People v. Elizalde

Filed 6/25/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S215260

v. )

) Ct.App. 1/2 A132071

GAMALIEL ELIZALDE et al., )

) Contra Costa County

Defendants and Appellants. ) Super. Ct. No. 050809038

____________________________________)

Under the rule of Miranda v. Arizona (1966) 384 U.S. 436, 478-479

(Miranda), certain admonitions must be given before a suspect‟s statement made

during custodial interrogation can be admitted in the prosecution‟s case-in-chief.

Here we consider whether routine questions about gang affiliation, posed to

defendant while processing him into jail on murder charges, come within

Miranda‟s well-recognized booking exception. We hold that the questions

exceeded the scope of the exception and that officers should have known these

questions were reasonably likely to elicit an incriminating response because of

California‟s criminal gang statutes and defendant‟s pending charges. While

officers were permitted to ask these questions for institutional security purposes,

defendant‟s un-Mirandized responses were inadmissible against him during the

case-in-chief. We nonetheless find that admission of the statements was not

prejudicial. Accordingly, we affirm the judgment of the Court of Appeal, which

reached the same conclusions.

1

I. BACKGROUND

Defendant Jose Mota-Avendano1 was convicted of murdering Antonio

Centron, Luis Perez, and Rico McIntosh on theories of conspiracy and aiding and

abetting, along with other charges and enhancements. Briefly, the facts supporting

his convictions are as follows:

Varrio Frontero Loco (VFL) is a subgroup of the Sureño criminal street

gang and is active in Contra Costa County. Three witnesses who knew Mota

testified he belonged to VFL. Robert Brady, a San Pablo police officer and street

gang expert, also opined that Mota was a VFL member.

In 2007, Gamaliel Elizalde rose to power in VFL when another leader fled

after committing a murder. Thereafter, the VFL organization began to deteriorate.

To reestablish its position, Elizalde directed several members to “put in more

work” by assaulting Norteños to let them “know we around, we ain‟t gone.” Mota

and four others were put in charge of the gang‟s efforts. Violence was an

important part of enhancing the gang‟s standing because it helped garner respect,

money, and new members. Elizalde directed VFL associate, Oscar Menendez, to

beat up or shoot Norteños. Mota told Menendez that he had to “earn” a VFL

tattoo by doing something “big” like killing a Norteño.

On December 22, 2007, VFL members Jorge Sanchez, Francisco Romero,

and Hector Molina drove to San Pablo planning to beat or shoot Norteños. They

saw three men walking down the street, two wearing the Norteño color, red.

Molina hid behind a fence. When the three men rounded the corner, Molina

1 The trial involved charges against Mota-Avendano (hereafter Mota or

defendant), Gamaliel Elizalde, and Javier Gomez. Elizalde was the lead defendant

in the appeal below. Only Mota‟s appeal is before us.

2

identified himself as VFL and shot at them repeatedly. Antonio Centron was

killed; the other two men were wounded but survived.

On February 16, 2008, Mota and other VFL members drove around gang

territory in two cars. The car carrying Mota stopped near Luis Perez, who was

standing on the street dressed in a red jacket. After the men in the car argued with

Perez, Jorge Camacho fatally shot him.

On April 26, 2008, Mota was in Norteño territory with Menendez and

Javier Gomez. Mota pulled the car he drove alongside Rico McIntosh, who was

wearing a red bandana. Gomez asked McIntosh if he was a “buster.” McIntosh

replied, “what the fuck is a buster?” and reached into his jacket. Menendez

thought he heard Mota say, “pull it out.” Gomez drew a gun and shot at McIntosh

several times; Mota and Gomez laughed. McIntosh died the next day.

Mota was convicted of three first degree murders and of conspiracy to

participate in a criminal street gang2 and to commit murder and assault with a

deadly weapon. The jury found true several street gang enhancements3 and an

enhancement for intentionally discharging a firearm causing great bodily injury or

death. Mota was sentenced to 100 years to life in prison.

II. DISCUSSION

A. Proceedings Below and Standard of Review

Before trial, Mota moved to exclude his admissions of gang membership

during booking and classification interviews at a Contra Costa County jail.

Inmates are typically asked three questions during intake: if they have been to the

unit before, if they have a gang affiliation, and if they are fearful for their safety.

2 Penal Code, section 182.5. All further statutory references are to the Penal

Code.

3 Section 186.22, subdivision (b)(1).

3

A classification interview is conducted for all gang-affiliated inmates. Before

placement, personnel review an inmate‟s pending charges, gang affiliation, and

need for protective custody. The review is conducted to maximize the safety of all

inmates and jail employees. Rival gang members are housed separately.

