Filed 12/9/15 P. v. Strider CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

WALTER WILL IAM STRIDER , Defendant and Appellant. B258711
(Los Angeles County Super. Ct. No. TA132732)

APPEAL from a judgment o f the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed in part; reversed in part

. Willou ghby & Associates, Vanessa M. Ames and W. Anthony Willoughby for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews
and Rama R. Maline, Deputy Attorney s General, for Plaintiff and Respondent.2

A jury convicted d efendant Walter William Strider of possession of a firearm by a felon (Pen

. Code
, § 29800, subd. (a)(1)) , 1 and found true an allegation that the
crime was committed for the benefit of a criminal street gang ( § 186.22, subd. (b)(1)(A).) 2 He was sentenced to the low term of 16 months for possession of a firearm by a felon, plus two years consecutive for the gang enhancement. In this appeal from the judgment, d efendant contends (1) the trial court erroneously admitted his nonverbal admission of gang membership in violation of Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ) , (2) there is insufficient evidence to support the jury ’ s finding as to the gang enhancement; and (3) an

o fficer ’ s in

- court identification of defendant as the person in possession of the firearm was insufficient to prove a violation of section 29800, subdivision (a)(1), in light of th e officer ’ s more credible out

- of

- court identification of someone else as the man who possessed the firearm. We conclude that the introduction of defendant’s nonverbal statement of gang membership violated Miranda . Because we reverse the gang enhancement on this ground, we do not consider defendant’s
contention that the evidence w as otherwise insufficient to prove the gang
enhancement. Finally, we find the evidence not only sufficient to support the conviction of possession of a firearm by a felon , but also sufficient to show that the
Miranda violation was harmless beyond a reason able doubt as to the conviction

.

1 All subsequent s tatutory references ar e to the Penal Code.

2 Defendant was jointly tried with codefendant Jermaine Beard , who is not a party to this appeal. Beard was convicted of possession for sale of a controlled substance (Health & Saf. Code, § 11351) and possession for sale of cocaine base (Health & Saf. Code, § 11351.5 ) , and the jury found a gang enhancement true as to both counts.3 BACKGROUND
The I ncident L eading to Defendant ’ s A rrest On the evening of June 29, 2013, Los Angeles County Sheriff s ’ Department (LASD) Detective Steven Keen accompanied by Sergeant Brandon Dean, both
members of the LASD ’ s “ Compton Operation Safe Streets ” (OSS), and other officers, a pproached a residence at 1356 East Schinner Street in Compton to serve a search warrant. Th e house, commonly known as “ the Studio, ” was within the territory of the South Side Compton Crips (S SCC), and used as its hangout. The front door of the house was open, but a mesh security door was closed.
As the y looked inside the house through the security screen , Keen and Dean each

saw d efendant walking through the living room. He wore a white ta nk top and
carried a purple towel, which Dean later discovered was wrapped around a .45

- caliber Colt semiautomatic

. Defendant dropped the towel (which landed with a loud thud) when he saw the officers
, and ran toward the back door. Another man
in the roo m, who wore a black tank top
, also ran toward the back of the house. The
officers forced open the door
, entered and proceeded to clear the house. Dean and

two other officers went through the house and, eventually, out the rear door, where
both d efendant and the man wearing the black shirt had been detained. Meanwhile, Keen and another detective heard someone in the bathroom, and
ordered that person to open the door . At that point Keen heard what sounded like a toilet being flushed. Beard emerged from the bathroom with water dripping down his forearms, and was taken into custody. Keen ’ s search of the bathroom revealed a hidden compartment behind a mirror. He found wet baggies containing
substance s later identified as cocaine and cocaine base inside th at compartment. At trial, Dean opined, based in part on the quantity of cocaine and cocaine
recovered
, the presence of a weapon and his past experience of incidents involving4

the house on Schinner Street, that the drugs found in the house were possessed for the purpose of s ale. 3 He also testified that, in his experience, drug dealers commonly kept firearms in their residences or o n their person to protect their narcotics. During the house search, Dean recovered a Colt .45 pistol with live
round s in the magazine and chamber
, wrapped inside the purple towel d efendant
had dropped

. The LASD also recovered a baseball cap with the Seattle Mariners ’ logo ( “ S ” ) , a symbol commonly used by members of the SSCC

.

