Opinion
G054561 G054774
11-05-2018
THE PEOPLE, Plaintiff and Respondent, v. DANNY MENDOZA AND MYNOR DANIEL GALINDO, Defendants and Appellants.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant Danny Mendoza. Elisabeth Bowman, under appointment by the Court of Appeal, for Defendant and Appellant Mynor Daniel Galindo. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Arlene A. Sevidal, Tami Falkenstein Hennick and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1124) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant Danny Mendoza. Elisabeth Bowman, under appointment by the Court of Appeal, for Defendant and Appellant Mynor Daniel Galindo. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Arlene A. Sevidal, Tami Falkenstein Hennick and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants Danny Mendoza and Mynor Daniel Galindo (defendants) were jointly charged with several crimes, including active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 3); and unlawfully taking or driving an automobile (Veh. Code, § 10851, subd. (a); count 4). The case was tried on the theory Mendoza was the direct perpetrator of count 4, as the driver of a stolen vehicle, while Galindo aided and abetted count 4, as a passenger in the vehicle; and that felonious criminal conduct was the basis for active gang participation as charged in count 3.
All statutory references are to the Penal Code unless otherwise stated.
A jury found defendants guilty of, among other things, active participation in a criminal street gang as charged in count 3. The jury also convicted Mendoza of unlawfully taking or driving a vehicle as charged in count 4, but acquitted Galindo of that charge.
Because Galindo was acquitted of unlawful taking or driving of a vehicle, the only underlying felony offense allegedly forming the basis for the active gang participation charge, and because the latter charge requires two or more gang members commit the underlying felony offense (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez), both defendants contend their active gang participation convictions are not supported by substantial evidence and must be reversed. Mendoza also argues his statements to police concerning the vandalism charge were erroneously admitted in violation of Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).
We agree substantial evidence does not support a finding the requisite underlying felonious conduct (the alleged unlawful taking or driving of an automobile) was committed by two or more gang members. We will therefore reverse the convictions on count 3 and remand the matters for resentencing of both defendants. However, we conclude any error in admitting Mendoza's statements to police was harmless beyond a reasonable doubt. Consequently, we will affirm the judgment in all other respects.
FACTS AND PROCEDURAL HISTORY
In addition to the offenses described above, an amended information alleged: Galindo unlawfully possessed a firearm (§ 29820, subd. (b); count 1); Mendoza drove recklessly while evading the police (Veh. Code, § 2800.2; count 2); Mendoza had a prior felony conviction and possessed a firearm (§ 29800, subd. (a)(1); count 5); Mendoza committed a gang-related vandalism (§§ 186.22, subd. (d), 594, subds. (a), (b)(2)(A); count 6); both defendants resisted and delayed police officers in the performance of their duties (§ 148, subd. (a)(1), a misdemeanor; count 7); the offenses charged in counts 1 and 4 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); Galindo had suffered a prior juvenile "strike" juvenile adjudication and Mendoza had suffered a prior "strike" felony conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)); and Mendoza had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and had served a prior term in state prison (§ 667.5, subd. (b)).
At trial, the parties stipulated a 2003 Toyota Avalon was reported stolen in the area of Broadway and Anahurst in Santa Ana, at approximately 6:54 p.m. on May 24, 2015. The stipulation further stated the vehicle's keys had been in the ignition, the vehicle had a standard license plate on it, and defendants did not have permission to drive or possess the vehicle. At approximately 12:30 p.m. the next day, Santa Ana Police Officer Michael Gibbons was in uniform and driving his marked patrol vehicle when he observed a vehicle matching the description of the stolen vehicle. Gibbons made a U-turn and caught up to the vehicle.
He noticed the vehicle had "paper plates," not the standard plates, and there were two males inside. Gibbons attempted to make a traffic stop of the vehicle by turning on his patrol car's forward facing red light. The vehicle did not stop. Instead, it made a left turn and accelerated at a high rate of speed. Gibbons turned on his emergency lights and siren.