After Mota‟s arrest and before he received Miranda admonitions, a sheriff‟s

deputy asked him the standard booking questions. Mota admitted he was a Sureño

gang member. When told he would be searched for contraband, Mota laughed

nervously and 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[.]” He also said: “I‟m a gang-banger, but I‟m not a murderer[.]” He

continued: “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[.]” The deputy asked Mota if he wanted

to speak with a police detective. He 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[.]” The

deputy wrote a report summarizing the conversation to assist the San Pablo police

investigation.

Subsequently, Deputy Bryan Zaiser of the classification unit interviewed

Mota using a standard questionnaire. He did not advise Mota of his rights to

silence and counsel. Nor did he say that Mota was required to answer the

questions or threaten repercussions if he refused. Zaiser typically told inmates that

the interview was “for their housing.” He knew Mota had been charged with

murder, but did not know if the crime was gang related. Zaiser‟s goal was to

ensure the safety of jail inmates and personnel, not to investigate the charges.

Asked about his gang affiliation, Mota responded that he was “affiliated with the

Sureño street gang,” specifically VFL, and that he was an active gang member.

4

The trial court held Mota‟s statements about his gang membership were

admissible. It reasoned 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 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 court

further found that Deputy Zaiser was not aware of any gang charges against Mota,

that he used no coercive tactics, that his purpose for the interview was to ensure

jail safety, and that “he had no actual subjective intent to gather incriminating

information.” It applied the same rationale to the booking officer‟s initial inquiry.

Also, because Mota faced extreme danger if he were to be housed with Norteños,

the court found it in Mota‟s best interest to be classified correctly and that “he

willingly and voluntarily answered the questions for that reason.” At trial, the

prosecution introduced only the admissions to Deputy Zaiser.

On review, the Court of Appeal found Mota‟s statements to Zaiser

inadmissible. Because the error was harmless, however, it affirmed the judgment.

In reviewing the trial court‟s ruling on a claimed Miranda violation, “ „we

accept the trial court‟s resolution of disputed facts and inferences, and its

evaluations of credibility, if supported by substantial evidence. We independently

determine from [those facts] whether the challenged statement was illegally

obtained.‟ ” (People v. Gamache (2010) 48 Cal.4th 347, 385, quoting People v.

Cunningham (2001) 25 Cal.4th 926, 992.)

5

B. Custodial Interrogation and the Booking Exception

In Miranda, supra, 384 U.S. 436, the United States Supreme Court

established procedural safeguards, including the familiar admonitions,4 as a

prophylactic measure to protect a suspect‟s right against self-incrimination. (Id. at

p. 444.) Chief Justice Warren summarized the holding: “the prosecution may not

use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.” (Ibid.,

italics added.) For Miranda purposes, custodial status arises if a person has been

“taken into custody or otherwise deprived of his freedom of action in any

significant way.” (Ibid.)5

In Rhode Island v. Innis (1980) 446 U.S. 291 (Innis), the court granted

certiorari “to address for the first time the meaning of „interrogation‟ under

Miranda v. Arizona.” (Id. at p. 297.) The court clarified that “interrogation” was

not limited to express questioning. Instead, the term refers 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.” (Id. at p. 301, fn. omitted.) While the

court‟s definition contemplated an exception to Miranda‟s protections for words

4 As provided in Miranda, the person “must be warned prior to any

questioning that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will be appointed for him prior to any

questioning if he so desires.” (Miranda, supra, 384 U.S. at p. 479.)

5 It is undisputed that Mota was in custody when he was questioned. Our

discussion of custodial interrogation addresses the situation before us, namely, a

person arrested and awaiting trial. We offer no view on the proper scope of

questions posed to convicted inmates.

6

or actions “normally attendant to arrest and custody” (ibid.), it had no occasion to

apply that exception to the facts before it (see id. at pp. 302-303).

Before Innis was decided, we had held in People v. Rucker (1980) 26

Cal.3d 368 that an unadmonished suspect could be asked basic booking questions,

but we created a bright-line rule that the state was precluded from “using the

arrestee‟s responses in any manner in a subsequent criminal proceeding.” (Id. at p.

389.) Following the passage of Proposition 8 in 1982, California courts may adopt

evidentiary rules of exclusion only if they are required by the federal Constitution.

(Cal. Const., art. I, § 28, subd. (f)(2); People v. Peevy (1998) 17 Cal.4th 1184,

1188 (Peevy); People v. May (1988) 44 Cal.3d 309, 315-317 (May); In re Lance

W. (1985) 37 Cal.3d 873, 879, 887-888.) Rucker‟s bright-line exclusionary rule

for an arrestee‟s un-Mirandized booking statements has been superseded by

subsequent United States Supreme Court case law, which we discuss below.

Accordingly, we look to high court authority to resolve the booking question issue.