Detective Ibarra Q uestions Defendant and T estifie s as a G ang E

xpert Several months later, on October 18, 2013, d efendant was in a bedroom of a
house at an unspecified location in SSCC territory when the LASD served a search

warrant. Leland Lars, a member of the SSCC gang, and his toddler son were in
another bedroom. Defendant , who pretended to be asleep, was roused by the
LASD , handcuffed , searched and removed from the house to the back of a patrol

car for about an hour. He was not free to leave and was not advised of his Miranda rights. While d efe ndant was in the patrol car, Detective Raul Ibarra, a member of
LASD ’ s OSS, had a “ discussion ” with d efendant during which he asked d efendant

“ what ’ s going on with you, ” and whether he was “ still active in the hood. ”
Defendant gave no verbal respon se t o e ither question and neither affirmed nor denied being a gang member; his sole response was to shrug his shoulders. Ibarra perceived d efendant ’ s body language and shrug to be an admission on d efendant ’ s part that he re mained an active gang member . Based on th at assumption
, Ibarra

3 The LASD also found a box of baggies and three digital scales in the kitchen.5

created the first (and apparently only) Field Interview (FI) card identifying

d efendant as a member of the SSCC. 4
At trial, Ibarra testified as the prosecution ’ s gang expert. He testified that
the SSCC has about 250 active memb ers

. Gang members wear hats with the
Seattle Mariners ’ logo.
Ibarra opined that d efendant was a member of the SSCC gang based on his
communication with d efendant
, and information Ibarra obtained from informants
who said d efendant is a member of the SSC C and his moniker is “ Little Maniac. ”
Ibarra also testified that he had “ personally contacted ” d efendant , had “ talked to
him before ” and had “ seen him out on the street, ” but did not specify how many
such encounters or sightings occurred, or whether they had taken place after June
2013 . Ibarra also testified that Beard ( d efendant ’ s brother and codefendant ) , was a
member of the SSCC whose moniker was “ Maniac ” or “ Big Maniac. ” 5 Typically, a moniker using the term “ Big ” or “ Little ” refers to a gang member w ith a family

connection. 6

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

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

w ith the SSCC.

6 Apart from the FI card created by Ibarra on October 18, no other evidence was offered regarding defendant’ s gang membership, and there was no evidence that he previously had been charged with any gang

- related activity. Two people who had known defendant for years testified they were not aware

–– and did not believe

–– that defendant belonged to a gang, and had never heard him referred to as “ Little Maniac. ”6

The SSCC ’ s primary activities are : vandalism, graffiti, robbery, carjacking, burglary, vehicle theft, possession and sale of narcotics, possession of illegal weapons, assault, murder and attempted murder. Ibarra ha s made drug arrests at the house on Schinner Street and ha s responded to shootings at that location. The
SSCC ’ s members possess weapons to defend themselves , other gang members and the gang ’ s territory from rivals . Only a n SSCC member may claim to belong to the gang

. Anyone falsely c laim ing to be a member of the SSCC may be assaulted,
shot or killed. B ased on his contacts with informants within the SSCC, Beard ’ s tattoos and information in the LASD ’ s possession, Ibarra opined that Beard is a n active member of the SS CC gang

. SSCC gang members Trent Hawthorne and Jeremy Williams previously have been convicted of felonies ( carjacking and possession of a handgun , respectively)

. The prosecutor asked Ibarra to consider this hypothetical: a member of the SSCC gang is a t an SSCC hangout at which narcotics are found after o fficers execute a search warrant. The gang member is in the living room holding an object which he drops upon sighting the officer s , and flees. The object is later
determined to be a .45

