Filed 12/9/15 P. v. Strider CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B258711

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. TA132732)
         v.

WALTER WILLIAM STRIDER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Kennedy, Judge. Affirmed in part; reversed in part.
         Willoughby & Associates, Vanessa M. Ames and W. Anthony Willoughby for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews
and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
      A jury convicted defendant Walter William Strider of possession of a firearm
                                                1
by a felon (Pen. Code, § 29800, subd. (a)(1)), and found true an allegation that the
crime was committed for the benefit of a criminal street gang (§ 186.22, subd.
           2
(b)(1)(A).) He was sentenced to the low term of 16 months for possession of a
firearm by a felon, plus two years consecutive for the gang enhancement.
      In this appeal from the judgment, defendant contends (1) the trial court
erroneously admitted his nonverbal admission of gang membership in violation of
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), (2) there is insufficient
evidence to support the jury’s finding as to the gang enhancement; and (3) an
officer’s in-court identification of defendant as the person in possession of the
firearm was insufficient to prove a violation of section 29800, subdivision (a)(1),
in light of the officer’s more credible out-of-court identification of someone else as
the man who possessed the firearm. We conclude that the introduction of
defendant’s nonverbal statement of gang membership violated Miranda. Because
we reverse the gang enhancement on this ground, we do not consider defendant’s
contention that the evidence was otherwise insufficient to prove the gang
enhancement. Finally, we find the evidence not only sufficient to support the
conviction of possession of a firearm by a felon, but also sufficient to show that the
Miranda violation was harmless beyond a reasonable doubt as to the conviction.




1     All subsequent statutory references are to the Penal Code.

2       Defendant was jointly tried with codefendant Jermaine Beard, who is not a party
to this appeal. Beard was convicted of possession for sale of a controlled substance
(Health & Saf. Code, § 11351) and possession for sale of cocaine base (Health & Saf.
Code, § 11351.5), and the jury found a gang enhancement true as to both counts.


                                            2
                                BACKGROUND
The Incident Leading to Defendant’s Arrest
      On the evening of June 29, 2013, Los Angeles County Sheriffs’ Department
(LASD) Detective Steven Keen accompanied by Sergeant Brandon Dean, both
members of the LASD’s “Compton Operation Safe Streets” (OSS), and other
officers, approached a residence at 1356 East Schinner Street in Compton to serve
a search warrant. The house, commonly known as “the Studio,” was within the
territory of the South Side Compton Crips (SSCC), and used as its hangout.
      The front door of the house was open, but a mesh security door was closed.
As they looked inside the house through the security screen, Keen and Dean each
saw defendant walking through the living room. He wore a white tank top and
carried a purple towel, which Dean later discovered was wrapped around a .45-
caliber Colt semiautomatic. Defendant dropped the towel (which landed with a
loud thud) when he saw the officers, and ran toward the back door. Another man
in the room, who wore a black tank top, also ran toward the back of the house. The
officers forced open the door, entered and proceeded to clear the house. Dean and
two other officers went through the house and, eventually, out the rear door, where
both defendant and the man wearing the black shirt had been detained.
      Meanwhile, Keen and another detective heard someone in the bathroom, and
ordered that person to open the door. At that point Keen heard what sounded like a
toilet being flushed. Beard emerged from the bathroom with water dripping down
his forearms, and was taken into custody. Keen’s search of the bathroom revealed
a hidden compartment behind a mirror. He found wet baggies containing
substances later identified as cocaine and cocaine base inside that compartment.
      At trial, Dean opined, based in part on the quantity of cocaine and cocaine
recovered, the presence of a weapon and his past experience of incidents involving

                                         3
the house on Schinner Street, that the drugs found in the house were possessed for
                    3
the purpose of sale. He also testified that, in his experience, drug dealers
commonly kept firearms in their residences or on their person to protect their
narcotics. During the house search, Dean recovered a Colt .45 pistol with live
rounds in the magazine and chamber, wrapped inside the purple towel defendant
had dropped. The LASD also recovered a baseball cap with the Seattle Mariners’
logo (“S”), a symbol commonly used by members of the SSCC.