That authority recognizes that, for a limited category of booking questions

involving biographical data, no Miranda warnings are required and admission of

the defendant‟s answers at trial does not violate the Fifth Amendment. For

questions outside this limited category, however, answers given, without an

admonition, to questions an officer should know are reasonably likely to elicit an

incriminating response may not be admitted in the prosecution‟s case-in-chief.6

In Pennsylvania v. Muniz (1990) 496 U.S. 582 (Muniz), the Supreme Court

considered whether an unadmonished arrestee‟s booking statements were

6 We have no occasion here to consider under what circumstances such

statements might be used to impeach a testifying defendant, and we express no

view on that matter. (See Harris v. New York (1971) 401 U.S. 222, 224-225; May,

supra, 44 Cal.3d at pp. 315-319; but see Mincey v. Arizona (1978) 437 U.S. 385,

397-398.)

7

admissible. Muniz had been arrested for driving under the influence. While being

booked and without admonition he was asked to give his name, address, height,

weight, eye color, birthdate, and age. He was also asked whether he knew the date

of his sixth birthday. (Id. at pp. 585-586.) At trial, the prosecution introduced a

videotape of the booking process, which showed that the defendant stumbled over

his address and age and was unable to calculate the date when he turned six years

old. (Id. at pp. 585-587.)

Eight justices affirmed established precedent that “the [Fifth Amendment]

privilege does not protect a suspect from being compelled by the State to produce

„real or physical evidence.‟ [Citation]. Rather the privilege „protects an accused

only from being compelled to testify against himself, or otherwise provide the

State with evidence of a testimonial or communicative nature.‟ [Citation.]”

(Muniz, supra, 496 U.S. at p. 589.) Examples of “ „real or physical evidence‟ ”

include fingerprints, photographs, handwriting exemplars, blood samples, standing

in a lineup, or speaking for voice identification. (Id. at pp. 591-592.)

By contrast, five justices agreed that “ „evidence of a testimonial or

communicative nature‟ ” (Muniz, supra, 496 U.S. at p. 589), focuses on the

content of the evidence compelled (id. at pp. 592, 598-599).7 The majority relied

on Doe v. United States (1988) 487 U.S. 201: “[I]n order to be testimonial, an

accused‟s communication must itself, explicitly or implicitly, relate a factual

7 The court has used the term “testimonial” differently depending on context.

The definition given here relates to the Fifth Amendment right to avoid giving

testimony against one‟s interest. A separate context involves the Sixth

Amendment right to confront witnesses. (See Crawford v. Washington (2004) 541

U.S. 36, 68.) The term “testimonial” as used here and in Muniz relates only to the

right against self-incrimination. This case in no way implicates the court‟s

Crawford jurisprudence. (See People v. Bejasa (2012) 205 Cal.App.4th 26, 41,

fn. 8.)

8

assertion or disclose information.” (Id. at p. 210, quoted in Muniz, at p. 594.) The

policy and purpose of the Fifth Amendment privilege are served when “the

privilege is asserted to spare the accused from having to reveal, directly or

indirectly, his knowledge of facts relating him to the offense or from having to

share his thoughts and beliefs with the Government.” (Doe, at p. 213.) While the

Muniz majority did not “explore the outer boundaries of what is „testimonial,‟ ”

(Muniz, at p. 596), it concluded that when a person is asked to give “an express or

implied assertion of fact or belief” the answer will have “a testimonial component”

(id. at p. 597).

Turning to the questions at issue, a majority ultimately coalesced in favor

of admitting the defendant‟s responses regarding his biographical data, and

excluding his response to the sixth birthday question, but their reasons varied. A

four-justice plurality written by Justice Brennan concluded that the seven

questions about Muniz‟s name, address, etc. fell under a “ „routine booking

question‟ exception which exempts from Miranda‟s coverage questions to secure

the „ “biographical data necessary to complete booking or pretrial services.” ‟

[Citations.]” (Muniz, supra, 496 U.S. at p. 601 (plur. opn. of Brennan, J.).) Chief

Justice Rehnquist‟s concurring and dissenting opinion, joined by three others,

presumed the validity of the booking exception but declined to rely on it, finding

instead that the defendant‟s answers were not testimonial and thus did not warrant

application of the privilege. (Id. at pp. 607-608 (conc. & dis. opn. of Rehnquist,

C. J.).) Justice Marshall alone dissented from the holding that Innis created a

booking exception. (Id. at pp. 608-609, 611 & fn. 1 (conc. & dis. opn. of

Marshall, J.).)

Turning to the sixth birthday question, the Brennan plurality implicitly

concluded that it did not fall under the booking exception. (See Muniz, supra, 496

U.S. at pp. 592-600 (plur. opn. of Brennan, J.).) A majority of the court found the

9

defendant‟s answer inadmissible because it was testimonial and carried with it an

“incriminating inference of impaired mental faculties.” (Id. at p. 599; see id. at p.

608 (conc. & dis. opn. of Marshall, J.).) Justice Marshall‟s separate opinion

emphasized that the sixth birthday question constituted interrogation under the

Innis test. (Id. at pp. 608, 611, fn. 1 (conc. & dis. opn. of Marshall, J.).)

