. He was nervous because the police had been to his house. Mota told him that he [Mota] “went in the shootout.” He also spoke to Jorge Camacho who told him that he “shot a lady.”
2. Oscar Menendez
Oscar Menendez testified that at the time of the Rico McIntosh murder, he “was undecided” about being a Varrio Frontero Loco. He “didn't want it for my future ... it was just fine being with them, you know, being with girls and having parties, but I didn't like the rest that they used to do.” He had a lot of Sureño mentions on his MySpace page, and he liked being around the gang because it “was fun because they always used to hang around with a lot of girls and they always used to have parties every weekend and, you know, beers and music.”
He was aware that gang members “hunted and attacked Norteños.” However, no one ever “told me to do it.” He was never “jumped in.” He associated with the Varrio Frontero Loco for six or seven months beginning in November 2007 until his arrest about a week after the McIntosh murder.
It was typical for gang members to brag about their crimes. He explained, “they say that's what they get respect because when they—when the rest of the guys knew what you were doing they will respect you more than what they do.” This was a “big deal” to the Varrio Frontero Loco.
The Norteños were the Varrio Frontero Loco's rivals. Menendez knew what areas were Norteño territory. He also knew that if a Varrio Frontero Loco found a Norteño or saw one he was to “beat him up and if you have a gun you have to use it.” That is because the Varrio Frontero Loco “wanted to get rid of Norteños.”
He knew both Javier Gomez and Victor Cervantes, both of whom were members of the Sureño gang, Mexican Loco. When he associated with these gangs he knew they got along “but not that much” at first.
According to Menendez, Varrio Frontero Loco “wasn't that much organized.” He “never knew who was the shot-caller....” He was aware that the members “used to receive orders from some older guys....” When he asked what they were doing, the members would say “don't trip ... that's something that I got to do and that's it.” In his own mind, he thought that Elizalde was the shot-caller because he once heard him giving orders to someone. At one point, Elizalde told Menendez that “in order to be a Sureño you have to get down, you now, don't have to be a fear of anybody, if you see a Norteño on the street you have to put him on check, beat him up or anything that is in your hands to get him away from Richmond, and to don't let them come to Richmond, let them stay in San Pablo.” Specifically Elizalde told him that if he saw a Norteño he was to beat him up and if he had a gun to use it. Elizalde once told him that in order to be a Sureño he had to “stick with them all the time and commit sort of a crime that he used to commit—I had to do the crime that they used to do in the week and stick around with them and, you know, do whatever they—they were doing during the week.” This would include “[s]tealing cars and robbing people, shooting Norteños, beat them up.” Mota told him the same thing. He also told him that he had to “earn” a Varrio Frontero Loco tattoo by doing something “big” like kill a Norteño.
On three occasions, he heard Elizalde instruct someone to beat up a Norteño or to look for him. He also heard Elizalde say that Richmond was Sureño territory.
Menendez named a number of Varrio Frontero Loco as those with the most respect in the gang. They were Molina, Azamar, Camacho, Ruelas and Sanchez. He also knew Larry Valencia, who he didn't think was a gang member.
He felt that he had to do what Elizalde told him to do. He did not, however, think that he had to hunt Norteños in San Pablo. When he went with Mota and Javier Gomez on April 13, 2008, which was the day he shot himself by accident, he did not know that they were looking for Norteños to kill. Nor did he think that was the case on April 26, 2008. He did not realize that they were looking for Norteños to kill until the car did not turn toward the McDonald's on Broadway as he had expected.
In jail, Menendez received a message on the module where he was housed from the Sureño shot caller. The message laid out in detail how he was to behave while incarcerated. Among other things, he was to contribute money to buy food and supplies for other Sureños, he was not to speak to the police, he was to follow orders from the shot caller and if he was asked, he was to beat people up the shot caller told him to attack. He was also required to give the shot caller a copy of the police report on his arrest as well as any other legal materials in order to permit the shot caller to determine whether he was a snitch. Menendez refused to give these materials to the shot caller and, several days later, he was beat up by several Sureños. He entered protective custody afterwards.
