State v. DeLeon

341 P.3d 315, 185 Wash. App. 171

• Court: Court of Appeals of Washington
• Decided: December 23, 2014
• Docket: Nos. 29657-1-III; 29679-2-III; 29691-1-III
• Status: Published

Opinions

fl — Ricardo Juarez DeLeon, Octavio Robledo, and Anthony DeLeon appeal their convictions and aggravated exceptional sentences arising from a gang-related shooting at a home in Sunnyside and a high speed chase thereafter, in which Anthony DeLeon attempted to elude responding officers. Over a dozen issues are raised by one or more of the appellants in these consolidated appeals, many involving the admission at trial of gang evidence.

Siddoway, C.J.

¶2 We conclude that gang information that the three were required to give to Sunnyside jail officers at booking as a condition of receiving safe housing was not a voluntary statement for purposes of the Fifth Amendment to the United States Constitution and should not have been admitted at trial, but that its admission was harmless except as to the gang aggravator that the jury found against Ricardo DeLeon. In the published portion of this opinion, we find additional errors in the admission of gang evidence but conclude that they were harmless, conclude that sufficient evidence supported the jury’s verdicts on the gang aggra-vator, and find no abuse of discretion by the trial court in denying a motion for a new trial based on a juror’s misconduct in communicating to Twitter¹ followers during trial and deliberations.

¶3 In the unpublished portion of the opinion, we reject the appellants’ claims of ineffective assistance of counsel and instructional error, and the dozens of issues raised in the appellants’ pro se statements of additional grounds.

¶4 We reverse the exceptional sentence imposed on Ricardo DeLeon based on the gang aggravator and remand for further proceedings. We otherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

¶5 At around 11 p.m. on May 9, 2009, Ignacio Cardenas and Miguel Acevedo were standing on the sidewalk outside Mr. Cardenas’s residence in Sunnyside, waiting for Mr. Cardenas’s two cousins and a friend, Jose Barajas, who were coming to the home to bring them passes to a quinceañera. Acevedo and Cardenas were both members of the Lower Valley Lokotes (LVL) gang, which claims the color blue. The Cardenas home was a known LVL hangout. Seeing what he thought were friends in a passing Ford Taurus automobile, Mr. Acevedo flashed a “friendly” LVL sign. He was mistaken; the occupants of the Taurus were not his friends. The driver of the car made a U-turn, and one of the occupants yelled something to the effect that they would shoot.

¶6 The car passed the home, made a second U-turn, and slowed down, and gunfire erupted from the passenger side. Mr. Acevedo ducked behind the tire of a parked car. His and Mr. Cardenas’s friend Angelo Lopez, who had just emerged from the house and was coming down the steps when the gunfire started, “hit the ground.” Report of Proceedings (RP) at 1353. Mr. Cardenas sustained a near-fatal bullet wound to the abdomen and ultimately lost a kidney. It was dark outside, and none of the three men could identify the persons inside the car.

¶7 Jose Baraj as had just reached the Cardenas residence in his truck with passengers Monica Mendoza and Griselda Mendoza when the shooting started. Monica² saw people inside the Taurus wearing red bandannas over their faces but could not identify them at that time. Griselda also noticed that someone in the Taurus was wearing red. Monica estimated that nine gunshots were fired from the front passenger side.

¶8 Mr. Barajas followed the Taurus as it fled the area. He temporarily lost sight of it in a housing development but saw it again near the intersection of Allen Road and Mabton-Sunnyside Highway. There, all three truck occupants saw someone in the Taurus point a gun at them. Monica no longer saw the red bandannas and was able, this time, to identify two of the car’s occupants — Anthony DeLeon (a friend of her baby’s father, known to her as “Monkey”) and Octavio Robledo, whom she knew from school. Everyone in the Barajas truck was certain this was the same Taurus that was involved in the shooting at the Cardenas home.

¶9 Mr. Barajas called 911 on his cell phone and reported he was following a silver Taurus that had been involved in a shooting. He chased the car onto Interstate 82. Sunny side Police Officer Skip Lemmon joined the pursuit, as did several Grandview and Prosser police officers. At one point, Officer Lemmon observed an object that he thought might be a gun fly by the mirror on the passenger side of his car. Later in the chase, Prosser Police Officer Shane Hellyer observed one of the Taurus passengers throw an object out the window that sparked when it hit a bridge railing over the Yakima River, although no evidence was found in a later search of the rough and rocky terrain in that area. After a several-mile chase at speeds reaching 110 mph, the Taurus was finally stopped by spike strips. Its occupants— driver Anthony DeLeon, front seat passenger Octavio Rob-ledo, and rear passenger Ricardo DeLeon — were arrested.

¶10 Ricardo DeLeon gave Sunnyside police detectives permission to search his Taurus automobile. Officers seized a red cooler, two Budweiser beer cans, two red bandannas, a pair of red dice, a digital scale, a bong, a plastic bag of marijuana inside a beer can, and a cell phone with Anthony DeLeon’s name on the wallpaper.

fll The three suspects were taken to the Sunnyside police station where Detective Jose Ortiz administered Miranda3 warnings: first to Ricardo DeLeon at 2:30 a.m. on the morning of May 10; to Anthony DeLeon several hours later, at 7:03 a.m.; and to Octavio Robledo at 7:42 a.m. Each waived his rights and agreed to answer questions. All denied any involvement in the shooting at the Cardenas home.

¶12 All three defendants were ultimately charged by amended information with three counts of first degree assault while armed with a firearm and, as a sentencing aggravator, with intent to benefit a criminal street gang. Anthony DeLeon was additionally charged with attempting to elude a pursuing police vehicle.

¶13 Considerable time was devoted before trial to the State’s wish to offer evidence of the defendants’ alleged affiliation with the Norteño gang and evidence of gang culture, including expert testimony from Detective Ortiz of the S.unnyside Police Department, to show that the shooting was gang motivated. The defendants raised multiple objections to the State’s introduction of such evidence. The court ultimately admitted evidence of the defendants’ alleged affiliation with the Norteños, including to allow Detective Ortiz to testify as an expert on gang culture, over a standing defense objection. The court explicitly cautioned that the detective’s expert testimony would be prejudicial and must be “carefully crafted” to avoid the impression that the defendants “must have done [the crime] because that’s what the culture mandates.” RP at 581.

¶14 The defendants’ theory of the case was misidentifi-cation. They suggested it was someone else’s car from which the gunshots were fired and they were never at the Cardenas residence on the night of the shooting. They pointed to the fact that Mr. Barajas and the Mendoza sisters temporarily lost sight of the perpetrators’ car during the chase, that Mr. Barajas had not been certain of the Taurus’s color, that no guns or ammunition were found in the car or in the areas where police theorized guns had been discarded, and that the State failed to test any of the defendants’ hands for gunshot residue. Although none of the defendants testified at trial, they asserted through other witnesses and argument that they had been drinking all day at a barbecue and were dropping Anthony off at his girlfriend’s residence when they randomly met up with the Barajas truck, whose occupants mistook Anthony’s Taurus for the car involved in the shooting. They claimed they were intoxicated and fled the police only because there was marijuana and drug paraphernalia in their car. The defense also insinuated that the May 9 shooting was retaliation by an individual from a Sureño sect, the VGLs.

¶15 The court denied a defense request to bifurcate trial of the gang aggravator and refused the defendants’ proposed lesser included instruction for drive-by shooting. Although it denied defense motions to exclude all of the defendants’ recorded statements and booking forms as testimonial hearsay of nontestifying defendants, it instructed the jury that it could consider a given defendant’s out-of-court statements “as evidence against that defendant, but not as evidence against another defendant.” Robledo Clerk’s Papers (CP) at 188. Over defense objection, the court also gave the following instruction on transferred intent:

If a person acts with intent to assault another, but assaults a third person, the actor is deemed to have acted with intent to assault the third person. The unintended victims do not need to be physically injured and the defendant need not know of their presence.

Anthony DeLeon CP at 627.

¶16 At the close of the State’s case, the court denied defense motions to dismiss the assault counts and gang aggravators for insufficient evidence. It also denied a motion by Anthony DeLeon to dismiss the eluding charge based on improper venue as untimely or waived.

