Filed 7/18/13 P. v. Washington CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E056940

v.                                                                       (Super.Ct.No. INF1100472)

WILLIAM BENJAMIN WASHINGTON,                                             OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. David B. Downing,

Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, and Sean

M. Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.

         Members of the Gateway Posse Crips challenged defendant William Benjamin

Washington to fight. Because he was holding his baby daughter at the time, he declined.




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Later, however, after hearing that they were bragging about having jumped him, he

carried out a drive-by shooting, wounding one Gateway member.

       A gang expert opined that defendant was a member of a rival gang — the 12th

Street Mafia — based on multiple items of evidence, including defendant’s statements to

various booking officers. Thus, a jury found defendant guilty of the crime of active gang

participation (Pen. Code, § 186.22, subd. (a)); it also found several gang enhancements

true (id., subd. (b)).

       Defendant contends that his statements at booking were not admissible under the

routine booking question exception to Miranda v. Arizona (1966) 384 U.S. 436. We

disagree. Moreover, we will hold that the asserted error was harmless beyond a

reasonable doubt, because there was massive evidence, in addition to his statements, that

he was a member of 12th Street.

                                              I

                               FACTUAL BACKGROUND

       The evidence regarding defendant’s guilt or innocence in connection with the

shooting is not particularly relevant to the issues raised on appeal. Neither is the

evidence regarding such elements of active gang participation and the gang

enhancements as a pattern of gang activity and the specific intent to promote, further, or

assist in felonious criminal conduct by gang members. The evidence regarding

defendant’s gang membership is significant, however, so we summarize it here briefly.




                                              2
       The victim of the shooting was a member of the Gateway Posse Crips. When he

was shot, he was standing outside a house with another member of Gateway.

       The 12th Street Mafia is a rival gang of Gateway. It is also known as the 12th

Street Hustlers or just 12th Street.

       A gang expert concluded that defendant was a member of 12th Street, based on the

following evidence.

       Defendant had a 12th Street Hustler tattoo. He also had a “D Town All Star”

tattoo, which the gang expert had seen only on members of 12th Street. He had several

tattoos of his moniker, “Solo.” Defendant’s half brother “Big Solo” was one of the

founding members of 12th Street.

       On defendant’s cell phone, there were photographs of him throwing a 12th Street

hand sign. On his Facebook page, there was another photograph of him throwing a 12th

Street hand sign while wearing all red, which was the 12th Street color.

       On Facebook, defendant had posted, “I got my whole . . . H12D[1] tatted on ma

back can’t tell me I don’t love my [plural N-word].” He had also posted “free ma T

[plural N-word],” followed by the monikers of several 12th Street members. In addition,

he had posted, “[F]uck Gateway” and “[A]ll worms is tricks . . . .” 12th Street members

refer to Gateway members as “gummy worms” or “worms.”




       1    Meaning “hood.” In text messages, defendant similarly used “G12D” to
mean “good.”



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       Police officers had seen defendant with 12th Street members on five occasions. In

November 2008, he was seen near a fight at which people were shouting, “12th Street

Mafia.” In December 2008, he was seen with two 12th Street members. In October

2009, he was seen with another 12th Street member. In March 2010, he was seen at a

fight involving 12th Street members. Finally, in September 2010, he was found in a

vehicle with 12th Street members.

       Defendant had admitted to a police officer that he was a member of 12th Street. In

addition, it was stipulated that, on three different dates — January 2, 2010, January 7,

2011, and February 14, 2011 — defendant had admitted to three different sheriff’s

deputies that he was a member of the 12th Street Hustlers, with the moniker Solo.

       When defendant was interviewed in connection with this case, he admitted that he

used to be a gang member but claimed he was not a gang member anymore.

                                             II

                            PROCEDURAL BACKGROUND

       After a jury trial, defendant was convicted of:

       Count I: Attempted manslaughter (Pen. Code, §§ 192, subd. (a), 664), with a great

bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) and a gang enhancement

(Pen. Code, § 186.22, subd. (b)).

       Count II: Assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with a great

bodily injury enhancement and a gang enhancement.

       Count III: Active gang participation (Pen. Code, § 186.22, subd. (a)).



                                             4
       He was sentenced to 18 years 6 months in prison, plus the usual fines and fees.

                                             III

                 THE ROUTINE BOOKING QUESTION EXCEPTION

       As mentioned, it was stipulated that defendant had admitted to three sheriff’s

deputies that he was a member of the 12th Street Hustlers, with the moniker Solo.

Actually, although the jury was not so informed, he made these admissions during

booking interviews and without any Miranda warnings.

       Defendant contends that the introduction of these admissions violated Miranda.

As he concedes, this contention is contrary to this court’s holding in People v. Gomez

(2011) 192 Cal.App.4th 609 (Fourth Dist., Div. Two). Accordingly, he urges us to

reconsider Gomez.