3. Luis Ruelas
Luis Ruelas testified that he was a member of Varrio Frontero Loco for six years until 2008. He was 14 or 15 when he was jumped into the gang. Jose Valencia brought him into the gang.
Ruelas's testimony before the grand jury was admitted into evidence. In that testimony, Ruelas told the grand jury that he had “earned” a tattoo that said “Chap Killa” on his arm. He worked his way up from the bottom of the gang by earning “respect” through shooting and beating up Norteños. Norteños were identified by the color red, while Sureños wore the color blue. Ruelas became close to one of the top people in Varrio Frontero Loco at the time, Victor Valencia. Valencia had secured their territory by running out another gang that had previously been there.
Ruelas was deported to Mexico and Victor Valencia fled the country. When Ruelas returned, Elizalde “was the main—was the kingpin at that time, but everything else was a mess on the streets.” Elizalde was “moving all the drugs.” With Victor Valencia gone, “[h]e took over all our stuff.” Ruelas did not like Elizalde. Elizalde gave orders to kill people, including one occasion when Elizalde told Ruelas to “kill somebody because they popped his tires.” He didn't do it because at the time he was working as an informant with the San Pablo police. As part of his deal with the police, he promised not to participate in the commission of any crimes. Elizalde also would send Ruelas out to collect debts using violence.
On one occasion, before he returned to Richmond, Ruelas spoke to Hector Molina, who told him “We miss you.... We bringing the hood back.” According to Ruelas, “the whole part of being a Sureño” was to “assault or kill Norteños.”
Ruelas's testimony at an earlier gang prosecution was also admitted into evidence. At that time, Ruelas testified that violence was an important part of bringing the hood back “[b]ecause if ... you don't have people be scared of you, they ain't going to respect you. They going to be like, you know, whatever. As long as you show them you really about it, they will think about it twice before they come at you.” Violence also helped recruit new members who “seen what we were doing and they knew we had money. We had girls, we had everything. And they wanted it, too, so they started joining in.”
At trial, Ruelas was reluctant to testify because of threats to his family. In general, he either outright denied or claimed to forget testimony he had earlier given about Varrio Frontero Loco. At trial, he testified that Varrio Frontero Loco did not have a structure in which there was a shot caller. Instead, there were people he looked up to, including Victor Valencia. Ruelas also had respect for Elizalde because he was his elder.
Ruelas showed the jury tattoos on his forearms that said “Chap Killa.” A Chap, he explained, is a Norteño gang member. He had done a lot of crimes to earn the tattoo.
One of the rules of being a Sureño “is just you got to represent yourself the right way.” To do that, you had to have respect, which you earned through loyalty. If a Varrio Frontero Loco saw a Norteño he was expected to get into a fight with the Norteño. He would sometimes go out and look for Norteños to find. The Broadway area in San Pablo was one place the Norteños hung out.
He knew Elizalde because they “used to kick it outside his house.” Elizalde was a Varrio Frontero Loco. He was older and “some guys came up to him for advice.” Although he had earlier told the police that Elizalde was “running the streets,” he had done so because “I was just trying to save my life from being prosecuted, but it was—what I said was wrong....” In general, he retracted a number of statements he made earlier in which he had identified Elizalde as the person who had taken over drug sales, the person to whom he would go if he needed a gun quickly, and as having a list of people that needed to be hit. He also did not remember telling the police that Mota brought a pound of methamphetamine to his house along with a gun and said he was going on a drug deal.
C. The Verdicts
The Gomez jury deliberated for three days and came back with a second degree murder verdict with regard to Rico McIntosh. It found the firearm and gang enhancements true. The trial court sentenced Gomez to an aggregate term of 40 years to life in prison.
After four days of deliberation, the Mota/Elizalde jury brought back guilty verdicts on three murder counts and an acquittal with regard to the death of Lisa Thayer. It also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminal street gang. As to Mota, the jury found true an enhancement for intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat of force. The court sentenced Mota to an aggregate term of 100 years to life. It sentenced Elizalde to an aggregate term of 103 years to life.