¶17 At the end of jury deliberations but before the verdict was delivered to the court and read, it came to light that a juror had been communicating on Twitter about his views of the justice system and the progress of the trial. A printout of the juror’s Twitter communications (“tweets”) was made part of the record. After reviewing the content of the tweets, defense counsel and the prosecutor all agreed there was no need to interview the juror. No one moved for a mistrial at that time.

¶18 The jury returned a verdict finding all three defendants guilty as charged on all counts. By special verdicts, the jury also found firearm enhancements for each crime and that the defendants’ crimes were committed with intent to benefit a criminal street gang.

¶19 Mr. Robledo and Ricardo DeLeon moved for a new trial on several grounds, including juror misconduct for the Twitter communications, that Detective Ortiz’s testimony grossly exceeded the court’s ER 404(b) ruling and prejudiced their right to a fair trial, and that the guilty verdicts and gang aggravator findings were not supported by the evidence. The court denied the motion.

¶20 The court imposed aggravated exceptional sentences for each defendant. All timely appealed.⁴

ANALYSIS

¶21 All three appellants contend on multiple grounds that improperly admitted gang evidence prejudiced their right to a fair trial and resulted in unlawful exceptional sentences. All contend that the jury’s findings of a gang aggravator, on which the court based their exceptional sentences, were not supported by the evidence.

¶22 Defendants Ricardo DeLeon and Octavio Robledo additionally challenge the trial court’s denial of their motion for mistrial.

¶23 Anthony DeLeon raises a constitutional challenge to the trial court’s instruction on transferred intent and raises several claims of ineffective assistance of counsel.

¶24 We first address the defendants’ several objections to the admission and use of gang evidence and their challenges to the sufficiency of evidence to support the finding of that gang aggravator. We next turn to the additional issues raised by Ricardo DeLeon and Octavio Robledo, turn thereafter to the additional issues raised by Anthony DeLeon, and conclude by addressing issues raised by the defendants’ statements of additional grounds.

I. Gang Evidence Issues

¶25 The most concerning issues raised on appeal arise from several types of evidence offered by the State to prove that the three defendants were associated with the Norteño gang and that the shooting was committed with the intent to cause a benefit or advantage to a criminal street gang. Some was of dubious relevance, and there is a danger that stronger evidence against defendants Octavio Robledo and Anthony DeLeon, neither of whom testified, might have influenced the jury’s finding that the gang aggravator applied to Ricardo DeLeon. For ease in following the gang-evidence-related issues on appeal, we start with a summary of the evidence against each defendant.

¶26 None of the defendants challenge the admission of testimony from Miguel Acevedo that he flashed an LVL sign and believed that it was his flashing the sign that triggered the assault. Although there was conflicting evidence, none challenge the admission of testimony of Monica Mendoza that she saw that the occupants of the Taurus, from which shots were fired, were wearing red bandanas on their faces; the testimony of Monica, her sister, and Mr. Barajas that they were confident that the Taurus that they saw entering the freeway was the same Taurus from which the shots were fired; or the testimony of Monica that when she and the others sighted the Taurus a second time at the Sunnyside-Mabton Road intersection, she recognized Anthony DeLeon and Octavio Robledo as two of the passengers.

¶27 The State’s strongest evidence of the defendants’ gang membership was arguably its evidence against Octavio Robledo, the front seat passenger in the Taurus. Monica testified that she had known him to be a Norteño associate in school. He admitted to Detective Ortiz following Miranda warnings that he was North Side Varrio, a Norteño gang. At the time of his arrest, he was wearing a red cloth belt with a star on the buckle and white Nike shoes with a red “swoosh.” He repeated during booking that he was North Side Varrio and that his moniker is “Fat Boy.” Booking records noted the following tattoos: “F” on his right forearm, “B” on his left forearm, “N” on his neck, and “14” on his back. Testimony at trial established that the numbers 1, 4, and 14 are significant to Norteños because “N” is the 14th letter in the alphabet. By the time of trial, Mr. Robledo had an additional tattoo on his hand of a Huelga bird with “Warrior” on top of it, which Detective Ortiz testified was also a symbol of Norteño gang affiliation. A photograph of his hand revealed the Huelga bird and additional tattoos: four dots — one on each finger; the initials “NSV” on his ring finger; and the roman numerals “XIV” near the web of his thumb and finger.

¶28 Perhaps equally strong was the State’s evidence that Anthony DeLeon, who was driving the Taurus, was a member of Earlimart, a Norteño gang. Monica testified that she had known him, too, to be a member of the Norteños. At the time of his arrest, he was wearing a black cloth belt with a buckle displaying a capital “N.” His black Nike shoes had red stars on one inside sole. The cell phone found during a search of the Taurus, which included his name on the wallpaper, included photos depicting a person in red clothing and a red cap with a black “N” symbol urinating on “Scrapz” (a derogatory name for Sureño gang members), a Huelga bird in the color black with a red background, the slogan “Norte SK X-4,” and the word “Familia” (meaning “family” in Spanish), all of which Detective Ortiz explained as symbols of gang affiliation. Also stored in the cell phone were songs whose titles and artists (though not lyrics) were admitted into evidence and suggested association with the Norteños: “Del Norte” by Los Tigres, “Northern Expozure” and “Still Mob Livin’’ by Woodie, “Northern Pride” by Big Tone, “Norteños” by Northern Warriorz, and “Darkroom Familia” by Woodie. When asked about his gang involvement by Detective Ortiz, Anthony initially mentioned XIV but then told the detective he was Earlimart — both Nor-teño-affiliated gangs. Additional evidence included his self-report at booking that his moniker was “Monkey” and that he was formerly a Norteño and should not be housed with Sureños. The booking officer noted that he had the following tattoos, which Detective Ortiz testified were gang related: four dots on the left forearm, the number 1 on his left leg, and the number 4 on his right leg.

¶29 The State’s weakest evidence of a current gang affiliation was against Ricardo DeLeon, Anthony’s older brother and the backseat passenger. When questioned by Detective Ortiz following the defendants’ arrest, Ricardo denied any gang affiliation. When arrested, he was wearing a pair of red and black sandals with star insignias and a red T-shirt depicting a recently deceased Norteño gang member, Julian Flores. One of the two red bandannas found in the car was found in the backseat. A gang disclosure form on Ricardo, completed when he was booked, reflected in his report that he was formerly a Norteño and should not be housed with Sureños; he did not claim to have a moniker. His only tattoo — a cross with two dots on his right forearm — was not gang related.⁵

A. ER 404(b) Issues

¶30 The appellants raise three issues relating to the trial court’s admission of evidence of their gang affiliation under ER 404(b), which provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith [, but] may ... be admissible for other purposes, such as proof of motive, . . . intent, [or] identity.

Gang evidence falls within the scope of ER 404(b). State v. Yarbrough, 151 Wn. App. 66, 210 P.3d 1029 (2009). Only Anthony DeLeon broadly challenges the trial court’s original ruling admitting gang evidence. Mr. Robledo challenges only the trial court’s decision to admit the expert testimony of Detective Ortiz that the Huelga tattoo on his hand signified that he had committed a very serious crime. Ricardo DeLeon challenges the trial court’s denial of his motion for mistrial, raised after he alleges the State exceeded the court’s limitations imposed on gang evidence and the bounds of ER 404(b). After some preliminary discussion of the evidence rule, we address the challenges in that order.

¶31 “ER 404(b) is not designed ‘to deprive the State of relevant evidence necessary to establish an essential element of its case,’ but rather to prevent the State from suggesting that a defendant is guilty because he or she is a criminal-type person who would be likely to commit the crime charged.” State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Lough, 125 Wn.2d 847, 859, 889 P.2d 487 (1995)).