       A.     Additional Procedural Background.

       In October 2011, when the trial was about to start, defendant filed a motion in

limine. In it, he asked the trial court to suppress his statements “during the booking and

classification process,” arguing that “the questions posed . . . were for an investigative

purpose[,] to [e]licit incriminating information in violation of Miranda.”

       The trial court held an evidentiary hearing at which the three booking officers

testified. After the hearing, the trial court ruled that defendant’s statements were

admissible.




                                              5
       Two days later, the trial court learned that the public defender’s office had a

conflict of interest. As a result, the trial was taken off calendar, and new counsel for

defendant was appointed.

       In April 2012, when the rescheduled trial was about to start, the trial court held a

second evidentiary hearing at which the same three booking officers testified. After the

hearing, it ruled once again that defendant’s statements were admissible.

       B.     Additional Factual Background.

       Preliminarily, there seems to be some confusion about precisely what evidence is

relevant. Defendant cites and discusses only the testimony at the second evidentiary

hearing. The People, however, cite and discuss only the testimony at the first evidentiary

hearing.

       Actually, defendant is correct. The trial court had the inherent power to reconsider

its in limine ruling. (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1066.) Its

first ruling was therefore superseded by its second ruling. The only issue before us is

whether its second ruling was erroneous.2

       Hence, we summarize the evidence presented at the second evidentiary hearing.




       2       The People argue that defendant did not have to be given Miranda
warnings when he was booked because he had already been given them just hours earlier,
when he was arrested. There was some evidence of this at the first evidentiary hearing,
but not at the second evidentiary hearing. Accordingly, we cannot sustain the trial
court’s ruling on this ground.



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             1.     Booking by Sergeant Welker on January 2, 2010.

      On January 2, 2010, Sergeant James Welker conducted a booking interview of

defendant. Defendant was not given Miranda warnings.

      Every new inmate is asked the same questions, pursuant to a standard form. The

questions are asked for jail safety purposes. The form includes questions about gang

affiliation. Sergeant Welker knew that booking information is “occasionally” shared

with other law enforcement officers.

      During the interview, defendant said he was a member of the 12th Street Hustlers,

and his moniker was Solo.

             2.     Booking by Corporal Sappington on January 7, 2011.

      On January 7, 2011, Corporal Jerry Sappington conducted a booking interview of

defendant. Defendant was not given Miranda warnings.

      Every new inmate is asked the same questions, pursuant to a standard form. The

questions are asked for safety and housing purposes. The form includes questions about

gang affiliation. Corporal Sappington knew that investigating officers could obtain

booking information, on request.

      During the interview, defendant said he was a member of the 12th Street Hustlers,

his moniker was Solo, and he did not get along with Gateway Posse.

             3.     Booking by Corporal Higgins on February 14, 2011.

      On February 14, 2011, Corporal Matthew Higgins conducted a booking interview

of defendant. Defendant was not given Miranda warnings.



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       Every new inmate is asked the same questions, pursuant to a standard form. The

questions are asked for safety and housing purposes. The form includes questions about

gang affiliation. Corporal Higgins knew that booking information was shared with

investigating officers, “[o]n a case-by-case basis, if it is requested . . . .”

       During the interview, defendant said he was a member of the 12th Street Hustlers,

his moniker was Solo, and he did not get along with the Gateway Posse Crips.

       B.      Discussion.

       “Miranda requires courts in criminal cases to exclude, at least from the

prosecution’s case-in-chief, self-incriminatory statements made by the accused during

custodial interrogation unless the accused has knowingly and voluntarily waived . . . the

rights to silence and the assistance of counsel. [Citations.]” (People v. Lessie (2010) 47

Cal.4th 1152, 1156.)

       In Pennsylvania v. Muniz (1990) 496 U.S. 582 [110 S.Ct. 2638, 110 L.Ed.2d 528],

four justices of the United States Supreme Court recognized “a ‘routine booking

question’ exception” to Miranda. (Id. at p. 601 [opn. of Brennan, J.].) They described

the exception as applicable to “questions to secure the ‘biographical data necessary to

complete booking or pretrial services.’” (Ibid.) They cautioned, however, that

“‘recognizing a “booking exception” to Miranda does not mean, of course, that any

question asked during the booking process falls within that exception. Without obtaining

a waiver of the suspect’s Miranda rights, the police may not ask questions, even during

booking, that are designed to elicit incriminatory admissions.’” (Id. at p. 602, fn. 14.)



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       Another four justices would have held that the answers to routine booking

questions are not “testimonial” and therefore not within the privilege against self-

incrimination. (Pennsylvania v. Muniz, supra, 496 U.S. at p. 608 [opn. of Rehnquist,

C.J.].) Only one justice would have held that the admission of answers to such questions

violated Miranda. (Id. at p. 608 [dis. opn. of Marshall, J.].) Accordingly, the routine

booking question exception “is now settled. [Citations.]” (People v. Williams (2013) 56

Cal.4th 165, 187.)

       In Gomez, this court held that a defendant’s statement at booking that he was

affiliated with a particular gang was admissible under the routine booking exception.