This timely appeal followed.
III. DISCUSSION
A.–F.
See footnote *, ante.
G. Admissibility of Mota's Booking Statements Regarding Gang Membership
1. Facts
On May 3, 2008, after he was arrested, Mota was taken to the Contra Costa County's Martinez detention facility. When an arrestee such as Mota first arrives at the detention facility, an “escort deputy” meets him and asks three questions. “They will ask them if they have been here before. That will aid the booking officer in bringing up their information. [¶] They will ask them if they have any gang affiliations so that they know ... where to put them once they come inside of intake. [¶] And then they will ask them if they have any fears for their safety.” If a suspect reports any fear for his safety, requests protective custody or if they belong to a gang “they will go into one of the rooms to await ... the processing....”
Contra Costa County Sheriff's Deputy Michael Rector and Deputy Gonzalez, were the “back door intake” deputies that evening and the first deputies Mota encountered when he arrived at the detention facility. Upon his arrival, Mota was put in a separate room. When Rector told Mota he was going to search him for contraband, Mota “began to laugh nervously.” Mota then said, “man, I'm in here for some shit that I didn't do. They said that I killed someone, but it wasn't me. I was there, but I didn't kill anyone. The guy that did it is already in jail. He confessed already, but now he is trying to bring me down too....” Mota became agitated and said, “I'm a gang banger, but I'm not a murderer.” He then told Rector that “I told those other cops that I didn't know anything because I thought I would be in trouble, but now I don't care....” Rector asked Mota if he wanted to talk to a San Pablo Police detective. Mota replied, “Yeah, I will, but first I should talk to my lawyer. After I talk to him I will tell you guys what really went down....”
Deputy Gonzalez did not testify.
Rector did not ask Mota about his gang affiliation. He did, however, understand that Mota was involved in a gang, based on earlier statements Mota had made to Deputy Gonzalez, who was working alongside him that evening.
Mota's statements struck Rector as important to the San Pablo Police Department, so he wrote up a summary of the conversation in order to “assist them in their case.”
Generally, when an arrestee identified himself as a gang member, the deputy would write a “classification incident detail report,” which would then be forwarded to a supervisor, who would forward the report to “the appropriate people.”
Following Rector and Gonzalez's interaction with Mota, Deputy Bryan Zaiser, who worked in the facility's classification unit, interviewed Mota. He did so because Mota appeared to be gang affiliated. Zaiser would typically tell the arrestee that the classification questions were for an “administrative purpose,” and “for their housing.” Prior to the interview, Zaiser did not read Miranda warnings to Mota, did not advise him that he had a right to decline to answer the questions nor did he tell him he was required to answer the questions. Mota did not express any fear for his safety before the interview.
Zaiser filled out a classification questionnaire when he spoke to Mota. Zaiser indicated on the questionnaire that Mota identified himself as “affiliated with the Sureño street gang,” and said he was “part of VFL, which is Varrio Frontero Loco,” and had been since he was 14 years old. According to Zaiser, Mota told him that he (Mota) was an active Sureño gang member.
At the time he interviewed him, Zaiser was aware that Mota had been charged with murder. He did not know that Mota had been accused of killing a “suspected Norteño.”
It was common for the arresting agency (in this case, the San Pablo Police to bring with them “booking paperwork with the charges they are booking the inmate for.”
Zaiser testified that, because of the risk of harm to an inmate suspected of killing a Norteño, he would not house that inmate in the general population, where Norteños were housed. There was separate housing for Sureños.
Each of the murder charges against Mota alleged an enhancement for participating in a criminal street gang pursuant to section 186.22, subdivision (b)(1). He was also charged under section 182.5 with participating in a criminal street gang.
Before trial, Mota moved to suppress his admission of gang membership. He argued that because the sheriff's deputies to whom he disclosed his gang affiliation knew or should reasonably have known that the questions about his gang affiliation were likely to elicit an incriminating response, they were required to give Miranda warnings before questioning him.
The People contended that because none of the sheriff's deputies who discussed with Mota his gang status were actually aware that he had been charged with gang-related crimes, the questions he was asked were part of a custodial interrogation for which no Miranda warnings were required.