Detective Ibarra Questions Defendant and Testifies as a Gang Expert
      Several months later, on October 18, 2013, defendant was in a bedroom of a
house at an unspecified location in SSCC territory when the LASD served a search
warrant. Leland Lars, a member of the SSCC gang, and his toddler son were in
another bedroom. Defendant, who pretended to be asleep, was roused by the
LASD, handcuffed, searched and removed from the house to the back of a patrol
car for about an hour. He was not free to leave and was not advised of his Miranda
rights. While defendant was in the patrol car, Detective Raul Ibarra, a member of
LASD’s OSS, had a “discussion” with defendant during which he asked defendant
“what’s going on with you,” and whether he was “still active in the hood.”
Defendant gave no verbal response to either question and neither affirmed nor
denied being a gang member; his sole response was to shrug his shoulders. Ibarra
perceived defendant’s body language and shrug to be an admission on defendant’s
part that he remained an active gang member. Based on that assumption, Ibarra




3     The LASD also found a box of baggies and three digital scales in the kitchen.


                                           4
created the first (and apparently only) Field Interview (FI) card identifying
                                         4
defendant as a member of the SSCC.
       At trial, Ibarra testified as the prosecution’s gang expert. He testified that
the SSCC has about 250 active members. Gang members wear hats with the
Seattle Mariners’ logo.
       Ibarra opined that defendant was a member of the SSCC gang based on his
communication with defendant, and information Ibarra obtained from informants
who said defendant is a member of the SSCC and his moniker is “Little Maniac.”
Ibarra also testified that he had “personally contacted” defendant, had “talked to
him before” and had “seen him out on the street,” but did not specify how many
such encounters or sightings occurred, or whether they had taken place after June
2013. Ibarra also testified that Beard (defendant’s brother and codefendant), was a
                                                                              5
member of the SSCC whose moniker was “Maniac” or “Big Maniac.” Typically,
a moniker using the term “Big” or “Little” refers to a gang member with a family
            6
connection.




4     FI cards are created based on an officer’s belief that the subject of the card is a
gang member; that person may not dispute information on the card.

5      The jury was shown two YouTube videos posted in 2008 and recorded by Keen, in
which Beard appears. In one video, entitled, “Maniac,” Beard brags about his affiliation
with the SSCC.

6      Apart from the FI card created by Ibarra on October 18, no other evidence was
offered regarding defendant’s gang membership, and there was no evidence that he
previously had been charged with any gang-related activity. Two people who had known
defendant for years testified they were not aware––and did not believe––that defendant
belonged to a gang, and had never heard him referred to as “Little Maniac.”


                                              5
      The SSCC’s primary activities are: vandalism, graffiti, robbery, carjacking,
burglary, vehicle theft, possession and sale of narcotics, possession of illegal
weapons, assault, murder and attempted murder. Ibarra has made drug arrests at
the house on Schinner Street and has responded to shootings at that location. The
SSCC’s members possess weapons to defend themselves, other gang members and
the gang’s territory from rivals. Only an SSCC member may claim to belong to
the gang. Anyone falsely claiming to be a member of the SSCC may be assaulted,
shot or killed. Based on his contacts with informants within the SSCC, Beard’s
tattoos and information in the LASD’s possession, Ibarra opined that Beard is an
active member of the SSCC gang. SSCC gang members Trent Hawthorne and
Jeremy Williams previously have been convicted of felonies (carjacking and
possession of a handgun, respectively).
      The prosecutor asked Ibarra to consider this hypothetical: a member of the
SSCC gang is at an SSCC hangout at which narcotics are found after officers
execute a search warrant. The gang member is in the living room holding an
object which he drops upon sighting the officers, and flees. The object is later
determined to be a .45-caliber semiautomatic firearm with a live round in the
chamber. Ibarra opined that the gang member possessed the firearm for the benefit
and in furtherance of the gang because he possessed the gun to protect himself, his
fellow gang members, the narcotics and money made from drug sales.
      Ibarra also was asked to consider another scenario: several members of the
SSCC gang are inside a house located in SSCC territory when a search warrant is
executed at the house. Cocaine and cocaine base are found behind a bathroom
mirror, and digital scales and baggies are recovered. One gang member has a
firearm. Based on these facts, Ibarra opined that possession of the narcotics was
for the benefit of and in furtherance of the SSCC gang, which sells drugs to sustain

                                           6
its lifestyle. The gang member’s possession of the handgun demonstrates that gang
members need to protect themselves, the location at which they sell drugs, the
drugs themselves and money made from drug sales.
                                                7
      Defendant did not present a defense.