During the ensuing chase, the Toyota ran 10 stop signs and two red lights in residential neighborhoods where people, including children were out and about. The vehicle went airborne at one point when it went over a dip in an intersection, drove on the wrong side of the road more than once, and almost struck an individual.
Eventually, the Toyota slowed almost to a stop and both occupants got out of the vehicle and ran as it continued to roll forward, eventually striking a parked vehicle. Gibbons identified Mendoza as the driver of the Toyota and Galindo as the passenger. Mendoza and Galindo ran in opposite directions. Galindo had his right hand in his right jacket pocket and put his left hand on the outside of the pocket as if he was clutching an item inside the pocket.
Gibbons followed Mendoza. As Mendoza ran to a fence he would then scale, his hat fell off and Gibbons saw Mendoza had "B" and "R" tattooed on the back of his head in "very large letters." During the foot chase, Gibbons identified himself as a police officer and ordered Mendoza to stop. After canine units arrived. Mendoza was found hiding beneath lawn clippings in a large plastic trash can. After Mendoza was removed from the trash can, Gibbons saw the tattoo on the back of Mendoza's head was "ABR." Those letters stand for Alley Boys Rifa. Gibbons said Rifa means "the best or unstoppable."
Galindo was seen running through yards by an officer in a sheriff's helicopter. Galindo was thereafter apprehended by a canine unit. Gibbons searched the path Galindo ran and found a loaded blue steel revolver in a small planter in the backyard of a residence. The homeowner of the residence stated the firearm was not his. Galindo could not be eliminated as the major contributor of the DNA found on the revolver. The odds of an unrelated person having the same alleles as the major contributor of the DNA on the firearm's grip is one in a trillion. The parties stipulated Galindo was a person prohibited from possessing a firearm within the meaning of section 29820, and that Mendoza had suffered a prior felony conviction.
On November 14, 2015, while Mendoza was in custody at the Orange County Intake and Release Center, he was in a cell with approximately 15 other prisoners when Deputy Sheriff Kevin Reinhardt observed Mendoza writing on the back wall of a cell with a pencil. Reinhardt saw Mendoza write "AB" on the wall. Reinhardt removed Mendoza from the cell and transferred him to another, where he questioned Mendoza. The court admitted a tape of Mendoza's second interrogation over Mendoza's objection. Mendoza said he wrote "AB" on the cell wall out of habit. He also admitted being a member of the Alley Boys gang and showed Reinhardt how to make the gang's hand signs.
Officer Pedro Duran testified to his familiarity with the Alley Boys gang. He has had contact with both defendants in the gang's territory. Another officer testified Galindo admitted being an Alley Boys gang member in 2014.
Officer Jorge Lopez testified as a gang expert. Lopez admitted gang members in possession of firearms will run from the police. He said the primary activity of the Alley Boys gang is felony possession of firearms. Lopez opined Mendoza was an active member of the gang on the dates of the charged offenses and Galindo was an active gang member on May 25, 2015. After being given a hypothetical question that tracked the evidence relating to the events of May 25, 2015, Lopez opined the driving of the Toyota was "for the benefit of the gang or in association with a criminal street gang." Lastly, he stated writing graffiti on the jail cell wall benefitted the gang.
The jury found Mendoza guilty of reckless evasion, active participation in a criminal street gang, unlawfully taking or driving an automobile, vandalism for the benefit of a criminal street gang, and resisting and delaying an officer in the performance of his duties. The jury also found not true the gang enhancements alleged in connection with the reckless evasion and unlawful vehicle taking charges. The court previously entered a judgment of acquittal on the felon in possession of a firearm charge pursuant to Mendoza's section 1118.1 motion.
The jury convicted Galindo of possession of a firearm by a prohibited person, active participation in a criminal street gang, and resisting and delaying an officer in the performance of his duties. The jury acquitted Galindo of unlawfully taking or driving a vehicle and found not true the gang enhancement alleged in connection with the firearm charge.
