Filed 7/10/15 P. v. Blount CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TYRIN LEE BLOUNT,

Defendant and Appellant.

F066744

(Super. Ct. No. BF141509B)

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANKLIN LAMAR RANDLE et al.,

Defendants and Appellants.

F067069

(Super. Ct. No. BF141509A & C)

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING [NO CHANGE 

IN JUDGMENTS]

It is ordered that the opinion filed herein on June 18, 2015, be modified as follows:
2.

1. On page 12, the last sentence of the first full paragraph, beginning with “It 

is not enough” is deleted, and the cases cited beginning with “(See Neil v. Biggers, supra, 

409 U.S. at pp. 198-199;” are deleted in their entirety, so that the paragraph reads as 

follows:

Our Supreme Court holds a “‘“single person showup” is not inherently 

unfair.’” (Ochoa, supra, 19 Cal.4th at p. 413, quoting Floyd, supra, 1 Cal. 3d at p. 

714; accord, Bisogni, supra, 4 Cal.3d at p. 587.) Such showups are considered 

unfair when they are not neutral and unnecessarily suggest to the witness in 

advance the identity of the person suspected by the police. (People v. Yeoman 

(2003) 31 Cal.4th 93, 123-124.) To warrant suppression of a witness’s 

identification of a defendant, the state “must, wittingly or unwittingly, initiate an 

unduly suggestive procedure.” (Ochoa, supra, 19 Cal.4th at p. 413.)

2. In the fourth full paragraph beginning on page 13 and continuing on page 

14, the last sentence of the paragraph beginning with “In any event” is deleted, and the 

case cited “(Manson v. Brathwaite (1977) 432 U.S. 98, 116)” is deleted, so that the 

paragraph reads as follows:

Here, the police admonished both Andrews and Lopez prior to the 

showups. Lopez was told that the suspects may or may not be the people who had 

broken into the residence. Before viewing Randle, both Andrews and Lopez were 

told that he “may or may not be involved in the crime and it was just as important 

to protect the innocent as it was to convict the guilty.” Andrews was also told the 

fact the suspects were handcuffed and in police custody should not prejudice her 

statements. Nothing in this record suggests the officers indicated to Andrews or 

Lopez that appellants were the perpetrators. In light of the admonitions given, the 

police procedures used here did not strongly suggest appellants were the 

perpetrators, as Blount contends. There was not a “‘“very substantial likelihood of 

irreparable misidentification.”’ [Citation.]” (People v. Arias, supra, 13 Cal.4th at 

p. 170.)

3. On page 15, in the second full paragraph, following the fourth sentence, the 

case cited “Manson v. Brathwaite, supra, 432 U.S. at p. 116” is deleted and the following 

citation is inserted in its place Manson v. Brathwaite (1977) 432 U.S. 98, 116, so that the 

paragraph reads as follows:
3.

To the contrary, although Andrews and Lopez were certainly under extreme 

stress during this incident, Andrews viewed appellants’ faces when they stood in 

her home approximately eight feet from her. Other than “shadows” present, 

neither Andrews nor Lopez expressed much difficulty in seeing the suspects on 

their porch as they alternately looked through the front windows and the peephole. 

These showups did not create a very substantial likelihood of irreparable 

misidentification. Instead, the accuracy of Andrews’s and Lopez’s identifications 

was an issue for the jury to weigh. (Virgil, supra, 51 Cal.4th at p. 1256; Manson 

v. Brathwaite (1977) 432 U.S. 98, 116.) Under the totality of the circumstances, 

appellants have not met their burden of demonstrating that the field identification 

procedures were unreliable and so unfair that it violated due process. (People v. 

DeSantis, supra, 2 Cal.4th at p. 1222.) 

4. On page 16, the heading “II. Based On This Record Appellants’ Gang 

Admissions During Various Booking Procedures Did Not Require Miranda

Warnings” is deleted and the following heading is inserted in in its place:

II. The Admission Of Appellants’ Booking Statements Was Not 

Prejudicial.

5. On page 16, following the third full paragraph beginning with “Blount and 

Jackson contend” and before the subheading “A. Background” the following paragraph 

is inserted:

In the alternative, Blount asserts his statements during the booking 

procedures were involuntary, contending the booking staff informed him his 

answers would not be used against him. He further argues his statements were 

inadmissible under the principles of estoppel, due process, and the granting of 

informal use immunity. Finally, he maintains his counsel provided ineffective 

assistance if we determine these issues were forfeited. Jackson and Randle join in 

Blount’s alternative arguments without providing further legal authority or 

contentions.

6. On page 18, the fourth full paragraph beginning with “As an initial matter” 

is deleted in its entirety and the following paragraph is inserted in its place:

As an initial matter, there is a dispute between the parties regarding whether 

or not appellants have waived or forfeited these issues on appeal. We need not 

analyze this dispute because, when we presume no waiver or forfeiture occurred, 

appellants’ arguments are unpersuasive due to a lack of prejudice.
4.

7. On page 18, starting with the fifth full paragraph beginning with “Questions 

during a booking” and concluding after the last full paragraph beginning with “Based on 

the limited record” on page 22, all paragraphs are deleted in their entirety. The following 

paragraphs are inserted in their place:

In People v. Elizalde (June 25, 2015, S215260) ___ Cal.4th ___ 

<http://www.courts.ca.gov/opinions.htm> our Supreme Court held that booking 

questions regarding gang affiliation do not fall under the narrow booking 

exception to Miranda. (Id. at pp. 17-19.) Without Miranda warnings, a 

defendant’s answers to gang questions posed during a booking procedure are 

inadmissible in the prosecution’s case-in-chief. (Id. at p. 21.) 

Here, the prosecution introduced at trial appellants’ respective 

unadmonished gang admissions made during various booking procedures. Thus, 

the Fifth Amendment was violated. (People v. Elizalde, supra, ___ Cal.4th ___ 

[pp. 21-22].) Because appellants’ various booking statements regarding gang 

affiliations were inadmissible under Miranda, we need not address Blount’s 

alternative arguments that such statements were involuntary and inadmissible 

under the principles of estoppel, due process, and the granting of informal use 

immunity.

Elizalde held that such erroneous admissions must be reviewed for 

prejudice under the standard set forth in Chapman v. California, supra, 386 U.S. 

18. (People v. Elizalde, supra, ___ Cal.4th ___ [p. 22].) That standard requires 

the government “‘to prove beyond a reasonable doubt that the error complained of 

did not contribute to the verdict obtained.’ [Citation.]” (Ibid.) That burden is 

satisfied on this record. The appellants’ respective gang participation was 

established beyond their booking statements.

8. On pages 19, 20, and 22, footnotes 11, 12, 13 and 14 are deleted in their 

entirety, which will require renumbering of all subsequent footnotes.

9. On page 23, the subheading “1. Appellants cannot establish prejudice”

is deleted in its entirety.

10. On page 23, the first sentence in the first full paragraph beginning with 

“Even if the trial court,” is deleted, so that the paragraph reads as follows:

In order to prove a defendant “actively participates” in a criminal street 

gang for conviction under section 186.22, subdivision (a), it is sufficient if the 

evidence establishes the defendant’s involvement with the gang was more than 
5.

nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.) A 

defendant does not have to occupy a leadership position in the gang for conviction. 

(Ibid.) Indeed, a person does not have to be a gang member to be guilty of section 

186.22, subdivision (a). (In re Jose P. (2003) 106 Cal.App.4th 458, 466.)

11. On page 25 starting with the heading “III. The Record Does Not” and 

concluding after the last full paragraph beginning with “As discussed in section II” on 

page 27, all paragraphs and the subheading “C. Appellants cannot establish prejudice” 

are deleted in their entirety.

12. On page 27, footnotes 22 and 23 are deleted in their entirety, which will 

require renumbering of all subsequent footnotes.

13. On page 28, section “IV.” is renumbered to “III.” so the heading reads:

III. The Trial Court’s Ex Parte Communication With The Jury Did 

Not Prejudicially Violate Appellants’ Statutory And 

Constitutional Rights.

14. On page 41, section “V.” is renumbered to “IV.” so the heading reads:

IV. The Trial Court Did Not Prejudicially Err In Declining To 

Accept Or Requiring The Prosecution To Accept Blount’s 

Proposed Stipulation.

15. On page 49, section “VI.” is renumbered to “V.” so the heading reads:

V. Sufficient Evidence Supports Blount’s Conviction Of Count 2.

16. On page 51, section “VII.” is renumbered to “VI.” so the heading reads:

VI. Randle’s Gang Admission Was Not Inadmissible Under 

Miranda.

There is no change in the judgments.

Appellant Clifford Lee Jackson, Jr.’s petition for rehearing filed June 30, 2015, is 

denied.

Appellant Tyrin Lee Blount’s petition for rehearing filed June 30, 2015, is denied.
6.

_____________________

LEVY, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

GOMES, J.
Filed 6/18/15 P. v. Blount CA5 (unmodified version)

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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TYRIN LEE BLOUNT,

Defendant and Appellant.

F066744

(Super. Ct. No. BF141509B)

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANKLIN LAMAR RANDLE et al.,

Defendants and Appellants.

F067069

(Super. Ct. No. BF141509A & C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,

Judge.
2.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and 

Appellant Tyrin Lee Blount.

Geoffrey M. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant Franklin Lamar Randle.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and 

Appellant Clifford Lee Jackson, Jr.

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

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Tia M. 

Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

On April 10, 2012, three males broke into the residence of Sue Lopez and her 

adult daughter, Sarah Andrews. Andrews confronted the males inside the home, and they 

fled. Law enforcement arrived around the same time, and appellants Tyrin Lee Blount, 

Clifford Jackson, Jr. and Franklin Lamar Randle1 were discovered and arrested shortly 

thereafter in the vicinity of the Lopez residence. Appellants were tried together before a 

jury, and each was found guilty of felony burglary (Pen. Code, § 460, subd. (a)),2 and 

promoting felony street gang conduct (§ 186.22, subd. (a)). 

On appeal, appellants raise collectively and individually seven issues. First, law 

enforcement had Lopez and Andrews identify appellants on the morning of their arrests. 

Appellants contend these field showups were “impermissibly suggestive” and tainted the 

trial identifications. 

 

1 Blount, Jackson and Randle will be referred to collectively as appellants or else 

identified individually by name.

2 All future statutory references are to the Penal Code unless otherwise noted.
3.

Second, during various booking procedures, appellants made respective 

admissions of gang affiliation (with the Crips and/or the Country Boy Crips), which the 

prosecution used, in part, to establish appellants were active participants in the Country 

Boy Crips gang on the day of the Lopez burglary. Appellants argue the trial court erred 

when it failed to suppress these booking statements under Miranda v. Arizona (1966) 384 

U.S. 436 (Miranda) and its progeny. 

Third, appellants assert their booking statements regarding gang affiliations were 

induced by a promise of leniency from booking personnel, making their statements 

inadmissible (1) as involuntary, (2) under the principle of “use immunity” and (3) under 

the doctrine of estoppel. 

Fourth, during deliberations, the trial judge had a brief ex parte meeting with the 

jury to clarify its request for readback of certain testimony. Appellants maintain this 

contact violated their respective rights to be personally present, and to be represented by 

counsel, at all critical stages of trial. 

Fifth, appellants assert the trial court prejudicially erred when it failed to accept, or 

require the prosecution to accept, a proposed stipulation from appellants that the Country 

Boy Crips were a criminal street gang which engaged in criminal behavior pursuant to 

section 186.22, subdivision (a). 

Sixth, Blount contends he was a member of the Watts/Lotus Countryside Boy 

Crips, and there was insufficient evidence to show that this gang, as opposed to the 

Country Boy Crips, qualified as a criminal street gang under section 186.22. 

Finally, during a street stop not associated with the present charges, Randle made 

an admission he was a member of the Country Boy Crips. He argues the trial court erred 

in denying his motion under Miranda to suppress this admission. 

We find each of these contentions unpersuasive and affirm. 
4.

FACTUAL AND PROCEDURAL BACKGROUND

Information

The Kern County District Attorney’s Office filed an amended information 

charging appellants each with first degree burglary (§ 460, subd. (a); count 1); and 

promoting felony street gang conduct (§ 186.22, subd. (a); count 2). Jackson was further 

charged with misdemeanor resisting arrest (§ 148, subd. (a)(1); count 3). As to count 1, it 

was further alleged as to all appellants that a person other than an accomplice was present 

during the commission of the burglary (§ 667.5, subd. (c)(21)) and the burglary was 

committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Finally, it 

was alleged as to counts 1 and 2 that Blount had a prior felony conviction (§ 667, subds. 

(c)-(j)), which was considered a serious felony (§ 667, subd. (a)), for which Blount served 

a prior prison term (§ 667.5, subd. (b)). 