                                    DISCUSSION
1.    Miranda Violation
      a.     Relevant Proceedings
      Before and during trial, defendant objected to admission of his non-verbal
statement (the shrug of his shoulders), which Ibarra interpreted as an admission
that he was an active member of the SSCC gang, as a violation of his Miranda
rights, and Ibarra’s use of that statement as a basis for creating an FI card.
      Defendant’s trial counsel argued that defendant was effectively under arrest
on October 18––handcuffed, kept in a patrol car for up to an hour while the house
was searched and not objectively free to leave––when he purportedly admitted to
being a gang member. The trial court disagreed that being handcuffed and placed
in the back of a patrol car was tantamount to an arrest, but asked the prosecutor to
conduct a voir dire examination of Ibarra.
      On voir dire, Ibarra testified he had been involved in an investigation on
October 18, 2013 involving defendant. A warrant was issued (to enter a house at
an unspecified address) with regard to defendant’s possible possession of a
handgun. A man came to the door but ran away without opening the door when he
realized the police were outside. After forcing entry into the house, the officers


7     The parties stipulated that defendant had a prior felony conviction.


                                            7
found Lars and his son in one bedroom and defendant in another, pretending to be
asleep. He was roused, escorted from the house and searched. Then, placed in
handcuffs for purposes of officer safety, defendant was required to remain in the
back of a patrol car for the duration of the search. He was not free to leave, was
not advised of his Miranda rights and remained in the car for about an hour.
During that time, Ibarra made “small talk” with defendant and asked him, “What’s
going on with you?” and “Are you still active in the hood?” In response, defendant
shrugged his shoulders. Ibarra interpreted that shrug as an affirmative response to
the question whether he was still an active member of the gang and created an FI
card.
        The trial court found defendant had been kept in the patrol car for purposes
of officer safety during the search. The court denied defendant’s motion to
exclude the statement after concluding the detention did not amount to an arrest
and, as a result no Miranda warning was required.


        b.    Controlling Law and Standard of Review
        A statement obtained from a suspect as the result of a “custodial
interrogation” is not admissible in the prosecution’s case-in-chief, absent a
knowing and intelligent waiver of the right to remain silent, the right to presence of
an attorney and, in the case of an indigent suspect, the right to appointed counsel.
(People v. Sims (1993) 5 Cal.4th 405, 440, overruled on another ground by People
v. Storm (2002) 28 Cal.4th 1007, 1031-1032; People v. Elizalde (2015) 61 Cal.4th
523, 541 (Elizalde).) “Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its functional equivalent.”
(Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 (Innis).) An interrogation is
custodial when “a person has been taken into custody or otherwise deprived of his

                                           8
freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444.)
An interrogation is not “limited to express questioning. Instead, the term refers to
‘any words or actions on the part of the police . . . that the police should know are
reasonably likely to elicit an incriminating response from the suspect.’” (Elizalde,
supra, 61 Cal.4th at p. 531, quoting Innis, supra, 446 U.S. at p. 301, fn. omitted.)
      For purposes of Miranda, an individual is deemed to be in custody if “‘a
reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave.’” (Yarborough v. Alvarado (2004) 541 U.S. 652, 663.)
The objective circumstances of the interrogation are examined, not the
“‘“subjective views harbored by either the interrogating officers or the person
being questioned.”’ [Citation.]” (People v. Kopatz (2015) 61 Cal.4th 62, 80;
People v. Bejasa (2012) 205 Cal.App.4th 26, 35 [test is whether a “‘reasonable
person in the suspect’s position during the interrogation [would] experience a
restraint on his or her freedom of movement to the degree normally associated with
a formal arrest’”].) In making this determination, “[t]he totality of the
circumstances surrounding an incident must be considered as a whole. [Citations.]
Although no one factor is controlling, the following circumstances should be
considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent
formal arrest, the length of the detention; (3) the location; (4) the ratio of officers
to suspects; and (5) the demeanor of the officer, including the nature of the
questioning.’ [Citation.] Additional factors are whether the suspect agreed to the
interview and was informed he or she could terminate the questioning, whether
police informed the person he or she was considered a witness or suspect, whether
there were restrictions on the suspect’s freedom of movement during the interview,
and whether police officers dominated and controlled the interrogation or were
‘aggressive, confrontational, and/or accusatory,’ whether they pressured the