¶32 ER 404(b) must be read in conjunction with ER 403, which “requires exclusion of evidence, even if relevant, if its probative value is substantially outweighed by the danger of unfair prejudice.” State v. Smith, 106 Wn.2d 772, 775-76, 725 P.2d 951 (1986). We consider gang evidence prejudicial due to its general “inflammatory nature.” State v. Asaeli, 150 Wn. App. 543, 579, 208 P.3d 1136 (2009). Generalized expert testimony on gang culture is a particular concern, for “absent (1) evidence showing adherence by the defendant or the defendant’s alleged gang to those behaviors and (2) a finding that the evidence relating to gangs is relevant to prove the elements of the charged crime, [it] serves no purpose but to allow the State to ‘suggest! ] that a defendant is guilty because he or she is a criminal-type person who would be likely to commit the crime charged.’ ” State v. Mee, 168 Wn. App. 144, 159, 275 P.3d 1192 (2012) (second alteration in original) (quoting Foxhoven, 161 Wn.2d at 175). Accordingly, to admit gang affiliation evidence there must be a nexus between the crime and gang membership. State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009) (citing State v. Campbell, 78 Wn. App. 813, 822, 901 P.2d 1050 (1995)); cf. State v. Bluehorse, 159 Wn. App. 410, 429-30, 248 P.3d 537 (2011) (applying the nexus requirement to evidence offered to prove a gang aggravator in support of an exceptional sentence).

¶33 The analysis by which courts limit evidence of other crimes, wrongs, or acts to proper purposes is well settled: before admitting the evidence, the trial court must “(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.” Yarbrough, 151 Wn. App. at 81-82. The balancing of these interests must be conducted on the record. State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002). The court’s decision on admission of ER 404(b) evidence is reviewed for abuse of discretion. Foxhoven, 161 Wn.2d at 174.

1. Anthony DeLeon’s challenge to pretrial ruling that gang evidence would be admissible

¶34 Anthony DeLeon argues that all of the evidence relating to the defendants’ current or former gang affiliation violated ER 404(b). He argues that the evidence did not have a proper purpose because “[m]otive is not an element of the charged offenses.” Br. of Appellant Anthony DeLeon at 20. He contends that evidence of the defendants’ gang affiliation merely suggested that he and his codefendants were criminal types who would likely commit the crimes charged, and was unduly prejudicial.

f35 Here, the trial court found on the record that the gang evidence was relevant to the issue of motive, which is a permitted purpose for offering evidence of gang affiliation under ER 404(b). See Yarbrough, 151 Wn. App. at 81 (gang evidence admissible as to motive and state of mind); State v. Boot, 89 Wn. App. 780, 788-90, 950 P.2d 964 (1998) (admissible as to motive, premeditation); Campbell, 78 Wn. App. at 821 (premeditation, motive, and intent). “Motive is an inducement which tempts a mind to commit a crime,” and, although it is not an element of the offense that the State is required to prove, evidence showing motive may be admissible. Boot, 89 Wn. App. at 789. Where the existence of a motive on the part of a defendant has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence, motive is relevant. ER 401; Mee, 168 Wn. App. at 157.

¶36 The State’s theory was that the defendants were Norteño gang members or associates who drove to a Sureño neighborhood and a well-known Sureño-associated house for the purpose of spotting and shooting a rival gang member. Evidence that the Cardenas house was Sureño-associated, that Mr. Acevedo threw an LVL sign that apparently triggered the violence, and that Monica Mendoza observed red bandannas on the faces of the occupants of the Taurus from which shots were fired all suggested that the crime was gang related. Evidence that the defendants were members or associates of a rival gang claiming the color red made it more probable they were involved than if they were not gang affiliated. Generally speaking, the trial court did not abuse its discretion in ruling that gang evidence would be admissible so long as it was tied to gang affiliation and motive.

2. Octavio Robledo’s challenge to pretrial ruling that evidence relating to his Huelga bird tattoo would be admissible

¶37 Mr. Robledo specifically challenges the admission under ER 404(b) of the State’s evidence of a tattoo of a Huelga bird on his hand. In making its pretrial offer of proof, the State argued that its purpose for offering a photograph of the tattoo was, like its purpose for offering evidence of the defendants’ clothing and their other tattoos, to demonstrate that the defendants’ chosen dress and tattoos were evidence of Norteño affiliation and thereby evidence of motive.

¶38 Consistent with the State’s offer of proof, both Sergeant Jeff Cunningham and Detective Ortiz tied Mr. Robledo’s tattoo, like the other tattoos and the defendants’ clothing, to Norteño gang allegiance. Sergeant Cunningham testified that the Huelga bird is a symbol adopted by the Norteños, and Detective Ortiz confirmed the symbol as one of gang allegiance.

¶39 Detective Ortiz went beyond that, however, and answered questions about the meaning and significance of the Huelga bird, telling the jury that in the penitentiary, the Huelga bird signifies a “keeper of knowledge,” while on the streets “it’ll be that some individual has done a very serious crime, particular drive-bys or a homicide.” RP at 1955.

¶40 At his earliest opportunity, Anthony DeLeon moved for a mistrial on two bases, one being that the detective’s testimony as to the meaning of the Huelga bird implied that he — having a picture of a Huelga bird on a cell phone — was a major player in the gang and had committed a prior homicide or drive-by. Mr. Robledo joined in the motion, arguing that “[to] say, well, it’s evidence that he committed a homicide or a high level assault, it has, it’s gone way beyond evidence needed to prove motive in this case.” RP at 1994.

¶41 Mr. Robledo assigns error to the trial court’s ER 404(b) ruling, arguing that the court failed to engage in an ER 404(b) analysis by failing to consider whether Mr. Robledo had committed a very serious crime, whether the serious crime he had committed was relevant, and whether evidence concerning the prior crime was unduly prejudicial. In fairness to the trial court, that was not the State’s stated purpose for the evidence, as to which it originally ruled.

¶42 Nonetheless, once the mistrial motion highlighted the detective’s testimony about the symbol’s meaning, the trial court explained why it viewed the detective’s evidence as admissible for a broader purpose, continuing to justify the admission on ER 404(b) grounds. Its ruling thereby presents an issue that we analyze in the first instance under ER 404(b). The court explained:

The State has presented — or provided an expert who has described what the various symbols mean, what the colors mean, and has given meaning to the evidence. I can’t find — it may be information that is in this setting considered negative or prejudicial to the Defendants. Outside this criminal setting where we are today, I gather that it was not considered a negative, it was considered a positive.

But in any event, it’s what they created in the form of tattoos and what they display either through clothing or the tattoos. And I think it’s appropriate.

RP at 1997. Following an interjection by the prosecutor, the court continued,

[S]o what has come in is evidence that was provided by them and the function of the expert testimony was to give that evidence that came in meaning and that has happened.

. . . I’m denying it. I think that there — the prejudice that it obtains is prejudice that was created by them and it’s fully appropriate to the case and it should move forward.

RP at 1998.

¶43 Any time a defendant has committed a prior crime, she or he can be said to be responsible for the fact that evidence of that crime exists. The fact that Mr. Robledo was responsible for a tattoo being on his hand that allegedly telegraphed his prior crime has no place in the ER 404(b) analysis. We agree with Mr. Robledo’s trial lawyer that testimony suggesting that the tattoo signified that Mr. Robledo had committed a prior homicide or drive-by shooting goes “way beyond evidence needed to prove motive.”

f44 Nonetheless, a trial court’s admission of evidence on an incorrect basis does not constitute error if a proper basis exists for admitting the evidence even though that was not the basis articulated by the trial court. State v. Butler, 53 Wn. App. 214, 217, 766 P.2d 505 (1989) (citing State v. Bowen, 48 Wn. App. 187, 194, 738 P.2d 316 (1987)). There had consistently been an implication, if not an explicit assertion, of another basis for admitting the evidence. On several occasions when the parties argued the in limine issue of whether the State should be able to offer evidence of a Huelga bird tattoo on Mr. Robledo’s hand, the State emphasized its position that the tattoo had not been present on Mr. Robledo’s hand at the time he was arrested. At trial, it presented the testimony of Sergeant Cunningham and Detective Ortiz that neither had seen the Huelga bird tattoo on his hand at the time of his arrest. In closing argument, the prosecutor told the jury,

You’ve seen their statements when they’re booked in, XIV Norteños. They’ve all got gang tattoos. And, in fact, Mr. Robledo subsequently has got the one that means you’ve committed an act of violence after the fact of this event. Where do we know he’s seated? In the front passenger seat. I guess that night he earned it.