Since Muniz, the booking exception has become firmly recognized.

(People v. Williams (2013) 56 Cal.4th 165, 187 (Williams).) The question here is

the extent of the exception.

C. Questions Posed to Arrestees About Gang Affiliation

Courts of Appeal have divided over whether the exception extends to

questions about gang affiliation. People v. Gomez (2011) 192 Cal.App.4th 609

(Gomez) held that “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.” (Id. at p. 630.) It identified

several relevant factors: “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].” (Id.

at pp. 630-631.) The Gomez court derived its test from qualifying language in

Justice Brennan‟s plurality opinion in Muniz: “ „[r]ecognizing a “booking

exception” to Miranda does not mean, of course, that any question asked during

10

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.‟ [Citations.]” (Muniz, supra,

496 U.S. at p. 602, fn. 14 (plur. opn. of Brennan, J.), italics added, quoted in

Gomez, at p. 629.)

The Gomez court acknowledged that questions about gang affiliation go

beyond mere biographical or identifying data necessary for booking. (Gomez,

supra, 192 Cal.App.4th at p. 633.) It concluded, however, that such questions are

“ „reasonably related to the police’s administrative concerns‟ ” because they are

relevant to classify the inmate for jail security purposes. (Id. at p. 634, quoting

Muniz, supra, 496 U.S. at pp. 601-602, italics in Gomez.) The court found that the

questions involved there were not a pretext for eliciting incriminating information.

They were “asked in a legitimate booking context, by a booking officer

uninvolved with the arrest or investigation of the crimes, pursuant to a standard

booking form.” (Gomez, at p. 635.) The deputy had no detailed knowledge of the

crimes for which the defendant was arrested and asked the questions for jail

security purposes. Accordingly, the court found the unadmonished answers

admissible. (Ibid.)

The Court of Appeal here, by contrast, concluded that whether questions

asked during booking were designed or intended to elicit incriminatory admissions

was not the dispositive inquiry. Instead, the court harkened back to the Innis

standard. “[E]ven 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.” The court observed

that questions about gang affiliation could not be characterized as “ „mere pedigree

information‟ ” like name, address, or date of birth. Rather, in California, gang

membership often “carries with it penal consequences.” The court‟s ruling was

11

tailored. It did not bar the asking of gang affiliation questions. It held only that

the answers to such questions “may not be used against defendant at trial . . . in the

absence of Miranda warnings.”

The People urge us to endorse the Gomez view and hold that Mota‟s

answers to gang affiliation questions come within the booking exception. They

argue the questions were essential to institutional security, were asked of every

prisoner at intake, were not part of a criminal investigation, and were asked under

circumstances lacking the inherently coercive features of custodial interrogation.

They maintain that these factors trigger the booking exception regardless of

whether the questions are reasonably likely to elicit an incriminating response.

According to the People, “cabin[ing] the booking exception through Innis‟s

should-have-known test . . . in effect exclud[es] responses to routine booking

questions as though the booking exception did not exist.”

Contrary to the People‟s argument, Muniz did not create a broad Miranda

exception for all questions asked during booking that are reasonably related to

administrative concerns. Significantly, the actual questions posed in Muniz, and

the standard adopted by the court, were limited to basic “ „biographical data

necessary to complete booking or pretrial services.‟ ” (Muniz, supra, 496 U.S. at

p. 601.) That circumstance both illuminates and qualifies Innis‟s language

exempting from the definition of custodial interrogation words or actions

“normally attendant to arrest and custody.” (Innis, supra, 446 U.S. at p. 301.)

This narrow reading of the booking exception comports with the Supreme Court‟s

long-standing recognition that “[d]isclosure of [one‟s] name and address is an

essentially neutral act.” (California v. Byers (1971) 402 U.S. 424, 432.)

“Answering a request to disclose a name is likely to be so insignificant in the

scheme of things as to be incriminating only in unusual circumstances.” (Hiibel v.

Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 191

12

(Hiibel).) Thus, the Muniz exception originated, not simply due to administrative

need, but because such questioning is generally unrelated to crime and unlikely to

elicit an incriminating response. (U.S. v. Henley (9th Cir. 1993) 984 F.2d 1040,

1042; Franks v. State (Ga. 1997) 486 S.E.2d 594, 597.) Accordingly, law

enforcement may pose these questions and the answers may be admitted without

assessing their incriminatory nature on a case-by-case basis. (Muniz, supra, 496

U.S. at p. 602; but see id. at p. 602, fn. 14.)

Which brings us squarely to the scope of the exception. We need not, and

do not articulate that scope in all particulars. Here, we only determine that

questions about gang affiliation exceed it.