In admitting this evidence, the court made a number of factual findings. First, it found that “the sole purpose of this interview and the form is to ensure the safety of inmates and staff at the county jail. The information gathered is essential to maintain security at the jail.... [¶] ... [I]f the jail were to house rival gang members together at random it would pose a grave security risk to both the inmates and the staff. [¶] So I find that it is a fundamental and essential obligation of the sheriff's department to determine whether it is dangerous to house any inmate with any other inmate or any gang member with any rival gang member.”
The trial court stressed that although Zaiser knew that Mota had been charged with murder, Zaiser was not aware of the gang enhancement and gang charges alleged against Mota. The court found, therefore, that Zaiser “had no actual subjective intent to gather incriminating information.” The court also noted that Zaiser's subjective intent was “not the standard but it is a relevant factor.”
Zaiser did not, in the court's opinion, “use any coercive tactics, that is, no threats, no promises. There was no threat that if ... Mr. Mota didn't answer the questions, that he would be housed with Norteños.” With regard to Mota's understanding of the purpose of these questions, the court found “that Mr. Mota would have every reason to make sure that the deputies knew to house him with Sureños. It would be in Mr. Mota's wholly personal interest in self-preservation that he be classified correctly. And it would be extreme danger to his life if he were not classified correctly and housed with other Sureños. [¶] So my view is that Mr. Mota would have wanted the deputies to know that he was a Sureño so his life would not be imperiled. And I believe he willingly and voluntarily answered the questions for that reason.”
The court denied the motion to dismiss and Mota's admission of gang membership was admitted at trial. The jury ultimately found Mota guilty of the street gang conspiracy charge and also found the street gang enhancements true as to the three charged homicides of which he was found guilty.
2. Discussion
Mota contends that the trial court erred in denying his motion to suppress the statements he made during his classification interview. He argues that this interview constituted a custodial interrogation and, therefore, the law enforcement personnel he spoke with were required to read him his Miranda rights. We agree.
In Rhode Island v. Innis (1980) 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (Innis ), the United States Supreme Court clarified what sort of police action constitutes a “custodial interrogation” that must be preceded by a Mirandawarning. The Inniscourt held that “ ‘interrogation’ under Miranda refers not only to express questioning, but also to 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.” ( Innis, supra, 446 U.S. at p. 301, 100 S.Ct. 1682.) Accordingly, “[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect ... amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” ( Innis, supra, 446 U.S. at pp. 301–302, 100 S.Ct. 1682.)
The court also noted that “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” (Innis, supra, 446 U.S. at p. 301, 100 S.Ct. 1682.)
Ten years later, in Pennsylvania v. Muniz (1990) 496 U.S. 582, 600–602, 110 S.Ct. 2638, 110 L.Ed.2d 528 (Muniz ), the court considered whether the Miranda safeguards came into play when a police officer asked a suspect in custody for—among other things—his “name, address, height, weight, eye color, date of birth, and current age....”
Although the United States Supreme Court considered this issue for the first time in Muniz, it noted that a number of federal courts had previously found that “routine biographical questions” fell outside the scope of Miranda. These cases were United States v. Glen–Archila (11th Cir.1982) 677 F.2d 809, 815–816 (home address); United States v. Avery (6th Cir.1983) 717 F.2d 1020, 1024–1025 (“subjects such as defendant's date of birth and address” in order to complete an identification form which “did not relate, even tangentially, to criminal activity”) and United States v. Mata–Abundiz (9th Cir.1983) 717 F.2d 1277 (background questions not asked during routine booking procedure and directly related to an element of crime the interrogating officer suspected of defendant did not fall within routine booking exception).
