Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County 69Super. Ct. No. DL027965, Richard E. Behn, Judge. Affirmed.
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Deborah La Touche, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Minor G. F., a ward of the court, contends his statements to the police concerning his active criminal street gang participation should have been excluded because he was not warned pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). But any error in admitting the statements was harmless because ample admissible evidence showed his active gang participation. We affirm.
FACTS
The minor and four friends attacked another student at their Anaheim junior high school. The minor swung a four-inch knife at the student to frighten him. He pushed the student to the ground, and he and his friends began kicking and punching the student. The student suffered a cut to his hand during the attack.
The district attorney petitioned to declare the minor a ward of the court. (Welf. & Inst. Code, § 602.) It charged him with one count each of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and street terrorism (§ 186.22, subd. (a)). It also alleged he inflicted great bodily injury (§ 12022.7, subd. (a)) and committed the assault to benefit a criminal street gang (§ 186.22, subd. (b)).
All further statutory references are to the Penal Code.
The student testified about the attack at trial. He also testified about punching the minor a few days before the attack. He stated the minor told him at that time he was from Barrio Pobre. The student claimed he reported the minor’s statement to the Anaheim police officer who investigated the attack.
The investigating officer also testified. He recounted arriving at the assistant principal’s office to find the minor waiting there, seated at a desk. The officer sat down across from the minor and asked what had happened. Over a defense objection to lack of foundation intended to challenge the lack of Miranda warnings, the officer repeated the minor’s statements to him. The officer stated the minor admitted to attacking the student, to doing so to enhance his reputation in Barrio Pobre, and to telling the student, “This is for Barrio Pobre.”
When the prosecutor asked the officer what the minor had told him, the minor’s counsel objected, “Objection, foundation.” The court overruled the objection. The minor’s counsel explained, “My objection also goes to the requirement that Miranda should have been read. It doesn’t appear it was.” The court overruled the objection again. The Attorney General concedes this objection adequately preserved the Miranda issue for appeal. The minor does not contend he should have been afforded an evidentiary hearing on his Miranda objection.
An Anaheim Police Department gang expert also took the stand. He explained Barrio Pobre was a criminal street gang engaged in a pattern of crimes included assault and theft. He stated the minor’s four friends who helped the minor attack the student were active members of Barrio Pobre.
The gang expert concluded the minor was actively participating in Barrio Pobre during the attack. The minor had previously been found with Barrio Pobre graffiti on his locker and, at that time, admitted to associating with Barrio Pobre. The minor had received a written warning that Barrio Pobre was a criminal street gang. The minor had admitted to the investigating officer he committed the assault for Barrio Pobre. The gang expert also analyzed a photograph showing the minor with the four active Barrio Pobre gang members. The gang members were flashing Barrio Pobre’s gang sign with their hands — so was the minor. The expert explained gang members do not let people unaffiliated with their gang claim association with the gang or flash the gang sign in their presence.
When asked to consider a hypothetical situation mirroring the facts of this case, the gang expert opined the assailants would be actively participating in a criminal street gang while attacking the student. He further opined they would be committing the assault for the purpose of benefitting the gang, and with the specific intent of promoting its criminal conduct.
The court sustained the petition. It found both counts and the criminal street gang allegation true, but did not find the great bodily injury allegation true. It declared the minor a ward of the court, committed him to 180 days in custody, and placed him on probation.
DISCUSSION
The minor challenges only the street terrorism conviction and the criminal street gang enhancement, not the assault conviction. He contends the court should have sustained his Miranda objection and excluded his statements to the investigating officer about Barrio Pobre. Without these statements, the minor claims, insufficient evidence would support the court’s findings about his active gang participation.
Section 186.22, subdivision (a), prohibits “active participat[ion] 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.”
Section 186.22, subdivision (b)(1), sets forth 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.”
A suspect is entitled to Miranda warnings before a custodial interrogation. (Miranda, supra, 384 U.S. at p. 444.) The parties agree the officer interrogated the minor in the assistant principal’s office. They dispute whether the minor was in custody at that time. “Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? Citations. The totality of the circumstances surrounding an incident must be considered as a whole.” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) The record on this issue is poorly developed. We do not know whether the officer was in uniform, brandished a weapon, told the minor he was considered a suspect or had to answer questions or was free to leave, or sat between the student and the door. (Ibid. [listing several factors for determining custody].) We do not know how long the questioning lasted, or what the officer’s demeanor was during the interview. (Ibid.) All we know is the officer sat across a desk from the minor in the assistant principal’s office and asked him what happened. Still, “ the prosecution has the burden of proving that a custodial interrogation did not take place.” (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.) On this paltry record, we will assume the minor was in custody when the officer interrogated him. (Cf. Holguin v. Harrison (N.D.Cal. 2005) 399 F.Supp.2d 1052, 1057-1058 [student in custody when questioned by police officer in vice-principal’s office].)
Even so, any error in admitting the minor’s statements about Barrio Pobre was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 310; People v. Cunningham (2001) 25 Cal.4th 926, 994; see Chapman v. California (1967) 386 U.S. 18, 24.) Overwhelming other evidence showed the minor assaulted the student while actively participating in Barrio Pobre and to promote the gang. The minor had previously admitted to associating with Barrio Pobre and had its gang graffiti on his locker. The victim testified the minor had claimed Barrio Pobre earlier, though he and the investigating officer disagreed as to whether he had mentioned this earlier. The minor had been photographed flashing Barrio Pobre gang signs with other Barrio Pobre gang members. The expert testimony suggests the gang members would not let the minor do so unless he was associated with Barrio Pobre. And the minor attacked the student with four other active Barrio Pobre gang members. All of this evidence sufficiently implies the minor attacked the student while actively participated in Barrio Pobre and to promote the gang.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
O’LEARY, ACTING P. J., MOORE, J.