- caliber semia utomatic firearm with a live round in the chamber. Ibarra opined that the gang member possessed the firearm for the benefit and in furtherance of the gang because he possessed the gun to protect himself, his fellow gang members, the narcotics and money ma de from drug sales.
Ibarra also was asked to consider another scenario: several members of the SSCC gang are in side a house located in SSCC territory when a search warrant is
executed at the house. Cocaine and cocaine base are found behind a bathroom
mirror , and digital scales and baggies are recovered . One gang member has a firearm. Based on these facts, Ibarra opined that possession of the narcotics was for the benefit of and in furtherance of the SSCC gang , which sells drugs to sustain7

its lifesty le

. T he gang member ’ s possession of the handgun demonstrate s that gang members need to protect themselves, the location at which they sell drugs, the drugs themselves and money made from drug sale s

. Defendant did not present a defense. 7

DISCUSSION
1. Miranda Violation

a. Relevant P roceedings Before and during trial, d efendant objected to admission of his non

- verbal statement ( the shrug of his shoulders)
, which Ibarra interpreted as an admission that he was an active member of the SSCC gang
, as a vio lation of his Miranda rights, and Ibarra ’ s use of that statement as a basis for creating an FI card.
Defendant ’ s trial counsel argued that d efendant was effectively under arrest
on October 18

––

handcuffed, kept in a patrol car for up to an hour while the house was searched and not objectively free to leave

–– when he purportedly admitted to being a gang member. The trial court disagreed that being handcuffed and placed in the back of a patrol car was tantamount to an arrest, but asked the prosecutor to
cond uct a voir dire examination of Ibarra. On voir dire, Ibarra testified he had been involved in an investigation on October 18, 2013 involving d efendant . A warrant was issued ( to enter a house at an unspecified address ) with regard to d efendant ’ s possible possession of a handgun. A man came to the door but ran away without opening the door when he realized the police were outside. After forcing entry into the house, the officers

7 The parties stipulated that defendant had a prior felony conviction.8

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

.

b. Controlling L aw and S tandard of R eview
A statement obtained from a suspect as the result of a “ custodial interrogation ” is not admissible in the prosecution ’ s case

- in

- chief, absent a knowing and intelligent waiver of the right to remain silent, the right to presence of an attorney and, in the case of an indigent suspec t, the right to appointed counsel. ( People v. Sims (1993) 5 Cal.4th 405, 440 , overruled on another ground by People
v. Storm (2002) 28 Cal.4th 1007, 1031

- 1032 ; People v. Elizalde (2015) 61 Cal.4th 523, 541 ( Elizalde ).) “

Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. ” ( Rhode Island v. Innis (1980) 446 U.S. 291, 300

- 301 ( Innis ).) An interrogation is
custodial when “ a person has been taken into custody or otherwise dep rived of his9

freedom of action in any significant way. ” ( Miranda, supra , 384 U.S. at p. 444.) An interrogation is not “ limited to express questioning. Instead, the term refers to

‘ any words or actions on the part of the police

. . . that the police shou ld know are reasonably likely to elicit an incriminating response from the suspect. ’” ( Elizalde,

supra, 61 Cal.4th at p. 531, quoting Innis, supra, 446 U.S. at p. 301, fn. omitted.) For purposes of Miranda , an individual is deemed to be in custody if “ ‘ a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. ’ ” ( Yarborough v. Alvarado (2004) 541 U.S. 652, 663.) The objective circumstances of the interrogation are examined, not the

“‘“ subjective views harbored b y either the interrogating officers or the person being questioned. ” ’ [Citation.] ” ( People v. Kopatz (2015) 61 Cal.4th 62, 80; People v. Bejasa (2012) 205 Cal.App.4th 26, 35 [test is whether a “‘ reasonable person in the suspect ’ s position during the inte rrogation [would] experience a restraint on his or her freedom of movement to the degree normally associated with
a formal arrest ’” ].) In making this determination, “ [t]he totality of the circumstances surrounding an incident must be considered as a whole . [Citations.] Although no one factor is controlling, the following circumstances should be
considered: ‘ (1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of offi cers to suspects; and (5) the demeanor of the officer, including the nature of the questioning. ’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police inf ormed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect ’ s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were

