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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 WILLIAM STRIDER,

Defendant and Appellant.

 B258711

 (Los Angeles County

 Super. Ct. No. TA132732)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Kathleen Kennedy, Judge. Affirmed in part; reversed in part. 

Willoughby & 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 Attorneys General, for Plaintiff and Respondent.
2

A jury convicted defendant 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, defendant 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 

officer’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 the 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 was 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 reasonable doubt as to the conviction. 

 

1 All subsequent statutory references are 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 Incident Leading to Defendant’s Arrest 

On the evening of June 29, 2013, Los Angeles County Sheriffs’ Department 

(LASD) Detective Steven Keen accompanied by Sergeant Brandon Dean, both 

members of the LASD’s “Compton Operation Safe Streets” (OSS), and other 

officers, approached a residence at 1356 East Schinner Street in Compton to serve 

a search warrant. The house, commonly known as “the Studio,” was within the 

territory of the South Side Compton Crips (SSCC), and used as its hangout. 

The front door of the house was open, but a mesh security door was closed. 

As they looked inside the house through the security screen, Keen and Dean each 

saw defendant walking through the living room. He wore a white tank 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 room, 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 defendant 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 

substances later identified as cocaine and cocaine base inside that 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 involving 
4

the house on Schinner Street, that the drugs found in the house were possessed for 

the purpose of sale.

3

 He also testified that, in his experience, drug dealers 

commonly kept firearms in their residences or on their person to protect their 

narcotics. During the house search, Dean recovered a Colt .45 pistol with live 

rounds in the magazine and chamber, wrapped inside the purple towel defendant

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 Questions Defendant and Testifies as a Gang Expert 

Several months later, on October 18, 2013, defendant 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 defendant was in the patrol car, Detective Raul Ibarra, a member of 

LASD’s OSS, had a “discussion” with defendant during which he asked defendant

“what’s going on with you,” and whether he was “still active in the hood.” 

Defendant gave no verbal response to either question and neither affirmed nor 

denied being a gang member; his sole response was to shrug his shoulders. Ibarra 

perceived defendant’s body language and shrug to be an admission on defendant’s 

part that he remained an active gang member. Based on that 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 

defendant 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 members. Gang members wear hats with the 

Seattle Mariners’ logo. 

Ibarra opined that defendant was a member of the SSCC gang based on his 

communication with defendant, and information Ibarra obtained from informants 

who said defendant is a member of the SSCC and his moniker is “Little Maniac.” 

Ibarra also testified that he had “personally contacted” defendant, 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 (defendant’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 with a family 

connection.

6

 

4 FI cards are created based on an officer’s belief that the subject of 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 

with 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 has made drug arrests at 

the house on Schinner Street and has 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 an SSCC member may claim to belong to 

the gang. Anyone falsely claiming to be a member of the SSCC may be assaulted, 

shot or killed. Based on his contacts with informants within the SSCC, Beard’s 

tattoos and information in the LASD’s possession, Ibarra opined that Beard is an 

active member of the SSCC 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 at an SSCC hangout at which narcotics are found after officers 

execute a search warrant. The gang member is in the living room holding an 

object which he drops upon sighting the officers, and flees. The object is later 

determined to be a .45-caliber semiautomatic 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 made from drug sales. 

Ibarra also was asked to consider another scenario: several members of the 

SSCC gang are inside 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 sustain 
7

its lifestyle. The gang member’s possession of the handgun demonstrates that gang 

members need to protect themselves, the location at which they sell drugs, the 

drugs themselves and money made from drug sales. 

Defendant did not present a defense.

7

DISCUSSION

1. Miranda Violation

a. Relevant Proceedings

Before and during trial, defendant 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 violation 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 defendant 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 

conduct a voir dire examination of Ibarra. 

On voir dire, Ibarra testified he had been involved in an investigation on 

October 18, 2013 involving defendant. A warrant was issued (to enter a house at 

an unspecified address) with regard to defendant’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 defendant in another, pretending to be 

asleep. He was roused, escorted from the house and searched. Then, placed in 

handcuffs for purposes of officer safety, defendant was required to remain in the 

back of a patrol car for the duration of the search. He was not free to leave, was 

not advised of his Miranda rights and remained in the car for about an hour. 