In considering this question, the court began with the general rule set out in Innis,that “[c]ustodial interrogation for purposes of Miranda includes both express questioning and words or actions that, given the officer's knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to ‘have ... the force of a question on the accused,’ [citation] and therefore be reasonably likely to elicit an incriminating response.” The court then concluded that questioning a suspect about his name, address, height weight, eye color date of birth and current age fell “within a ‘routine booking question’ exception” to Miranda, an exception that applies to questions asked in order to secure the “ ‘ “biographical data necessary to complete booking or pretrial services.” ’ ” In reaching this conclusion, the court relied on the lower court's factual finding that these questions “were ‘requested for record-keeping purposes only,’ [citation] and therefore the questions appear reasonably related to the police's administrative concerns.” (Muniz, supra, 496 U.S. at pp. 601–602, 110 S.Ct. 2638.)
Even before the United States Supreme Court decided Muniz, our Supreme Court, in People v. Rucker (1980) 26 Cal.3d 368, 387, 162 Cal.Rptr. 13, 605 P.2d 843 (Rucker ), held that “[t]he Miranda safeguards are not necessary at a proper booking interview at which certain basic information is elicited having nothing to do with the circumstances surrounding any offense with which the defendant has been charged. [Citations.] The booking procedure, as defined by statute (Pen.Code, § 7, subd. 21), has been described as ‘essentially a clerical process.’ [Citation.] The limited information needed at a booking procedure is required solely for the purposes of internal jail administration, not for use in connection with any criminal proceeding against the arrestee. When use of this information is confined to those proper purposes, its elicitation cannot be considered incriminatory.”
The Ruckercourt went on to hold, however, that although Miranda warnings “need not be given at a booking interrogation” intended to elicit “from an arrestee the basic, neutral information that is necessary for proper jail administration, [the state is forbidden to use] the arrestee's responses in any manner in a subsequent criminal proceeding.” The court explained that “[i]t is not just the nature of the information revealed but the potential for incrimination under all the circumstances that is important. In the present case, appellant had been arrested for a homicide. Homicide is ‘ “an area permeated with criminal statutes,” ’ and those arrested for murder are, for purposes of the privilege, ‘a group “inherently suspect of criminal activities.” ’ [Citation.] ... Evidence of an arrestee's responses to bookingquestions can constitute ‘evidence which will facilitate [his] conviction[ ]’ unless its use is limited to the purposes for which it was elicited. [Citation.]” ( Rucker, supra, 26 Cal.3d at p. 389, 162 Cal.Rptr. 13, 605 P.2d 843.) Although Rucker appears to have been superseded by Proposition 8 ( People v. Herbst (1986) 186 Cal.App.3d 793, 799–800, 233 Cal.Rptr. 123), the Ruckercourt's definition of a routine “booking procedure” is consistent with that articulated in Muniz—a procedure designed to elicit “basic, neutral information.” ( Rucker, supra, 26 Cal.3d at pp. 388–389, 162 Cal.Rptr. 13, 605 P.2d 843.)
Similarly, the court in United States v. Willock (D.Md.2010) 682 F.Supp.2d 512, 528–529, observed that “[e]liciting information from an inmate about his gang affiliation solely for prison administrative purposes does not implicate Miranda. It is only when such information is used against the inmate in a prosecution thatMiranda warnings are required.” (Id. at p. 533, fn. 26.)
Our Supreme Court very recently considered the booking exception in People v. Williams (2013) 56 Cal.4th 165, 152 Cal.Rptr.3d 778, 294 P.3d 1005 (Williams ). In that case, a suspect in custody told a police officer during his intake interview that he needed protection because an unidentified inmate had threatened to stab him. (Id. at p. 183, 152 Cal.Rptr.3d 778, 294 P.3d 1005.) When one of the officers asked why he had been threatened, defendant responded “ ‘[b]ecause I killed two Hispanics.’ ” (Id. at p. 184, 152 Cal.Rptr.3d 778, 294 P.3d 1005.) Another officer recalled asking defendant what his crime was. The officer noted defendant's statement that he had killed two Hispanics in an interview intake report that he did not provide to any investigating agency. (Id. at p. 184, 152 Cal.Rptr.3d 778, 294 P.3d 1005.) The statement was ultimately used at trial against the defendant.