                                            9
suspect, and whether the suspect was arrested at the conclusion of the interview.
[Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403–1404 (Pilster).)
Miranda advisements are required only if a person’s freedom is sufficiently
restricted to render him in custody. (People v. Carpenter (1997) 15 Cal.4th 312,
384, abrogated on another ground acknowledged in People v. Diaz (2015) 60
Cal.4th 1176, 1191.) Absent a custodial interrogation, Miranda does not apply.
(People v. Mickey (1991) 54 Cal.3d 612, 648.)
      Our review of the trial court’s determination that defendant was not
subjected to custodial interrogation is a mixed question of law and fact. We apply
a deferential substantial evidence standard to the court’s factual findings regarding
the circumstances surrounding the interrogation, but exercise our independent
judgment to determine whether, given those circumstances, a reasonable person in
defendant’s position would have felt free to end the questioning and leave.
(People v. Moore (2011) 51 Cal.4th 386, 403; People v. Leonard (2007) 40 Cal.4th
1370, 1400.)


      c.       Analysis
      Two inquiries are required to determine whether defendant was subjected to
a custodial interrogation or merely detained. First, what were the circumstances
surrounding the interrogation? Second, would a reasonable person in those
circumstances have felt he was free to terminate the interrogation and leave?
(People v. Ochoa (1998) 19 Cal.4th 353, 401–402.)
      In the present case, defendant was not formally arrested before Ibarra
questioned him. Defendant was detained for about 60 minutes in the back of a
patrol car. Ibarra appears to have been the only officer present during the
questioning, but it is unclear how many other officers were nearby. Ibarra’s trial

                                         10
testimony reflects that he conducted the inquiry in a conversational manner, and
there is no evidence he drew a weapon, behaved aggressively or pressured
defendant in any manner. Nevertheless, defendant remained handcuffed the entire
time.
        Handcuffing a suspect during an investigative detention does not
automatically convert it into a custodial interrogation for purposes of Miranda.
(Pilster, supra, 138 Cal.App.4th at p. 1404; United States v. Bautista (9th Cir.
1982) 684 F.2d 1286, 1289–1290.) However, a Miranda warning is required once
a detained suspect is placed under restraints normally associated with formal arrest.
At that point, the suspect understands his detention is unlikely to be “temporary
and brief” and that he is “completely at the mercy of the police.” (Berkemer v.
McCarty (1984) 468 U.S. 420, 437–438.) Handcuffing is a traditional hallmark of
formal arrest and readily conveys this message. (See e.g., People v. Aguilera
(1996) 51 Cal.App.4th 1151, 1162 [placing restrictions on a person’s freedom of
movement may cause a reasonable person to believe he is not free to leave]; United
States v. Maguire (1st Cir. 2004) 359 F.3d 71, 79 [handcuffs are “one of the most
recognizable indicia of traditional arrest”].) Briefly handcuffing a detainee looks
less like a formal arrest if the interrogating officer informs the suspect the cuffs are
on temporarily and solely for safety purposes, and advises him that he is not under
arrest and may decline to answer questions. (Cf., United States v. Salvo (6th Cir.
1998) 133 F.3d 943, 951 [fact that officer informed suspect he was free to leave
and would not be arrested after interview was “an important factor in finding that
the suspect was not in custody”].)
        This record presents no similar mitigating facts. A reasonable person in
defendant’s position would conclude he was in custody when an officer handcuffed
him immediately upon removing him from the house, and the officer kept him

                                           11
uninformed, in cuffs and restrained to the back of a patrol car for an hour. The
prosecution presented no evidence to negate this assumption, i.e., no categorical
statement from Ibarra that he told defendant he was not under arrest, could decline
to answer questions or could leave. Indeed, Ibarra testified defendant was
indisputably not free to go. Absent such assurances, a reasonable person would
assume he was in police custody. Nor was there any evidence defendant
volunteered any information. Under these circumstances, a reasonable person
would have felt he was in custody at the time Ibarra asked questions of defendant
as he sat cuffed in the back of the police vehicle. Accordingly, we conclude
defendant faced a custodial interrogation and the trial court erred in admitting his
nonverbal statement in evidence.