The questions at issue here did not seek to secure the identifying

biographical information necessary for booking. While these questions have

administrative relevance to housing assignments (see discussion, post, at p. 21),

we agree with the Gomez court that “the state can book, arraign, and identify a

suspect‟s relatives [for visitation purposes] without knowing the arrestee‟s gang

affiliation.” (Gomez, supra, 192 Cal.App.4th at p. 634.)

When booking questions go beyond the basic biographical data

contemplated in Muniz, the core concerns of Miranda and Innis are implicated.

The high court has recognized that broader questioning during the booking process

may elicit incriminating responses depending on the circumstances. The Muniz

court held that the defendant‟s answer to the sixth birthday question carried with it

an “incriminating inference of impaired mental faculties.” (Muniz, supra, 496

U.S. at p. 599.) Because it was not preceded by a valid Miranda waiver, the

response should have been suppressed. (Id. at p. 600.)

It is no answer that the questions are necessary to meet police

administrative concerns. The fact remains that unadmonished custodial

interrogation implicates the Fifth Amendment. (Miranda, supra, 384 U.S. at pp.

13

444, 458, 461, 467; accord, United States v. Patane (2004) 542 U.S. 630, 639;

Dickerson v. United States (2000) 530 U.S. 428, 435; Oregon v. Elstad (1985) 470

U.S. 298, 307.) Any number of questions posed to arrestees, such as whether they

are injured or under the influence of drugs or alcohol, and how they came to be so,

may be both necessary and highly incriminating. In-custody defendants generally

retain their Fifth Amendment protections even if the police have good reasons for

asking un-Mirandized questions. (But see New York v. Quarles (1984) 467 U.S.

649, 654 (Quarles).)8

Nor is it dispositive that the officer asked the question for a non-

investigatory purpose rather than as a pretext for eliciting incriminating

information. “[A]pplications of the Miranda rule generally do not turn upon the

individual officer‟s subjective state of mind . . . .” (Peevy, supra, 17 Cal.4th at p.

1199.) Although the Muniz plurality contemplated that unwarned questions

“ „designed to elicit incriminatory admissions,‟ ” would be excludable, that

observation was made in reference to questions that would otherwise satisfy the

booking exception. (Muniz, supra, 496 U.S. at p. 602, fn. 14.) As explained,

these questions do not. The Muniz plurality did not purport to overrule the

objective standard articulated in Innis for custodial interrogation in general. On

the contrary, it reaffirmed Innis‟s definition of interrogation. (Muniz, at pp. 600-

601.) In Innis, the Court concluded that “[a] practice that the police should know

is reasonably likely to evoke an incriminating response from a suspect . . .

amounts to interrogation.” (Innis, supra, 446 U.S. at p. 301, italics added.) The

design or intent of the police is relevant to the extent it demonstrates what the

police should have known about the nature of the questioning. (Id. at pp. 301-302,

8 A further discussion of Quarles appears post, at pages 19-20.

14

fn. 7.) Nevertheless, it is not a necessary showing; the test is objective, as the high

court has recently observed. (See Michigan v. Bryant (2011) 562 U.S. 344, __, fn.

7 [131 S.Ct. 1143, 1156-1157, fn. 7].)

The People rely on Williams, supra, 56 Cal.4th 165, as support for a

broader booking exception for gang affiliation questions. Williams is

distinguishable. While Williams was being processed into prison, he encountered

another prisoner who was related to people Williams had allegedly murdered. The

relative told Williams, “ „You‟re a dead man[.]‟ ” (Id. at p. 174.) During his

subsequent intake interview, Williams volunteered, without elaboration, that he

needed protective custody. When an officer asked him to explain, Williams said

“ „they‟re going to stab me,‟ ” but would not identify who “ „they‟ ” were. (Ibid.)

Asked why he was in danger, Williams responded, “ „[b]ecause I killed two

Hispanics.‟ ” (Ibid.)

We concluded that this statement was admissible despite the absence of

Miranda warnings. We began with the Innis definition of “interrogation.”

(Williams, supra, 56 Cal.4th at pp. 186-187, quoting Innis, supra, 446 U.S. at pp.

301-302.) We acknowledged Muniz‟s booking exception and the multifactor test

adopted in Gomez. (Williams, at pp. 186-187.) We did observe that the

defendant‟s questioning “was part of a routine, noninvestigative prison process” in

which the officer sought “only to determine the nature of the danger facing

defendant, in order to minimize it.” (Id. at p. 188.) Ultimately, however, we

returned to the Innis test and found it satisfied: “The officers were appropriately

responding to defendant‟s own security concern, and would not reasonably have

expected him to produce a confession.” (Ibid., italics added.) Thus, Williams did

not reject, but applied, the Innis test for questions in the booking setting. (Accord,

People v. Bradford (1997) 14 Cal.4th 1005, 1034-1035.)