Trial evidence

The April 10, 2012, incident started a little after 9:00 a.m. when a young AfricanAmerican male approached Lopez’s front door, knocked loudly, and repeatedly rang the 

doorbell. Both Andrews3 and Lopez looked at him through the door’s peephole. After 

about 30 seconds, the male walked to a gold, mid-sized car parked on the street in front 

of the Lopez residence. Two other African-American males were in the vehicle and they 

drove away. 

A short time later, a young African-American male jumped over the fence into 

Lopez’s backyard and Lopez called 911. Encountering a dog, the male jumped back over 

the fence and walked towards a street (Rolling Ridge Drive) behind the Lopez residence. 

Through the slats in her backyard fence, Lopez could see the same gold vehicle 

parked on the street behind her residence. Andrews and Lopez observed three males 

 

3

In 2011, Andrews was convicted of violating section 488, petty theft, in Humboldt 

County. 
5.

walk toward their residence from Rolling Ridge Drive, and those three males went to 

their front door and began ringing the doorbell and knocking very loudly. Andrews 

looked at them through the peephole. Lopez peeked at them from a little side window, 

which was two or three feet away from them, before moving to the main window, which 

was approximately seven or eight feet away. 

Lopez and Andrews retreated away from the door to hide but, after hearing the 

front door kicked open, Andrews came out and discovered the three males in her home. 

She stood about eight feet from them and looked at their faces, according to her estimate, 

for 10 seconds. 

The three males fled through a back sliding glass door into the backyard.4 It took 

them approximately 20 seconds to exit the house. Two of the males jumped the backyard 

fence to the west and the third male jumped the fence to the south. 

Bakersfield police arrived at or around the time the males were fleeing. A search 

commenced and a police officer located Blount walking in a field about a half mile south 

of the Lopez residence. In his patrol vehicle, the officer approached Blount, who ran. 

Just before running, Blount was speaking on a cellular phone and the officer, who had his

window down, heard him say, “It’s over, Cuzz.” Blount was apprehended shortly after 

he ran. 

Jackson and Randle were located in the same backyard approximately three or 

four houses to the west of Lopez’s residence. Randle was arrested without incident. 

Jackson was ordered to show his hands and, when he did not, a police canine was 

released on him. After the canine engaged Jackson’s left shoe, he showed his hands and 

was arrested. 

 

4

It was stipulated that no fingerprints were located on the rear sliding door of the 

Lopez residence belonging to either the appellants or any other individual on file. 
6.

Later that same morning, the police conducted field identifications, individually 

showing each of the appellants to Andrews and Lopez. Both Andrews and Lopez 

identified appellants as the males who broke into their home. 

Officers located the gold vehicle parked on Rolling Ridge Drive behind the Lopez 

residence. Blount’s identification was inside the vehicle and he had a key in his 

possession which operated it. 

At trial, Andrews and Lopez could not describe the suspects’ facial features on the 

day of the burglary, but they both described the clothing the suspects wore. Their trial 

testimony conflicted at times regarding the suspect’s clothing and how certain events 

unfolded on the day in question. At trial, Andrews identified each of the appellants as the 

males she encountered in her home and she was “sure” of her trial identifications. 

Andrews also confirmed at trial that appellants were the same individuals she identified 

on the morning of the burglary. 

At trial, Lopez had difficulty identifying the appellants. She testified she never 

saw the three males inside her home. Through her bedroom window, Lopez saw the 

three males flee into her backyard and jump over the fence, but she only saw one face for 

a few seconds. 

At trial, both Andrews and Lopez identified a picture of Blount’s car as the vehicle 

they saw outside their residence before the incident. 

Additional witnesses

Lopez’s neighbor, Anthony Rodriguez and his girlfriend, Brittany Cocanower, 

both observed the same gold vehicle parked in front of Lopez’s house on the morning of 

the incident and they both saw it was occupied by three African-American males. 

Rodriguez’s home was immediately to the west of the Lopez residence. 

Rodriguez informed the jury he saw people get out of this vehicle and knock on 

Lopez’s door before returning to the car and driving it around the corner. Three males 
7.

then walked to the door and he heard them kick it in. He initially identified the appellants

as the three males he saw that morning. However, on cross-examination he admitted he 

only saw two individuals approach the Lopez residence and he believed it was either 

Blount or Randle whom he had never seen before. He indicated he initially identified all 

the appellants in court because they were the people whom police arrested after the 

incident and because he confirmed it with Cocanower. 

At trial, Cocanower identified a photograph of Blount’s vehicle as the vehicle she 

saw in front of the Lopez residence that morning. She informed the jury she saw a male 

exit this vehicle and approach Lopez’s house before returning a minute or two later, and 

the vehicle drove away. She then heard a lot of noise at the Lopez residence, like 

someone kicking something, and she saw a male run through her backyard, and believed 

a second might have been present, but she did not see any faces. She said her memory of 

that morning was “scrambled” and “hazy.” She was not asked to identify appellants in 

court.

Gang evidence

Officer Brian Holcombe of the Bakersfield Police Department testified as the 

prosecution’s gang expert. He discussed the history of the Country Boy Crips, its pattern 

of criminal activity, and certain predicate offenses its members had committed. Based on 

a review of tattoos, arrest records, street checks and booking statements, he opined 

appellants were each active members of the Country Boy Crips as of the date of the 

Lopez burglary. 

Verdicts and sentencing

The jury found appellants guilty of count 1, felony burglary (§ 460, subd. (a)), and 

guilty of count 2, promoting felony street gang conduct (§ 186.22, subd. (a)). The jury 

found Jackson not guilty of count 3, misdemeanor resisting arrest (§ 148, subd. (a)(1)). 

The jury found true as to all the appellants that a person other than an accomplice was 
8.

present during the commission of the burglary (§ 667.5, subd. (c)(21)) but found not true 

that the burglary was committed for the benefit of a criminal street gang (§ 186.22, subd. 

(b)(1)). 

In a bifurcated proceeding, the trial court found true that Blount had suffered a 

prior conviction within the meaning of the three strikes law (§§ 667, subds. (c)-(j), 

1170.12, subds. (a)-(f)), that the prior conviction qualified as a prior serious felony 

(§ 667, subd. (a)), and that Blount had served a prior prison term (§ 667.5, subd. (b)). 

Blount was sentenced on count 1 to an aggregate prison term of 17 years. For 

count 2, Blount was sentenced to an aggregate prison term of 12 years, which the trial 

court stayed pursuant to section 654. 

Randle and Jackson were each sentenced to six years in state prison on count 1. 

For count 2, Randle and Jackson were each sentenced to three years in state prison, which 

the trial court stayed pursuant to section 654. 

Various fees and fines were imposed on all appellants. 

DISCUSSION

I. The Pretrial Identification Procedures Did Not Violate Due Process.

Blount argues the pretrial identification procedures were impermissibly suggestive 

and tainted the trial identifications. He contends his right to due process was violated, 

requiring reversal of his convictions. Both Jackson and Randle join in Blount’s 

arguments. 

A. Background.

Prior to trial, Blount’s defense counsel filed motions in limine which included a 

request to strike the field identifications because they were highly suggestive and without 

extenuating circumstances. A hearing occurred pursuant to Evidence Code section 402. 
9.

1. The Evidence Code section 402 hearing.

On the morning of the incident, police officers had Andrews and Lopez separately 

and individually view the appellants. 

Randle was viewed 30 to 40 feet from the Lopez front porch while he stood near a 

patrol vehicle with an officer present.5 Prior to the viewing of Randle, Andrews and 

Lopez were individually told that the subject “may or may not be involved in the crime 

and it was just as important to protect the innocent as it was to convict the guilty.” They 

were advised to not pay attention to clothing because that could change, but to focus on 

the subject’s facial features and the physical description. Both Andrews and Lopez 

identified Randle as being involved in the incident. 

Andrews and Lopez were each taken in separate patrol vehicles to view the other 

suspects.6 The officer with Andrews admonished her the police “had subjects detained, 

the subjects were in handcuffs, and the fact that we have these subjects detained and that 

they were in handcuffs was not to prejudice her statements” in any way. Andrews sat in 

the front passenger seat of a patrol vehicle and separately viewed appellants from 

approximately 50 feet away. Each of the appellants exited separate patrol vehicles 

wearing handcuffs, stood in the presence of officers, and were instructed to turn to the 

right and left. Andrews identified each of the appellants as involved in the incident. 

After viewing all of the appellants, Andrews said she was 100 percent certain of her 

identifications that morning. 

Lopez separately viewed Blount and Jackson at different locations about 45 

minutes after the incident. Prior to the viewings, she was admonished the police had 

suspects in custody who may or may not be the people who had broken into her 

 

5 The officer testified at trial she could not recall if Randle wore handcuffs. 

6 Andrews was shown and identified Randle a second time. It is not clear from the 

record why Andrews was asked to view Randle more than one time.
10.

residence. Lopez was advised hairstyles and clothing can change. She sat in the rear of a 

patrol vehicle, approximately 60 to 70 feet away, and separately viewed Blount and 

Jackson, who exited patrol vehicles while handcuffed and in the presence of officers. 

After each separate viewing, Lopez indicated they were involved in the incident. 

2. The trial court’s ruling.

At the conclusion of the Evidence Code section 402 hearing, appellants’ counsel 

argued the showups were suggestive because they were duplicated, appellants were 

needlessly handcuffed and taken from patrol vehicles, and any in-court identifications 

would be tainted and unreliable. The trial court denied the in limine motion and ruled the 

prosecution could present the field showups to the jury, determining they were not unduly 

suggestive. 

B. Standard of review.

To determine if admission of identification evidence violates due process, an 

appellate court employs a two-part test. First, we determine if law enforcement used a 

procedure that was unduly suggestive and unnecessary. (People v. Virgil (2011) 51 

Cal.4th 1210, 1256 (Virgil).) If not, the identification is admissible and the due process 

inquiry ends. (Ibid.) Second, if the procedure was unduly suggestive and unnecessary, 

we determine whether, despite such suggestiveness, the witness’s identification of the 

defendant was reliable under the totality of the circumstances. (Ibid.) The goal is to 

prevent “‘a very substantial likelihood of irreparable misidentification.’ [Citation.]” (Neil 

v. Biggers (1972) 409 U.S. 188, 198.) 

The defendant bears the burden of demonstrating the identification procedure was 

suggestive, unreliable, and so unfair it violated his due process rights. (People v. 

DeSantis (1992) 2 Cal.4th 1198, 1222.) The defendant must show “unfairness as a 

demonstrable reality, not just speculation.” (Ibid.) If the defendant raised and preserved 
11.

the issue, we independently review the trial court’s ruling a pretrial identification 

procedure was not unduly suggestive. (People v. Avila (2009) 46 Cal.4th 680, 698.)

C. Analysis.

Blount objects to California law permitting showups, arguing the reasoning is

flawed and based on a strained interpretation of the United States Supreme Court 

authority. He urges this court to join other jurisdictions which have abolished showups 

based on psychological studies revealing their inherent unreliability.7 He asserts the 

showups here were unduly suggestive, unnecessary, and unreliable under the totality of 

the circumstances. Respondent takes the opposite position.8 

We will not accept Blount’s invitation to abolish showups in light of federal and 

California law permitting them under a “totality of the circumstances” approach. (Stovall 

v. Denno (1967) 388 U.S. 293, 302 (Stovall), overruled on other grounds in Griffith v. 

Kentucky (1987) 479 U.S. 314, 321-322; People v. Ochoa (1998) 19 Cal.4th 353, 413

(Ochoa); People v. Clark (1992) 3 Cal.4th 41, 136; People v. Floyd (1970) 1 Cal.3d 694, 

714 (Floyd), overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, 

fn. 36; People v. Bisogni (1971) 4 Cal.3d 582, 587 (Bisogni).) 

 

7 Blount cites State v. Leclair (N.H. 1978) 118 N.H. 214; State v. Dubose (Wis. 

2005) 2005 WI 126; and State v. Herrera (N.J. 2006) 187 N.J. 493, along with various 

articles, to support his policy arguments against one person showups. We note these 

authorities are not binding on this court. (US Ecology, Inc. v. State of California (2005) 

129 Cal.App.4th 887, 905.)

8

In a footnote, respondent argues Jackson’s and Randle’s “cursory joinders” of 

Blount’s arguments are insufficient to establish their individual prejudice. Respondent 

contends Jackson and Randle cannot satisfy their burden on appeal, citing People v. Nero

(2010) 181 Cal.App.4th 504, 510, footnote 11. We need not analyze whether Jackson’s 

and Randle’s joinders were sufficient to establish their own individual prejudice because, 

when we presume that Jackson and Randle suffered the same prejudice as argued by 

Blount, their claims have no merit.
12.

Our Supreme Court holds a “‘“single person showup” is not inherently unfair.’” 

(Ochoa, supra, 19 Cal.4th at p. 413, quoting Floyd, supra, 1 Cal. 3d at p. 714; accord,

Bisogni, supra, 4 Cal.3d at p. 587.) Such showups are considered unfair when they are 

not neutral and unnecessarily suggest to the witness in advance the identity of the person 

suspected by the police. (People v. Yeoman (2003) 31 Cal.4th 93, 123-124.) To warrant 

suppression of a witness’s identification of a defendant, the state “must, wittingly or 

unwittingly, initiate an unduly suggestive procedure.” (Ochoa, supra, 19 Cal.4th at p. 