During that time, Ibarra made “small talk” with defendant and asked him, “What’s 

going on with you?” and “Are you still active in the hood?” In response, defendant

shrugged his shoulders. Ibarra interpreted that shrug as an affirmative response to 

the question whether he was still an active member of the gang and created an FI 

card. 

The trial court found defendant had been kept in the patrol car for purposes 

of officer safety during the search. The court denied defendant’s motion to 

exclude the statement after concluding the detention did not amount to an arrest 

and, as a result no Miranda warning was required.

b. Controlling Law and Standard of Review

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 suspect, 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 deprived of his 
9

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 should 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 by 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 interrogation [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 officers 

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 informed 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, confrontational, and/or accusatory,’ whether they pressured the 
10

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 advisements 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, Miranda does not apply. 

(People v. Mickey (1991) 54 Cal.3d 612, 648.)

Our review of the trial court’s determination that defendant was not 

subjected to custodial interrogation is a mixed question of law and fact. We apply 

a deferential substantial evidence 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 to 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 defendant 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 before Ibarra 

questioned him. Defendant was detained for about 60 minutes in the back of a 

patrol car. Ibarra appears to have been the only officer present during the 

questioning, but it is unclear how many other officers were nearby. Ibarra’s trial 
11

testimony reflects that he conducted the inquiry in a conversational manner, and 

there is no evidence he drew a weapon, behaved aggressively or pressured 

defendant in any manner. Nevertheless, defendant 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. Bautista (9th Cir.

1982) 684 F.2d 1286, 1289–1290.) However, a Miranda warning is 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 “temporary 

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 Cal.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 looks

less like a formal arrest if the interrogating officer informs the suspect the cuffs are 

on temporarily and solely for safety purposes, and advises him that he is not under 

arrest and may decline 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 custody”].)

This record presents no similar mitigating facts. A reasonable person in 

defendant’s position would conclude he was in custody when an officer handcuffed 

him immediately upon removing him from the house, and the officer kept him 
12

uninformed, in cuffs 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 defendant he was not under arrest, could decline 

to answer questions or could leave. Indeed, Ibarra testified defendant was 

indisputably not free to go. Absent such assurances, a reasonable person would 

assume he was in police custody. Nor was there any evidence defendant

volunteered any information. Under these circumstances, a reasonable person 

would have felt he was in custody at the time Ibarra asked questions of defendant

as he sat cuffed in the back of the police vehicle. Accordingly, we conclude 

defendant faced a custodial interrogation and the trial court erred in admitting his 

nonverbal statement in evidence. 

2. No Exceptions Exempt Defendant’s “Statement” from the Miranda Rule

The Attorney General asserts 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 contentions has merit. 

a. No Public or Officer Safety Exception

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 is 
13

concerned for his own safety when 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 pp. 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 imminent danger they might 

encounter in an ongoing situation].) In addition, the exception will be applied 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 defendant––

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 defendant was “arrested . . . three-andone-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 [defendant] of his Miranda rights.”

Not so.

The record reflects no cause to justify applying 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 defendant (who had pretended to be asleep when officers 

arrived) had used a weapon or that one was missing. Nor were Ibarra’s queries to 

defendant narrowly aimed at protecting his or other officers’ safety. Whatever 
14

defendant’s answers to the questions, Ibarra demonstrated no imminent need to 

obtain 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” defendant, and whether he was 

still active in the SSCC. Even assuming, 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 under these circumstances. 

b. No “Small Talk” Exception

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 defendant’s offense. Engaging 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 defendant and Ibarra as “casual conversation”

given that no actual conversation occurred. However, even if Ibarra’s first 

question (“what’s going on with you?”) was merely a neutral, conversational 

inquiry, the second one (are you “still active in the hood”) was neither neutral nor 

driven by idle curiosity about defendant’s interests in life. The Attorney General’s 

attempt to characterize Ibarra’s questions as “small talk,” rather than an attempt to 

elicit information in violation of Miranda, is belied by the prosecution’s extensive 
15

reliance on defendant’s affirmative “response” as support for its assertion that 

defendant admitted being an active gang member. 

