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




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