I
FACTUAL AND PROCEDURAL BACKGROUND
Roberts was convicted of attempted murder in violation of sections 664 and 187, assault with a semiautomatic firearm in violation of section 245, subdivision (b), and possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). As to all three counts, the jury found true the allegations that Roberts committed the crime with the intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1). The jury found his commission of the attempted murder was willful, deliberate, and premeditated within the meaning of section 189, and that he used a firearm, proximately causing great bodily injury to the victim, within the meaning of section 12022.53, subdivision (d). The jury also found Roberts personally used a firearm within the meaning of section 12022.5, subdivision (a), and personally inflicted great bodily harm upon the victim within the meaning of section 12022.7, subdivision (a), in connection with the assault with a semiautomatic firearm. The trial court sentenced Roberts to a determinate term of five years in state prison and a consecutive term of 40 years to life.
A. The Shooting
Sharkey, who had ties to the West Coast Crips (WCC) street gang, was playing dice in downtown San Diego when Roberts, known as "Scrappy," shot her twice in the chest. In addition to Sharkey's trial identification of Roberts as the shooter, Sharkey also told a police officer immediately after the shooting (while at a hospital prior to surgery) that "Scrappy" shot her.
Laticia Nelson was standing with the group of dice players when Sharkey arrived and joined the dice game. Nelson testified Roberts apprоached the group of dice players and stood with the group for a while. Roberts, who Nelson knew but not very well, briefly spoke to Nelson and then pulled a gun from his pocket and shot Sharkey. In addition to her trial identification of Roberts as the shooter, Nelson was shown some photographs by a police
A third witness saw Roberts run from the scene just after the shooting and jump into a white car or truck. A fourth witness, a security guard, could not identify the shooter but saw a black male flee from the scene and get into a white pickup truck.
B. The Alleged Motive
One month before Sharkey was shot, police were investigating the murder of Chyrene Borgen. Roberts and Borgen had been involved in a romantic relationship that Borgen was working to terminate. Sharkey, a friend of Borgen's, believed Roberts was involved with Borgen's murder.
Sharkey was at Borgen's residence on November 1, 2013, when police arrived to notify Borgen's family of her death. At that time Sharkey met Detective Lee Norton, the investigating detective. Norton worked to foster trust with Sharkey, and about 10 days later Sharkey "reached out" to police with information about Borgen's murder
During that samе time frame, Sharkey encountered Roberts at a memorial for Borgen. Roberts warned Sharkey that two other WCC members were out to get her. However, Sharkey had a developing suspicion Roberts was involved in Borgen's murder and told Borgen's sister of her suspicion. A few days before Borgen's funeral, Sharkey again encountered Roberts. Roberts angrily told Sharkey he had heard that Sharkey had accused him of being the last person to see Borgen alive. Sharkey claimed that Roberts pointed a gun at her face and said something to the effect of, "[k]eep my name out of your mouth." Roberts's act of pointing the gun аt her infuriated Sharkey, who felt extremely disrespected by the act.
Sharkey subsequently saw Roberts at Borgen's funeral on November 18, 2013. Sharkey stared at Roberts during the funeral, and Roberts angrily returned the stare, mouthing the words, "I'm going to kill you." This further infuriated Sharkey, who again perceived Roberts's actions as disrespectful.
On learning that Roberts would be at a kind of wake attended primarily by WCC members, Sharkey decided to go and confront him about his threats to
Sharkey believed Roberts would seek revenge. "[H]e wanted his get back from me hitting him with that chain." Sharkey was shot approximately two weeks later.
C. The Gang Evidence
The prosecution's gang expert on the WCC, San Diego Police Department Detective Juan Cisneros, had never heard of Roberts being a member or associate in WCC prior to Borgen's murder, but nevertheless opined Roberts was a member of the WCC gang.
Cisneros also testified that if a WCC member were disrespected in front of other WCC members, the disrespected and humiliated member would have no choice but to retaliate violently, because failure to retaliate would equate to a complete loss of respect and status in the gang and could also lead to rival gang members targeting the disrespected gang member. Given a hypothetical composed of facts mirroring the evidence elicited in this case (including the snitching and chain assault), Cisneros opined the disrespected gang member's act of shooting the person who had disrespected him would benefit the WCC gang.