15

Williams disapproved of People v. Morris (1987) 192 Cal.App.3d 380

(Morris) “to the extent it is inconsistent with our conclusion” that “defendant‟s

Miranda arguments are without merit.” (Williams, supra, 56 Cal.4th at p. 188 &

fn. 15.) In Morris, a booking officer asked the defendant “ „if we should anticipate

any type of problem with his being there in jail‟ ” and, “ „ “Who are you accused

of killing?” ‟ ” (Morris, at p. 388.) In response to the second question, the

defendant said “ „ “I never did anything like this before—I killed my sister-in-

law.” ‟ ” (Ibid.) In finding the answer inadmissible, the Morris court held that

“[t]he focus of our analysis is not what the police may lawfully ask a criminal

suspect to ensure jail security. The police may ask whatever the needs of jail

security dictate. However, when the police know or should know that such an

inquiry is reasonably likely to elicit an incriminating response from the suspect,

the suspect‟s responses are not admissible against him in a subsequent criminal

proceeding unless the initial inquiry has been preceded by Miranda

admonishments.” (Id. at pp. 389-390.)

Williams did not criticize Morris‟s statement of the law, but rather its

application of that standard to the facts before it. Morris concluded that the

officer‟s questions went “well beyond the type of neutral questioning permissible

in a booking interview.” (Morris, supra, 192 Cal.3d at p. 389.) But the opinion

predated the high court‟s decision in Muniz, and failed to “explain why, in light of

the officer‟s testimony that the questions he asked were a normal booking

procedure for those jailed on serious charges, the Innis exception for questioning

„normally attendant to arrest and custody‟ did not apply.” (Williams, supra, 56

Cal.4th at p. 187.) The Morris court also failed to persuasively explain why

asking the defendant what he was accused of was “reasonably likely to yield an

incriminating response.” (Williams, at p. 187.) Indeed, we reached the opposite

conclusion in Williams respecting similar questions posed to that defendant about

16

what the defendant‟s crime was and why someone would want to stab him.

(Williams, at p. 188.) It was in these respects that we disapproved Morris as

“inconsistent with our conclusion.” (Williams, at p. 188, fn. 15.)

Williams did not involve standard gang-affiliation questions. Now that the

question is squarely before us, we reject the multifactor test set out in Gomez,

supra, 192 Cal.App.4th at pages 630-631.9 Gang affiliation questions do not

conform to the narrow exception contemplated in Innis and Muniz for basic

identifying biographical data necessary for booking or pretrial services. Instead,

they must be measured under the general Innis test, which defines as

“interrogation” questions the police should know are “reasonably likely to elicit an

incriminating response.” (Innis, supra, 446 U.S. at pp. 301-302.)

Applying that test, we conclude that the gang affiliation questions posed to

Mota were reasonably likely to elicit an incriminating response. California has

enacted a comprehensive scheme of penal statutes aimed at eradicating criminal

activity by street gangs. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1129.) The

California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.)

“created a substantive offense, section 186.22(a), which punishes [as a

misdemeanor or felony] „[a]ny person who actively participates in any criminal

street gang with knowledge that its members engage in or have engaged in a

pattern of criminal gang activity, and who willfully promotes, furthers, or assists

in any felonious criminal conduct by members of that gang . . . .‟ ” (Rodriguez, at

p. 1130, quoting § 186.22, subd. (a).) Subdivision (b)(1) of that section imposes

9 We disapprove People v. Gomez, supra, 192 Cal.App.4th 609, to the extent

it is inconsistent with this opinion. Our citation to Gomez with approval in

Williams, supra, 56 Cal.4th at pages 187-188, no longer provides persuasive

authority.

17

greater punishment when a felony is committed “for the benefit of, at the direction

of, or in association with any criminal street gang, with the specific intent to

promote, further, or assist in any criminal conduct by gang members . . . .”

(§ 186.22, subd. (b)(1).) The additional punishment can be substantial.10

Section 12022.53 provides enhancements for personal use or discharge of a

firearm. (§ 12022.53, subds. (b)-(d).) Its provisions apply to any principal when

the offense is committed to benefit a criminal street gang. (§ 12022.53, subd.

(e)(1); People v. Brookfield (2009) 47 Cal.4th 583, 590.)

Finally, in 2000 the voters passed Proposition 21, which added intentional

gang-related murders to the list of special circumstances authorizing penalties of

death or life without the possibility of parole. (§ 190.2, subd. (a)(22); Lopez,

supra, 34 Cal.4th at p. 1009.) It also created the crime of conspiracy to commit a

felony by active street gang participants. (§ 182.5.)