413.) It is not enough that a showup was suggestive because suppression will only occur 

where the suggestiveness was “undue” or excessive. (See Neil v. Biggers, supra, 409 

U.S. at pp. 198-199; People v. Kennedy (2005) 36 Cal.4th 595, 610, disapproved on other 

grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)

As discussed below, the showups here did not violate due process.

1. The field identifications were neither unduly suggestive nor 

unnecessary.

Blount contends a single person showup is impermissible absent an exigent 

circumstance preventing a live lineup and he asserts no such exigency existed here. 

However, his reliance on Stovall, supra, 388 U.S. 293 for this proposition is misplaced as 

Stovall does not hold an exigency, such as a dying eyewitness, is the only circumstance 

where a single person showup satisfies due process. Instead, the totality of the 

circumstances are analyzed. (Id. at p. 302.) 

Single person showups have a valid purpose to exonerate the innocent and aid in 

discovering the guilty close in time and proximity to the offense. (People v. Nguyen

(1994) 23 Cal.App.4th 32, 38-39; People v. Martinez (1989) 207 Cal.App.3d 1204, 

1219.) Field identifications are encouraged because the inherent suggestiveness is offset 

by the reliability stemming from an immediate determination regarding whether the 

correct person has been apprehended when events are still fresh in the witness’s mind. 
13.

(In re Carlos M. (1990) 220 Cal.App.3d 372, 387; accord, People v. Martinez, supra, 207 

Cal.App.3d at p. 1219; People v. Cowger (1988) 202 Cal.App.3d 1066, 1071-1072.) 

Here, the police conducted the field identifications approximately 45 minutes after 

the incident. The prompt identifications were likely more accurate than a delayed lineup 

because the events were still fresh in the witnesses’ minds. The field identifications were 

based on a valid need for law enforcement to discover the correct suspects and exonerate 

the innocent close in time and proximity to the crime. (People v. Martinez, supra, 207 

Cal.App.3d at p. 1219.) Blount’s arguments that these showups were unnecessary are 

rejected. 

Blount also asserts the identifications were suggestive because he was handcuffed 

and removed from a police cruiser. However, the presence of handcuffs on a detained 

suspect is not by itself so unduly suggestive as to taint the identification. (In re Carlos 

M., supra, 220 Cal.App.3d at p. 386.) Likewise, keeping a suspect in a police vehicle 

during a field identification may be justified by the nature of the circumstances and does 

not give rise to a substantial likelihood of misidentification. (People v. Craig (1978) 86 

Cal.App.3d 905, 914.)

Finally, courts have considered the admonitions given to witnesses in determining 

whether an unduly suggestive procedure occurred. (See People v. Cunningham (2001) 25 

Cal.4th 926, 990 [witness “was not to assume the person who committed the crime was 

pictured therein, that it was equally important to exonerate the innocent, and that he had 

no obligation to identify anyone”]; People v. Arias (1996) 13 Cal.4th 92, 169 [officer’s 

statement to witness “the suspect ‘might be in here, he might not’” was considered]; In re 

Carlos M., supra, 220 Cal.App.3d at p. 386 [nothing in record indicates police said 

anything to victim to suggest people she would be viewing were in fact her attackers].) 

Here, the police admonished both Andrews and Lopez prior to the showups. 

Lopez was told that the suspects may or may not be the people who had broken into the 
14.

residence. Before viewing Randle, both Andrews and Lopez were told that he “may or 

may not be involved in the crime and it was just as important to protect the innocent as it 

was to convict the guilty.” Andrews was also told the fact the suspects were handcuffed 

and in police custody should not prejudice her statements. Nothing in this record 

suggests the officers indicated to Andrews or Lopez that appellants were the perpetrators. 

In light of the admonitions given, the police procedures used here did not strongly 

suggest appellants were the perpetrators, as Blount contends. There was not a “‘“very 

substantial likelihood of irreparable misidentification.”’ [Citation.]” (People v. Arias, 

supra, 13 Cal.4th at p. 170.) In any event, any untrustworthiness in the identification 

process was an issue for the jury to weigh. (Manson v. Brathwaite (1977) 432 U.S. 98,

116.)

Under the totality of the circumstances, appellants’ showups were neither unduly 

suggestive nor unnecessary.

2. The field identifications were reliable. 

Even if appellants’ field showups were unduly suggestive and unnecessary, the 

identifications were nevertheless admissible as reliable under the totality of the 

circumstances. (Virgil, supra, 51 Cal.4th at p. 1256.) To determine reliability, an 

appellate court takes into account such factors as “‘the opportunity of the witness to view 

the suspect at the time of the offense, the witness’s degree of attention at the time of the 

offense, the accuracy of his or her prior description of the suspect, the level of certainty 

demonstrated at the time of the identification, and the lapse of time between the offense 

and the identification.’ [Citations.]” (Ibid.) 

Here, both witnesses had multiple opportunities to view appellants at the time of 

the offense, both before appellants entered the house and as they fled. Andrews was 100 

percent certain in her field identifications, and neither she nor Lopez expressed any doubt 
15.

when identifying each suspect individually in the field. The field identifications occurred 

when Andrews’s and Lopez’s memories were still fresh. 

Blount’s arguments are unpersuasive that Andrews and Lopez did not have 

significant time to observe appellants or that the field identifications were not very 

certain. We also do not agree with Blount’s contentions that Andrews and Lopez did not 

have a very “advantageous point” to view the suspects, they were under stress so their 

attention was questionable, and they could only identify appellants based on clothing and 

not facial features. 

To the contrary, although Andrews and Lopez were certainly under extreme stress 

during this incident, Andrews viewed appellants’ faces when they stood in her home 

approximately eight feet from her. Other than “shadows” present, neither Andrews nor 

Lopez expressed much difficulty in seeing the suspects on their porch as they alternately 

looked through the front windows and the peephole. These showups did not create a very 

substantial likelihood of irreparable misidentification. Instead, the accuracy of 

Andrews’s and Lopez’s identifications was an issue for the jury to weigh. (Virgil, supra,

51 Cal.4th at p. 1256; Manson v. Brathwaite, supra, 432 U.S. at p. 116.) Under the 

totality of the circumstances, appellants have not met their burden of demonstrating that 

the field identification procedures were unreliable and so unfair that it violated due 

process. (People v. DeSantis, supra, 2 Cal.4th at p. 1222.) 

3. Appellants cannot establish prejudice.

Even if the trial court erred in failing to suppress the field identifications, the error

was not prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. At trial, 

Andrews identified the appellants as the three males whom she confronted in her home, 

and she was sure of her trial identifications. Given the multiple opportunities Andrews 

had to view the appellants, including their faces, her trial identifications were not tainted 

by the field showups. (Simmons v. United States (1968) 390 U.S. 377, 384.)
16.

Moreover, Blount’s vehicle was identified outside the Lopez residence with three 

African-American males inside just before the burglary. Blount was arrested in a vacant 

field about a half mile from the Lopez residence after the burglary. Before running from 

law enforcement, Blount said into his cellular phone, “It’s over, Cuzz.” 

Despite Blount’s arguments to the contrary, this was not a close case or a case of 

mistaken identity due to the evidence linking Blount to the crime scene, the three males 

observed in Blount’s vehicle just before the crime, the location of appellants when 

apprehended just after the crime, and Andrews’s unequivocal trial identifications. It is 

beyond a reasonable doubt any error was harmless. 

II. Based On This Record Appellants’ Gang Admissions During Various 

Booking Procedures Did Not Require Miranda Warnings.

Blount and Jackson contend the trial court erred by denying a defense motion to 

suppress gang admissions they each made during various booking procedures. Both 

argue the booking questions were not routine and amounted to a custodial interrogation 

requiring suppression under Miranda and its progeny. They further contend their 

respective trial counsel rendered ineffective assistance if it is determined this issue was 

forfeited on appeal. Randle does not provide any argument or legal authorities regarding 

these contentions but joins in Blount’s and Jackson’s claims. 

A. Background.

Prior to trial, appellants each filed motions in limine to exclude confessions or 

admissions they made without prior Miranda warnings. A hearing pursuant to Evidence 

Code section 402 occurred.

1. The Evidence Code section 402 hearing.

The prosecution’s gang expert Holcombe, testified he reviewed various arrest 

reports, street checks and booking reports regarding appellants. Appellants each made 
17.

respective gang admissions during different booking procedures. Appellants’ defense 

counsel did not object to this testimony under Miranda. 

During cross-examination from Randle’s defense counsel, Holcombe clarified he 

was not present during Randle’s booking procedures, did not speak with the booking 

officers, but knew the typical booking questions.9 Holcombe explained the booking 

officer would typically ask: “Do you belong to or associate with any gang in or around 

the jail? If yes, which one? Which clique or set?” The suspects are also asked: “Is there 

any group or person you should be kept away from? If yes, who?” 

The trial court granted Jackson’s and Randle’s motions in limine regarding 

admissions made in connection to the present offense, but denied the motions as to any 

admissions occurring prior to the present offense.10

2. The trial testimony.

During trial, Holcombe testified he reviewed booking records for the appellants

and found two significant records for each of the appellants. In Blount’s booking 

records, he identified himself with the Crips and a “keep-away” from the Bloods. In 

Jackson’s booking records, he identified association or belonging to the Country Boy 

Crips. In Randle’s booking records, he identified preference for the Crips, specifically 

the Country Boys, and a “keep-away” from the Bloods. Based, in part, on his review of 

the booking information, Holcombe opined appellants were active members of the 

Country Boy Crips on the day of the Lopez burglary. 

 

9 During the Evidence Code section 402 hearing, Holcombe was not asked if he was 

present during either Blount’s or Jackson’s various booking procedures. 

10 In light of the trial court’s ruling, Blount withdrew his motion in limine on this 

issue. 
18.

During cross-examination by Blount’s defense counsel, Holcombe confirmed that 

booking questions were given for the safety of the facilities, and suspects were asked if 

they needed to be kept away from somebody. 

B. Standard of review.

Under the requirements set forth in Miranda, a person may not undergo “custodial 

interrogation” unless that person knowingly and intelligently waives the right to remain 

silent, the right to presence of legal counsel, and the right to appointed counsel if the 

person is indigent. (People v. Sims (1993) 5 Cal.4th 405, 440, citing Miranda, supra, 384 

U.S. at pp. 444-445.) However, Miranda does not pertain to a “‘routine booking 

question’” that secures the “‘biographical data necessary to complete booking or pretrial 

services.’” (Pennsylvania v. Muniz (1990) 496 U.S. 582, 601 (Muniz).) 

Muniz recognizes that questions which are reasonably related to law enforcement’s 

administrative concerns do not require Miranda warnings. (Muniz, supra, 496 U.S. at pp. 

601-602.) Muniz, however, cautioned this exception does not apply to all questions asked 

during the booking process; instead, a Miranda waiver is still required for any questions, 

even during booking, which “‘are designed to elicit incriminatory admissions.’ 

[Citations.]” (Id. at p. 602, fn. 14.) 

C. Analysis.

As an initial matter, there is a dispute between the parties regarding whether or not 

appellants have waived or forfeited this issue on appeal, and the issues discussed in 

section III, post. We need not analyze this dispute because, when we presume no waiver 

or forfeiture occurred, appellants’ arguments are unpersuasive on the merits.

Questions during a booking procedure about a suspect’s gang affiliation can fall 

under the “booking question exception” if a careful scrutiny of the record demonstrates 

the questions were not designed to elicit an incriminating response. (People v. Gomez
19.

(2011) 192 Cal.App.4th 609, 635 (Gomez).)11 In Gomez, the defendant was charged with 

carjacking, robbery, assault with a deadly weapon, and active participation in a criminal 

street gang. (Id. at p. 613.) It was alleged the defendant committed the offenses for the 

benefit of or in association with a criminal street gang. A jury convicted the defendant of 

the carjacking count, simple assault, and active participation in a criminal street gang, and 

found true the allegations the crimes were committed for the benefit of a criminal street 

gang. (Ibid.) During his booking, the defendant was asked about gang affiliation, and his 

response showed a gang affiliation. (Id. at p. 615.) The trial court allowed the 

prosecution’s gang expert to testify about the defendant’s statements during the booking 

interview. (Id. at p. 627.) 

The Gomez court held the booking questions were admissible and no error 

occurred in its admission. (Gomez, supra, 192 Cal.App.4th at p. 627.) “In determining 

whether a question is within the booking question exception, courts should carefully 

scrutinize the facts surrounding the encounter to determine whether the questions are 

legitimate booking questions or a pretext for eliciting incriminating information. 

[Citation.]” (Id. at p. 630.) 