The Williamscourt held that defendant's un- Mirandized admission that he had “killed two Hispanics” fell under the booking exception to Miranda. In so doing, the court cited the Inniscourt's definition of interrogation: “ ‘ “[T]he term ‘interrogation’ under Mirandarefers not only to express questioning, but also to 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.... [T]he Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.... [S]ince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” ' (Innis, supra, 446 U.S. at pp. 301–302, 100 S.Ct. 1682, fns. omitted.”) (Williams, supra, 56 Cal.4th at pp. 186–187, 152 Cal.Rptr.3d 778, 294 P.3d 1005.)
The court, citing People v. Gomez (2011) 192 Cal.App.4th 609, 630, 121 Cal.Rptr.3d 475, then noted that the “governing considerations” in determining whether questions fall within the booking exception are as follows: “ ‘In determining whether a question is within the booking question exception, courts should carefully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions or a pretext for eliciting incriminating information. [Citation.] Courts have considered several factors, including the nature of the questions, such as whether they seek merely identifying data necessary for booking [citations]; the context of the interrogation, such as whether the questions were asked during a noninvestigative clerical booking process and pursuant to a standard booking form or questionnaire [citations]; the knowledge and intent of the government agent asking the questions [citations]; the relationship between the question asked and the crime the defendant was suspected of committing [citations]; the administrative need for the information sought [citations]; and any other indications that the questions were designed, at least in part, to elicit incriminating evidence and merely asked under the guise or pretext of seeking routine biographical information [citations].’ [Citation.]” (Williams, supra, 56 Cal.4th at p. 187, 152 Cal.Rptr.3d 778, 294 P.3d 1005.)
The Williamscourt concluded that Williams' “intake interview at Folsom Prison was closely analogous to the process of being booked into jail.” The court pointed out that not only did the officers have no intention of eliciting an incriminating response, but the follow up questions they asked were not ones they should reasonably have expected to elicit an incriminating response. The court explained: “Whether it was White or Reed who asked defendant either ‘why are they going to stab you?’ (as White remembered), or ‘what his crime was' (as Reed recalled), neither question was designed to elicit an incriminating response.” The officers were appropriately responding to defendant's own security concern, and would not reasonably have expected him to produce a confession. (Williams, supra, 56 Cal.4th at p. 188, 152 Cal.Rptr.3d 778, 294 P.3d 1005.)
Turning now to this case, we begin by noting that the trial court found that although the deputies were aware that Mota had been charged with murder, they were not specifically aware that, in addition to murder, Mota had been charged with an enhancement and an additional crime based on his gang membership. Therefore, they did not ask Mota this question in order to elicit an incriminating response. However, as the trial court recognized, whether a particular question was intentionally designed by the police to evoke an incriminating response is only one fact the court looks at in determining whether words or actions on the part of a police officer constitute an interrogation. Innis, Muniz and Williamsall make clear that an officer's subjective intent in asking a question is neither the only fact nor the determinative fact the court should consider in determining whether a question falls within the booking exception. Therefore, even if a question was not intended to evoke an incriminating response, if it was a question the officer should have reasonably expected to evoke such a response it would fall outside the booking exception.
Here, the deputy who asked Mota whether he belonged to a gang “should [have] know[n]” that question was “reasonably likely to elicit an incriminating response....” (Muniz, supra, 496 U.S. at p. 601, 110 S.Ct. 2638.) Section 186.22, which imposes criminal penalties for participation in a criminal street gang, is part of the California Street Terrorism Enforcement and Prevention Act enacted in 1988. This enhancement had been in existence for more than 20 years before Mota was questioned, and it is unlikely that the deputy was unaware that participation in a criminal street gang is a felony or that an affirmative answer to the question would be incriminating. Similarly, section 182.5, which imposes an additional penalty for conspiracy to commit a felony by active participants in a criminal street gang, was added by section 3 of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which was effective on March 8, 2000. In light of the length of time these laws had been on the books, a law enforcement professional should have known that an incoming inmate's admission of gang membership could well be incriminating.