Gang membership, standing alone, is not a crime. (People v. Gardeley

(1996) 14 Cal.4th 605, 623-624 (Gardeley).) Nonetheless, as the Supreme Court

made clear in Miranda, “[n]o distinction can be drawn between statements which

are direct confessions and statements which amount to „admissions‟ of part or all

of an offense. The privilege against self-incrimination protects the individual from

being compelled to incriminate himself in any manner; it does not distinguish

10 Most felonies are subject to an additional prison term of two, three, or four

years. (§ 186.22, subd. (b)(1)(A).) If the underlying crime is a serious felony, the

additional term is five years. (Id., subd. (b)(1)(B).) If the underlying felony is a

violent felony, the additional term is 10 years. (Id., subd. (b)(1)(C).) For a few

enumerated felonies, the statute imposes an indeterminate term of life in prison.

(Id., subd. (b)(4); see also People v. Jones (2009) 47 Cal.4th 566, 571.) For

felonies “punishable by imprisonment in the state prison for life,” the statute

imposes a 15-year minimum parole eligibility term. (§ 186.22, subd. (b)(5);

People v. Lopez (2005) 34 Cal.4th 1002, 1006-1007, 1010-1011 (Lopez).)

18

degrees of incrimination.” (Miranda, supra, 384 U.S. at p. 476.) Indeed, the high

court has recognized that “the Fifth Amendment privilege against compulsory self-

incrimination „protects against any disclosures that the witness reasonably believes

could be used in a criminal prosecution or could lead to other evidence that might

be so used.‟ ” (Hiibel, supra, 542 U.S. at p. 190, quoting Kastigar v. United States

(1972) 406 U.S. 441, 445.)

Mota was asked to disclose whether he was a member or associate of an

established criminal street gang whose members have a history of committing

violence against rival gangs. He was charged with murder, a crime frequently

committed for the benefit of criminal street gangs, and a qualifying offense

establishing a “ „pattern of criminal gang activity.‟ ” (§ 186.22, subd. (e)(3); see

Gardeley, supra, 14 Cal.4th at pp. 624-625.) Under these circumstances,

questions about Mota‟s gang affiliation were reasonably likely to elicit an

incriminating response potentially exposing Mota to prosecution for the crime of

gang participation (§ 186.22, subd. (a); People v. Rodriguez, supra, 55 Cal.4th at

p. 1130) and to enhanced punishment (§§ 186.22, subd. (b); 12022.53, subd.

(e)(1)). This likelihood was apparent even if the deputies‟ subjective intention

was benign. Accordingly, Mota‟s unadmonished answers to these questions were

inadmissible at trial.

D. Quarles‟ Public Safety Exception

To support their broad interpretation of the booking exception, the People

rely by analogy on another Miranda exception: questions that address an

imminent threat to public safety. (See Quarles, supra, 467 U.S. 649.) They argue

that “[j]ust as „the need for answers to questions in a situation posing a threat to

the public safety outweighs the need for the prophylactic rule protecting the Fifth

Amendment‟s privilege against self-incrimination,‟ [Quarles,] at p. 657, so too

does the need for police to run a jail or a prison.” The analogy fails.

19

In Quarles, the victim approached patrol officers and told them she had just

been raped. She described her assailant and said he was in a nearby convenience

store armed with a gun. Quarles was arrested in the store wearing an empty

shoulder holster. Without providing Miranda advisements, the officer asked

where the gun was. Quarles admitted he had hidden it in a nearby carton.

(Quarles, supra, 467 U.S. at pp. 651-652.) The trial court found a Miranda

violation and excluded the defendant‟s statement, the gun itself, and the

defendant‟s post-Miranda admission of ownership. (Id. at pp. 652-653.)

Notwithstanding the incriminating nature of the question posed to the

defendant (see Quarles, supra, 467 U.S. at p. 667 (conc. & dis. opn. of O‟Connor,

J.); id. at p. 677 (dis. opn. of Marshall, J.)), the Supreme Court established a

narrow exception to the Miranda rule in situations involving an imminent threat to

public safety. (Quarles, at p. 658.) It reasoned that “the need for answers to

questions in a situation posing a threat to the public safety outweighs the need for

the prophylactic rule protecting the Fifth Amendment‟s privilege against self-

incrimination.” (Id. at 657.) Noting the “kaleidoscopic situation” confronting the

officers (id. at p. 656), the court declined to place them “in the untenable position

of having to consider, often in a matter of seconds, whether it best serves society

for them to ask the necessary questions without the Miranda warnings and render

whatever probative evidence they uncover inadmissible, or for them to give the

warnings in order to preserve the admissibility of evidence they might uncover but

possibly damage or destroy their ability to obtain that evidence and neutralize the

volatile situation confronting them” (id. at pp. 657-658).

Critical to the court‟s holding was the “objectively reasonable need to

protect the police or the public from any immediate danger associated with the

weapon.” (Quarles, supra, 467 U.S. at p. 659, fn. 8, italics added; see also id. at p.

657.) Cases applying the public safety exception have emphasized these factors.