‘ aggressive, confronta tional, and/or accusatory, ’ whether they pressured the10

suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.] ” ( People v. Pilster (2006) 138 Cal.App.4th 1395, 1403

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

c. Analysis Two inquiries are required to determine whether d efendant was subjected to

a custodial interrogation or merely detained. First, what were the circumstances surrounding the interrogation? Second, would a reasonable person in those circumstances have felt he was free to terminate the interrogation and leave? ( People v. Ochoa (1998) 19 Cal.4th 353, 401

– 402.)
In the present case, defendant was not formally arrested b efore Ibarra question ed him. Defendant was detained for about 6 0 minutes in the back of a patrol car

. Ibarra appears to have been the only officer present during the questioning, but it is unclear h ow many other officers were nearby. Ibarra ’ s trial11

testimony reflects that he conducted the inquiry in a conversational manner, and there is no evidence he drew a weapon, behaved aggressively or pressured
d efendant in any manner. Nevertheless, d efendant remained handcuffed the entire
time. Handcuffing a suspect during an investigative detention does not automatically convert it into a custodial interrogation for purposes of Miranda

. ( Pilster, supra, 138 Cal.App.4th at p. 1404; United States v. Bautist a (9th Cir. 1982) 684 F.2d 1286, 1289

– 1290 .) However, a Miranda warning i s required once a detained suspect is placed under restraints normally associated with formal arrest

. At that point, the suspect understands his detention is unlikely to be “ tempora ry and brief ” and that he is “ completely at the mercy of the police. ” ( Berkemer v. McCarty (1984) 468 U.S. 420, 437

– 438

. ) Handcuffing is a traditional hallmark of formal arrest and readily conveys this message. (See e.g., People v. Aguilera (1996) 51 Ca l.App.4th 1151, 1162 [placing restrictions on a person ’ s freedom of movement may cause a reasonable person to believe he is not free to leave] ; United States v. Maguire (1st Cir. 2004) 359 F.3d 71, 79 [handcuffs are “ one of the most recognizable indicia of traditional arrest ” ].) Briefly handcuffing a detainee look s less like a formal arrest if the interrogating officer informs the suspect the cuffs are

on temporar il y and solely for safety purposes, and advises him that he is not under arrest and may declin e to answer questions. (Cf., United States v. Salvo (6th Cir. 1998) 133 F.3d 943, 951 [fact that officer informed suspect he was free to leave
and would not be arrested after interview was “ an important factor in finding that the suspect was not in custod y ” ].)
T his record presents no similar mitigating facts. A reasonable person in
d efendant ’ s position would conclude he was in custody when an officer handcuffed him immediately upon removing him from the house, and the officer kept him12

uninformed, in cuff s and restrained to the back of a patrol car for an hour. The prosecution presented no evidence to negate this assumption, i.e., no categorical
statement from Ibarra that he told d efendant he was not under arrest, could decline to answer questions or coul d leave. Indeed, Ibarra testified d efendant was indisputably not free to go. Absent such assurances, a reasonable person would assume he was in police custody. Nor was there any evidence d efendant volunteered any information

. Under these circumstances, a reasonable person would have felt he was in custody at the time Ibarra asked questions of d efendant as he sat cuffed in the back of the police vehicle. Accordingly, we conclude
d efendant faced a custodial interrogation and the trial court erred in admi tting his
nonverbal statement in evidence.