It was also unlikely that the deputy would be unaware of the possibility that Mota might be a gang member and thus particularly likely to give an incriminating response to this question. The trial court found that this facility housed a large population of gang members, so many that they created a serious and real risk to the safety of inmates in rival gangs as well as to the deputies themselves. A law enforcement official working in this milieu would not only be particularly likely to be aware of laws designed to deter such violence, he would also be aware that many inmates coming into the facility might belong to gangs. In such a setting, the possibility that an inmate's gang affiliation might be incriminating was neither abstract nor remote. Therefore, the deputies should have known that asking for this information was reasonably likely to elicit an incriminating response from Mota. And, of course, it did.
In a similar case, United States v. Williams (D.D.C.2012) 878 F.Supp.2d 190, 210, the court found that a question that related “directly to [the defendant's] connection with evidence of criminal activity” did not fall within the booking exception, even if “the police may not have been fully aware” of the criminal activity of which the defendant was suspected.
Nor did this question seek “routine biographical information” that would fall within the booking exception to Miranda. The nature of the information for which this exception is intended to apply is aptly demonstrated by the cases the Muniz plurality recognized as establishing this exception and by Munizitself. The pre-Munizcases cited by that court involve questions designed to gather “mere pedigree information” or “routine background information.” (United States v. Avery, supra, 717 F.2d at pp. 1024–1025 [“subjects such as defendant's date of birth and address” in order to complete the identification form which “did not relate, even tangentially, to criminal activity”]; United States v. Mata–Abundiz, supra, 717 F.2d 1277 [background questions, which were not asked during routine booking procedure, were directly related to an element of crime the interrogating officer suspected of defendant did not fall within routine booking exception]; United States v. Glen–Archila, supra, 677 F.2d at pp. 815–816 (11th Cir.1982) [home address]; see also United States ex rel. Hines v. LaVallee (2nd Cir.1975) 521 F.2d 1109, 1112–1113 [length of marriage and number of children disclosed to officer in casual conversation was “merely basic identification”]; United States v. Burns (2nd Cir.1982) 684 F.2d 1066, 1075–1076 (Burns ). [“appellant's history of drug use, past record, and personal finances, cannot be characterized as mere pedigree” where they “could be incriminating at trial”].)
Muniz,like the federal cases that preceded it, recognized a booking exception for the sort of information that is, except in unusual circumstances, not reasonably likely to elicit an incriminating response. One's name, address, date of birth, length of marriage, number of children seldom relate “even tangentially to a crime.” Nor would they generally be expected to incriminate a defendant.
Here, in contrast, the fact that a suspect in custody is a member of a gang often carries with it penal consequences. This information cannot be characterized as “mere pedigree” such as a name, address, or birthdate. (Burns, supra, 684 F.2d at p. 1076.) It “could be [and was] incriminating at trial” (ibid.) and, as such, is not routine background information of the sort that has been considered outside the Mirandasafeguards. Nor is it the case that a question falls within the booking exception simply because it is routinely asked during the booking process. As the court noted in United States v. Williams, supra, 878 F.Supp.2d at page 210, “the mere timing of the question is insufficient to make it a legitimate booking question.” Nor is it the case that the characterization of this question as “administrative” makes it a routine booking question. As the court in Williams observed, “asking Maurice Williams how he had arrived at the police station falls outside the routine identifying questions contemplated by the booking question exception. His mode of transportation on that particular day is not a personal identifying characteristic, nor was his answer necessary to serve a required property seizure receipt.”
United States v. Washington (9th Cir.2006) 462 F.3d 1124 (Washington ) does not hold, as the People suggest, that the gathering of gang identification information falls outside the scope of Mirandaunder the routine booking exception. Although Washington involved a booking procedure in which that information was requested, the challenged evidence was not a defendant's self-identification as a gang-member. Rather, the court considered a question that asked defendant for his “gang moniker,” or nickname. The court ruled that this question fell within the routine booking exception because “[q]uestions about a person's identity are not unconstitutional even if identification of the person may help lead to the prosecution of that person for a crime.” (Id. at p. 1133.) Therefore, the court rejected defendant's contention that his nickname should be suppressed, ruling that such a request “is no different from simply asking for a suspect's name.” (Ibid.) The question asked Mota was not comparable to the identifying questions the Washington court ruled did not constitute interrogation. Mota was not being asked to reveal his name when he was asked whether he belonged to a gang. And certainly the fact of gang membership is not “routine” identifying information. Therefore, Washingtonis of no assistance to the People.