RP at 2335. It would appear, then, that an unstated but intended purpose of the evidence was not to prove that Mr. Robledo had committed a prior crime, but that the tattoo was a nonverbal admission, following the shooting of Mr. Cardenas, that Mr. Robledo had recently participated in a drive-by — in other words, it was evidence of the presently-charged crime. Cf. State v. Liverman, 386 S.C. 223, 687 S.E.2d 70 (Ct. App. 2009) (State’s trial theory was that two teardrop tattoos were obtained by defendant after two murders for which he was on trial; defendant failed to argue that the evidence might be construed as suggesting earlier murders, and thereby as propensity evidence, until appeal).

¶45 In any event, if Detective Ortiz’s testimony about the Huelga bird’s meaning exceeded a proper purpose under ER 404(b) and was otherwise inadmissible, the erroneous admission of evidence “requires reversal only if the error, within reasonable probability, materially affected the outcome of the trial.” State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). The State never suggested that the jury should infer prior criminal activity from the Huelga bird tattoo. The jury was instructed to consider gang evidence solely for the purpose of establishing a motive as to why the crime charged was committed. We presume the jury followed this instruction. See State v. Swan, 114 Wn.2d 613, 662, 790 P.2d 610 (1990). If any error occurred, it was harmless.

3. Ricardo DeLeon’s challenge to denial of the motion for mistrial

¶46 During a break in Detective Ortiz’s examination, the three defendants jointly moved for a mistrial on grounds that the State’s gang evidence had far exceeded the court’s announced limitations and the bounds of ER 404(b). Ricardo DeLeon’s lawyer conceded that some evidence of gang affiliation to establish motive had been properly admitted, but argued that “the State has sought to either ignore or evade [the] Court’s ruling and introduce evidence of gang affiliation at every opportunity.” RP at 1993. He argued that the prejudice was greatest for Ricardo, given the “scant evidence” that he was a gang affiliate or member. Id. The State denied that it had exceeded the trial court’s ruling on the parties’ in limine motions. The court denied the motion, stating, among other reasons, that “the function of the expert testimony was to give that evidence that came in meaning and that has happened.” RP at 1998.

¶47 We review the trial court’s denial of a motion for a mistrial for abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). An abuse of discretion occurs when “ ‘no reasonable judge would have reached the same conclusion.’ ” Id. (internal quotation marks omitted) (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). A court also abuses its discretion when its decision is based on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The trial court’s decision to deny a motion for a mistrial will be overturned only when there is a “substantial likelihood” the prejudice affected the jury’s verdict. Rodriguez, 146 Wn.2d at 269-70.

¶48 Ricardo DeLeon is correct that Detective Ortiz’s discussion of “courtship” (how a person becomes a gang member either through being “jumped in” or through family ties) was not relevant to motive in this case. Gang initiation, or how to become a new member, was not at issue given the State’s theory that all three defendants were already gang affiliates acting in concert to promote gang interests. Similarly, during testimony about Norteño and Sureño gang hierarchy, Detective Ortiz testified that a local Sureño member who is an inmate at the Walla Walla penitentiary is “calling the shots” and giving marching orders to “soldiers,” or gang members, on the street. RP at 1927-30. This testimony had no relevance to motive when the State was not alleging that the shooting was ordered by anyone within the hierarchy. Likewise, Detective Ortiz’s extended discussion about the number, variety, and names of local gangs not tied to this incident had little relevance and could prejudicially suggest a pervasiveness of dangerous criminal street gangs in the area. Finally, Detective Ortiz’s testimony that gangs use the Internet for intimidating and threatening rivals “except for pulling the trigger, so to speak,” was also irrelevant when there was no evidence connecting Internet activity to the May 9 shooting. RP at 1940.

|49 On the other hand, Detective Ortiz’s testimony about “putting in work” and the expectation that gang members are in it for life were relevant to the State’s theory that the defendants were in fact gang affiliated despite defense claims that they were no longer active, and that the shooting was in retaliation for disrespect by a rival gang. Detective Ortiz’s testimony about subsets of the Norteños gang in the area and their rivalry with Sureño subsets such as the LVLs was relevant, since the asserted motive for the crime was tied to that rivalry.

¶50 Nevertheless, the irrelevant generalized evidence had little or no probative value. It could suggest to the jury the “ 'forbidden inference’ ” underlying ER 404(b) that the defendants were part of a pervasive gang problem and were criminal types with a propensity to commit the crimes charged. Mee, 168 Wn. App. at 159 (quoting State v. Wade, 98 Wn. App. 328, 336, 989 P.2d 576 (1999)); see Foxhoven, 161 Wn.2d at 175. The trial court was partially mistaken in ruling on the mistrial motion to the extent it concluded the generalized gang evidence had been appropriately limited. It had not been.

¶51 We take this opportunity to remind trial courts that ER 403 has particular importance in assessing the admissibility of generalized evidence regarding the behavior of gangs and gang members. If expert testimony on gang behavior does not both (1) show adherence by the defendant or the defendant’s gang to those behaviors and (2) tend to prove the elements of the charged crime, then its relevance will not outweigh the risk that the jury will draw a forbidden inference. Mee, 168 Wn. App. at 159. All members of this panel agree that trial courts should carefully apply ER 403 in determining the quantity and nature of gang affiliation testimony that will be admitted.

¶52 Again, however, any error in the admission of ER 404(b) evidence requires reversal only if the error, within reasonable probability, materially affected the outcome of the trial. We have already determined that evidence of the defendants’ gang affiliation was properly admitted to demonstrate motive, and we identify above a fair amount of the generalized gang evidence that was relevant and properly admitted. The generalized evidence that exceeded appropriate limitations was less powerful than the direct evidence of the crime and the relevant (and prejudicial, but not unduly prejudicial) gang evidence that was legitimately admitted. We see no likelihood that the additional generalized gang evidence materially affected the outcome of the trial.

B. Were Postarrest Jail Booking Statements and Jail Booking Forms Voluntary Statements under the Fifth Amendment?

¶53 Before trial, the State provided notice of its intention to offer as evidence “Gang Documentation Forms” completed at the Sunnyside jail with information provided by the defendants. At the CrR 3.5 hearing on admissibility, Jail Officer Gabino Saenz testified that when the defendants were released to him for booking, procedure required that he ask them if there was anyone they could not be housed with. If an individual responds that he cannot be housed with Sureños, for example, as these defendants did, then Officer Saenz uses the Sunnyside jail’s Gang Documentation Form to obtain information about the individual’s gang affiliation and colors and numbers claimed. The Gang Documentation Form is completed even if the individual states that he is no longer active in a gang, and both DeLeon brothers claimed to be inactive. Each defendant signed his Gang Documentation Form under penalty of perjury, at Officer Saenz’s request.

¶54 All defendants challenge the admission into evidence of the Gang Documentation Forms. They argue that the procedure for obtaining the information presented them with the prospect of being housed with members of a rival gang, and implicitly promised to protect them from that danger if they provided information about their gang affiliation. They argue that this “conditional” opportunity for protection from violence coerced them into making self-incriminating statements.

¶55 The State’s pretrial motions in limine asked the court to admit the Gang Documentation Forms on one of two rationales: either because the forms provided answers to routine booking questions that do not require that the defendant be advised of his Miranda rights, or because Miranda warnings given by Detective Ortiz hours earlier were still fresh.

¶56 We turn first to the “routine booking question” rationale — not because it is dispositive, but because it might otherwise confuse the real issue on appeal. To determine whether the administration of Miranda warnings is required turns on whether any part of the questioning of a defendant is (a) custodial (b) interrogation (c) by an agent of the State. State v. Sargent, 111 Wn.2d 641, 649-52, 762 P.2d (1988) (citing Miranda, 384 U.S. at 444). “ ‘Interrogation’ ” for Fifth Amendment purposes refers

“to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”

Id. at 650 (alteration in original) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)). The asking of routine booking questions during the booking process does not generally violate the prohibition against interrogation found in Miranda because the questions asked rarely elicit incriminating statements. Id. at 651.

