Defendant’s un-Mirandized statement during jail classification interview that he was a gang member should have been suppressed under People v. Elizalde (2015) 61 Cal.4th 523. Leon, Centeno, Palofox, and Rivas, were charged with a number of offenses arising from a series of home invasion robberies that they allegedly committed for the benefit of a criminal street gang. Other alleged coconspirators were tried separately. To prove the gang allegations, the prosecution relied on statements that Centeno and his coconspirators gave during jail classification interviews admitting they were gang members. Centeno’s counsel unsuccessfully objected to the admissibility of his jail classification interview on Miranda grounds. The jury found the gang allegation true as to Centeno, Leon, and Palofox, but not Rivas. On appeal, Leon, Centeno, Palofox challenged the admission of the jail classification evidence. Held: Affirmed on this point. While the appeal was pending, the California Supreme Court decided People v. Elizalde, which held that the right against self-incrimination is implicated when law enforcement officers ask routine questions about gang affiliation while processing a defendant into jail because such questions are likely to elicit an incriminating response. Under Elizalde, Centeno’s objection should have been sustained. The jail classification officer who interviewed him knew about his connection to other inmates in the case who had admitted gang membership. The officer should also have been aware of his charges and the fact that he was subject to increased punishment based on the gang enhancement. These circumstances made it reasonably likely that the gang affiliation question would elicit an incriminating response. But due to the other admissible evidence presented at trial, the admission of Centeno’s statement was not prejudicial.
Defendant’s due process rights were not violated by admitting coconspirators’ un-Mirandized statements claiming gang membership. Leon did not admit gang membership during his classification interview. However, the jury found the gang allegation true based in part on the fact his coconspirators admitted gang membership during their classification interviews. On appeal, Leon argued that his due process rights were violated by the admission of these statements because the statements were coerced in that each person faced a Hobson’s choice of providing self-incriminating information or jeopardizing their personal safety by being housed with rival gang members. He also argued that his trial counsel was ineffective for failing to object on that ground. The Court of Appeal disagreed. A defendant has limited standing to assert that his own due process right to a fair trial has been violated through the admission of improperly obtained statements made by a third party. (People v. Williams (2010) 49 Cal.4th 405, 452.) However, the admission of the improperly obtained statements may deprive a defendant of his due process rights if it adversely affects the reliability of trial testimony. The defendant must demonstrate that the admission of the evidence led to the trial being fundamentally unfair. This can normally be established by showing that the evidence was unreliable based on coercion. (See People v. Jenkins (2000) 22 Cal.4th 900, 966.) Leon did not contest the reliability of the statements, and the court disagreed with his argument that the third-party admissions were procured by outrageous police conduct. Leon’s trial attorney was not ineffective given that there was no due process violation and given the state of the law at the time of trial.
Statement during jail classification interview admitting gang membership was non-testimonial for purposes of Crawford v. Washington (2004) 541 U.S. 36. Leon also argued that the evidence of his accomplices’ jail classification admissions violated his right to confrontation under Crawford, which bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. The Court of Appeal here concluded that the statements were not testimonial. The test for determining whether a statement is testimonial has evolved with each of the U.S. Supreme Court’s confrontation clause cases. Hearsay statements to police officers must now satisfy the primary purpose test to be considered testimonial. “In its current formulation, the test asks whether the statement at issue was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony.'” (quoting Michigan v. Bryant (2011) 562 U.S. 344, 358.) Although Leon’s accomplices’ statements were made with a sufficient degree of formality, the Court of Appeal could not conclude that their primary purpose was to create an out-of-court substitute for trial testimony or to otherwise contribute to a criminal investigation or prosecution. The “primary purpose for the gang affiliation questions was to further institutional security objectives.” Therefore appellants did not have a Sixth Amendment right to cross-examine each other or their accomplices about the jail classification admissions. [Editor’s Note: Leon also argued that the gang expert’s reliance on testimonial hearsay in police reports and interviews violated his Sixth Amendment right to confrontation. This issue is currently pending before the California Supreme Court. (See People v. Sanchez (2014) 223 Cal.App.4th 1, review granted 5/14/2014 (S216681/G047666).). The Court of Appeal here “decline[d] to speculate as to how the issue will be decided” and concluded that any error in admitting the evidence was harmless.]
Trial court misunderstood that it had discretion to run concurrently the 15-years-to-life sentences for each home invasion robbery committed for the benefit of a gang (§ 186.22, subd. (b)(4)). Centeno, Leon, and Palofox received consecutive sentences of 15 years to life for their gang-related home invasion robbery offenses. (See Pen. Code, § 186.22, subdivision (b)(4)(B).) The trial court ruled that People v. Felix (2000) 22 Cal.4th 651 required it to impose the fully consecutive terms. Appellants argued that the trial court misconstrued the Felix decision. The Court of Appeal agreed. Felix addresses how enhancements are applied to indeterminate sentences. Although section 186.22, subdivision (b)(1) is an enhancement provision that requires consecutive sentencing, section 186.22, subdivision (b)(4) is an alternate penalty provision that provides for an indeterminate term of 15 years to life when a home invasion robbery is committed for the benefit of a gang. Unlike subdivision (b)(1), it does not expressly require consecutive sentencing. The trial court had discretion under Penal Code section 669 to impose concurrent sentences for multiple convictions of crimes subject to the alternate penalty provision in section 186.22, subdivision (b)(4). The trial court’s misapprehension of its sentencing discretion was demonstrated by its repeated citation to Felix and its statements regarding its lack of discretion to impose anything other than consecutive sentences. The case was remanded to give the court an opportunity to exercise its discretion.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F065532M.PDF