The People also point out that in People v. Gomez, supra, 192 Cal.App.4th 609, 121 Cal.Rptr.3d 475, the Fourth District ruled that questions regarding gang affiliation during a booking interview fell within the routine booking exception to Mirandabecause they were not designed to elicit an incriminating response. The Gomezcourt appears to have based its conclusion on a footnote in Muniz, in which the court agreed with amicus United States that “ ‘[r]ecognizing a “booking exception” to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.’ ” (Muniz, supra, 496 U.S. at p. 602, fn. 14, 110 S.Ct. 2638.)
Muniz, however, does not hold that the only type of question asked during booking that falls outside the routine booking exception is one which is “ ‘designed to elicit incriminatory admissions.’ ” (Muniz, supra, 496 U.S. at p. 602, fn. 14, 110 S.Ct. 2638.) Were this the case, the court's language regarding questions the police “should know” might elicit an incriminating response would be meaningless, given that something an officer “should know” is something he did not, in fact, subjectively know. (Id. at p. 601, 110 S.Ct. 2638.) The Gomez court recognizes that often an officer's subjective intent is quite relevant to this issue. Indeed, it is determinative in those situations in which the officer clearly designed the question with an interrogative intent. But even if an officer does not intend to elicit an incriminating response, and has not designed the question to do so, a question can still constitute interrogation subject to the Miranda protections if the officer should have known this question was reasonably likely to elicit an incriminating response.
When answering this question, Mota had two choices. He could either admit to gang membership and incriminate himself or he could lie or refuse to answer the question and risk physical injury when he was housed with Norteño inmates. We know of no other case involving the routine booking exception where the defendant was asked to choose between incriminating himself or risking serious physical injury. The price of protecting oneself from harm while in custody should not be incriminating oneself.
The trial court specifically found that “[t]here was no threat that if ... Mr. Mota didn't answer the questions, that he would be housed with Norteños.” But there was no need to make this threat. It was a fact that if Mota did not answer this question he would be housed with Norteños. As the court found, “Mr. Mota would have every reason to make sure that the deputies knew to house him with Sureños. It would be in Mr. Mota's wholly personal interest in self-preservation that he be classified correctly. And it would be extreme danger to his life if he were not classified correctly and housed with other Sureños. [¶] So my view is that Mr. Mota would have wanted the deputies to know that he was a Sureño so his life would not be imperiled. And I believe he willingly and voluntarily answered the questions for that reason.”
This is not to say the question cannot or should not be asked. We fully expect the police to continue to use it upon booking in order to protect jail personnel and inmates from harm. We hold only that the answer to this question may not be used against the defendant at trial, as it was here, in the absence of Mirandawarnings.
3. Prejudice
The trial court's error in admitting this testimony was, however, harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, because Mota's gang membership was convincingly established by many other sources. Ruelas, Sanchez and Menendez all testified that, based on their familiarity with Mota as fellow gang members and/or friends, Mota was a member of Varrio Frontero Loco. In addition, San Pablo Police Officer Robert Brady, who testified as an expert on Norteño and Sureño criminal street gangs, opined that Mota was a gang member. He did so based on information he had received from other gang members. He also based his opinion on a 2005 robbery Mota had committed in Willows in which Mota wore a blue bandana (the Sureño color). When he was committed to county jail following his arrest for this robbery, he was observed “throwing up” a hand sign that signified his Sureño status. Finally, in photographs taken of Mota at Victor Valencia's funeral, Mota made similar gang signs. Because Mota's gang affiliation was amply established by evidence other than the statements made by him during booking, any error is harmless beyond a reasonable doubt.
H.–Q.
See footnote *, ante.
IV. DISPOSITION
The judgments are affirmed. We concur: Richman, J. Brick, J.