2. No E

xception s E

xempt Defendant ’ s “ S tatement ” from the Miranda R ul e The Attorney General a sserts that several exceptions to the requirement that

a Miranda warning be provided apply here, including concern for officer safety, and exceptions for small talk
, routine booking questions or on

- the

- scene investigations

. None of these contention s has merit.

a. No P ublic or O

fficer S afety E

xception An exception to the Miranda rule applies in circumstances in which an officer ’ s questions are reasonably prompted by concern for public safety if that concern outweighs the “ need for the prophylactic rule protecting the Fifth
Amendment ’ s privilege against self

- incrimination. ” ( New York v. Quarles (1984) 467 U.S. 649, 657 ( Quarles ).) This exception has been applied in cases in which an officer is searching for a missing weapon to protect public safety (e.g., People v. Simpson (1998) 65 Cal.App.4th 854, 857 ( Simpson )), and where an officer is13

concerned for his own safety w hen searching a suspect ( United States v. Carrillo (9th Cir. 1994) 16 F.3d 1046, 1049

- 1050; Simpson, supra, at p. 861)

. But the exception is narrow and applies only in situations involving an imminent threat to the public or an officer ’ s safety. ( Quarles , supra, 467 U.S. at p p

. 657

- 658; Elizalde , supra, 61 Cal.4th at p. 540; Simpson, supra, 65 Cal.App.4th at p. 861 [to invoke exception in case of officer safety, officer ’ s questions must focus on an objectively reasonable need to protect police from an imm inent danger they might encounter in an ongoing situation].) In addition, t he exception will be applie d only
if the officer ’ s questions are both justified and narrowly tailored. ( People v. Cressy (1996) 47 Cal.App.4th 981, 989.)
Based on Ibarra ’ s bare assertion, the trial court found that d efendant

–– thoroughly searched and handcuffed before being placed in the back of the patrol

car

–– was detained for purposes of officer safety while officers searched the house. The Attorney General asserts that because d efendant was “ arrested

. . . three

- and

one

- half months earlier for illegally possessing a firearm, ” the circumstances on October 18, 2013, created “‘ a perilous situation for the officers who were in close proximity to [him]

. . . . ’ [and] .

. . officers executing the search warrant were justified in attempting to locate firearms or other contraband inside the residence and secure their own safety before advising [ d efendant ] of his Miranda rights. ”
Not so. The record reflects no cause to justify applyin g the officer safety exception
to the Miranda rule here. In contrast with the cases from which the exception developed, there is no indication in the record that Ibarra

–– or any officer

–– had specific knowledge that d efendant (who had pretended to be asleep when officers arrived) had used a weapon or that one was missing. Nor were Ibarra ’ s queries to
d efendant narrowly aimed at protecting his or other officers’ safety . Whatever14

d efendant ’ s answer s to the questions, Ibarra demonstrated no imminent need to

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

b. No “ S mall T

alk ” E xception The Attorney General also argues in passing that no Miranda warning was required because Ibarra ’ s questions were merely casual conversation or “ small
talk ” unrelated to d efendant ’ s offense. Engagi ng in casual conversation with police officers is not considered a Miranda interrogation. ( People v. Andreasen (2013) 214 Cal.App.4th 70, 87, 89 [no interrogation occurred where defendant made incriminating statements while in custody of officers assigned to monitor
him

–– due to his mental condition

–– who spoke to defendant about neutral topics].)
Ibarra ’ s questions went beyond small talk. Indeed, it is difficult to characterize the exchange between d efendant and Ibarra as “ casual conversation ” given tha t no actual conversation occurred. However, even if Ibarra ’ s first question ( “ what ’ s going on with you? ” ) w as merely a neutral , conversational inquiry, the second one (are you “ still active in the hood ” ) was neither neutral nor driven by idle curiosity ab out d efendant ’ s interests in life. The Attorney General ’ s attempt to characterize Ibarra ’ s questions as “ small talk, ” rather than an attempt to

e licit information in violation of Miranda , is belied by the prosecution ’ s extensive15

reliance on d efendant ’ s af firmative “ response ” as support for its assertion that
d efendant admitted being an active gang member.

c. No R outine B ooking E xception Routine booking questions are exempt from Miranda ’ s coverage. (See Pennsylvania v. Muniz (1990) 496 U.S. 582, 601

- 602 ; Elizalde, supra, 61 Cal.4th at p. 533.) Booking questions are aimed at eliciting biographical data such as a

person ’ s name, address, height, weight, eye color, age and date of birth. ( Pennsylvania v. Muniz, supra, at pp. 601