¶57 The trial court rejected the State’s argument that Officer Saenz posed routine booking questions that did not require administering Miranda warnings, but it agreed with the State that the Miranda warnings administered by Detective Ortiz hours earlier were still fresh and, implicitly, that they remained sufficient. The court explained:

Therefore, the statements, to the extent that they would be testimonial in that sense, that they are — the gentlemen were clearly in custody in these have been coerced statements, I don’t find that they are just ordinary booking questions. They may have been treated that way previously, but they are very clearly asking questions of an individual that could clearly be evidence in the future and Miranda would be necessary before they be provided.

In any event, [Miranda] has been given and I’m going to — I find that they are admissible for those purposes. That doesn’t address some of the other issues that may come up, but at least from a [CrR] 3.5 perspective and a statement from the Defendants, they come in.

RP at 93-94.

¶58 The challenge to admitting the Gang Documentation Forms that the defendants raise on appeal (and that they also argued below) differs from the two issues raised by the State’s in limine motion. The defendants argue that regardless of whether the Miranda warnings were fresh, the information the defendants were required to provide was still involuntary, given the inherently coercive context: being presented with the choice whether to be placed in safe jail housing or very dangerous jail housing.

¶59 The Fifth Amendment to the United States Constitution states that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Article I, section 9 of the Washington State Constitution affords the same protection. State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008); State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). To be admissible, a defendant’s statement to law enforcement must pass two tests of voluntariness: (1) the due process test, whether the statement was the product of police coercion, and (2) the Miranda test, whether a defendant who has been informed of his rights thereafter knowingly and intelligently waived those rights before making a statement. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991). A confession that is the product of government coercion must be suppressed regardless of whether Miranda has been complied with. United States v. Anderson, 929 F.2d 96, 98 (2d Cir. 1991).

¶60 Courts evaluate the totality of the circumstances to determine whether custodial statements were voluntarily given. Unga, 165 Wn.2d at 100 (citing Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Miranda, 384 U.S. at 475-77). The government must prove the voluntariness of a defendant’s statement by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972).

¶61 The defendants rely on Payne v. Arkansas, 356 U.S. 560, 567, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958) and Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d (1991) as examples of coercion in obtaining potentially incriminating custodial statements even though no threat of violence came from law enforcement. In Payne, the police chief promised to protect an accused killer from an angry mob gathered outside the jail in exchange for his confession. Payne, 356 U.S. at 562-64. In reversing Payne’s conviction, the Supreme Court concluded:

It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an “expression of free choice,” and that its use before the jury, over petitioner’s objection, deprived him of “that fundamental fairness essential to the very concept of justice,” and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment.

Id. at 567 (footnotes omitted) (quoting Watts v. Indiana, 338 U.S. 49, 53, 69 S. Ct. 1347, 93 L. Ed 2d 1801 (1949); Lisenba v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 86 L. Ed. 2d 166 (1941)).

¶62 In Fulminante, a prison informer offered to protect the defendant from a “credible threat of physical violence” by other inmates who suspected him of killing a young girl on the condition that the defendant tell him the truth about the killing. 499 U.S. at 286. The Supreme Court concluded the resulting confession was coerced and involuntary and explained that “a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient.” Id. at 287 (footnote omitted). And “ ‘coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.’ ” Id. (quoting Blackburn v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960)).

¶63 Here, the trial court characterized the statements as “coerced” in its oral ruling (“the gentlemen were clearly in custody in these have been coerced statements, I don’t find that they are just ordinary booking questions”). RP (afternoon Sept. 28, 2010) at 93-94. But the context of this reference, the court’s ultimate ruling, and a possibly flawed transcription make it unclear what the court meant. In context, it might well have meant — as the State argues— only that the statements were custodial and potentially incriminating such that the prior Miranda warnings given to them were necessary. We need not dwell on what the trial court meant in referring to “coercion” because we review de novo a trial court’s conclusion that statements were freely and voluntarily given. State v. Butler, 165 Wn. App. 820, 827, 269 P.3d 315 (2012).

¶64 “A statement is involuntary if it is ‘ “extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.” ’ ” United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (alterations in original) (quoting Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 194 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 42 L. Ed. 568 (1897))). The State argues that Officer Saenz did not make an offer to protect Mr. DeLeon or provide any consideration not provided to other inmates. But it fails to address the involuntariness that Payne and Fulminante demonstrate can arise where a state agent promises to protect an inmate from a threat posed by a third party. And as reflected in the United States Supreme Court’s holdings in Hutto and Bram, a promise need not be express, it can be implied.

¶65 Relevant to our legal analysis is the fact that Sunnyside jail personnel are not acting solely out of kindness in obtaining gang affiliation information in order to safely house inmates. The Eighth Amendment to the United States Constitution imposes duties on prison officials, who must take reasonable measures to guarantee the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). “Having incarcerated ‘persons [with] demonstrated proclivities] for antisocial criminal, and often violent, conduct,’ having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Id. at 833 (alterations in original) (quoting Hudson, 468 U.S. at 526). A prison official who acts with deliberate indifference to the safety of an inmate, giving rise to a sufficiently serious danger to an inmate’s safety, is subject to civil suit in the form of an Eighth Amendment failure-to-protect claim. See id. at 849.

¶66 Appellate counsel for the State admitted at oral argument that Sunnyside jail personnel could have obtained information needed to safely house prisoners by stopping with their first question: whether there were any inmates with whom the defendants should not be housed. We do not suggest that it was unreasonable for jail personnel to obtain more information than that for jail security purposes, but what we do hold is that when, as here, answering inculpatory questions on a gang documentation form is implicitly required for an inmate to obtain safe housing, then whatever incriminating answers the State gets are not voluntary for purposes of the Fifth Amendment. They are not admissible in a criminal trial.

¶67 We find support for this conclusion in several federal decisions suggesting that the threat of exposure to conditions of imprisonment that would violate the Eighth Amendment is not coercive so long as the State does not control that exposure. In United States v. Lei Shi, 525 F.3d 709, 728 (9th Cir. 2008), the Ninth Circuit Court of Appeals described the conditions in which a defendant was held by a Taiwanese ship’s crew before the ship was boarded by the United States Coast Guard and Federal Bureau of Investigation (FBI) agents as “quite troubling,” but emphasized that the defendant had been held in the ship’s storage compartment “as the crew’s prisoner, not the Coast Guard’s or the FBI’s. Once the FBI released Shi from the compartment and assumed custody, the district court found no evidence that the FBI intimidated or coerced Shi in any way.” Id. Similarly, in United States v. McVicker, 979 F. (D. Or. 2013), the defendant complained that when interviewed in a Belize jail by agents of the United States Department of Homeland Security, the agents implied that only by waiving his Fifth Amendment rights would they assist him in getting out of Belize. The district court distinguished the facts of McVicker’s case from Fulminante and Payne, pointing out that the federal agents “did not offer McVicker protection within the Belize City Jail and [made] it clear that they had no control over the conditions in that jail.” Id. at 1190. By contrast, in United States v. Bout, 2011 WL 4389537, 2011 U.S. Dist. LEXIS 95352, at *4 (S.D.N.Y. 2011), the court concluded that the defendant, having been arrested in Thailand and facing a credible threat of violence in Thai jails, was coerced to make a statement to American agents: “[T]he totality of the circumstances led Bout to believe that speaking with the agents was the only way he might escape being abandoned to the rough conditions of a Thai jail.” 2011 WL 4389537, at *4, 2011 U.S. Dist. LEXIS 95352, at *14.

¶68 Here, the State’s own trial evidence demonstrated that there was a real and ongoing danger of violence and retaliation between rival gangs that presented these defendants with a credible threat of harm if housed with rival gang members in the Sunnyside jail. Officer Saenz testified at the CrR 3.5 hearing that the manner in which the jail undertakes to circumvent that danger to inmates is by asking them at booking whether there are “certain individuals or certain groups you can’t be housed with”: if the inmate says that there are, then a Gang Documentation Form is completed. The totality of circumstances would lead an inmate being booked into the Sunnyside jail to believe that in order to avoid a real risk of danger posed by being housed with rival gang members, he would need to answer yes when asked if there were certain individuals or groups he could not be housed with, and then provide the information for the Gang Documentation Form. RP (afternoon Sept. 28, 2010) at 43-44. The trial court erred in ruling that the statements of the defendants reflected in the Gang Disclosure Forms were voluntary for purposes of the Fifth Amendment.