The prior conviction allegations were tried to the court without a jury and the court found them true. The court denied Mendoza's motion to strike the "strike" prior conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530), and sentenced Mendoza to an aggregate term of 13 years of state prison, consisting of a four-year term on the reckless evading conviction (two-year middle term, doubled due to prior strike conviction), and 16 months consecutive (one-third the middle term, doubled) terms on the gang participation, vehicle taking, and vandalism convictions, plus a five-year consecutive term for the serious felony prior conviction.
The court sentenced Galindo to an aggregate term of seven years and four months, consisting of six years (three-year upper term doubled based on prior strike adjudication) for possession of a firearm by a prohibited person, and a consecutive 16-month term on the gang participation conviction.
DISCUSSION
1. Sufficiency of the Evidence
Each defendant contends his conviction on count 3 for active participation in a criminal street gang is not supported by the evidence and reversal is required under state and federal Constitutions. We agree.
The United States Constitution prohibits a criminal conviction absent proof of each of the elements of the offense beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 309.) When an appellate court addresses a sufficiency of the evidence claim, the court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (Id. at p. 319.) The same rule applies under the California Constitution. (People v. Holt (1997) 15 Cal.4th 619, 667 [due process clause of federal Constitution and article I, section 15 of state Constitution have same test for sufficiency of the evidence].) "[W]e review the entire record[] in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1212.) Another court has described substantial evidence as that "of ponderable legal significance, reasonable in nature, credible and of solid value." (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1511.) "Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]" (People v. Redmond (1969) 71 Cal.2d 745, 755.)
In other words, we consider all the evidence, not just the evidence favorable to the judgment. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Holt, supra, 15 Cal.4th at p. 667.)
Defendants were convicted in count 3 of active participation in a criminal street gang on the date Mendoza drove and Galindo was a passenger in the Toyota. "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." (§ 186.22, subd. (a), italics added.) This offense has three elements: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.]" (Rodriguez, supra, 55 Cal.4th at p. 1130, italics added.)
Defendants do not challenge the first two elements of the gang participation offense. The issue is whether there was substantial evidence the underlying felonious conduct—violation of Vehicle Code section 10851, subdivision (a)—was committed by Mendoza and Galindo, notwithstanding Galindo's acquittal of the Vehicle Code charge and the jury finding Mendoza's unlawful driving of the vehicle was not done for the benefit of the gang.
The third element of the gang participation offense "requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member. [Citation.]" (Rodriguez, supra, 55 Cal.4th at p. 1132.) To fulfill this requirement, the prosecutor must prove "felonious conduct by at least two gang members by either (1) directly perpetrating the felony with gang members or (2) aiding and abetting gang members in the commission of the felony. [Citation.]" (People v. Johnson (2014) 229 Cal.App.4th 910, 920-921.)
Defendants argue the evidence is insufficient to support their respective convictions on count 3, because the evidence fails to demonstrate the underlying "felonious criminal conduct" (i.e., unlawfully taking or driving a vehicle) was committed by two or more members of their gang, as evidenced by the jury's acquittal of Galindo of the felony violation of Vehicle Code section 10851, subdivision (a), and the fact that the jury concluded Mendoza's evading the police while driving the Toyota was not gang related and found the attached gang enhancement not true. Although the verdict finding Galindo not guilty of unlawfully driving a vehicle is clearly inconsistent with the jury's verdicts on count 3, we are not concerned with whether inconsistent verdicts are permissible. (See § 954 ["acquittal of one or more counts shall not be deemed an acquittal of any other count"]; People v. Amick (1942) 20 Cal.2d 247, 254 [§ 954 permits inconsistent verdicts].) The issue is simply whether there is substantial evidence both defendants were guilty of violating section 186.22, subdivision (a), notwithstanding the acquittal and not true finding.
Section 186.22, subdivision (b)(1) provides 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." (Italics added.)