- 602.) Such background or p edigree questions differ from questions regarding gang affiliation, which are reasonably likely to e licit a n incriminating response. ( Id . at pp. 600

- 601.) I n the first place, there is no indication, and the trial court did not find, that Ibarra ’ s questio ns to d efendant

–– who was not arrested on October 18, 2013

–– were routine administrative inquiries. More importantly, even if they were routine administrative inquiries , the California Supreme Court recently definitively rejected the view that questions

a bout one ’ s gang affiliation have legitimate administrative relevance, such as ensuring an inmate ’ s security from rival gangs in jail (see e.g., People v. Gomez (2011) 192 Cal.App.4th 609, 634), and held that questions regarding gang
affiliation exceed the scope of the booking exception. (See Elizalde, supra
, 61
Cal.4th at p p. 527, 538 & fn. 9, disapproving analysis in Gomez .) In California, questions about gang affiliation often carry penal consequences and are reasonably likely to elicit an incriminati ng response

. California has enacted a comprehensive scheme of penal statutes aimed at eradicating criminal activity by street gangs. (See § 186.20, et seq

. ; Elizalde,

supra , 61 Cal.4th at pp. 538

- 539.) The statutes punish active participation in a16

crimi nal street gang by one who knows “‘“ its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang

. ” ’” ( Elizalde,

supra , 61 Cal.4th a t pp. 538

- 539

. ) They also impose potentially substantial additional punishment for f elonies 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 an y criminal conduct by gang members

. . . . ’” ( Id . at p. 539.) For this reason questions regarding one ’ s gang affiliation do not fall
within Miranda ’ s narrow “ booking question ” exception for identifying basic biographical data. ( Id . at p. 538.) Rather, such questions must be measured under the general objective test “ which defines as ‘ interrogation ’ questions the police
should know are ‘ reasonably likely to elicit an incriminating response. ’ [Citation.] ” ( Ibid

. ) Where, as here, the police know or shou ld know that a gang

affiliation inquiry is reasonably likely to elicit an incriminating response potentially exposing a suspect to prosecution for the crime of gang p articipation and enhanced punishment, the suspect ’ s unadmonished answer to that inquiry is inadmissible at trial. ( Id . at p. 540.) 8

8 This rul e applies whether the officer asked the question for a non

- investigatory purpose or as a pretext to elicit incriminating information. “‘ [A]pplications of the Miranda rule generally do not turn upon the individual officer ’ s subjective state of mind

. . . . ’ [Citation.] ” ( Elizalde, supra , 61 Cal.4th at p. 536.) The intent of a questioning officer is relevant to the extent it demonstrates what he or she should have known about the nature of the questions, but it is not necessary; the test is objective. ( I d . at p. 537.) A

“‘ practice that the police should know is reasonably likely to evoke an incriminating response from a suspect

. . . amounts to interrogation. ’ [Citation.] ” ( Id . at p. 537, italics added.)17

d. No G eneral O n

- T

he

- S cene I

nvestigation E

xemption General on the scene questioning by police such as occurs when someone is temporarily detained by an officer asking general questions to determine whether
he or she has probable cause to arrest does not require a Miranda warning. ( People v. Milham (1984) 159 Cal.App.3d 487, 500 [defendant ’ s statement that he
believed he had killed his wife made to officer called to investigate a car accident did not require M irandizing because the officer , unaware of a potential crime, was

not tr ying to trick the defendant into revealing criminal actions, and only briefly questioned the defendant in an effort to obtain an explanation of facts surrounding
the accident ] ( Milham ) .) Here, Ibarra was not conducting an on

- the

- scene investigation. He had no interest in facts explain ing events that had led to issuance of a s earch warrant to investigate d efendant ’ s unlawful possession of a handgun, or the whereabouts of

any weapon. Ibarra sought only and specifically i nformation to confirm
d efendant ’ s status as a gang member, information he had pr eviously been able to
obtain only from potentially untrustworthy informants