2.    No Exceptions Exempt Defendant’s “Statement” from the Miranda Rule
      The Attorney General asserts that several exceptions to the requirement that
a Miranda warning be provided apply here, including concern for officer safety,
and exceptions for small talk, routine booking questions or on-the-scene
investigations. None of these contentions has merit.


      a.     No Public or Officer Safety Exception
      An exception to the Miranda rule applies in circumstances in which an
officer’s questions are reasonably prompted by concern for public safety if that
concern outweighs the “need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination.” (New York v. Quarles (1984)
467 U.S. 649, 657 (Quarles).) This exception has been applied in cases in which
an officer is searching for a missing weapon to protect public safety (e.g., People v.
Simpson (1998) 65 Cal.App.4th 854, 857 (Simpson)), and where an officer is

                                          12
concerned for his own safety when searching a suspect (United States v. Carrillo
(9th Cir. 1994) 16 F.3d 1046, 1049-1050; Simpson, supra, at p. 861). But the
exception is narrow and applies only in situations involving an imminent threat to
the public or an officer’s safety. (Quarles, supra, 467 U.S. at pp. 657-658;
Elizalde, supra, 61 Cal.4th at p. 540; Simpson, supra, 65 Cal.App.4th at p. 861 [to
invoke exception in case of officer safety, officer’s questions must focus on an
objectively reasonable need to protect police from an imminent danger they might
encounter in an ongoing situation].) In addition, the exception will be applied only
if the officer’s questions are both justified and narrowly tailored. (People v. Cressy
(1996) 47 Cal.App.4th 981, 989.)
      Based on Ibarra’s bare assertion, the trial court found that defendant––
thoroughly searched and handcuffed before being placed in the back of the patrol
car––was detained for purposes of officer safety while officers searched the house.
The Attorney General asserts that because defendant was “arrested . . . three-and-
one-half months earlier for illegally possessing a firearm,” the circumstances on
October 18, 2013, created “‘a perilous situation for the officers who were in close
proximity to [him] . . . .’ [and] . . . officers executing the search warrant were
justified in attempting to locate firearms or other contraband inside the residence
and secure their own safety before advising [defendant] of his Miranda rights.”
Not so.
      The record reflects no cause to justify applying the officer safety exception
to the Miranda rule here. In contrast with the cases from which the exception
developed, there is no indication in the record that Ibarra––or any officer––had
specific knowledge that defendant (who had pretended to be asleep when officers
arrived) had used a weapon or that one was missing. Nor were Ibarra’s queries to
defendant narrowly aimed at protecting his or other officers’ safety. Whatever

                                           13
defendant’s answers to the questions, Ibarra demonstrated no imminent need to
obtain them to protect his own safety or to enable officers safely to search the
house. On the contrary, Ibarra’s vague and unrelated questions called for variable
responses about what had been “going on with” defendant, and whether he was
still active in the SSCC. Even assuming, as we must, that the trial court correctly
interpreted a single shoulder “shrug” as an affirmative response solely to the latter
of Ibarra’s two questions, no imminent danger existed. The officer safety
exception does not apply under these circumstances.


      b.     No “Small Talk” Exception
      The Attorney General also argues in passing that no Miranda warning was
required because Ibarra’s questions were merely casual conversation or “small
talk” unrelated to defendant’s offense. Engaging in casual conversation with
police officers is not considered a Miranda interrogation. (People v. Andreasen
(2013) 214 Cal.App.4th 70, 87, 89 [no interrogation occurred where defendant
made incriminating statements while in custody of officers assigned to monitor
him––due to his mental condition––who spoke to defendant about neutral topics].)
      Ibarra’s questions went beyond small talk. Indeed, it is difficult to
characterize the exchange between defendant and Ibarra as “casual conversation”
given that no actual conversation occurred. However, even if Ibarra’s first
question (“what’s going on with you?”) was merely a neutral, conversational
inquiry, the second one (are you “still active in the hood”) was neither neutral nor
driven by idle curiosity about defendant’s interests in life. The Attorney General’s
attempt to characterize Ibarra’s questions as “small talk,” rather than an attempt to
elicit information in violation of Miranda, is belied by the prosecution’s extensive