In reaching its conclusion, Gomez noted the following criteria which courts have 

used to review this issue: (1) the nature of the questions, such as whether they seek

identifying data necessary for booking; (2) the interrogation’s context, including whether 

the questions were asked during a clerical booking process that was noninvestigative, and 

pursuant to a standard booking form or questionnaire; (3) the government agent’s 

knowledge and intent when asking the questions; (4) the relationship between the

defendant’s suspected crime and the questions asked; (5) the administrative need for the 

information sought; and (6) any other indications that the questions were intended, at 

 

11 On May 18, 2011 (S191621), the Supreme Court denied review of Gomez. 
20.

least in part, to elicit incriminating evidence and merely asked under a guise or pretext of 

seeking routine biographical information.

12

 (Gomez, supra, 192 Cal.App.4th at pp. 630-

631.) 

The Gomez court noted the booking officer was not involved in the investigation 

or arrests of the crimes, it was a legitimate booking context, and the booking questions 

were from a standard booking form. (Gomez, supra, 192 Cal.App.4th at p. 635.) Gomez

determined the questions were asked “for legitimate, noninvestigatory purposes related to 

the administration of the jail and concerns for the security of the inmates and staff.” 

(Ibid.) The Gomez court focused on the lack of evidence showing the booking officer 

knew why the defendant was arrested or the nature of the suspected crimes. (Ibid.) The 

booking interview occurred on the same day as the defendant’s arrest, two days before he 

was formally charged, and the record did not disclose the booking officer knew this was a 

gang-related crime.13 (Gomez, supra, 192 Cal.App.4th at p. 635.) 

 

12 Our Supreme Court cited Gomez with approval for this approach in examining 

whether Miranda was required during a prison intake interview in which the defendant 

made an admission of murder after asking to be housed separately over fear of reprisal 

from the victim’s relative. (People v. Williams (2013) 56 Cal.4th 165, 187-188.) 

13 Gomez was decided by the Fourth District Court of Appeal, Division Two. On 

November 19, 2013, the First District Court of Appeal, Division Two, took issue with 

Gomez and determined it is unlikely a booking officer would not be aware of the 

possibility a defendant might be a gang member when asking booking questions 

regarding gang affiliation. (People v. Elizalde (2013) 222 Cal.App.4th 351, 378 

(Elizalde).) The Elizalde court was unaware of any other case “involving the routine 

booking exception where the defendant was asked to choose between incriminating 

himself or risking serious physical injury.” (Id. at p. 381.) Elizalde held booking 

questions regarding gang affiliation could not be used against a defendant at trial in the 

absence of Miranda warnings. (Ibid.)

On April 9, 2014, our Supreme Court granted review of Elizalde, rendering it not 

citable as superseded by grant of review. (People v. Elizalde (April 9, 2014, S215260) __ 

Cal.4th __ [2014 Cal.LEXIS 2769].) The Supreme Court ordered the parties in Elizalde

to brief and argue the following limited issues: “Was defendant subjected to custodial 

interrogation without the benefit of warnings under Miranda v. Arizona (1966) 384 U.S. 
21.

Here, appellants do not cite to the record, and we have not found, what questions 

were actually posed to appellants regarding their gang affiliations during the various 

booking procedures. Instead, the only booking questions brought out in this record 

occurred during the Evidence Code section 402 hearing when Holcombe testified he was 

not present during Randle’s booking process, did not speak with the booking officer, but 

knew the typical booking questions. There is a lack of evidence in this record 

establishing the booking officers (for both the present and past charges) had knowledge 

of the crimes for which appellants were suspected of committing. This record does not 

demonstrate the booking officers were involved with appellants’ investigations or arrests. 

The booking questions which Holcombe summarized during the Evidence Code section 

402 hearing appear legitimate and intended for noninvestigatory purposes related to the 

administration of the jail and concerns for the security of the inmates and staff. (Gomez, 

supra, 192 Cal.App.4th at p. 635.) Indeed, during trial, Holcombe confirmed the suspects 

were asked if they needed to be kept away from somebody, which was done for the safety 

of the facilities. Blount’s and Randle’s booking statements for the present offense 

occurred on the same day as their arrest, which was two days before they were formally 

charged. Like in Gomez, this record does not demonstrate the booking questions were 

designed to elicit incriminating information. (Ibid.) 

Blount cites to this court’s decision in People v. Morris (1987) 192 Cal.App.3d 

380 (Morris) to establish his admissions should have been suppressed. His reliance is 

misplaced. Morris concluded that while the police may ask whatever questions are 

required for jail security, if the inquiries are reasonably likely to yield an incriminating 

 

436 when he was questioned about his gang affiliation during an interview while being 

booked into jail, or did the questioning fall within the booking exception to Miranda? If 

the questioning fell outside the booking exception, was defendant prejudiced by the 

admission of his incriminating statements at trial?” (Ibid.) As of the date of our present 

opinion, the Supreme Court has not issued an opinion in Elizalde.
22.

response, the suspect’s responses are not admissible at trial unless they were preceded by 

Miranda warnings. (Id. at pp. 389–390.) However, in the same opinion that approved of 

the criteria which Gomez employed, the Supreme Court questioned the reasoning in 

Morris, noting the “booking exception” had become well established since Morris was 

decided. (People v. Williams, supra, 56 Cal.4th at p. 187.)

Blount also contends allowing booking questions about gang affiliation absent 

Miranda warnings would “fly in the face” of Muniz, which allows a “‘routine booking’” 

exception only for questions related to “biographical data necessary to complete booking 

or pretrial services.” (Muniz, supra, 496 U.S. at p. 601.) This incorrectly states the law 

because the Muniz plurality indicated the booking exception applies not only to 

biographical date, but broadly to questions “reasonably related to the police’s 

administrative concerns.” (Muniz, supra, 496 U.S. at pp. 601-602, fn. omitted (plur. opn. 

of Brennan, J.); see also People v. Rucker (1980) 26 Cal.3d 368, 387 [booking 

information is required for internal jail administration], superseded by statute as stated in 

Gomez, supra, 192 Cal.App.4th at p. 630, fn. 11.) It is a legitimate administrative 

concern to classify inmates by gang affiliation. (Gomez, supra, 192 Cal.App.4th at p. 

634; see also Harbin-Bey v. Rutter (6th Cir. 2005) 420 F.3d 571, 576; Morris, supra, 192 

Cal.App.3d at pp. 389–390.) 

Based on the limited record regarding this issue, appellants were not subject to 

booking questions designed to elicit incriminating responses. Accordingly, the various 

booking responses regarding gang affiliations were admissible notwithstanding the 

absence of Miranda warnings.14 (Gomez, supra, 192 Cal.App.4th at p. 635.)

 

14 Because appellants could not suppress this evidence under Miranda, appellants

cannot establish their trial counsel were constitutionally ineffective in not seeking 

exclusion under Miranda. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1024 

[defense counsel not required to make futile motions or indulge in idle acts to appear 
23.

1. Appellants cannot establish prejudice.

Even if the trial court erred in admitting appellants’ respective booking 

admissions, appellants cannot establish prejudice. In order to prove a defendant “actively 

participates” in a criminal street gang for conviction under section 186.22, subdivision 

(a), it is sufficient if the evidence establishes the defendant’s involvement with the gang 

was more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.) A 

defendant does not have to occupy a leadership position in the gang for conviction. 

(Ibid.) Indeed, a person does not have to be a gang member to be guilty of section 

186.22, subdivision (a). (In re Jose P. (2003) 106 Cal.App.4th 458, 466.)

a. Trial evidence regarding Blount’s gang participation. 

Blount wore a “Country Boy” tattoo across his chest, along with a “W” and 

“Watts” on his right shoulder and an “L” and “Lotus” on his left shoulder.15 Another 

gang member identified Blount as a member of the Country Boy Crips, and Blount had 

multiple arrests and encounters with law enforcement while in the company of other 

known gang members. Blount had at least two previous arrests for residential burglary, 

which Holcombe noted was a primary criminal activity of the gang. Blount was 

previously arrested for possession of a loaded firearm, which Holcombe explained was 

used by gang members for protection and to increase status. Blount’s home was 

searched, revealing a single live .40-caliber round of ammunition and powered blue 

clothing, the primary color of the Country Boy Crips. 

 

competent].) Thus, we will not address appellants’ arguments their defense counsel 

rendered ineffective assistance in this regard.

15 The jury was shown photographs of Blount’s tattoos. 
24.

b. Trial evidence regarding Jackson’s gang participation.

Jackson was documented multiple times with known Country Boy Crip gang 

members, including at two commercial establishments that are known gang hangouts.16 

During one contact with law enforcement, Jackson stated the East Side Crips were not 

allowed to attend a particular business and the Country Boy Crips could not go into a

particular East Side hangout. He discussed with law enforcement how guns are disposed 

in the gang culture. During a different encounter, Jackson informed an officer he “hangs 

out” with Country Boy Crip gang members. Jackson was shot at an event which included 

Country Boy Crips and a rival gang.17 On July 15, 2010, he was arrested, and eventually 

pled guilty, for a residential burglary he conducted with a known associate of the Country 

Boy Crips.18 On July 25, 2010, he was arrested for residential burglary and eventually 

convicted for possession of stolen property after he was identified through his moniker, 

Buddha.19

c. Trial evidence regarding Randle’s gang participation.

Randle informed law enforcement on three different occasions he was a member 

of the Country Boy Crips. Randle was repeatedly documented in association with known 

Country Boy Crip members, including at known Country Boy Crip hangouts. During one 

 

16 Along with known gang members, the mother of Jackson’s child was with him at 

one of the commercial establishments, a market. 

17 On cross-examination, Holcombe agreed law enforcement had not ascertained a 

connection between Jackson and the unidentified shooters, and other victims at the event 

were not gang members. 

18 Three females were also arrested in connection with this burglary and Holcombe 

admitted on cross-examination no investigation was done to determine their association 

with the Country Boy Crips other than that offense. 

19 At trial, Jackson’s aunt testified that this nickname was given to him by his father. 

Holcombe testified a street moniker often started as a family nickname, but he admitted 

on cross-examination he had never asked other Country Boy Crip gang members about 

the moniker “Buddha.” 
25.

occasion when Randle was with known Country Boy Crip gang members, officers 

located a firearm which Randle admitted was his, and which Holcome analyzed as a 

predicate offense for the gang. During a different contact with officers, Randle explained 

the significance of wearing gang colors and how that trend has changed. 

Therefore, apart from the booking admissions, the evidence clearly established 

appellants’ active participation with the Country Boy Crips, which was more than passive 

or nominal.20 Thus, there was substantial evidence to prove a violation of section 186.22, 

subdivision (a), as to appellants. This conclusion is not altered because the jury did not 

find true the gang enhancement under section 186.22, subdivision (b).21 This conclusion 

is also not affected by the length of the jury’s deliberations, which Blount argues shows 

this was a close case. It is beyond a reasonable doubt the admission of appellants’ 

various booking statements was harmless. (People v. Sims, supra, 5 Cal.4th at p. 447 

[harmless-error standard of Chapman used to analyze the prejudicial effect of a 

defendant’s erroneous admission].)

III. The Record Does Not Establish Appellants’ Booking Statements Were 

Involuntary. 

Blount asserts his statements during the booking procedures were involuntary, 

contending the booking staff informed him his answers would not be used against him. 

He further argues his statements were inadmissible under the principles of estoppel, due 

process, and the granting of informal use immunity. Finally, he maintains his counsel 

 

20 Jackson’s specific arguments are unpersuasive that, apart from the booking 

admissions, the evidence of his active gang participation was disputed. Jackson was

documented multiple times with known Country Boy Crip gang members, and he made 

statements to law enforcement establishing his affiliation with the gang, and his 

understanding of their boundaries and culture. 

21 Section 186.22, subdivision (b), requires a showing of “specific intent to promote, 

further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1); 

People v. Romero (2006) 140 Cal.App.4th 15, 19.)
26.

provided ineffective assistance if we determine these issues were forfeited. Jackson and 

Randle join in Blount’s arguments without providing further legal authority or 

contentions. 

A. Background.

At trial, Blount’s defense counsel cross-examined Holcombe regarding the 

booking process, and the following exchange occurred:

“Q. So in the context of all of those questions, they also ask them 

about the gangs, if they have any -- and they don’t ask you, for example, if 

you grew up in a neighborhood that was linked to any gangs; correct?

“A. Right. It is not an investigation. It is just a booking question.

“Q. And they are told it is never going to be used against them. 

Otherwise, they would give them Miranda rights; right?

“A. Right. It is not an investigation.”

B. Appellants fail to establish a promise was made to them.

Blount contends he did not knowingly waive his Miranda rights because the 

booking officer offered him “a false promise” which induced him “to give up his 

constitutional right to remain silent.” He asserts the booking officer “was charged with 

the constitutional mandate of accurately informing [him] that he had [the] right to remain 

silent and anything he said would be used against him.” He maintains his booking 

statements were “involuntary” following the booking officer’s “assurance” that nothing 

he said would be used against him. 