¶69 Again, we examine whether the error was harmless; in this instance, the standard that applies is constitutional harmless error. That standard requires that — as to the verdicts to which the evidence is relevant (and here it was relevant only to the gang aggravator) — we look only to the untainted evidence to decide if it is so overwhelming that it necessarily leads to a finding of guilt. State v. McDaniel, 83 Wn. App. 179, 187-88, 920 P.2d 1218 (1996) (citing State v. Guloy, 104 Wn.2d 412, 705 P.2d 1182 (1985)).

¶70 Given the other admissible evidence of Anthony DeLeon’s and Mr. Robledo’s gang affiliation, the information on their Gang Documentation Forms was cumulative and can fairly be said to have been harmless for purposes of the jury’s finding of the gang aggravator.

¶71 The same is not true for Ricardo DeLeon. The untainted evidence did not include any admission by Ricardo that he had ever been a member of a gang, no witness testified that he had ever been a member of a gang, and there was no testimony that his sole tattoo was gang related. When arrested, Ricardo was wearing a red shirt bearing the acronym “R.I.P.” (rest in peace) and a picture of Julian Flores, who had been NSV while alive, but Mr. Flores had not died in a gang altercation, he committed suicide. Detective Ortiz agreed when cross-examined about the shirt that Mr. Flores’s “friends and family wish to remember him.” RP at 2016. Monica testified that while she did not know Ricardo, she had seen him at Julian Flores’s house, establishing some personal connection between Ricardo and Mr. Flores — but not a gang connection. Monica claimed no knowledge of any gang affiliation by Ricardo.

f 72 The State also relied on the fact that one of two red bandannas found in the car was found in the backseat, where Ricardo was sitting. But only two red bandannas were found, and there were three occupants of the car. It would not have been difficult for a front seat passenger to toss his in the back of the car during the chase. Officers who succeeded in stopping the Taurus and arresting its passengers testified that Ricardo was sitting on the left side of the rear seat when the Taurus was finally stopped by police, next to a red cooler on his right that Detective Ortiz described as “large enough that it took up the whole right rear passenger side seating area.” RP at 1870.

¶73 The untainted evidence that Ricardo acted “with intent to directly or indirectly cause any benefit, aggrandizement, gain, profit or other advantage to or for criminal street gang, its reputation, influence, or membership” is not at all overwhelming. The exceptional sentence imposed on Ricardo based on the jury’s finding of the gang aggravator must be reversed and remanded for further proceedings.

C. Were Codefendants’ Gang Information Forms Admitted in Violation of the Hearsay Rule or the Defendants’ Sixth Amendment Rights?

¶74 Each defendant’s statements to Officer Saenz reflected on the Gang Documentation Form was an admission by a party opponent under ER 801(d)(2) as between that defendant and the State but hearsay as to his codefendants, with no hearsay exception identified. ER 105 provides, however, that when evidence is admissible as to one party but not as to another, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. The trial court instructed the jury that “[y]ou may consider a statement made out of court by one defendant as evidence against that defendant, but not as evidence against another defendant,” thereby addressing any hearsay concern. CP at 617.

¶75 Less easily addressed is the implication of the code-fendants’ Gang Documentation Forms on a defendant’s right to confrontation under the Sixth Amendment to the United States Constitution. Here, none of the defendants testified, and each contends on appeal that admission of the Gang Information Forms of his codefendants violated his right to confrontation.

¶76 The confrontation clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. In Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the United States Supreme Court held that the defendant’s confrontation rights under the Sixth Amendment were violated when he was “powerfully incriminat[ed]” by admission of a pretrial statement of his codefendant, Evans, who did not take the stand at trial. Id. at 135-37. The trial court gave the jury a limiting instruction that it could consider the confession only against Evans, but in the context of Bruton’s constitutional interest, the Supreme Court held that the limiting instruction was not enough. It stated that “the introduction of Evans’ confession posed a substantial threat to [Bruton’s] right to confront the witnesses against him, and this is a hazard [the Court] cannot ignore.” Id. at 137.

¶77 In Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987), however, the Supreme Court validated the use of redaction and limiting instructions as ways of protecting criminal defendants’ Sixth Amendment rights in most cases. During the underlying joint trial of codefendants Marsh and Williams, the State introduced the confession of Williams into evidence. Unlike the confession in Bruton, the State redacted Williams’s confession so that it contained no explicit or implicit reference to Marsh. Id. at 203. The trial court also admonished the jury not to use Williams’s confession against Marsh. Id. at 204. The Supreme Court held that “ [ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.” Id. at 206. The holding was based on “the almost invariable assumption of the law that jurors follow their instructions.” Id. The same result did not obtain in a case decided by the Supreme Court nine years later, where “[t]he blank space in an obviously redacted confession also points directly to the defendant,” such that it had the same powerfully incriminating effect as in Bruton. Gray v. Maryland, 523 U.S. 185, 194, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). Under current confrontation clause jurisprudence, then, a limiting instruction will avoid a Sixth Amendment violation except in those cases where, because redaction cannot be done effectively, use of a nontestifying codefen-dant’s statement “powerfully incriminates” a defendant.

¶78 Beginning with its 2004 decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court has also clarified that the confrontation clause applies only to “testimonial” statements made by an out-of-court defendant. Since Bruton is based on the protections of the confrontation clause, “[i]t is . . . necessary to view Bruton through the lens of Crawford,” with the result that Bruton’s restriction on the admission of the inculpatory statements by a jointly tried codefendant is limited to testimonial hearsay. United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010). As to what constitutes “testimonial hearsay,” the Crawford Court recognized that “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’ ” were an example of a “core class of‘testimonial’ statements.” 541 U.S. at 51-52. It also stated that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51.

179 Here, all defendants argue that statements of their codefendants reflected on the Gang Documentation Form are undisputedly testimonial in nature and were admitted without giving them a prior opportunity to cross-examine those witnesses, in violation of their Sixth Amendment right. The State contends that error under Bruton and Crawford was avoided because no defendant’s Gang Documentation Form contained references to another defendant’s gang affiliation and the jury was instructed that it was to consider the counts and defendants separately— thus, no statement by any codefendant constituted testimony against either of the other codefendants. Cf. In re Pers. Restraint of Hegney, 138 Wn. App. 511, 546-47, 158 P.3d 1193 (2007) (where codefendant’s statements did not refer to Hegney by name or otherwise, did not contain blanks or obvious deletions, and were accompanied by a limiting instruction, codefendant was not a witness against Hegney and the protections of the confrontation clause were not at issue).

¶80 Ricardo DeLeon replies that in this case the jury was not admonished not to use a defendant’s Gang Documentation Form in any way against his codefendants at the time the evidence was admitted, as was done in Richardson-, and in his case, his brother’s and Mr. Robledo’s Gang Documentation Forms were powerfully incriminating. Most significantly, he points out a problem with the limiting instruction — at least for purposes of the jury’s decision on the gang aggravator. While instruction 6 told the jurors they could consider a statement made out of court as evidence against only that defendant, the court’s instruction 29 stated:

If you find the defendant guilty of the crime of First Degree Assault in Count 1; or of the crime of First Degree Assault in Count 2; or of the crime of First Degree Assault in Count 3, then you must determine if the following aggravated circumstance exists as to that count:

Whether the defendant committed the crime of First Degree Assault with intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang[,] its reputation, influence, or membership.

When deliberating on this aggravating circumstance you may consider all the evidence presented during the trial without limitation.

CP at 641 (emphasis added).

¶81 It is clear from the record of the jury instruction conferences that the intent of the third paragraph of instruction 29 was to override a different limiting instruction — instruction 8, which told jurors to consider gang evidence “only for the purpose of establishing a motive as to why the crime alleged was committed.” CP at 619. Nonetheless, when read together, a reasonable juror would understand instruction 29 to also override instruction 6. Instruction 29 invited jurors — for purposes of deciding whether the gang aggravator applied — to consider a statement made out of court as evidence against any defendant.