                                          14
reliance on defendant’s affirmative “response” as support for its assertion that
defendant admitted being an active gang member.


      c.     No Routine Booking Exception
      Routine booking questions are exempt from Miranda’s coverage. (See
Pennsylvania v. Muniz (1990) 496 U.S. 582, 601-602; Elizalde, supra, 61 Cal.4th
at p. 533.) Booking questions are aimed at eliciting biographical data such as a
person’s name, address, height, weight, eye color, age and date of birth.
(Pennsylvania v. Muniz, supra, at pp. 601-602.) Such background or pedigree
questions differ from questions regarding gang affiliation, which are reasonably
likely to elicit an incriminating response. (Id. at pp. 600-601.) In the first place,
there is no indication, and the trial court did not find, that Ibarra’s questions to
defendant––who was not arrested on October 18, 2013––were routine
administrative inquiries.
      More importantly, even if they were routine administrative inquiries, the
California Supreme Court recently definitively rejected the view that questions
about one’s gang affiliation have legitimate administrative relevance, such as
ensuring an inmate’s security from rival gangs in jail (see e.g., People v. Gomez
(2011) 192 Cal.App.4th 609, 634), and held that questions regarding gang
affiliation exceed the scope of the booking exception. (See Elizalde, supra, 61
Cal.4th at pp. 527, 538 & fn. 9, disapproving analysis in Gomez.)
      In California, questions about gang affiliation often carry penal
consequences and are reasonably likely to elicit an incriminating response.
California has enacted a comprehensive scheme of penal statutes aimed at
eradicating criminal activity by street gangs. (See § 186.20, et seq.; Elizalde,
supra, 61 Cal.4th at pp. 538-539.) The statutes punish active participation in a

                                           15
criminal street gang by one who knows “‘“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.”’” (Elizalde,
supra, 61 Cal.4th at pp. 538-539.) They also impose potentially substantial
additional punishment for felonies 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 . . . .’” (Id. at
p. 539.) For this reason questions regarding one’s gang affiliation do not fall
within Miranda’s narrow “booking question” exception for identifying basic
biographical data. (Id. at p. 538.) Rather, such questions must be measured under
the general objective test “which defines as ‘interrogation’ questions the police
should know are ‘reasonably likely to elicit an incriminating response.’
[Citation.]” (Ibid.) Where, as here, the police know or should know that a gang-
affiliation inquiry is reasonably likely to elicit an incriminating response
potentially exposing a suspect to prosecution for the crime of gang participation
and enhanced punishment, the suspect’s unadmonished answer to that inquiry is
                                         8
inadmissible at trial. (Id. at p. 540.)




8         This rule applies whether the officer asked the question for a non-investigatory
purpose or as a pretext to elicit incriminating information. “‘[A]pplications of the
Miranda rule generally do not turn upon the individual officer’s subjective state of mind
. . . .’ [Citation.]” (Elizalde, supra, 61 Cal.4th at p. 536.) The intent of a questioning
officer is relevant to the extent it demonstrates what he or she should have known about
the nature of the questions, but it is not necessary; the test is objective. (Id. at p. 537.) A
“‘practice that the police should know is reasonably likely to evoke an incriminating
response from a suspect . . . amounts to interrogation.’ [Citation.]” (Id. at p. 537, italics
added.)