D. The Defense
The defense maintained Roberts wasn't present at the shooting. Although a witness saw Roberts riding the trolley in the vicinity of the shooting around
The defense portrayed Sharkey as a vengeful person. She claimed Roberts had tried to rape her 13 years earlier, and she wanted police to go after Roberts for the murder of Borgen. The defense theory of the case was that once Sharkey told police Roberts shot her, they never considered the possibility of other suspects. Defense counsel also argued that even if Roberts was the shooter, the shooting involved an incident of personal revenge rather than being gang related.
II
DISCUSSION
A.-C.
D. Admission of Gang Evidence
Roberts challenges the jury's true findings on the allegations that all three offenses were committed for the benefit of a street gang and with the intent to promote, further, or assist in criminal conduct by gang members, within thе meaning of section 186.22, subdivision (b)(1). He asserts the court erroneously admitted certain evidence of his affiliation with the WCC to prove the enhancement, and that such evidentiary error cannot be deemed harmless beyond a reasonable doubt.
To prove the gang enhancement pursuant to section 186.22, subdivision (b)(1), the prosecution must demonstrate that the underlying felonies (1) were committed for the benefit of, at the direction of, or in association with any criminal street gang; and (2) were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. ( People v. Ramirez (2016)
Cisneros's conclusion that Roberts was a member of the WCC served as the springboard for his opinion that shooting the person who had disrespeсted Roberts (by "snitching" or by assaulting him with a chain) would benefit the WCC gang and for the prosecution's argument that Roberts's motives for shooting Sharkey were gang related. A primary evidentiary basis for this conclusion was that Roberts admitted he was a WCC member during jailhouse intake interviews in 2004 and 2006.
In Elizalde , after recognizing that Miranda protections apply to questions posed to a defendant during the booking process, our Supreme Court considered whether routine inquiries about gang affiliation posed to a defendant while he was being processed into jail fell within the so-called "booking exception" to Miranda as articulated in Pennsylvania v. Muniz (1990)
Prior to Elizalde , inquiries about gang affiliation had been found to fall within the scope of the booking question exception. In
Elizalde disapproved Gomez 's apрroach to determining whether routine questions about gang affiliation during jailhouse intake interviews fell within the booking exception. ( Elizalde, supra,
Although it declined to delineate the precise scope of the booking exception in all circumstances, Elizalde concluded that "questions about gang affiliation exceed it." ( Elizalde, supra,
In light of Elizalde , several courts held that un-Mirandized responses to jailhouse intake questions about gang affiliation could not be used by the
Only one post- Elizalde decision has permitted the admission of a defendant's un-
If Villa-Gomez were limited to the unusual circumstances of the case-a defendant in custody but not suspected of any crime-it would barely detain us here. But the opinion appears to endorse a much broader proposition, suggesting that if "the crime for which defendant was prosecuted had not yet been committed at the time he answered the classification deputy's questions, those questions were not reasonably likely to elicit an incriminating response." ( Villa-Gomez, supra,
Elizalde instructs that the court must evaluate gang affiliation questions in the same way it would analyze any other inquiry pursued without the benefit
It is not entirely clear whether the Supreme Court intended that the crime with which the defendant is charged at the time the gang membership statements are made be part of the analysis, or merely an illustration of the statements' incriminatory nature. Given thе "comprehensive scheme of penal statutes," ( Elizalde, supra ,
Because we conclude the evidence regarding Roberts's 2004 and 2006 admissions was impropеrly admitted at trial, we must assess whether the error was prejudicial. Ordinarily, the erroneous admission of evidence is reviewed for prejudice under the standard described in People v. Watson (1956)
We cannot conclude the erroneously admitted jailhouse intake statements were harmless beyond a reasonable doubt.
Thus, we must "make a judgment about the significance of [the confession] to reasonable jurors, when measured against the other evidence considered by those jurors independently of [the confession]." ( Yates v. Evatt,
DISPOSITION
The true findings on the Penal Code section 186.22, subdivision (b)(1) enhancements are reversed. The judgment of conviction is otherwise affirmed. The matter is remanded to the trial court, where the People shall have 60 days from the date of the remittitur in which to file an election to retry defendant on the reversed gang enhancements. Following retrial, or if the People elect not to retry the enhancements, the trial cоurt shall resentence defendant and prepare an amended abstract of judgment consistent with this disposition and send the amended abstract to the Department of Corrections and Rehabilitation. (See Lara, supra,
WE CONCUR:
McCONNELL, P.J.
AARON, J.
Notes
All further statutory references are to the Penal Code unless otherwise noted.