20

(See, e.g., People v. Cressy (1996) 47 Cal.App.4th 981, 986-989 [officer properly

searching an arrestee may ask about the presence of needles or other potentially

contaminated sharp objects]; U.S. v. Carrillo (9th Cir. 1994) 16 F.3d 1046, 1049-

1050 [before search at a detention center officer may ask if arrestee has any drugs

or needles on his person]; U.S. ex rel. Williams v. McAdory (N.D.Ill. 2004) 342

F.Supp.2d 765, 769 [arresting officer could ask if arrestee had “any weapons,

knives, or needles on him”].) No such imminent danger was present here.

Without minimizing the serious safety concerns confronted in jails and prisons, we

conclude that the legitimate need to ascertain gang affiliation is not akin to the

imminent danger posed by an unsecured weapon that prompted the Quarles court

to adopt a public safety exception to the requirement of Miranda admonitions.

To be clear, it is permissible to ask arrestees questions about gang

affiliation during the booking process. Jail officials have an important institutional

interest in minimizing the potential for violence within the jail population and

particularly among rival gangs, which “ „spawn a climate of tension, violence and

coercion.‟ [Citation.]” (Florence v. Board of Chosen Freeholders of County of

Burlington (2012) __ U.S. __, __ [132 S.Ct. 1510, 1518].) To that end, they retain

substantial discretion to devise reasonable solutions to the security problems they

face. (See id. at p. __ [132 S.Ct. at pp. 1515, 1517].) We simply hold that

defendant‟s answers to the unadmonished gang questions posed here were

inadmissible in the prosecution‟s case-in-chief. (Miranda, supra, 384 U.S. at

p. 479.)11

11 Mota also argues that his admission of gang membership was inadmissible

under Edwards v. Arizona (1981) 451 U.S. 477, 484-485 because he invoked his

right to counsel. Having concluded that his answers were inadmissible under

Miranda, we need not address this claim, which falls outside the issues specified

in our grant of review.

21

E. Prejudice

The erroneous admission of a defendant‟s statements obtained in violation

of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable

doubt standard of Chapman v. California (1967) 386 U.S. 18. (Arizona v.

Fulminante (1991) 499 U.S. 279, 309-312; People v. Cahill (1993) 5 Cal.4th 478,

510; People v. Sims (1993) 5 Cal.4th 405, 447.) That test requires the People here

“to prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” (Chapman, at p. 24.)

That burden is satisfied. Mota‟s gang membership was convincingly

established by three witnesses who testified that they knew him to be a member of

VFL. Their testimony was both definitive and uncontroverted. Mota nonetheless

argues that this evidence was insufficient to render his admissions harmless

because all three witnesses were accomplices and their testimony was not

adequately corroborated. Not so. The jurors were instructed that Sanchez was an

accomplice as a matter of law and that they must determine whether Menendez and

Luis Ruelas qualified as accomplices in light of the facts. They were instructed

how to make that determination and how to evaluate the evidence accordingly.12

Even assuming the jurors found all three witnesses to be accomplices, the

corroboration required for an accomplice may be slight and entirely circumstantial;

it need not establish every element of the charged offense. (People v. Hayes (1999)

21 Cal.4th 1211, 1271.) Here, San Pablo Police Officer Robert Brady, an expert on

Norteño and Sureño criminal street gangs, opined that Mota was a gang member.

Mota had committed a robbery in 2005 during which he wore a blue bandana, the

Sureño color. After his arrest for that robbery, Mota was seen making a hand sign

12 The instructions given were CALJIC Nos. 3.13, 3.14, 3.16, 3.18, and 3.19.

(See also CALCRIM Nos. 334, 335.)

22

that signified his Sureño status. Additionally, photographs taken of Mota at the

funeral of a VFL gang member depicted Mota making similar gang signs. This

testimony adequately corroborated the accomplice‟s statements that Mota was a

VFL gang member.

Because Mota‟s gang affiliation was amply established by independent and

uncontradicted evidence, the erroneous admission of his challenged statements

was harmless beyond a reasonable doubt.

III. DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

23

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Elizalde

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 222 Cal.App.4th 351

Rehearing Granted

__________________________________________________________________________________

Opinion No. S215260

Date Filed: June 25, 2015

__________________________________________________________________________________

Court: Superior

County: Contra Costa

Judge: John W. Kennedy

__________________________________________________________________________________

Counsel:

Solomon Wollack, under appointment by the Supreme Court, for Defendant and Appellant Gamaliel

Elizalde.

Stephen B. Bedrick, under appointment by the Supreme Court, for Defendant and Appellant Jose Mota-

Avendano.

John Ward, under appointment by the Supreme Court, for Defendant and Appellant Javier Gomez.

Kamal D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,

Assistant Attorney General, Laurence K. Sullivan, Rene A. Chacon, David M. Baskind and Juliet B. Haley,

Deputy Attorneys General, for Plaintiff and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen B. Bedrick

1970 Broadway, Suite 1200

Oakland, CA 94612

(510) 452-1900

Juliet B. Haley

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5960

2