There, a jail classification officer testified that every new inmate is asked, among other

things, whether he is affiliated with a gang. (People v. Gomez, supra, 192 Cal.App.4th at

p. 626.) The officer added that the booking questions are asked “are asked for the safety

of the inmate and the custodial staff” and “‘for housing purposes.’” (Ibid.) The officer

was not involved in investigating any crime that the defendant was charged with. (Ibid.)

We concluded that the routine booking question exception applied because “the record in

this case does not indicate that the questions about gang affiliation were designed to elicit

an incriminating response.” (Id. at p. 627.)

       We stated: “In determining whether a question is within the booking question

exception, courts should carefully scrutinize the facts surrounding the encounter to

determine whether the questions are legitimate booking questions or a pretext for

eliciting incriminating information. [Citation.] Courts have considered several factors,



                                               9
including the nature of the questions, such as whether they seek merely identifying data

necessary for booking [citations]; the context of the interrogation, such as whether the

questions were asked during a noninvestigative clerical booking process and pursuant to

a standard booking form or questionnaire [citations]; the knowledge and intent of the

government agent asking the questions [citations]; the relationship between the question

asked and the crime the defendant was suspected of committing [citations]; the

administrative need for the information sought [citations]; and any other indications that

the questions were designed, at least in part, to elicit incriminating evidence and merely

asked under the guise or pretext of seeking routine biographical information [citations].”

(People v. Gomez, supra, 192 Cal.App.4th at pp. 630-631.) However, “[t]he fact that the

information gathered from routine booking questions turns out to be incriminating does

not, by itself, affect the applicability of the exception. [Citations.]” (Id. at p. 629.)

       We concluded that, in the case before us: “The questions appear to have been

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. . . . [T]he questions

were asked for legitimate, noninvestigatory purposes related to the administration of the

jail and concerns for the security of the inmates and staff. Significantly, there is no

evidence that [the officer] had any knowledge of the crimes for which defendant was

arrested or was suspected of committing.” (People v. Gomez, supra, 192 Cal.App.4th at

p. 635.)




                                              10
       Here, identically, the crucial questions were asked in a legitimate booking context,

pursuant to a standard booking form, for legitimate administrative purposes. There was

no evidence that any of the booking officers were aware of the charges against

defendant.3 Accordingly, Gomez is controlling.

       Defendant argues that Gomez is distinguishable because here there was evidence

that “law enforcement routinely accessed the information . . . .” However, this does not

mean that the questions were “‘designed to elicit incriminatory admissions’” so as to fall

outside the routine booking question exception. (Pennsylvania v. Muniz, supra, 496 U.S.

at p. 602, fn. 14, italics added.) To the contrary, the evidence showed that the questions

on the form questionnaire, including the questions about gang affiliation, were designed

to and did in fact serve legitimate administrative purposes. As we noted in Gomez, the

mere fact that the information is incriminating does not prevent it from coming within the

exception. (People v. Gomez, supra, 192 Cal.App.4th at p. 629.)

       Defendant also argues that an inmate’s admission of gang affiliation is essentially

compelled, because the only alternative is to risk being placed in a cell with a rival gang

members. This is not really an argument that his statement was inadmissible under

Miranda; it is an argument that his statement was inadmissible because it was coerced.




       3     At the first evidentiary hearing, there was some evidence that the officers
were aware of the charges against defendant. However, the evidence also showed that,
except when he was booked in this case, there were no gang charges or allegations
against him.



                                             11
However, he forfeited this argument by failing to raise it below. (People v. Ray (1996)

13 Cal.4th 313, 339.)

       We therefore conclude that the trial court correctly admitted defendant’s

statements in the booking interviews. Separately and alternatively, however, we also

conclude that the admission of the statements was harmless beyond a reasonable doubt.

“[W]e must ultimately look to the evidence considered by defendant’s jury under the

instructions given in assessing the prejudicial impact or harmless nature of the error.”

(People v. Harris (1994) 9 Cal.4th 407, 428.) Here, there was overwhelming evidence

that defendant was a member of the 12th Street Mafia and that his moniker was Solo.

(See part I, ante.)

       Defendant tries to suggest that his booking admission on February 14, 2011, the

day of the shooting, was the only evidence that he was a current, rather than a former,

gang member. But not so. He continued to have photographs of himself throwing gang

signs on his cell phone and on Facebook. He continued to have posts on his Facebook

page indicating that he was a gang member. And on the very day of the shooting, he

texted “G12D” to mean “good.”

       To turn defendant’s argument around, his own statement to police that he was a

former gang member was the only evidence that he was not a current gang member. And

this statement had no credibility, given that he had a reason to lie, given that he also lied

about committing the shooting, and given that he did not explain why he had supposedly

just quit the gang. Accordingly, we are convinced beyond a reasonable doubt that, even



                                              12
if the trial court had excluded defendant’s booking statements, the jury would have found

that he was a gang member.

                                           IV

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             RICHLI
                                                                                       J.

We concur:


McKINSTER
               Acting P. J.


KING
                         J.




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