See Miranda v. Arizona (1966)
A nearby security guard, Leroy Bontrager, testified he heard shots fired and then saw a fleeing man get into a white pickup truck and drive away. The man was tucking something into his waistband as he fled. Another percipient witness, Janet Scott, told police she had seen Sharkey and "Scrappy" with the dice players. She was around the сorner from the dice players when she heard two or three shots. Scott then saw Roberts running around the corner, with his hands in his pockets, and jump into a white car or truck, which then drove away.
Cisneros also testified as to the history and structure of the WCC, and discussed the importance to criminal street gangs of, among other things, respect, violence, retaliation, fear, snitching, initiation, monikers, and hand signs. He testified that WCC's primary activities include murder, attempted murder, robbery, narcotics sales, and witness intimidation, and provided information as to the three predicate crimes.
See footnote *, ante.
Cisneros also opined (1) the WCC qualified as a criminal street gang; and (2) crimes like those committed by Roberts would benefit a street gang. On appeal, Roberts does not contest the propriety of those opinions, but instead attacks the propriety of Cisneros's opinion that Roberts was affiliated with the WCC.
Cisneros also suggested there may have been two other times Roberts allegedly admitted his association with the WCC. He briefly adverted to a 2002 "documentation card" but the record contains no further information illuminating the genesis of that card, much less what the "card" contained or signified. Cisneros also mentioned an incident in which Roberts was arrested for a battery and, at some undefined time surrounding that arrest, admitted he was a WCC member. Although Cisneros testified that this latter incident occurred in 2001, Roberts's record contains no mention of a 2001 arrest. Even assuming Cisneros was referring to some arrest other than the 2004 and 2006 arrests, the same analysis applicable to the admissions he made in connection with his 2004 and 2006 arrests would appear to apply with equal force to Roberts's admission in connection with any 2001 arrest. Moreover, permitting Cisneros to refer to and rely on these two other "admissions" would also appear to run afoul of our Supreme Court's recent decision in Sanchez (see discussion, post, at fn. 22), and therefore our analysis of the prejudicial impact of the error in admitting Roberts's jailhouse intake statements proceeds from the assumption that references to these other two "admissions" were also improper.
Roberts's opening brief relied on Elizalde in arguing the court erred when it overruled his motion in limine to exclude those admissions. The People initially presented no argument that Elizalde was in any way distinguishable. However, this court requested supplemental briefing on what evidence in the record, if any, revealed the circumstances surrounding appellant's 2004 and 2006 responses to the jailhouse intake questions and, in light of those circumstances, what impact does Elizalde , as well as subsequent cases applying Elizalde, including People v. Leon (2016)
A defendant's statement obtained in violation of Miranda cannot be used as part of the prosecution's case-in-chief. The People cite no authority (other than Villa-Gomez ) for the proposition that an admission which would otherwise be inadmissible under Miranda had it been offered against the defendant in connection with the original arrest becomes admissible after the passage of sufficient time.
The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.) was first enacted in 1988. (See Stats. 1988, сh. 1256, § 1.) Here Roberts's admissions of gang ties occurred long after there were significant penal consequences associated with gang membership. We have no occasion to comment on whether use of similar statements made before 1988 would violate Miranda.
The 2004 intake interview apparently arose after Roberts was arrested because law enforcement officers had intervened in a verbal altercation between Roberts and an unidentified man. Roberts gave officers a false name and fled. In the ensuing chase, one officer suffered injuries including a broken wrist. Roberts was ultimately charged with rеsisting an officer (Pen. Code, § 148, subd. (a) ) and giving false information to an officer (id., § 148.9, subd. (a) ). The record does not reveal the factual circumstances leading to the 2006 arrest and intake interview, but only reflects that Roberts was ultimately charged with resisting an officer (id., § 148, subd. (a) ) and injuring or tampering with a vehicle or its contents (Veh. Code, § 10852 ).
Cisneros also acknowledged that, while the Facebook photos depicted Roberts in the company of these three individuals who were wearing gang clothing and "making" gang signs, Roberts was apparently not similarly attired nor was he obviously depicted "making" gang signs.
Although we need not decide the issue, the Supreme Court's rеcent decision in Sanchez, supra,
At the same time, we reject any contention that erroneous receipt of Cisneros's testimony about Roberts previously admitting gang membership somehow mandates reversal of the convictions on the substantive offenses because the gang evidence allowed the prosecution to bootstrap support for an otherwise weak case. There was compelling evidence from multiple sources indicating Roberts was the shooter, and evidence of Roberts's connection to the WCC would have been received even in the absence of his statements in the jailhouse intake interviews.