The felonious criminal conduct required by the gang offense was based on the "unlawful taking/driving of a vehicle," as the court specifically instructed the jury. Vehicle Code section 10851, subdivision (a), may be violated in either of two ways. "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . ." (Veh. Code, § 10851, subd. (a), italics added.)
The proposed instruction originally included reference to unlawful possession of a firearm, but that portion of the instruction was apparently crossed out after the court acquitted Mendoza of that charge pursuant to section 1118. The reason for the alteration is evident: section 186.22, subdivision (a), requires a felony committed by two or more gang members and the court found Mendoza was not guilty of unlawfully possessing the firearm Galindo had on his person.
As there was no evidence Mendoza or Galindo took the Toyota on May 24, the defendants' liability for a violation of the Vehicle Code section turned on Mendoza's driving the vehicle the day after it was taken and Galindo being a passenger in the vehicle while Mendoza drove. Given there was no evidence Galindo drove the vehicle, his liability for the Vehicle Code violation depended upon evidence he aided and abetted Mendoza in the act of driving the Toyota. (People v. Johnson, supra, 229 Cal.App.4th at pp. 920-921.)
Of course, merely being the passenger in a vehicle taken without the owner's permission does not rise to the level of aiding and abetting. (People v. Clark (1967) 251 Cal.App.2d 868, 874.) In Clark, the defendants Davis and Clark were charged with violating Vehicle Code section 10851. (Id. at p. 869.) They were tried separately and in a court trial, the court found Clark guilty. (Id. at p. 869.) A witness testified as an officer of the corporation that owned a yellow Mustang taken on the evening of December 10, 1965. Approximately four hours after it was noticed missing, police saw the Mustang and gave chase when it failed to stop for a stop sign. The Mustang collided with another vehicle at the end of a high speed chase. Davis, Clark, and two others exited the vehicle and ran. After being caught and advised of his rights, Clark admitted having been a passenger in the Mustang. (Id. at p. 873.)
In reversing Clark's conviction for insufficient evidence, the appellate court stated: "[A] conviction cannot be based on a vacuum; there must be affirmative evidence for the prosecution to show guilt. Here there is no evidence that defendant was anything other than a passenger, so that his conviction must rest on the theory that defendant was 'a party or accessory to or an accomplice in the driving,' of the Mustang. But that theory requires proof of more than mere presence in the automobile. At a minimum, defendant must have known that the vehicle had been unlawfully acquired and must have had that knowledge at a time when he could be said to have, in some way, aided or assisted in the driving. Knowledge of the unlawful taking, acquired after the ride started and when defendant could neither stop the trip nor leave the vehicle is not enough." (Clark, supra, 251 Cal.App.2d at p. 874; cf. People v. Champion (1968) 265 Cal.App.2d 29, 31-32, [passenger in vehicle stolen within 24 hours not shown to have aided and abetted theft].)
The facts in our case are remarkably similar to Clark and the same result must obtain. When the Toyota was taken the day before the charged incident, it had license plates on it. The next day, when Galindo was a passenger in the vehicle, it had paper plates on it. There is no evidence Galindo had any connection to the taking of the vehicle and no substantial evidence he knew the vehicle was being driven by Mendoza without the owner's consent. The Attorney General posits Galindo must have known Mendoza did not have permission to drive the Toyota because all gang members brag about the crimes they commit to their fellow gang members. Evidence that gang members as a whole brag to other gang members about their crimes raises a suspicion of Galindo's guilt in connection with the unlawful driving of the Toyota, but does not constitute substantial evidence Galindo actually did anything to aid or assist Mendoza in the driving of the vehicle (see People v. Clark, supra, 251 Cal.App.2d at p. 874), or knew the vehicle had been taken from its owner.