¶82 Applying the confrontation clause analysis laid out in Richardson, the fact that the jurors were invited to consider his codefendants’ Gang Documentation Forms as evidence against Ricardo DeLeon in deciding whether the gang aggravator applied resulted in their being witnesses against him. No defendant was named on any other defendant’s Gang Documentation Form. But Richardson makes clear that where a nontestifying codefendant’s statement is admitted into evidence it is the admonishment or limiting instruction to the jury that prevents the codefendant from being a witness “against” the defendant.⁶ The Richardson Court recognized that even a statement that does not expressly implicate a defendant can implicate him when linked with other evidence. Richardson, 481 U.S. at 208-09.⁷

¶83 Instruction 29 and our assumption that jurors follow instructions compels the conclusion that as to the gang aggravator, nontestifying codefendants were witnesses against one another through the Gang Documentation Forms, which were testimonial in nature. Admission of the forms without an effective limiting instruction violated the defendants’ Sixth Amendment right, although only with respect to the jury’s finding that the gang aggravator applied.

f 84 Confrontation clause errors are subject to constitutional harmless error analysis. State v. Lui, 179 Wn.2d 457, 528, 315 P.3d 493 (2014). As previously observed, in the case of Anthony’s and Mr. Robledo’s Gang Documentation Forms, the information reflected was cumulative of gang affiliation that was also established through their statements to Detective Ortiz, Monica Mendoza’s testimony, their clothing, their tattoos, and Anthony’s cell phone contents. Given the unlikelihood that Ricardo’s information would have influenced the jury with respect to his more clearly gang-affiliated codefendants, and the fact that Anthony’s and Mr. Robledo’s information was cumulative, we are satisfied beyond a reasonable doubt that the jury’s consideration of a nontestifying defendant’s Gang Documentation Forms against his codefendants would not have contributed to the jury’s verdicts.

II. Is the Trial Court’s Imposition of an Exceptional Sentence on the Gang Aggravator Supported by the Record?

¶85 The appellants argue that the evidence was insufficient to support the gang aggravator, complaining here, as they did in arguing that gang evidence was admitted in violation of ER 404(b), about the State’s generalized gang evidence. Generalized gang evidence is problematic in both contexts. Absent (1) evidence showing that general evidence about gang behavior was adhered to by the defendant or his alleged gang and (2) a finding that the evidence relating to gangs is relevant to prove the elements of the charged crime, generalized evidence may give rise to the forbidden inference under ER 404(b) and, in the context of examining the sufficiency of evidence, no probative value can be ascribed to it.

f 86 We review a jury’s verdict on an aggravating factor for substantial evidence just as we do when evaluating the sufficiency of the evidence supporting the elements of a crime. State v. Webb, 162 Wn. App. 195, 205-06, 252 P.3d 424 (2011). After viewing the evidence in a light most favorable to the State (which still requires that we ascribe no weight to generalized gang evidence having no nexus to the crimes charged), we ask whether any rational trier of fact could have found the essential elements of the charge beyond a reasonable doubt. Yarbrough, 151 Wn. App. at 96; State v. Moreno, 173 Wn. App. 479, 495-97, 294 P.3d 812 (gang membership alone and general statements from police or gang experts are insufficient; the State must establish a nexus between the crime and the defendant’s motivations to benefit a gang), review denied, 177 Wn.2d 1021 (2013).

¶87 In order for the court to impose the exceptional sentences requested by the State, the State was required to show that the defendants committed the assault “with intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang[,] its reputation, influence, or membership.” CP at 641; RCW 9.94A.535(3)(aa).

¶88 When we disregard the improperly admitted Gang Documentation Forms and the insufficiently relevant generalized gang evidence (the evidence unrelated to the elements of the charged crime, the participants in the charged crime, or the gangs to which they belonged or with which they were associated), sufficient evidence was presented to persuade a rational trier of fact beyond a reasonable doubt that the gang aggravator applied. In the case of Anthony and Mr. Robledo, their active gang membership was abundantly demonstrated by their statements to Detective Ortiz, their clothing, their gang-related tattoos, the pictures and songs stored on Anthony’s cell phone, and Monica Mendoza’s testimony. That there was a gang-related motivation for their presence at the Cardenas home and the shooting was sufficiently demonstrated by their presence driving in a Sureño neighborhood, past a known Sureño-associated home, with red bandannas tied over the faces of occupants in the car, and the response to Mr. Acevedo’s flashing an LVL sign — both the yelling and then the shots fired. Detective Ortiz provided expert testimony about putting in work and retaliation sufficiently related to the Norteño gangs, and potentially explaining these acts, to be relied on by the jury.

¶89 While less evidence supported the gang aggravator’s application to Ricardo, it was still sufficient. There was the same evidence that there was a gang-related motivation for the men’s presence in a Sureño neighborhood and at the Cardenas home, the same evidence of what triggered the violence, the same evidence of red bandannas being worn, his red shirt with the picture of Julian Flores, and the expert testimony of Detective Ortiz. Although we have concluded in addressing the erroneous admission against Ricardo of his involuntary Gang Documentation Form that a rational trier of fact might not have found the gang aggravator against him had that form been excluded, we nonetheless conclude that there was sufficient evidence from which a rational trier of fact could find the aggravator. We remand for a trier of fact to make that determination.

III. Further Communications — Juror Misconduct

Denial of Motion for a New Trial Based on a Juror’s Improper Use of a Twitter Account

¶90 The jurors took an oath at the outset of the trial below “to well and truly try this case according to the evidence and the instructions of the Court.” RP at 487. The court instructed the jurors, ‘You can’t discuss this case in any regard, your feelings, what the evidence is, nothing.” RP at 491. The court’s instructions not to discuss the case with outside third parties were repeated throughout the trial and again at the outset of jury deliberations.

¶91 Three days later, just as the jury indicated it had reached a verdict, the bailiff provided the court with a Twitter printout showing that one of the jurors had been tweeting communications about the trial during the eviden-tiary and deliberation phases. The record does not disclose when the communications came to light.

¶92 Many of the tweets were cryptic, and some were incoherent. They did not discuss case-specific facts, did not contain evidence of extraneous influence on the juror in terms of deciding the case, and did not suggest a predisposed outcome. At most, the tweets show the juror had a negative attitude about the justice system, the length of jury service, and the lawyers involved. Several of the tweets were explicitly or implicitly critical of law enforcement: for example (and from earlier to later), “The largest known street gang in the world: Police,” “I’m not against the police. I’m just afraid of them — I’m not afraid of them, I’m just against the system they serve,” and “It’s time to set the record straight that MJ was/is and always has been innocent — I actually believe that now.” CP at 645.

¶93 After the court, the prosecutor, and all three defense lawyers reviewed the printout, the court asked each of the lawyers whether there was a need to question the juror before bringing the jury in to announce the verdict. The prosecutor expressed concern that the juror had made the communications, but considered the matter moot since a verdict had apparently been reached. Anthony DeLeon’s lawyer was concerned that the juror did not follow the court’s instructions. He was also troubled by the comment possibly suggesting a score of 3 to 9.⁸ But he concluded there was no reason to interview the juror. Ricardo De-Leon’s counsel was likewise concerned that the juror disregarded the court’s “simple and explicit” instructions not to communicate about the trial. But he concluded that the content of the communications “doesn’t really say all that much.” RP at 2409. He asked that the printout be made part of the record, but waived any requirement to question the juror. Mr. Robledo’s counsel took the same position as Ricardo DeLeon’s counsel. Having heard out the lawyers, the court decided not to interview the juror. No party moved for a mistrial at that time. The verdicts were read and the jury polled.

¶94 Ricardo DeLeon filed a timely motion for new trial, contending that the juror committed misconduct and that the court should have investigated the juror and removed him as unfit when the communications came to light. Mr. Robledo timely joined in the motion.⁹ In opposing the motion, the State argued that the defense had made a tactical decision to waive the conduct and receive the jury’s verdict.