c. No Routine Booking Exception

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 pedigree 

questions differ from questions regarding gang affiliation, which are reasonably 

likely to elicit an incriminating response. (Id. at pp. 600-601.) In the first place, 

there is no indication, and the trial court did not find, that Ibarra’s questions to 

defendant––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 

about 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 pp. 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 incriminating 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 a 
16

criminal 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 at pp. 538-539.) They also impose potentially substantial 

additional punishment for felonies committed “‘for the benefit of, at the direction 

of, or in association with any criminal street gang, with the specific intent to 

promote, further, or assist in any criminal conduct by gang members . . . .’” (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 should know that a gangaffiliation inquiry is reasonably likely to elicit an incriminating response 

potentially exposing a suspect to prosecution for the crime of gang participation 

and enhanced punishment, the suspect’s unadmonished answer to that inquiry is

inadmissible at trial. (Id. at p. 540.)

8

 

 

8 This rule 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. (Id. 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 General On-The-Scene Investigation Exemption 

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 Mirandizing because the officer, unaware of a potential crime, was 

not trying 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 explaining events that had led to issuance of a search warrant to 

investigate defendant’s unlawful possession of a handgun, or the whereabouts of 

any weapon. Ibarra sought only and specifically information to confirm 

defendant’s status as a gang member, information he had previously been able to 

obtain only from potentially untrustworthy informants. Thus, despite the brevity of 

his interrogation, Ibarra clearly sought to compel incriminating information from 

defendant by circumventing Miranda. Such conduct cannot be condoned. 

(Milham, supra, 159 Cal.App.3d at p. 500.)

In sum, on this record, defendant was subjected to custodial interrogation in 

violation of Miranda. Accordingly, the trial court erred in permitting the 

prosecution to use defendant’s nonverbal “statement” against him during its casein-chief.
18

3. The Error Was Not Harmless Beyond a Reasonable Doubt as to the Gang

Allegation

Statements obtained 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 the 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 complained 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 defendant’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) defendant 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 

defendant tending to show his guilt unless the statement was written or otherwise 

recorded.” Neither of these assertions has merit. 

The Attorney General’s first assertion contradicts the premise of its own 

arguments and the prosecution’s trial strategy. At trial, the prosecutor relied 

extensively on defendant’s nonverbal “statement” as definitive evidence that 

defendant admitted he was an 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 conduct our prejudice review bearing 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 a 
19

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 . . . .’ [Citations.]” (Fulminante, 

supra, 499 U.S. at p. 296.) The California Supreme Court has similarly recognized

that “confessions, ‘as a class,’ ‘[a]lmost invariably’ will provide persuasive 

evidence of a defendant’s guilt [citation], and . . . often operate ‘as 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 

categories 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.)

The prosecution relied extensively on Ibarra’s interpretation of defendant’s

“statement” to prove the gang-related allegations. Further, Ibarra relied almost 

exclusively on that nonverbal statement to create defendant’s first (and only) FI 

card stating he belonged to the SSCC gang, evidence the prosecution employed to 

great effect to prove the gang allegation. Ibarra’s expert opinion that defendant

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 

defendant’s “statement,” the only evidence to indicate gang membership was 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 defendant’s membership in the gang. No other 

affirmative evidence of gang membership was offered. There is no evidence that 

defendant has conspicuous (or any) gang tattoos, no evidence he has ever been 
20

convicted of a gang-related crime, and no evidence that any officer who testified 

had personal knowledge of defendant’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 defendant made that tended 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 must 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 conviction, 

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 Evidence Supports the Conviction for Possession of a Firearm

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 this 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 possessed the firearm was contradicted by 

Dean’s prior identification of someone else. We disagree. 

The jury heard audio recordings made by Dean of 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 testified 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 recording, Dean identified

the man who dropped the purple towel as “the person in the black shirt.” At trial, 

Dean testified that defendant had been in possession of the purple towel and 

firearm as the officers approached. Dean had seen defendant at least 100 times and 

knew him by name. He explained that he had mistakenly identified the person in 

the black shirt in the audio recording as the one who dropped the towel, but he 

knew it was defendant; Keen had corrected him. When he got outside the house on 

Schinner, Dean recognized that it had been defendant 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 defendant as that 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 Court (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 admission of gang membership was harmless beyond a 
22

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 

possession 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 time that defendant had held the purple towel. He was very 

familiar with defendant, having seen defendant at least 100 times, and knew him 

by name. Keen confirmed that 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; it 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 

allegation, 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.