Defendant’s un-Mirandized admission of gang affiliation, made during a custodial booking years before the commission of the current crime, was inadmissible. Roberts was convicted of attempted murder and related offenses. Gang enhancements were found true (Pen. Code, § 186.22, subd. (b)(1)). On appeal, he challenged the admission of un-Mirandized gang-affiliation statements he had made during custodial bookings years prior to the current offense. Held: Gang enhancements reversed. To prove the gang enhancement, it must be shown that the underlying felonies were committed for the benefit of, at the direction of, or in association with a criminal street gang and were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. Gang membership is not an element of the enhancement, but can be used to prove the intent required. Roberts’s gang-affiliation statements were used by the prosecution’s gang expert to opine the shooting was gang related. This was error. While a defendant may be asked routine biographical questions during booking, questions an officer should know are reasonably likely to elicit an incriminating response, do not fall within the so-called “booking exception” to Miranda. In People v. Elizalde (2015) 61 Cal.4th 523, the Supreme Court held that use of a defendant’s un-Mirandized responses to gang-affiliation questions, posed during booking interviews, violates a defendant’s privilege against self-incrimination. The court here concluded it was irrelevant that such responses were made years prior to the current offense, because “a Miranda violation does not evaporate with the passage of time such that the statements become cleansed and admissible as to future misdeeds.” The error was prejudicial under Chapman v. California (1967) 386 U.S. 18, requiring reversal of the gang enhancements. The court distinguished People v. Villa-Gomez (2017) 9 Cal.App.5th 527.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069355.PDF