However, as discussed in section II, ante, this record does not establish Miranda

rights were triggered from these booking questions. (Gomez, supra, 192 Cal.App.4th at 

p. 635.) Further, Blount provides no citation to the record demonstrating any “assurance” 

made by any booking personnel during the bookings Holcombe reviewed. No booking 

officers testified at trial. Instead, Blount’s arguments are based on Holcombe’s 

testimony, but there is no evidence Holcombe was present for any of appellants’ 
27.

respective bookings. During the Evidence Code section 402 hearing, Holcombe testified 

he was not present when Randle went through his booking process. Holcombe’s trial 

testimony did not establish a particular custom or practice by booking personnel 

regarding assurances given during the booking procedure. (Evid. Code, § 1105 

[“admissible evidence of habit or custom is admissible to prove conduct on a specified 

occasion in conformity with the habit or custom”].) The record does not support Blount’s 

assertions the booking officers actually deceived or “misadvised” him.22 

Because this record lacks such evidence, a due process violation has not been 

established. (People v. Neal (2003) 31 Cal.4th 63, 79 [a statement is involuntary and 

violates due process if it was obtained by threats or promises, either directly or 

indirectly.) Likewise, estoppel requires a showing that a party has “intentionally and 

deliberately” led another to believe a particular thing is true and to act upon that belief. 

(Evid. Code, § 623.) No such showing has been made on this record. Finally, because 

this record lacks a showing of any actual or implied promise made to any of the 

appellants, they cannot establish the granting of immunity. 

C. Appellants cannot establish prejudice.

As discussed in section II, ante, even if it was error to admit appellants’ various 

booking statements, they cannot establish prejudice. It is beyond a reasonable doubt the 

admission of the booking statements was harmless error.23 (People v. Sims, supra, 5 

Cal.4th at p. 447.)

 

22 Because the record fails to establish appellants were actually deceived or 

misadvised, we will not address the parties’ dispute regarding whether the question posed 

to Holcombe was ambiguous as compound or whether that issue was waived due to the 

prosecution’s failure to object at trial. 

23 Because appellants could not suppress this evidence under Miranda, appellants

cannot establish that their respective trial counsel were constitutionally ineffective in not 

seeking exclusion under Miranda. (See People v. Scheer, supra, 68 Cal.App.4th at p.

1024 [defense counsel not required to make futile motions or indulge in idle acts to 
28.

IV. The Trial Court’s Ex Parte Communication With The Jury Did Not 

Prejudicially Violate Appellants’ Statutory And Constitutional Rights.

Blount and Randle assert the trial court’s ex parte communication with the jury 

during deliberations prejudicially violated the Sixth and Fourteenth Amendments as it 

deprived them of the right to be personally present, and to be represented by counsel, at 

all critical stages of trial. Jackson adopts Randle’s arguments but provides his own 

analysis regarding prejudice. 

A. Background.

On January 9, 2013, upon the jury’s release to begin deliberations, the trial court 

notified the parties that they would be informed if the jury submitted a note. Two days 

later, on Friday, January 11, 2013, the trial court received a note from the jury. The note 

read: “Need testimony between Off. Holcombe and D.A. [prosecutor]. Also need 

explanation from Judge Lua on Count #2 in regards to Jury Instructions.” 

At 10:25 a.m. that same morning, the court clerk notified counsel of the jury’s 

note regarding both the question and the request for readback, and counsel agreed to the 

court responding in writing.

At some point that same morning, the trial judge entered the jury deliberation 

room and spoke with the jury on the record without any of the appellants or their 

respective counsel present. The judge indicated he needed clarification to respond to the 

jury’s note and asked if they wanted readback of Holcombe’s testimony when he was 

initially questioned by the prosecutor or every time the prosecutor questioned Holcombe. 

An unidentified juror responded and the following exchange occurred: 

 

appear competent].) Further, because any error was harmless, appellants cannot establish 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [the defendant has burden 

of showing both deficient performance and resulting prejudice].) Thus, we will not 

analyze further appellants’ arguments their defense counsel rendered ineffective 

assistance in this regard.
29.

“THE JUROR: What we are trying to establish is the dates and 

times of the conviction.

“THE COURT: I just want to know if it’s the initial direct 

examination or is it also redirect examination?

“THE JUROR: Redirect examination, also. Yes.

“THE COURT: Okay. In a moment my reporter will begin reading 

the testimony that you have requested, including direct examination and 

redirect examination when necessary. While she is reading the examination 

to you or the testimony to you, you cannot interrupt her, nor can you ask 

her any questions such as can you please repeat what you just stated, start 

over, or go to a different area. She can only read it one time from 

beginning to end, and she will cover those areas that are expressly stated in 

the note received. If you want her to repeat any portions or address 

different witnesses, you must accompany that with another note that we 

will then accomplish for you. While she is in the jury deliberation room, 

you cannot deliberate in her presence either. So you cannot discuss 

anything about the case or ask her any questions or any other people any 

questions.

“Once she is done, she will gather her equipment and leave the jury 

deliberation room, and then you can resume jury deliberations.

“The note received also had another question to it or request to it. I 

have answered that on this paper, and I will leave it with you folks to 

review. You can read it and review it after my reporter leaves.

“Okay. Good luck.

“THE JUROR: Thank you.” 

The judge’s written answer to the jury’s note read: “Please refer to CALCRIM 

[No.] 1400 and its accompanying instructions – Judge Lua.” 

After the weekend break, the jury indicated it had reached a verdict on Monday, 

January 14, 2013, as of 9:16 a.m. Prior to bringing the jury into the courtroom, the trial 

court memorialized what occurred on January 11, 2013, regarding the jury’s note. The 

trial judge noted that each person, or their representative, had been contacted regarding 

the note and explained that he wrote an answer to the jury, and he read his answer 
30.

verbatim in court. The court also explained that he went into the jury room to admonish 

the jury about the readback procedure, and he noted that the readback process took a 

while to complete, with deliberations resuming “around 2:30 that afternoon, if not 2:45.” 

Randle’s defense counsel requested a mistrial because the trial court entered the 

jury room without asking the attorneys for their agreement. Randle’s counsel argued that 

the court’s actions were improper “and may have violated my client’s Sixth and 

Fourteenth Amendment right to a fair trial.” The court denied the motion without 

comment. 

B. Standard of review.

1. The trial court’s communication with the jury.

A trial court should not communicate with the jury except in open court and with 

prior notification to counsel. (People v. Clark (2011) 52 Cal.4th 856, 987 (Clark); 

People v. Jennings (1991) 53 Cal.3d 334, 384 (Jennings).) “‘“This rule is based on the 

precept that a defendant should be afforded an adequate opportunity to evaluate the 

propriety of a proposed judicial response in order to pose an objection or suggest a 

different reply more favorable to the defendant’s case.”’ [Citations.]” (Jennings, supra,

53 Cal.3d at p. 384.) 

Ex parte communication between the judge and jurors typically violates a 

defendant’s right to be present, and represented, at all critical stages of trial. (Clark, 

supra, 52 Cal.4th at p. 987.) If the trial court has an improper ex parte communication 

with the jury, reversal is required unless the error was harmless beyond a reasonable 

doubt. (Ibid.; Jennings, supra, 53 Cal.3d at pp. 383-384.) 

2. Section 1138.

Section 1138 provides: “After the jury have retired for deliberation, if there be any 

disagreement between them as to the testimony, or if they desire to be informed on any 

point of law arising in the case, they must require the officer to conduct them into court. 
31.

Upon being brought into court, the information required must be given in the presence of, 

or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they 

have been called.” (Italics added.)

Section 1138 requires notice to be given to the defendant and his counsel of any 

proceedings during the deliberative process. (People v. Garcia (2005) 36 Cal.4th 777, 

802 (Garcia); People v. Jenkins (2000) 22 Cal.4th 900, 1027 (Jenkins).) This ensures 

that counsel has the opportunity to suggest an alternative course for the trial court to take 

or to object to the court’s course of action. (Garcia, supra, 36 Cal.4th at p. 802; Jenkins, 

supra, 22 Cal.4th at p. 1027.) 

A trial court is required to instruct a deliberating jury regarding any point of law in 

the case if the jury so requests. (People v. Waidla (2000) 22 Cal.4th 690, 746 (Waidla).) 

The trial court has a primary duty to assist the jury in understanding the legal principles it 

is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) The court, 

however, is not required to elaborate on the standard jury instructions if the original 

instructions are full and complete. (Ibid.) In such a situation, the trial court has 

discretion under section 1138 to determine what additional explanations are sufficient to 

satisfy the jury’s request for additional information. (Ibid.) As our Supreme Court has 

noted, it is often risky for a trial court to offer comments that diverge from the standard 

instructions. (Ibid.) “‘When a question shows the jury has focused on a particular issue, 

or is leaning in a certain direction, the court must not appear to be an advocate, either 

endorsing or redirecting the jury’s inclination.’ [Citation.]” (People v. Montero (2007) 

155 Cal.App.4th 1170, 1180 (Montero).)

“An appellate court applies the abuse of discretion standard of review to any 

decision by a trial court to instruct, or not to instruct, in its exercise of its supervision 

over a deliberating jury.” (Waidla, supra, 22 Cal.4th at pp. 745-746.)
32.

C. Analysis.

As an initial matter, respondent does not contend appellants have waived or 

forfeited any claim of error due to the trial court’s presence in the jury deliberation room. 

However, there is a dispute between the parties regarding whether or not appellants have 

waived or forfeited any claim of error as to the trial court’s written response to the jury or 

the request for readback of testimony. We need not analyze this dispute because, when 

we presume no waiver or forfeiture occurred, appellants’ arguments are unpersuasive on 

the merits.

1. The trial court did not err regarding the readback of testimony.

Randle initially argues the trial court erred by giving the jury readback of critical 

testimony without giving him and his attorney notice and an opportunity to respond to the 

court’s “intentions” or its “proposed action.” He claims the trial court failed to 

“properly” notify him and his counsel before taking action, which prevented his counsel 

from having input. He also contends the jury’s request for readback was ambiguous, and 

the trial court “unfairly” emphasized the prosecution’s case by not suggesting crossexamination and only presenting a “limited choice” regarding what testimony it could 

hear. 

These contentions, however, are unpersuasive because the court’s clerk contacted 

all counsel regarding the note. The jury’s note stated it needed testimony “between” 

Holcombe and the prosecutor. Upon notice of the jury’s note, counsel had the right to 

participate, object, or provide input regarding the scope of readback. (Garcia, supra, 36 

Cal.4th at p. 802; Jenkins, supra, 22 Cal.4th at p. 1027.) Nothing in this record 

demonstrates any of the counsel objected to readback of testimony “between” Holcombe 

and the prosecutor, suggested an alternative course for the trial court to take, or requested 

that Holcombe’s testimony on cross-examination also be read to the jury. When the trial 
33.

court reconvened with the parties, no counsel objected that they did not receive notice of 

the jury’s request for readback. 

Moreover, under section 1138, a trial court must generally allow the rereading of 

relevant testimony as requested by the jury. (People v. Cooks (1983) 141 Cal.App.3d 

224, 261.) The determination of what testimony satisfies the jury’s request is a matter 

within the sound discretion of the court. (Id. at p. 261.) A trial judge does not have to 

order readback of testimony which the jury did not request. (People v. Gordon (1963) 

222 Cal.App.2d 687, 689.)

Here, the jury’s request for readback was specific and not ambiguous despite 

Randle’s contentions to the contrary. In responding to the jury’s request, the trial court 

did not “unfairly” emphasize the prosecution’s case or give the jury only a “limited 

choice” regarding what testimony it could hear. Instead, the trial court invited the jury to 

submit further requests for any additional testimony it wanted. The jury certainly would 

have asked for more testimony if the information provided was not satisfactory. (People 

v. Gordon, supra, 222 Cal.App.2d at p. 689.) 

Further, the trial court properly refrained from interrogating the jury about either 

their motives behind the request or what particular “point” they wanted, as Randle 

contends should have occurred. Our Supreme Court has emphasized a trial court should 

refrain from interrogating a deliberating jury in case it inadvertently coerces a particular 

verdict. (People v. Roldan (2005) 35 Cal.4th 646, 730, disapproved in part on other 

grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 

Randle relies on People v. Bradford (2007) 154 Cal.App.4th 1390 (Bradford); 

People v. Dagnino (1978) 80 Cal.App.3d 981 (Dagnino); and People v. Knighten (1980) 

105 Cal.App.3d 128 (Knighten), to support his contention the trial court erred. These 

authorities are unpersuasive.
34.