. Thus, despite the brevity of his interrogation, Ibarra clear ly sought to compel incriminating information from
d efendant by circumvent ing Miranda . Such conduct cannot be condoned. ( Milham, supra , 159 Cal.App.3d at p. 500. ) In sum, o n this record
, d efendant was subjected to c ustodial interrogation in
violation of Miranda. Accordingly, t he trial court erred in permitting the prosecution to use d efendant ’ s nonverbal “ statement ” against him during its case

in

- chief.18

3. The E rro r Was Not Harmless Beyond a Reasonable Doubt as to the Gang Allegation

Statements obta ined in violation of Miranda are subject to harmless error
review . ( Arizona v. Fulminante (1991) 499 U.S. 279, 310 ( Fulminante ); People v.
Davis (2009) 46 Cal.4th 539, 588 .) “ The erroneous admission of a defendant ’ s statements obtained in violation of th e Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. [Citations.] That test requires the [Attorney General] here ‘ to prove beyond a reasonable doubt that the error complaine d of did not contribute to the
verdict obtained. ’ [Citation.] ” ( Elizalde, supra , 61 Cal.4th at p. 542.) Here, the Attorney General maintains the trial court ’ s erroneous admission
of d efendant ’ s statement

–– which was tantamount to a confession that he was an active member of the SSCC gang

–– was harmless as to the gang allegation because: (1) d efendant did not make a statement, but simply shrugged his shoulders; and (2) the jury was instructed to “ [c]onsider with caution any statement made by a d efendant te nding to show his guilt unless the statement was written or otherwise
recorded .” N either o f these assertions has merit

. The Attorney General ’ s first a ssertion contradicts the premise of its own arguments and the prosecution ’ s trial strategy. At trial, t he prosecut or relied extensively on d efendant ’ s nonverbal “ statement ” as definitive evidence that
d efendant a dmi tted he was a n active gang member. An admission is the most damaging evidence a prosecutor can use against a defendant. ( Chapman, supra,
386 U.S. at p. 23.) We c onduct our prejudice review bear ing in mind the United
States Supreme Court ’ s admonition that a “ confession is like no other evidence. Indeed, ‘ the defendant ’ s own confession is probably the most probative and damaging evidence that can be admitted against him

. . . . [T]he admissions of a19

defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury

. . . . ’ [Cit ations.] ” ( Fulminante,

supra , 499 U.S. at p. 296.) The California Supreme Court has similarly recognize d
that “ confessions, ‘ as a class, ’ ‘ [a]lmost invariably ’ will provide persuasive
evidence of a defendant ’ s guilt [citation], and

. . . often operate ‘ a s a kind of evidentiary bombshell which shatters the defense ’ [citation]

. . . . ” ( People v.
Cahill (1993) 5 Cal.4th 478, 503.) Consequently, “ the improper admission of a confession is much more likely to affect the outcome of a trial than are other

cat egories of evidence, and thus is much more likely to be prejudicial under the
traditional harmless

- error standard. ” ( Ibid .; accord, People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
T he prosecution relied extensively on Ibarra ’ s interpretation of defe ndant’s

“ statement ” to prove the gang

- related allegations . Further, Ibarra relied almost exclusively on that nonverbal statement to create d efendant ’ s first ( and only ) FI card stating he belonged to the SSCC gang, evidence the prosecution employed to

grea t effect to prove the gang allegation. Ibarra ’ s expert opinion that d efendant
was a member of the SSCC also was predicated primarily on his interpretation of
the shrug as an admission that he was active in the SSCC

. In the absence of
d efendant ’ s “ stateme nt, ” the only evidence to indicat e gang membership w as the fact that he was twice detained while in the company of one or more SSCC gang members in SSCC territory, and Ibarra ’ s testimony that informants told him at some unspecified time about d efendant ’ s m ember ship in the gang