¶95 The trial court denied the motion for a new trial, stating that the Twitter communications were unquestionably misconduct but did not rise to the level that the juror should have been excused. It attached importance to the facts that the tweets were “almost exclusively comments about the system, not about the facts of the case,” and “[t]here was nothing to suggest in the tweets ... that he was discussing the facts of this case with anybody in particular.” RP (Jan. 20, 2011) at 21.

¶96 The court also observed the following dilemma that was presented by the tenor of the tweets and the timing of their discovery:

The comments were very clearly negative towards law enforcement.

Clearly there was no motion to have this juror excused for misconduct at the time. Had I done so, I would have had to excuse this juror knowing that he had made comments that would be certainly construed as favorable to the defense and against the [S]tate. That could have been characterized as an abuse of discretion.

Id. at 21-22.

¶97 Mr. Robledo assigns error to the trial court’s denial of his motion for a new trial.¹⁰ He argues that juror misconduct is a basis for mistrial and that the court’s and lawyers’ failure to inquire further violated his right to a fair trial. Anthony alluded to a similar argument but primarily contends his counsel was ineffective for failing to move for a mistrial (addressed infra). Ricardo DeLeon has joined in Anthony’s arguments in his statement of additional grounds.

Juror misconduct as basis for a new trial

¶98 RCW 2.36.110 states that a judge has a duty “to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, ... or by reason of conduct or practices incompatible with proper and efficient jury service.” CrR 6.5 outlines procedures for discharging an unfit juror after deliberations have begun and replacing the juror with an alternate. Together, RCW 2.36.110 and CrR 6.5 “place a ‘continuous obligation’ on the trial court to investigate allegations of juror unfitness and to excuse jurors who are found to be unfit.” State v. Elmore, 155 Wn.2d 758, 773, 123 P.3d 72 (2005) (quoting State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000)).

¶99 A trial judge has broad discretion to conduct an investigation of jury problems and may investigate accusations of juror misconduct in the manner most appropriate for a particular case. Id. at 773-75; State v. Earl, 142 Wn. App. 768, 775, 177 P.3d 132 (2008). The court need not follow any specific format. Jorden, 103 Wn. App. at 229. In cases involving potential misconduct, however, “the trial judge is faced with a ‘delicate and complex task,’ in that he or she must . . . take care to respect the principle of jury secrecy.” Elmore, 155 Wn.2d at 761 (quoting United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997)). The court’s inquiry should not risk violating “the cardinal principle that juror deliberations must remain secret.” Id. at 770.

¶100 “[A] juror’s communication with a third party about the case constitutes misconduct.” State v. Depaz, 165 Wn.2d 842, 859, 204 P.3d 217 (2009). Juror misconduct can warrant a mistrial. See State v. Applegate, 147 Wn. App. 166, 175-76, 194 P.3d 1000 (2008). A new trial is warranted only where juror misconduct has prejudiced the defendant, however. Earl, 142 Wn. App. at 774.

¶101 No published Washington case is cited or found that involves a juror using social media such as Twitter to communicate to third parties about the case during the trial. A seminal federal case on the topic is United States v. Fumo, 655 F.3d 288 (3d Cir. 2011). In Fumo, a juror made numerous Facebook and Twitter comments during a five-month trial, expressing wonder about when various stages of the trial would end. When Fumo learned of the comments, he moved to disqualify the juror. After an in camera hearing that included an interview of the juror, the judge found that the postings were in violation of instructions not to discuss the case with anyone outside the jury room, but were “ ‘nothing more than harmless ramblings having no prejudicial effect.’ ” Id. at 299. The judge further found the comments were vague and virtually meaningless in that they raised no specific facts dealing with the trial, and nothing indicated any predisposition toward anyone involved in the suit. Id. at 306. The appellate court agreed and held that the district court did not abuse its discretion in denying Fumo a new trial when no prejudice was shown. Id. at 306-07.

¶102 The Fumo court’s observations about juror use of social media are nonetheless apropos:

Not unlike a juror who speaks with friends or family members about a trial before the verdict is returned, a juror who comments about a case on the Internet or social media may engender responses that include extraneous information about the case, or attempts to exercise persuasion and influence. If anything, the risk of such prejudicial communication may be greater when a juror comments on a blog or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.

Id. at 305.

f 103 We review a trial court’s ruling on a motion for new trial for abuse of discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). While most trial judges in most circumstances would (and should) interview a juror upon learning of a violation of the court’s instructions not to communicate with third parties about a case, we are satisfied that under the particular facts of this case, the trial court did not abuse its discretion by deciding not to interview the juror or investigate further. It is clear that the juror committed misconduct, which the trial court recognized. It conducted investigation to the extent of obtaining a copy of the Twitter printout after learning of the juror’s communications. The strongly predominating theme of the tweets — the juror’s negative attitude about the justice system, the length of jury service, and lawyers— probably did not necessitate further inquiry. See Commonwealth v. Werner, 81 Mass. App. Ct. 689, 697, 967 N.E.2d 159 (2012) (and cases cited therein) (“attitudinal expositions” on jury service, protracted trials, and guilt or innocence that fall far short of the prohibition against extraneous influence do not warrant further inquiry). And because the discovery came during deliberations — indeed, after a verdict had apparently been reached — inquiry by the court presented a heightened risk of upsetting the sanctity of the jury’s deliberations. For that reason, and because Messrs. DeLeon and Robledo have demonstrated no prejudice, we find no error.

¶104 We reverse the exceptional sentence imposed on Ricardo DeLeon based on the gang aggravator and remand for a new trial on the aggravator and resentencing. We otherwise affirm. The State’s cross appeal is dismissed as abandoned.

¶105 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. RCW 2.06.040.

Knodell, J. Pro Tem., concurs.

1 Twitter is a real-time information network that lets people share and discuss what is happening at a particular moment in time through the use of “tweets.” The service allows users either to send direct messages to specific individuals or to use “twitter posts” accessible to the public. The process of posting messages on Twitter is commonly referred to as “tweeting.” See http://twitter.com/about.

2 We use the Mendoza sisters’ and the DeLeon brothers’ first names in those contexts where a reference to “Ms. Mendoza” or “Mr. DeLeon” would not be clear from the context. We intend no disrespect.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 The State filed a cross appeal from Ricardo DeLeon’s sentence. The court granted him an exceptional sentence below the base standard range on count 1 only, on the bases that his offender score was based largely on juvenile offenses that occurred 15 to 20 years earlier and that he had a number of minor traffic violations that are now decriminalized. The court deemed a downward departure on count 1 a more equitable treatment for this defendant relative to his codefendants’ sentences. The State has submitted no briefing on its cross appeal and has thus apparently abandoned it.

5 In the CrR 3.5 hearing, Detective Ortiz described Ricardo DeLeon’s tattoo as a Pachuco cross, popular in the 1940s with a group of Catholic Hispanic Latinos located in California. Suppl. RP (Sept. 28, 2010) at 15-16. The detective testified that by itself, it was not a common or normal gang indicator. Id. at 17.

6 “Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow their instructions.” Richardson, 481 U.S. at 206 (emphasis added).

7 The fact that the gang information forms do not name other defendants defeats Ricardo DeLeon’s alternative argument that they fell within the Bruton exception. Richardson explains that whether a codefendant’s statement incriminates the defendant on its face is important to determining whether the statement falls within the narrow Bruton exception for codefendant statements so powerfully incriminating that even a proper jury instruction will not protect a defendant’s Sixth Amendment rights. 481 U.S. at 208; see also Gray, 523 U.S. at 195 (“We concede that Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially.”).

8 An. October 22,2010 tweet read, “[Y]ou fighting the good fight my friend? Good for you! - There are 2 others as well.;-) Score 3 : 9 CP at 645.

9 Anthony DeLeon attempted to join in the new trial motion on November 22, 2010, which the court ruled was too late. His assignment of error to ineffective assistance of counsel for the tardy attempt at joinder is addressed infra.

10 Although his brief speaks of denying a motion for mistrial, we recognize that he intends to challenge the new trial motion, there having been no motion for a mistrial based on juror misconduct.