                                              16
      d.     No General On-The-Scene Investigation Exemption
      General on the scene questioning by police such as occurs when someone is
temporarily detained by an officer asking general questions to determine whether
he or she has probable cause to arrest does not require a Miranda warning.
(People v. Milham (1984) 159 Cal.App.3d 487, 500 [defendant’s statement that he
believed he had killed his wife made to officer called to investigate a car accident
did not require Mirandizing because the officer, unaware of a potential crime, was
not trying to trick the defendant into revealing criminal actions, and only briefly
questioned the defendant in an effort to obtain an explanation of facts surrounding
the accident] (Milham).)
      Here, Ibarra was not conducting an on-the-scene investigation. He had no
interest in facts explaining events that had led to issuance of a search warrant to
investigate defendant’s unlawful possession of a handgun, or the whereabouts of
any weapon. Ibarra sought only and specifically information to confirm
defendant’s status as a gang member, information he had previously been able to
obtain only from potentially untrustworthy informants. Thus, despite the brevity of
his interrogation, Ibarra clearly sought to compel incriminating information from
defendant by circumventing Miranda. Such conduct cannot be condoned.
(Milham, supra, 159 Cal.App.3d at p. 500.)
      In sum, on this record, defendant was subjected to custodial interrogation in
violation of Miranda. Accordingly, the trial court erred in permitting the
prosecution to use defendant’s nonverbal “statement” against him during its case-
in-chief.




                                          17
3.    The Error Was Not Harmless Beyond a Reasonable Doubt as to the Gang
      Allegation

      Statements obtained in violation of Miranda are subject to harmless error
review. (Arizona v. Fulminante (1991) 499 U.S. 279, 310 (Fulminante); People v.
Davis (2009) 46 Cal.4th 539, 588.) “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. [Citations.] That test requires the [Attorney General] here ‘to prove
beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’ [Citation.]” (Elizalde, supra, 61 Cal.4th at p. 542.)
      Here, the Attorney General maintains the trial court’s erroneous admission
of defendant’s statement––which was tantamount to a confession that he was an
active member of the SSCC gang––was harmless as to the gang allegation because:
(1) defendant did not make a statement, but simply shrugged his shoulders; and
(2) the jury was instructed to “[c]onsider with caution any statement made by a
defendant tending to show his guilt unless the statement was written or otherwise
recorded.” Neither of these assertions has merit.
      The Attorney General’s first assertion contradicts the premise of its own
arguments and the prosecution’s trial strategy. At trial, the prosecutor relied
extensively on defendant’s nonverbal “statement” as definitive evidence that
defendant admitted he was an active gang member. An admission is the most
damaging evidence a prosecutor can use against a defendant. (Chapman, supra,
386 U.S. at p. 23.) We conduct our prejudice review bearing in mind the United
States Supreme Court’s admonition that a “confession is like no other evidence.
Indeed, ‘the defendant’s own confession is probably the most probative and
damaging evidence that can be admitted against him . . . . [T]he admissions of a

                                         18
defendant come from the actor himself, the most knowledgeable and
unimpeachable source of information about his past conduct. Certainly,
confessions have profound impact on the jury . . . .’ [Citations.]” (Fulminante,
supra, 499 U.S. at p. 296.) The California Supreme Court has similarly recognized
that “confessions, ‘as a class,’ ‘[a]lmost invariably’ will provide persuasive
evidence of a defendant’s guilt [citation], and . . . often operate ‘as a kind of
evidentiary bombshell which shatters the defense’ [citation] . . . .” (People v.
Cahill (1993) 5 Cal.4th 478, 503.) Consequently, “the improper admission of a
confession is much more likely to affect the outcome of a trial than are other
categories of evidence, and thus is much more likely to be prejudicial under the
traditional harmless-error standard.” (Ibid.; accord, People v. Gonzalez (2012) 210
Cal.App.4th 875, 884.)
      The prosecution relied extensively on Ibarra’s interpretation of defendant’s
“statement” to prove the gang-related allegations. Further, Ibarra relied almost
exclusively on that nonverbal statement to create defendant’s first (and only) FI
card stating he belonged to the SSCC gang, evidence the prosecution employed to
great effect to prove the gang allegation. Ibarra’s expert opinion that defendant
was a member of the SSCC also was predicated primarily on his interpretation of
the shrug as an admission that he was active in the SSCC. In the absence of
defendant’s “statement,” the only evidence to indicate gang membership was the
fact that he was twice detained while in the company of one or more SSCC gang
members in SSCC territory, and Ibarra’s testimony that informants told him at
some unspecified time about defendant’s membership in the gang. No other
affirmative evidence of gang membership was offered. There is no evidence that
defendant has conspicuous (or any) gang tattoos, no evidence he has ever been