In Bradford, the trial judge spoke with the deliberating jury on four separate 

occasions, unaccompanied by counsel and with no court reporter. (Bradford, supra, 154 

Cal.App.4th at p. 1413.) Prior to each visit, the judge conferred with counsel regarding 

the particular issues. (Id. at pp. 1400, 1403-1405, 1407.) However, during his visits, the 

judge was present with the jury while it deliberated, offered further instructions to the 

jury, responded to the juror’s questions, and, on at least one occasion, observed the jury 

alter what they had written on a dry erase board summarizing their understanding of the 

applicable law. (Id. at p. 1414.) Bradford held the defendant should have been given 

“‘“‘an adequate opportunity’”’” to evaluate the propriety of the proposed judicial 

responses in order to raise objections or suggest a different reply more favorable to the 

defense. (Id. at p. 1413.) The trial court erred when it failed to give notice or afford the 

defense an opportunity to respond to the jury’s inquires, which deprived the defendant of 

an opportunity for his attorney to have meaningful input into the court’s responses. 

(Ibid.)

In Dagnino, supra, 80 Cal.App.3d 981, the trial court responded to three written 

jury requests for further legal clarification. The trial court notified counsel and received 

permission to respond to the first note, but the trial court responded to the two subsequent 

notes without notifying counsel. (Id. at p. 984.) The Dagnino court found reversible 

error because the trial court’s instructions constituted a “‘critical’” stage that occurred 

without the presence of counsel and absent a stipulation. (Id. at p. 988.)

Finally, in Knighten, supra, 105 Cal.App.3d 128, the trial court entered the jury 

room during deliberations ostensibly to clarify a request from the jury for rereading of 

certain testimony. (Id. at p. 132.) Before meeting with the jury, the trial judge failed to 

give notice to the defendant and defense counsel, who, along with the court reporter, 

were not present for the judge’s meeting with the jury. (Ibid.) On appeal, the Knighten

court held that the trial judge’s procedure was in error, and noted any private 
35.

communication between the judge and jury was improper. (Ibid.) The appellate court 

determined that a defendant and his attorney must be permitted to participate in decisions 

as to what testimony is to be reread to the jury. (Ibid.)

Here, unlike in Bradford and Knighten, a court reporter memorialized the trial 

court’s brief interaction with the jury; as such, we are able to review the scope and 

potential impact of the contact. Unlike in Dagnino and Knighten, all counsel received 

notice of the jury’s note, including both the question posed and the request for readback. 

Unlike in Bradford, the trial judge was not present with the jury while it deliberated, the 

judge did not offer further verbal instructions, and the judge did not respond to questions 

from jurors. Also, in Bradford, the judge did not provide information or discuss issues 

with the jury that went beyond the scope of the jury’s note. (Bradford, supra, 154 

Cal.App.4th at p. 1414.) Further, unlike in Bradford, the judge did not discuss any issues 

with the jury that exceeded the scope of the notice originally given to counsel. Finally, 

unlike in Bradford, defense counsel were each given notice and an opportunity to 

evaluate the jury’s request, and to raise objections or suggest a different reply more 

favorable to the defense. Randle’s authorities are distinguishable.24

Appellants provide no persuasive authority establishing the trial court erred. 

Based on this record, the trial court did not abuse its discretion regarding the jury’s 

 

24 Randle also cites United States v. Nickell (9th Cir. 1989) 883 F.2d 824 and United 

States v. Ponce (9th Cir. 1995) 51 F.3d 820, for the proposition a trial judge does not 

abuse its discretion when ordering readback to include excerpts from both the direct and 

cross-examination. However, Nickell and Ponce neither analyze California law nor hold 

a federal trial judge must provide cross-examination during readback, only to avoid 

giving undue emphasis to particular testimony. (Nickell, supra, 883 F.2d at p. 829; 

Ponce, supra, 51 F.3d at p. 833.) We further note neither Nickell nor Ponce are binding 

on this court. (People v. Avena (1996) 13 Cal.4th 394, 431.)
36.

request for readback.

25

 (People v. Cooks, supra, 141 Cal. App. 3d at p. 261 [the trial 

court has discretion to determine what testimony satisfies the jury’s request].)

2. The trial court’s written supplemental instruction was not in 

error.

Both Blount and Randle contend the jury was confused or puzzled regarding the 

legal instructions, and with proper notice counsel could have assisted in the process of 

determining the source of the jury’s confusion. Randle further argues the trial court 

should have questioned the jury on this issue given its “ambiguous” request. They both 

assert the trial court did not do enough to assist the jury and the presence of counsel was 

critical. 

The court, however, notified all counsel regarding the jury’s request for further 

instruction. The record does not establish any counsel objected or offered input regarding 

how the trial court should respond other than authorizing the court to respond in writing. 

When the court reconvened with the parties, the court read its written response and no 

objection was lodged to the substance of the response. As such, we reject Blount’s and 

Randle’s respective arguments that their counsel were not “properly notified” of the 

jury’s request for clarification or an injustice occurred because counsel was not permitted 

to give input. 

Further, despite appellants’ arguments to the contrary, nothing from the jury’s note 

indicated it was confused. The jury was not prohibited from asking the court more 

questions if it so needed and it is speculative to presume otherwise. (Beardslee, supra, 53 

Cal.3d at p. 98.) 

None of the appellants argue the jury instructions were less than “full and 

complete” for count 2. Because these jury instructions were full and complete, the trial 

 

25 Because the trial court did not abuse its discretion in this regard, we will not 

address appellants’ various contentions the trial court’s actions were prejudicial. 
37.

court had the discretion to reiterate them. (Beardslee, supra, 53 Cal.3d at p. 97; People v. 

Montero, supra, 155 Cal.App.4th at p. 1179.) By responding to the jury’s note and 

advising them to focus on CALCRIM No. 1400, the trial court did not figuratively throw 

up its hands and tell the jury it could not help, as Blount contends. The court provided 

the jury with the complete information it needed without appearing as an advocate, either 

endorsing or redirecting the jury. (Montero, supra, at p. 1180.) Under the circumstances, 

the trial court did not abuse its discretion when it responded to the jury’s note and 

directed them to reread CALCRIM No. 1400.

3. Appellants cannot establish prejudice from the scope of 

readback or the supplemental instruction given to the jury.

Even if error occurred regarding the scope of readback or the supplemental 

instruction, appellants cannot establish prejudice. They contend count 2 must be reversed 

under a Chapman analysis, and Jackson and Randle further argue count 1 should also be 

reversed. These arguments are unpersuasive.

As discussed earlier, this was not a close case regarding appellants’ guilt in count 

1 due to the evidence linking Blount to the crime scene, the three males observed in 

Blount’s vehicle just before the crime, the location of appellants when apprehended just 

after the crime, and Andrews’s unequivocal trial identifications. Further, as discussed 

earlier, the evidence was overwhelming regarding the appellants’ guilt in count 2 as 

active participants with the Country Boy Crips. Although the jury did not hear 

Holcombe’s cross-examination during the readback, the jury heard this testimony at trial 

and rejected it. It is beyond a reasonable doubt any error associated with the readback of 

testimony or the supplemental instruction was harmless.

4. The ex parte meeting by itself does not require reversal.

Blount asserts the judge’s ex parte communication with the jury requires reversal, 

citing United States v. United States Gypsum Co. (1978) 438 U.S. 422 (Gypsum); United 
38.

States v. Collins (2nd Cir. 2012) 665 F.3d 454 (Collins); and People v. Stewart (1983) 

145 Cal.App.3d 967 (Stewart). These authorities are unpersuasive. 

In Gypsum, supra, 438 U.S. 422, the jury began deliberations after nearly five 

months of testimony. On the morning of the seventh day of deliberations, following 

apparent disagreements and confusion among the jurors, the foreman asked to meet with 

the judge to discuss the jury’s condition and get guidance. (Id. at p. 460.) The judge met 

with counsel and suggested he should meet with the foreman alone, and counsel agreed. 

The judge met with the foreman, who made several references the jury was deadlocked. 

The judge made an impression on the foreman that he wanted a verdict “‘one way or the 

other.’” (Ibid.) After the meeting, the judge summarized a report to counsel, which did 

not reference either of these two issues.

On appeal, the Gypsum court found reversible error because the trial judge 

exposed himself to a conversation which caused unintended and misleading impressions 

of his personal views without the presence of counsel to challenge his statements. 

(Gypsum, supra, 438 U.S. at p. 460.) In addition, the judge’s communication to the jury 

panel went through the foreman, which risked innocent misstatements of the law and 

misinterpretations. Finally, the absence of counsel from the meeting, and the 

unavailability of a transcript, prevented counsel an opportunity to clear up confusion 

regarding the judge’s direction to the foreman. (Id. at p. 461.) Gypsum emphasized it 

was not simply the ex parte meeting with the foreman which constituted error, but the 

fact the discussion was allowed to drift into a supplemental instruction to the foreman 

without counsel present to correct any mistaken impression. (Id. at p. 462.)

In Collins, supra, 665 F.3d 454, the trial judge had an ex parte meeting with a 

juror after receiving a note indicating this juror was involved in a hostile exchange with 

another juror the day before. The judge informed counsel of his intention to talk to the 

juror, but failed to disclose the contents of the note. (Id. at p. 458.) During his meeting 
39.

with this juror, the judge stated his displeasure over the juror’s reported conduct. (Ibid.) 

On appeal, the Collins court determined the judge made statements to the juror that 

amounted to a supplemental instruction, and it found reversible error because the court 

failed to disclose the contents of the note to the defendant and counsel before meeting 

with the juror. (Id. at p. 462.) 

Here, unlike in both Collins and Gypsum, the trial judge did not provide any 

supplemental instruction to the jury without counsel’s authorization. Also, unlike in 

Gypsum, the judge did not engage in a conversation with any member of the jury panel 

which might have caused unintended and misleading impressions of his personal views. 

(Gypsum, supra, 438 U.S. at p. 460.) To the contrary, the judge refrained from 

questioning the jury or offering any opinions. Further, unlike in Gypsum, the judge spoke 

to the entire jury panel and not through a single source, which could have caused further 

miscommunication. Finally, unlike in Gypsum, a full transcript exists regarding the 

judge’s interaction with the jury, and the trial court accurately summarized to counsel his 

exchange with the jury. 

Gypsum and Collins are inapposite because the judge’s interaction with the jury 

did not drift into supplemental instruction. Gypsum and Collins do not dictate reversal of 

the instant case even though counsel did not receive notice of the judge’s plan to meet 

with the jury. 

Finally, in Stewart, supra, 145 Cal.App.3d 967, the judge received a note from the 

deliberating jury requesting a reread of certain jury instructions and a preference for a 

written copy. The judge delivered the requested instructions to the jury without advising 

counsel. (Id. at p. 972.) The Stewart court held it was error for the judge to communicate 

with the jury without the presence of counsel, noting the court violated section 1138. 

(Stewart, supra, at p. 972.) Reversal was not required, however, because the appellate 

court found the error harmless. (Id. at pp. 973-974.) 
40.

Here, unlike in Stewart, the trial judge gave notice to counsel regarding the jury’s 

request for further instruction. Unlike in Stewart, the judge did not violate section 1138. 

Stewart is distinguishable and does not require reversal.

5. Although the trial court erred by not obtaining appellants’ 

personal waivers, appellants cannot establish prejudice.

Randle concedes he did not have a constitutional right to be personally present 

during the actual readback of testimony. (People v. Ayala (2000) 23 Cal.4th 225, 288 [a 

readback of testimony is not a critical stage].) He contends, however, he had a personal 

right to be present when the judge met with the jury, which was not waived despite his 

counsel’s consent that the court could respond to the jury in writing. Blount makes a 

similar argument, asserting a defendant’s presence may be required when the judge 

communicates with a deliberating jury. 

A defendant has the constitutional right to be present at any stage which bears “a 

reasonable and substantial relationship to his ability to defend the charges against him.” 

(People v. Davis (2005) 36 Cal.4th 510, 531 (Davis).) A critical stage exists when the 

trial judge meets with the jury to provide instruction. (Bradford, supra, 154 Cal.App.4th 

at p. 1410.) In California, defendants also have a statutory right under section 977 to be 

present when the judge meets with the jury. (§ 977, subd. (b)(1); see also People v. Avila

(2006) 38 Cal.4th 491, 598 (Avila) [violation of § 977 occurred where felony defendant 

was absent from readback of testimony without written waiver].)

Here, appellants had both a statutory and constitutional right to be personally 

present when the trial court met with the jury. This record does not demonstrate 

appellants gave personal waivers regarding those rights. This was error. (Avila, supra,

38 Cal.4th at p. 598; Davis, supra, 36 Cal.4th at p. 531.) 

Appellants, however, cannot establish prejudice. The constitutional error requires 

analysis under Chapman while the error under section 977 is state law and is reversible 
41.

under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Davis, supra, 36 Cal.4th at pp. 

532-533.) None of the appellants offer any argument establishing how their respective 

presence would have impacted their ability to defend against the charges. Indeed, it is 

difficult to imagine how appellants’ personal presence during the trial court’s brief 

meeting with the jury would have changed the outcome of this trial. The court’s failure 

to notify appellants personally about his ex parte meeting is of no consequence, 

especially because all defense counsel received notice of the jury’s note and failed to 

provide input. It is beyond a reasonable doubt this error was harmless and appellants are 

not entitled to reversal under either Chapman, supra, 386 U.S. at page 24, or Watson, 

supra, 46 Cal.2d at page 836.