. No other affirmative evidence of gang membership was offered

. There i s no evidence that
d efendant has conspicuous (or any) gang tattoos, no evidence he ha s ever been20

convicted of a gang

- related crime, and no evidence that any offic er who testified had personal knowledge of d efendant ’ s gang status

. We also reject the assertion that a jury instruction sufficiently mitigated any prejudice concerning the gang allegation

. True, the jury was told to exercise
caution in considering any statement d efendant made that tend ed to show guilt
unless it was “ written or otherwise recorded. ” However, Ibarra unequivocally interpreted the shrug as an admission of gang membership, and created a written FI card so stating. Under these circumstances , the jury instruction to exercise caution in considering such evidence was not adequate to show, beyond a reasonable doubt, that introduction of the evidence did not contribute to the jury’s finding of the gang enhancement. Thus, the gang enhancement mus t be reversed. 9
However, we disagree with defendant that the error requires reversal of the conviction of possession of a firearm by a felon. As we explain, below, we reject defendant’s contention that substantial evidence does not support the convicti on, and further conclude that such evidence demonstrates that introduction of defendant’s nonverbal admission of gang membership was harmless beyond a
reasonable doubt as to the conviction.

4. Substantial E

vidence S upports the C

onviction for P ossession of a F irearm
Defendant contends that the evidence is insufficient to support his conviction of possession of a firearm by a felon, because Dean ’ s in

- court

9 Because we reverse the gang enhancement on th is ground, we do not discuss defendant’s contention that the evidence was otherwise insufficient to support the gang enhancement.21

identification of him as the person who possess ed the firearm was contradicted by
Dean ’s prior ident ification of someone else

. We disagree. The jury heard a udio recording s made by Dean o f events that transpired
before and after the search warrant was executed on June 29, 2013, and officers
entered the house on Schinner Street. At trial, Dean testifi ed that he saw two people inside before he entered the house: defendant , who was wearing a white tank top, and another man in a black tank top. In one r ecording, D ean identifie d the man who dropped the purple towel as “ the person in the black shirt. ” At trial,
D ean testified that d efendant had been in p ossess ion of the purple towel and
firearm as the officers approached

. Dean had seen d efendant at least 100 times and knew him by name. He explained that he had mistakenly identified the person in
the bla ck shirt in the audio recording as the one who dropped the towel, but he
knew it was d efendant ; Keen had corrected him. When he got outside the house on Schinner, Dean recognized that it had been d efendant who held and dropped the
towel

. Keen testified at trial that the only person he saw in the living room as he looked through the security screen was the man who held and then dropped the purple towel . He identified d efendant as th at person. Keen did not see anyone in a black shirt before entering the house

. On this record, the evidence was clearly sufficient to prove that defendant was the person who held the purple towel that concealed the firearm. ( People v. Maury (2003) 30 Cal.4th 342, 403, disapproved on another ground by Barnett v. Superior C ourt (2010) 50 Cal.4th 890, 896 [reviewing court does not resolve credibility issues or evidentiary conflicts].) More than that, however, this evidence shows that the error in introducing defendant’s nonverbal a dmis sion of gang membership was harmless b eyond a22

reasonable doubt as to defendant’s conviction

. The evidence of defendant’s nonverbal admission was used to prove the gang enhancement ; it did not prove

possess ion of a firearm. That charge was independently supported by Dean and Keen’s testimony. At trial, Dean explained his mistake in the recording, and stated
that he knew at the ti me that defendant had held the purple towel. He was very familiar with defendant, having seen d efendant at least 100 times, and knew him by name. Keen confirmed tha t defendant was the person who held the towel. Thus, there was little room for doubt that defendant possessed the towel, and the firearm concealed in it. Under these circumstances, not only was the evidence sufficient to support defendant’s conviction; i t was compelling enough to render
the Miranda violation harmless beyond a reasonable doubt.

DISPOSITION The gang enhancement under section 186.22, subdivision (b) (1)(A) is
reversed , and the matter remanded for a decision whether to retry the gang
alle gation, and (regardless of that decision) for resentencing. The judgment is
otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. MANELLA, J.