                                           19
convicted of a gang-related crime, and no evidence that any officer who testified
had personal knowledge of defendant’s gang status.
      We also reject the assertion that a jury instruction sufficiently mitigated any
prejudice concerning the gang allegation. True, the jury was told to exercise
caution in considering any statement defendant made that tended to show guilt
unless it was “written or otherwise recorded.” However, Ibarra unequivocally
interpreted the shrug as an admission of gang membership, and created a written FI
card so stating. Under these circumstances, the jury instruction to exercise caution
in considering such evidence was not adequate to show, beyond a reasonable
doubt, that introduction of the evidence did not contribute to the jury’s finding of
                                                                            9
the gang enhancement. Thus, the gang enhancement must be reversed.
      However, we disagree with defendant that the error requires reversal of the
conviction of possession of a firearm by a felon. As we explain, below, we reject
defendant’s contention that substantial evidence does not support the conviction,
and further conclude that such evidence demonstrates that introduction of
defendant’s nonverbal admission of gang membership was harmless beyond a
reasonable doubt as to the conviction.


4.    Substantial Evidence Supports the Conviction for Possession of a Firearm
      Defendant contends that the evidence is insufficient to support his
conviction of possession of a firearm by a felon, because Dean’s in-court




9     Because we reverse the gang enhancement on this ground, we do not discuss
defendant’s contention that the evidence was otherwise insufficient to support the gang
enhancement.

                                           20
identification of him as the person who possessed the firearm was contradicted by
Dean’s prior identification of someone else. We disagree.
         The jury heard audio recordings made by Dean of events that transpired
before and after the search warrant was executed on June 29, 2013, and officers
entered the house on Schinner Street. At trial, Dean testified that he saw two
people inside before he entered the house: defendant, who was wearing a white
tank top, and another man in a black tank top. In one recording, Dean identified
the man who dropped the purple towel as “the person in the black shirt.” At trial,
Dean testified that defendant had been in possession of the purple towel and
firearm as the officers approached. Dean had seen defendant at least 100 times and
knew him by name. He explained that he had mistakenly identified the person in
the black shirt in the audio recording as the one who dropped the towel, but he
knew it was defendant; Keen had corrected him. When he got outside the house on
Schinner, Dean recognized that it had been defendant who held and dropped the
towel.
         Keen testified at trial that the only person he saw in the living room as he
looked through the security screen was the man who held and then dropped the
purple towel. He identified defendant as that person. Keen did not see anyone in a
black shirt before entering the house.
         On this record, the evidence was clearly sufficient to prove that defendant
was the person who held the purple towel that concealed the firearm. (People v.
Maury (2003) 30 Cal.4th 342, 403, disapproved on another ground by Barnett v.
Superior Court (2010) 50 Cal.4th 890, 896 [reviewing court does not resolve
credibility issues or evidentiary conflicts].)
         More than that, however, this evidence shows that the error in introducing
defendant’s nonverbal admission of gang membership was harmless beyond a

                                            21
reasonable doubt as to defendant’s conviction. The evidence of defendant’s
nonverbal admission was used to prove the gang enhancement; it did not prove
possession of a firearm. That charge was independently supported by Dean and
Keen’s testimony. At trial, Dean explained his mistake in the recording, and stated
that he knew at the time that defendant had held the purple towel. He was very
familiar with defendant, having seen defendant at least 100 times, and knew him
by name. Keen confirmed that defendant was the person who held the towel.
Thus, there was little room for doubt that defendant possessed the towel, and the
firearm concealed in it. Under these circumstances, not only was the evidence
sufficient to support defendant’s conviction; it was compelling enough to render
the Miranda violation harmless beyond a reasonable doubt.


                                 DISPOSITION
             The gang enhancement under section 186.22, subdivision (b)(1)(A) is
reversed, and the matter remanded for a decision whether to retry the gang
allegation, and (regardless of that decision) for resentencing. The judgment is
otherwise affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                              WILLHITE, J.


             We concur:




             EPSTEIN, P. J.                   MANELLA, J.

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