Superior Court of Contra Costa County, No. 050809038, John W. Kennedy, Judge. Court of Appeal, Fist Appellate District, Division Two, No. A132071.
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Solomon Wollack, under appointment by the Supreme Court, for Defendant and Appellant Gamaliel Elizalde.
Stephen B. Bedrick, under appointment by the Supreme Court, for Defendant and Appellant Jose Mota-Avendano.
John Ward, under appointment by the Supreme Court, for Defendant and Appellant Javier Gomez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Rene A. Chacon, David M. Baskind and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Corrigan, J., with Cantil-Sakauye, C. J., Werdegar, Chin, Liu, Cuéllar, and Kruger, JJ., concurring.
[189 Cal.Rptr.3d 521] [351 P.3d 1012] Under the rule of Miranda v. Arizona (1966) 384 U.S. 436, 478-479 [16 L.Ed.2d 694, 86 S.Ct. 1602] ( Miranda ), certain admonitions must be given before a suspect's statement made during custodial interrogation can be admitted in the prosecution's case-in-chief. [351 P.3d 1013] Here we consider whether routine questions about gang affiliation, posed to defendant while processing him into jail on murder charges, come within Miranda 's well-recognized booking exception. We hold that the questions exceeded the scope of the exception and that officers should have known these questions were reasonably likely to elicit an incriminating response because of California's criminal gang statutes and defendant's pending charges. While officers were permitted to ask these questions for institutional security purposes, defendant's un- Mirandized responses were inadmissible against him during the case-in-chief. We nonetheless find that admission of the statements was not prejudicial. Accordingly, we affirm the judgment of the Court of Appeal, which reached the same conclusions.
Defendant Jose Mota-Avendano  was convicted of murdering Antonio Centron, Luis Perez, and Rico McIntosh on theories of conspiracy and aiding and abetting, along with other charges and enhancements. Briefly, the facts supporting his convictions are as follows:
Varrio Frontero Loco (VFL) is a subgroup of the Sureño criminal street gang and is active in Contra Costa County. Three witnesses who knew Mota testified he belonged to VFL. Robert Brady, a San Pablo police officer and street gang expert, also opined that Mota was a VFL member.
In 2007, Gamaliel Elizalde rose to power in VFL when another leader fled after committing a murder. Thereafter, the VFL organization began to deteriorate. To reestablish its position, Elizalde directed several members to " put in more work" by assaulting Norteños to let them " know we around, we ain't gone." Mota and four others were put in charge of the gang's efforts. Violence was an important part of [189 Cal.Rptr.3d 522] enhancing the gang's standing because it helped garner respect, money, and new members. Elizalde directed VFL associate, Oscar Menendez, to beat up or shoot Norteños. Mota told Menendez that he had to " earn" a VFL tattoo by doing something " big" like killing a Norteño.
On December 22, 2007, VFL members Jorge Sanchez, Francisco Romero, and Hector Molina drove to San Pablo planning to beat or shoot Norteños. They saw three men walking down the street, two wearing the Norteño color, red. Molina hid behind a fence. When the three men rounded the corner, Molina identified himself as VFL and shot at them repeatedly. Antonio Centron was killed; the other two men were wounded but survived.
On February 16, 2008, Mota and other VFL members drove around gang territory in two cars. The car carrying Mota stopped near Luis Perez, who was standing on the street dressed in a red jacket. After the men in the car argued with Perez, Jorge Camacho fatally shot him.
On April 26, 2008, Mota was in Norteño territory with Menendez and Javier Gomez. Mota pulled the car he drove alongside Rico McIntosh, who was wearing a red bandana. Gomez asked McIntosh if he was a " buster." McIntosh replied, " what the fuck is a buster?" and reached into his jacket. Menendez thought he heard Mota say, " pull it out." Gomez drew a gun and shot at McIntosh several times; Mota and Gomez laughed. McIntosh died the next day.
Mota was convicted of three first degree murders and of conspiracy to participate in a criminal street gang  and to commit murder and assault with a deadly weapon. The jury found true several street gang enhancements  and an enhancement for intentionally discharging a firearm causing great bodily injury or death. Mota was sentenced to 100 years to life in prison.
A. Proceedings Below and Standard of Review
Before trial, Mota moved to exclude his admissions of gang membership during booking [351 P.3d 1014] and classification interviews at a Contra Costa County jail. Inmates are typically asked three questions during intake: if they have been to the unit before, if they have a gang affiliation, and if they are fearful for their safety. A classification interview is conducted for all gang-affiliated inmates. Before placement, personnel review an inmate's pending charges, gang affiliation, and need for protective custody. The review is conducted to maximize the safety of all inmates and jail employees. Rival gang members are housed separately.
After Mota's arrest and before he received Miranda admonitions, a sheriff's deputy asked him the standard booking questions. Mota admitted he was a Sureño gang member. When told he would be searched for contraband, Mota laughed nervously and said, " man, I'm in here for some shit that I didn't do. They said that I killed someone, but it wasn't me. I was there, but I didn't kill anyone. The guy that did it is already in jail. He confessed already, but now he is trying to bring me down, too ... ." He also said: " I'm a gang-banger, but I'm not a murderer ... ." He continued: " I told those other cops that I didn't know anything because I thought I would be in trouble, but now I don't care ... ." The deputy asked Mota if he wanted to speak with a police detective. [189 Cal.Rptr.3d 523] He replied, " Yeah, I will, but first I should talk to my ...