People v. Johnson, supra, 229 Cal.App.4th 910, is also instructive. In that case the defendant was charged with unlawfully possessing a firearm and ammunition on two occasions and two counts of violating section 186.22, subdivision (a). (Id. at p. 912.) A police officer saw the defendant, who was on parole at the time, with two other gang members around 1:00 a.m. (Id. at pp. 912-913.) The suspects did not want to stop walking when the officer called out to them, causing the officer to suspect they were "'trying to create space'" between themselves and him. (Id. at p. 913.) When he retraced their steps, he found a loaded firearm with the defendant's DNA on it. (Ibid.) Approximately four months later, police went to the defendant's residence on a lead, searched pursuant to his parole search condition, and found another firearm. (Id. at p. 915.) The gun charges formed the underlying felonious criminal conduct for the two gang offense charges. (Id. at pp. 922-923.)
A gang expert opined the defendant was an active gang participant. (People v. Johnson, supra, 229 Cal.App.4th at p. 917.) That opinion was based in part on the defendant being in gang-related territory with two other gang members while he was armed with a firearm. (Id. at p. 918.) The defense to the gang charges was that while the defendant possessed firearms unlawfully, he did so because of the bad area in which he lived. He felt he needed them for self-defense, not for any gang purpose. As to the incident where the officer found the gun with the defendant's DNA on it, the defendant had the gun solely for protection while walking with the two other gang members, who were his brother-in-law and a childhood friend. (Id. at p. 919.)
On appeal, the defendant contended the evidence did not support his convictions for gang participation. (People v. Johnson, supra, 229 Cal.App.4th at p. 912.) Notwithstanding substantial evidence the defendant was an active gang member, the appellate court found the evidence insufficient to support the gang offense convictions, because "substantial evidence did not establish that [the defendant] promoted, furthered, or assisted in the perpetration of felonious conduct by at least two gang members in either instance." (Id. at p. 922.) In the first instance, he already had the firearm in his possession when he met up with the other two gang members and walked with them. The court noted there was no evidence the defendant involved the other two gang members in acquiring the firearm or that either of the other gang members exercised any dominion or control over the weapon. (Ibid.)
So too here. There is no substantial evidence Galindo was involved in the taking of the vehicle, or that he aided and abetted Mendoza in driving it. Galindo's flight from the vehicle at the conclusion of the chase may indicate a consciousness of guilt, but it is not, in this case, substantial evidence that Galindo aided and abetted Mendoza in unlawfully driving the Toyota. (See People v. Clark, supra, 251 Cal.App.2d at p. 873 [evidence of aiding and abetting by passenger who fled from vehicle at end of chase not found].) This is especially so given Galindo was unlawfully in possession of a firearm at the time he fled and the gang expert testified gang members in possession of a firearm will run from police. To infer flight was caused not by Galindo's desire to avoid being caught with a firearm (a felony), but by consciousness of guilt based on his knowing the vehicle he was a passenger in was being driven without the owner's consent and that he must have aided and abetted the driver in the driving, is a stretch.
Because there is no substantial evidence Galindo aided and abetted Mendoza in violating Vehicle Code section 10851, subdivision (a), the felonious criminal conduct underlying the substantive gang offense—felonious criminal conduct by two or more gang members in driving the Toyota unlawfully—is lacking. Thus, Galindo's conviction for active participation in a criminal street gang is not supported by the evidence. Neither is Mendoza's, for even though the jury found he violated Vehicle Code section 10851, subdivision (a), a conviction for violation of section 186.22, subdivision (a) requires two or more gang members commit an underlying felony. A gang participation charge is not supported by evidence a defendant acted alone in committing an underlying felony. (Rodriguez, supra, 55 Cal.4th at p. 1139.)
Our resolution of this issue negates the need to address whether the trial court erred in sentencing Mendoza when it imposed a sentence on the substantive gang charge to run consecutive to the sentence imposed on the Vehicle Code section 10851, subdivision (a) conviction. (See § 654; People v. Mesa (2012) 54 Cal.4th 191, 193 [§ 654 violated when court punishes a defendant for a violation of § 186.22, subd. (a), and the underlying felony used as an element of the gang charge].)