V. The Trial Court Did Not Prejudicially Err In Declining To Accept Or

Requiring The Prosecution To Accept Blount’s Proposed Stipulation.

Blount contends the trial court committed reversible error when it declined to 

accept, or require the prosecution to accept, a proffered stipulation from Blount that the 

Country Boy Crips was a criminal street gang. Randle and Jackson join in Blount’s claim 

without offering any additional legal authority or contentions. Blount further asserts his 

trial counsel rendered ineffective assistance if this issue is deemed waived or forfeited on 

appeal. 

A. Background.

The amended information alleged as to count 1, that appellants committed the 

burglary for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The 

information also charged appellants in count 2 with active participation in a criminal 

street gang (§ 186.22, subd. (a)). 

Before trial, Blount’s defense counsel offered to stipulate that the Country Boy 

Crips was a criminal street gang within the meaning of section 186.22, subdivision (a). 

The proposed stipulation was that the gang engages, and has engaged, in a pattern of 
42.

criminal behavior, including enumerated crimes listed in the statute. The prosecutor 

indicated he would not enter into a stipulation to the existence of the gang or a pattern of 

criminal activity. 

The court asked if the stipulation would include that appellants were active 

participants in a criminal street gang, and all defense counsel declined to include that 

addition. Blount’s counsel indicated the prosecution would still have to prove appellants

were active participants on the date of the offense and they did the offense for the benefit 

of a gang. The trial court noted the following:

“Based on that representation, counsel, under 352, it does not appear 

to the Court that a substantial amount of time would be saved in 

piecemealing that particular evidence to this jury. The Court recognizes 

that even if [the] defense was willing to stipulate that Country Boy Crips is 

a criminal street gang, that they do exist with the necessary elements and 

requirements under 186.22, and that the defendants themselves are active 

participants in the criminal street gang, that still would require the necessity 

of a gang expert testifying to his reasons and beliefs, his training and 

experience, as well as the hypothetical typically associated with direct 

examination of a gang expert.

“It does not appear to the Court that a partial -- what this court 

would view would be a partial stipulation for the sole purpose of only 

stipulating to the predicate offenses and that a criminal street gang exists 

would not save substantial time for this court, nor for this jury in hearing 

the gang evidence that will be presented otherwise. For those reasons, the 

Court is not inclined to entertain the stipulation -- proposed stipulation any 

further, nor are the People required to accept it.

“Recognizing under 352, as the Court has already balanced in some 

form or another, the gang evidence in this case, the Court is not going to 

require the People to agree to that stipulation because it does not do much 

more than save an insignificant amount of time in this court’s view, and, 

more importantly, the jury would still hear evidence substantially similar to 

the predicate offenses necessary under the gang expert’s training and 

experience, as well as the gang expert still testifying as to reasons why he 

believes the defendants are members or active participants in the criminal 

street gang.
43.

“For those reasons, the stipulation will be set aside and not 

entertained by the Court since there is not an agreement between the parties 

as a whole . . . .” 

B. Standard of review.

1. Section 186.22.

Section 186.22 is part of the California Street Terrorism Enforcement and 

Prevention Act of 1988, which defines a criminal street gang as “any ongoing 

organization, association, or group of three or more persons, whether formal or informal” 

that has as one of its “primary activities” the commission of one or more statutorily 

enumerated criminal offenses and which its members engage in a “pattern of criminal 

gang activity.” (§ 186.22, subd. (f); accord, People v. Sengpadychith (2001) 26 Cal.4th 

316, 323 (Sengpadychith).) The trier of fact may consider both the past conduct of gang 

members and the circumstances of the present or charged offenses to determine the 

group’s primary activities. (Sengpadychith, supra, at p. 323.) A “pattern of criminal 

gang activity” requires a showing that the gang committed, or attempted to commit, two 

or more enumerated crimes on separate occasions, or by two or more persons. (§ 186.22, 

subd. (e).) 

Section 186.22, subdivision (a), reads as follows: “Any person who actively 

participates in any criminal street gang with knowledge that 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, shall be punished 

by imprisonment in a county jail for a period not to exceed one year, or by imprisonment 

in the state prison for 16 months, or two or three years.” 

Section 186.22, subdivision (b)(1), adds a sentence enhancement for “any person 

who is convicted of a felony 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 . . . .”
44.

2. Stipulations.

An appellate court applies an abuse of discretion standard to review a trial court’s 

ruling on the admissibility of evidence. (Waidla, supra, 22 Cal.4th at p. 724.) “‘Under 

the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal 

... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, 

or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ 

[Citation.]” (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.)

“‘The general rule is that the prosecution in a criminal case cannot be compelled to 

accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness 

and forcefulness.’ [Citation.]” (People v. Chism (2014) 58 Cal.4th 1266, 1307.) A trial 

court is not authorized to enforce a stipulation over the prosecutor’s objection. (People v. 

Rogers (2013) 57 Cal.4th 296, 329 (Rogers).) “‘[A] criminal defendant may not stipulate 

or admit his way out of the full evidentiary force of the case as the Government chooses 

to present it.’” (Id. at p. 330.) 

C. Analysis.

Appellants’ proposed stipulation would have avoided admission of the predicate 

offenses and primary activities necessary to establish the Country Boy Crips as a criminal 

street gang. (§ 186.22, subds. (e) & (f).) The proposed stipulation, however, would have 

still required proof appellants: (1) actively participated in a criminal street gang; (2) knew 

that members of the gang engaged in a pattern of criminal gang activity; and (3) willfully 

promoted, furthered, or assisted in felonious criminal conduct by members of the gang. 

(§ 186.22, subd. (a).) In addition, evidence was still required to establish the burglary 

was committed for the benefit of, at the direction of, or in association with a criminal 

street gang with the specific intent to promote, further, or assist criminal conduct by gang 

members. (§ 186.22, subd. (b).)
45.

After learning the proposed stipulation failed to include that appellants were each 

an active participant in a criminal street gang, and the prosecution would still have to 

prove they did the offense for the benefit of a gang, the trial court determined the 

proposed “partial stipulation” would not save a significant amount of time. The court 

noted the jury would still hear evidence necessary for the gang expert’s training, 

experience and opinion, as well as the reasons why the expert believed appellants were 

active participants in a gang. The court balanced the competing interests under Evidence 

Code section 352. Based on this record, the court did not exercise its discretion 

arbitrarily, capriciously, or in a patently absurd manner when it considered the merits of 

the proposed stipulation and declined to force the prosecutor to accept it. 

Blount, however, principally relies on People v. Sherren (1979) 89 Cal.App.3d 

752 (Sherren), disapproved on other grounds in People v. Bouzas (1991) 53 Cal.3d 467, 

478; People v. Hall (1980) 28 Cal.3d 143 (Hall), overruled by Proposition 8 as stated in 

People v. Valentine (1986) 42 Cal.3d 170, 181; People v. Washington (1979) 95 

Cal.App.3d 488 (Washington); People v. Anderson (1978) 20 Cal.3d 647 (Anderson); and 

Old Chief v. United States (1997) 519 U.S. 172 (Old Chief), to establish the trial court 

abused its discretion and was required to accept the stipulation. This reliance is 

misplaced.

Hall, supra, 28 Cal.3d 143 and Sherren, supra, 89 Cal.App.3d 752, were decided 

prior to the adoption of Proposition 8 and required a prosecutor to accept an offer if a 

defendant admitted the existence of an element of a charged offense. (Hall, supra, 28 

Cal.3d at p. 152; Sherren, supra, 89 Cal.App.3d at p. 755.) Both of these cases dealt with 

prosecutions of a felon in possession of a firearm under former section 12021.26 (Hall, 

supra, at p. 147; Sherren, supra, at p. 755.) These cases held in a prosecution under

 

26 Section 12021 was repealed operative January 1, 2012 and replaced by section 

29800. (Stats 2010, ch. 711, § 6 (SB 1080).) 
46.

former section 12021 the element of a prior felony conviction could not be given to the 

jury if the defendant stipulated to that fact. (Hall, supra, at p. 156; Sherren, supra, at p. 

760.) However, Proposition 8 abrogated these holdings when it required, in part, a prior 

felony conviction to be proven in open court when it is an element of any felony offense. 

(Cal. Const., art. I, § 28, subd. (f); see also People v. Cunningham (2001) 25 Cal.4th 926, 

984.) 

Here, Blount contends the rationale in Hall should apply and require the 

prosecution to accept a defense stipulation if it involves a fact of consequence to the case. 

This argument is unpersuasive given abrogation of Hall’s holding and in light of current 

Supreme Court authority that the prosecution in a criminal case cannot be compelled to 

accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness 

and forcefulness. (People v. Chism, supra, 58 Cal.4th at p. 1307.) Moreover, the 

Supreme Court has noted a trial court is not authorized to enforce a stipulation over the 

prosecutor’s objection. (Rogers, supra, 57 Cal.4th at p. 329.) Hall and Sherren do not 

establish error in the present matter. 

In Washington, supra, 95 Cal.App.3d 488, the defendant was convicted of selling 

heroin in violation of Health and Safety Code section 11352. The defendant offered to 

stipulate he was familiar with heroin, and how it is packaged and sold. His proposed 

stipulation would have prevented evidence showing his previous and unrelated narcotic 

activity as proof he knew the nature of heroin. The defendant, however, refused to 

stipulate regarding his knowledge of the contents of the balloon at issue in the case. 

(Washington, supra, 95 Cal.App.3d at p. 490.) The trial court rejected the stipulation 

believing the defendant was required to stipulate his knowledge of the substance involved 

in the present charges. The prosecutor thereafter admitted the defendant’s prior 

conviction for possession of heroin, and testimony from an officer regarding indications 
47.

of the defendant’s drug usage, including track marks and scars on the defendant’s arms, 

and certain admissions from the defendant of his past use. (Id. at pp. 490-491.) 

On appeal, it was determined the trial court failed to exercise its discretion when it 

erroneously believed the defendant was required to admit knowledge of the narcotic 

nature of the substance in the prosecution. (Washington, supra, 95 Cal.App.3d at pp. 

491-492.) Beyond the trial court’s failure to exercise its discretion, the appellate court 

determined the stipulation would not have impaired the prosecution’s case and subjected 

the defendant to improper and unnecessary prejudice. (Id. at p. 492.) Washington

reversed because the appellate court was unable to declare the error harmless under 

Watson. (Ibid.)

Here, unlike in Washington, the trial court exercised its discretion and considered 

the merits of the proposed stipulation. This factor alone makes Washington

distinguishable. Moreover, unlike in Washington, which dealt with a single defendant 

and a single charge, the proposed stipulation here eliminated very little testimony of a 

prejudicial nature and saved little time as compared to the remaining gang evidence 

necessary under section 186.22, subdivisions (a) and (b). Washington is inapposite and 

does not require reversal. 

In Anderson, supra, 20 Cal.3d 647, the two defendants were convicted of 

voluntary manslaughter. The trial court permitted the prosecution to introduce evidence 

the two defendants had twice been previously arrested together on unspecified charges. 

(Id. at p. 650.) On appeal, the Anderson court reversed after it determined an abuse of 

discretion occurred when the trial court overruled the defendants’ objection to this 

evidence under Evidence Code section 352. (Anderson, supra, at p. 650.)

Here, Anderson is of no consequence to the present discussion as it did not deal 

with a proposed stipulation. Moreover, unlike in Anderson, which dealt with exclusion of 

the defendants’ past criminal conduct, the proposed stipulation here still required the 
48.

prosecution to introduce evidence of appellants’ criminal histories as it related to proving 

section 186.22, subdivisions (a) and (b). Anderson does not require reversal. 

Finally, in Old Chief, supra, 519 U.S. 172, the United States Supreme Court held a 

criminal defendant could stipulate to the existence of a felony conviction when charged 

with the federal equivalent of felon in possession of a firearm. Old Chief determined a 

defendant’s offer to stipulate to an element of a crime is relevant evidence that must be 

factored into a district court’s analysis under rule 403 of the Federal Rules of Evidence. 

(Old Chief, supra, at pp. 184-185.) The Old Chief court reviewed the commentaries and 

notes accompanying rule 403, and determined they permitted a court to assess evidentiary 

alternatives when considering whether to exclude evidence on the grounds of unfair 

prejudice. (Old Chief, supra, at pp. 183-184.) 

Here, the trial court complied with the requirements of Old Chief when it factored 

appellants’ proposed stipulation into its analysis of prejudice. Blount, however, cites to 

Old Chief and contends the trial court “should have discounted the probative value of the 

prior conviction evidence based on the proposed stipulation and then weighed that 

discounted value against the considerable prejudice the defendant would have suffered 

from the disclosure of the facts underlying the earlier conviction.” Old Chief, however, 

makes no such pronouncement and does not require reversal of the instant matter.

