P. v.
Filed 7/18/13 P. v. Washington CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM BENJAMIN WASHINGTON,
Defendant and Appellant.
E056940
(Super.Ct.No. INF1100472)
OPINION
APPEAL from the Superior
Court of
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. 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
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.
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.â€
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[
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.â€
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)).
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
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.â€
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.
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
the testimony at the first
evidentiary hearing.
Actually, defendant is correct. The trial court had the inherent power to
reconsider its in limine ruling. (
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.
name="_ftnref2" title="">[2]
Hence, we summarize the evidence presented at the
second evidentiary hearing.
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.
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 . . . .â€
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.]â€
(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.’â€
(Id. at p. 602,
fn. 14.)
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.]â€
(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. (
are asked “are asked for the safety of the inmate and the custodial staff†and
“‘for housing purposes.’†(
The officer was not involved in investigating any crime that the
defendant was charged with. (
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, 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.†(
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.
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
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. However, he forfeited this
argument by failing to raise it below. (
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.â€
(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,
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.â€
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
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 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.
name="_ftn1" title="">[1] Meaning “hood.†In text messages, defendant similarly used
“G12D†to mean “good.â€
name="_ftn2" title="">[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.