2. Admissibility of Mendoza's Statements to Police
Approximately six months after being arrested for the events of May 25, 2015, a sheriff's deputy observed Mendoza writing "AB" on a jail cell wall with a pencil. The deputy removed Mendoza from the cell that contained about 15 other inmates and put him into an empty cell. Once Mendoza was alone in the cell, the deputy "chose" not to advise Mendoza of his Miranda rights and questioned him about what he had been writing on the wall. The deputy did not handcuff, yell at, threaten, or make any promises to Mendoza. In response to questioning, Mendoza stated "AB" stands for Alley Boys. The deputy asked why Mendoza wrote "AB" or "ABR," asked about Alley Boys' rivals, and discussed Mendoza's tattoos and their meaning, and the gang's hand signs and colors.
Miranda v. Arizona (1966) 384 U.S. 436. --------
Thereafter, Mendoza remained in the cell until the deputy returned six hours later with a tape recorder. The deputy then told Mendoza there was a "formality" he had to perform and advised Mendoza of his Miranda rights. After obtaining Mendoza's statements that he understood each of his rights, and without asking if Mendoza was willing to waive those rights and speak to the deputy about the matter, the deputy obtained Mendoza's confession. Mendoza said he wrote "AB" on the wall. When asked why he did it, Mendoza said it was out of habit. During the interrogation, Mendoza explained how he entered the gang, said Delhi is the Alley Boy's rival, showed the deputy how to make the gang's sign, and said the gang wears Angels and Atlanta Braves regalia for the A in each. He also said anybody who entered the cell where he made the graffiti would know it stands for Alley Boys.
The trial court found Mendoza's first statement was obtained as a result of a custodial interrogation without benefit of the required Miranda advisement. The trial court, however, denied Mendoza's motion to suppress the recorded statement made after the Miranda advisement and found the second statement was admissible because it was made voluntarily.
In midstream Miranda cases (where a defendant is interviewed before and after the giving of Miranda warnings), a defendant's postwarning inculpatory statements are generally admissible if the prewarning statements and the postwarning statements were voluntarily made. (Oregon v. Elstad (1985) 470 U.S. 298, 318 (Elstad).) But where law enforcement uses a two-step interrogation technique "in a calculated way to undermine the Miranda warning," curative measures must be taken to ensure that a reasonable person would understand the Miranda advisement and the significance of waiving Miranda rights. (Seibert, supra, 542 U.S. at p. 622.)
Mendoza maintains Elstad does not control the present situation and the court erred in admitting his second statement into evidence in violation of Seibert. He notes the deputy who placed him into a cell and interrogated him about the graffiti admitted he "chose" not to advise Mendoza of his Miranda rights.
Assuming, without deciding, Mendoza's second statement was obtained in violation of Seibert, we find any such error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [federal constitutional error reversible unless harmless beyond a reasonable doubt].) Although a confession "is among the most effectual proofs in the law and constitutes the strongest evidence against the party making it" (Sparf v. United States (1895) 156 U.S. 51, 55), evidence of Mendoza's guilt in connection with the vandalism charge was overwhelming apart from the confession. A deputy saw Mendoza writing "AB" or "ABR" on the jail cell wall. Photographs of the writing were admitted into evidence. The jury already had evidence that "AB" and "ABR" stand for Alley Boys, and Mendoza is a member of the gang and has "ABR" tattooed in large letters on the back of his head. Additionally, there was evidence the writing was for the benefit of the Alley Boys gang. Lopez stated the graffiti benefitted the Alley Boy gang because Mendoza was "promoting by tagging the jail, he's representing his gang within that facility, and that specific cell location, and he's letting everybody know where he's from, and that he's proud of it." Indeed, this evidence was so overwhelming, Mendoza's attorney did not contest the vandalism charge. It was clear even absent Mendoza's statements to the deputy.
DISPOSITION
The convictions on count 3 are reversed and the matters are remanded for resentencing. The judgment is affirmed in all other respects.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.