1. Appellants cannot establish prejudice.

Even if the trial court erred in failing to accept the proposed stipulation, appellants

cannot establish prejudice. Blount asserts the evidence of the gang’s history and details 

of its past crimes was prejudicial because it likely caused the jurors to “assume a criminal 

propensity” against appellants. He contends the proposed stipulation would have avoided 

admission of highly prejudicial evidence without appreciably reducing the forcefulness or 

persuasiveness of the prosecution’s case. Appellants argue the prejudicial effect requires 

reversal under a Watson standard. These contentions have no merit.
49.

Holcombe testified about the history of the Country Boy Crips gang, how its 

members establish themselves, and the importance of gang members knowing about the 

crimes committed by other members. He explained and discussed the “primary 

activities” of the Country Boy Crips, opined the gang was engaged in an ongoing pattern 

of criminal conduct, and discussed two predicate offense cases involving known Country 

Boy Crips gang members (not appellants) who were arrested for residential burglary and 

possession of narcotics for sale, respectively. This testimony covered approximately 15 

pages in the record and fell under the proposed stipulation. 

In contrast, Holcombe testified in detail regarding each of the appellants’ relevant 

criminal and gang histories, including review of a predicate offense (possession of a 

weapon) involving Randle. The testimony about appellants’ criminal backgrounds 

covered approximately 49 pages in the record. The proposed stipulation eliminated very 

little testimony of a prejudicial nature as compared to the remaining gang evidence 

relevant under section 186.22, subdivisions (a) and (b). In light of the detailed evidence 

regarding appellants’ gang and criminal activities, it is not reasonably probable a result 

more favorable would have occurred had the trial court forced the prosecutor to accept 

the stipulation. A miscarriage of justice did not occur requiring reversal.

VI. Sufficient Evidence Supports Blount’s Conviction Of Count 2.

Blount argues there was insufficient evidence to support his conviction in count 2 

for promoting felony street gang conduct (§ 186.22, subd. (a)). He contends no evidence 

establishes he was an active participant in any group other than the Watts/Lotus Country 

Boy Crips, and the prosecution failed to establish a link between the Country Boy Crips 

and the Watts/Lotus Country Boy Crips.27

 

27 Blount’s opening brief refers to the gang as the “Countryside Boy Crips.” 
50.

A. Standard of review.

To determine if sufficient evidence supports a verdict, an appellate court reviews 

the entire record in the light most favorable to the judgment to determine whether

substantial evidence exists—that is evidence which is reasonable, credible, and of solid 

value—from which a reasonable juror could find the defendant guilty beyond a 

reasonable doubt. (People v. Jones (2013) 57 Cal.4th 899, 960.) The relevant question is 

not whether the appellate court believes the evidence at trial established guilt beyond a 

reasonable doubt; rather, the question is whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt after viewing the 

evidence in the light most favorable to the prosecution. (People v. Johnson (1980) 26 

Cal.3d 557, 576.) The appellate court is to presume the existence of every fact the jury 

could have reasonably deduced from the evidence in support of the judgment. (Clark, 

supra, 52 Cal.4th at p. 943.) 

B. Analysis.

The prosecution established Blount was an active participant of the Country Boy 

Crips as of the date of the Lopez burglary. Blount provides no citation to the record 

establishing he was a member of any other gang. As such, this argument is deemed 

waived based on a failure to support it with a necessary citation to the record. (Cal. Rules 

of Court, rule 8.204(a)(1)(C); Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 

[failure to cite to record waives claim].)

In any event, based on Holcombe’s testimony and his review of Blount’s tattoos, 

arrest records, street checks and booking statements, substantial evidence supported the 

jury’s conviction of Blount of count 2. This evidence was reasonable, credible, and of 
51.

solid value such that a reasonable jury could find Blount guilty beyond a reasonable 

doubt.28 (People v. Jones, supra, 57 Cal.4th at p. 960.)

VII. Randle’s Gang Admission Was Not Inadmissible Under Miranda.

Randle argues the trial court erred when it permitted testimony he made an 

admission of gang membership to Bakersfield Police Officer Peter Beagley. Randle was

17 years old at the time of the encounter. Beagley recognized two of the other 

individuals as members of the Country Boy Crips. 

Randle was seated on a curb between the patrol vehicle and the suspects’ vehicle. 

Without reading Randle his Miranda rights, Beagley asked him if he was a member of 

the Country Boy Crips and Randle indicated he was. Randle was not handcuffed during 

the encounter, but he was not free to leave because he was being detained. The stop 

lasted approximately 24 minutes and Randle was not arrested. 

Randle’s defense counsel objected to Beagley’s testimony under Miranda. The 

court overruled Randle’s objection subject to a motion to strike. 

Following the conclusion of Beagley’s testimony, and outside the presence of the 

jury, the court placed the following on the record:

“[THE COURT:] Regarding the last running objection as it related 

to Mr. Randle and whether there was any Miranda violation, the Court does 

find at this time, based on the testimony, that Mr. Randle was not in 

custody. He was being temporarily detained, and he was subsequently 

released.

“By virtue of Mr. Randle not being in custody and only being 

temporarily detained for law enforcement to conduct an investigation, the 

Court does not find that Miranda was necessary nor required in that 

 

28 Because substantial evidence exists to establish Blount was an active participant of 

the Country Boy Crips, we will not address his unsupported argument he was actually a 

member of the Watts/Lotus Country Boy Crips and the prosecution failed to show the 

“necessary ongoing connection” between its members and any other gang. 
52.

contact; and, therefore, Mr. Randle’s statement to Officer Beagley will 

stand.” 

B. Standard of review.

Miranda applies only to “custodial interrogation,” which is questioning initiated 

by law enforcement officers after “‘“‘a person has been taken into custody or otherwise 

deprived of his freedom of action in any significant way.’”’ [Citation.]” (Ochoa, supra,

19 Cal.4th 353, 401.) Miranda is not involved if a “custodial interrogation” is lacking. 

(Ibid.) 

“In determining whether an individual was in custody, a court must examine all of 

the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply 

whether there [was] a “formal arrest or restraint on freedom of movement” of the degree 

associated with a formal arrest.’ [Citations.]” (Stansbury v. California (1994) 511 U.S. 

318, 322; California v. Beheler (1983) 463 U.S. 1121, 1125.) The initial determination 

of custody depends on the objective circumstances of the interrogation, and not the 

subjective views of either the interrogating officers or the person detained. (Stansbury v. 

California, supra, at p. 323.) 

An appellate court independently reviews the uncontradicted facts to determine 

whether the trial court rendered a proper legal conclusion. (People v. Stansbury (1995) 9 

Cal.4th 824, 831.) 

C. Analysis.

Randle argues a reasonable person in his position would not have believed he was 

free to leave under the totality of the circumstances. He asserts the trial court erred in 

failing to suppress his gang admission to Beagley. 

In Berkemer v. McCarty (1984) 468 U.S. 420 (Berkemer) the officer stopped the 

defendant after observing his vehicle weaving on the highway. The officer determined 

the defendant was drunk, and decided to charge him with a traffic offense. (Id. at p. 423.) 

The officer, however, did not tell the defendant he would be taken into custody, and had 
53.

him perform a field sobriety test, which the defendant failed. The officer asked the 

defendant whether he had been using intoxicants, and the defendant admitted he had 

recently consumed two beers and smoked marijuana. The officer placed the defendant 

under arrest and transported him to jail. (Ibid.) 

The Berkemer court found nothing in the record indicating Miranda warnings 

should have been given at any time prior to the defendant being placed under arrest. 

(Berkemer, supra, 468 U.S. at p. 441.) The defendant failed to establish he was subjected 

to restraints comparable with a formal arrest and the initial stop of his vehicle, by itself, 

did not render the defendant “‘in custody.’” (Ibid.) Berkemer noted the time between the 

stop and the arrest was short, and at no point during that interval was the defendant told 

his detention would not be temporary. (Id. at pp. 441-442.) The officer never 

communicated his intention to arrest the defendant even though he apparently decided he 

would do so as soon as the defendant exited his vehicle. Berkemer held the officer’s 

unarticulated plan was not relevant in deciding whether the suspect was in custody 

because the only relevant inquiry is how a reasonable man in the suspect’s position would 

have understood his situation. (Id. at p. 442.) 

The Supreme Court also found no custodial interrogation based on other aspects of 

the officer’s interaction with the defendant. A single police officer asked the defendant 

“a modest number of questions and requested him to perform a simple balancing test at a 

location visible to passing motorists.” (Berkemer, supra, 468 U.S. at p. 442.) Berkemer

held the interaction could not be characterized as the functional equivalent of formal 

arrest and concluded the defendant was not taken into custody for purpose of Miranda

until the officer arrested him. Accordingly, the defendant’s statements made prior to the 

arrest were admissible against him. (Ibid.)

Here, like in Berkemer, Randle was never placed under arrest, told he would be 

arrested, or had his freedom restrained to a degree associated with a formal arrest. 
54.

(Berkemer, supra, 468 U.S. at pp. 441-442; accord, Stansbury v. California, supra, 511 

U.S. at p. 322.) Similar to Berkemer, a single officer asked Randle one question. Like in 

Berkemer, Randle’s detention was brief and nothing in this record establishes Randle was 

informed he would be detained for a lengthy period of time. This record does not 

demonstrate Beagley ever intended to arrest Randle. Accordingly, under these facts, 

Randle was not taken into custody for purposes of Miranda. (Berkemer, supra, 468 U.S. 

at p. 442.) Consequently, the statement Randle made to Beagley was admissible. (Ibid.)

Randle, however, contends Beagley knew the individuals in the vehicle to be 

documented gang members. He argues Beagley was not conducting a Terry-stop29 to 

investigate suspicious circumstances but was instead effecting a “targeted detention” to 

obtain incriminating information. He asserts the traffic stop in which Beagley detained 

and questioned him was “not the sort of exigent investigatory detention” which the 

Supreme Court described in Berkemer. He contends a reasonable person in his position 

would not have believed he was free to leave. 

Randle, however, does not assert Beagley lacked probable cause to detain the 

vehicle or that the detention was unreasonable. A brief detention by law enforcement is 

not the equivalent of a formal arrest. (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 

579, 591, fn. 5; People v. Soun (1995) 34 Cal.App.4th 1499, 1517.) “Miranda warnings 

are not required during the course of a brief detention unless the suspect is placed under 

restraints normally associated with a formal arrest.” (People v. Pilster (2006) 138 

Cal.App.4th 1395, 1404.)

Beagley’s subjective intent or plan is not relevant to whether Miranda warnings 

were required. Instead, the inquiry is how a reasonable person in Randle’s position 

would have understood his situation. (Berkemer, supra, 468 U.S. at p. 442; People v. 

 

29 Terry v. Ohio (1968) 392 U.S. 1.
55.

Carpenter (1997) 15 Cal.4th 312, 384 [fact interrogating officers suspected the defendant 

had committed a crime did not render interrogation custodial], superseded by statute on 

another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) As 

discussed above, a reasonable person in Randle’s position, even a 17 year old, would not 

have understood he was either under arrest, going to be arrested, or would be detained for 

a lengthy period of time. The trial court did not err because Miranda warnings were not 

required. 

1. Randle cannot establish prejudice.

Even if the trial court had erred in admitting Randle’s statement to Beagley, the 

error was harmless beyond a reasonable doubt. As discussed in section II.C.1.c, ante, the 

evidence was substantial regarding Randle’s gang participation.

Randle, however, contends Beagley’s testimony was the “only instance where the 

jury did not receive an instruction that limited the purposes for which it could consider 

the testimony.” He argues his admission to Beagley allowed the jury to consider the 

officer’s testimony in an unlimited fashion. 

This argument is unpersuasive. The trial court instructed the jury pursuant to 

CALCRIM No. 1403 that all evidence of gang activity could only be considered for the

limited purpose of deciding whether the particular defendant “acted with the intent, 

purpose, and knowledge that are required to prove the gang-related crime and 

enhancement . . . .” It is presumed the jury followed the trial court’s limiting instruction. 

(Waidla, supra, 22 Cal.4th at p. 725.) 

Randle further argues the defense extensively challenged the records Holcombe 

used for his opinion, and those records were not reliable and lacked credibility. He 

maintains the jury had reservations about the accuracy of Holcombe’s testimony because 

it rejected the gang enhancement. 
56.

These contentions lack merit because it was the jury’s role to weigh the 

sufficiency of the circumstantial evidence and determine the facts. (CALJIC Nos. 1.00, 

2.01.) In finding the gang enhancement not true, it is apparent the jury carefully weighed 

the evidence and did not ascribe to all of Holcombe’s opinion testimony. However, the 

jury determined the evidence was sufficient to find appellants’ guilty of count 2 and 

overwhelming evidence existed that Randle was an active participant of the Country Boy 

Crips. In light of the entire record, it is beyond a reasonable doubt Randle’s gang 

admission to Beagley was harmless.

DISPOSITION

The judgments are affirmed.

_____________________

LEVY, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

GOMES, J.