*222¶115 (dissenting) — Despite its protests to the contrary, the majority is applying a per se coercion standard to the gang status booking questions issue. That is the only conclusion that can be drawn because none of the defendants ever claimed below that they felt coerced, nor did they offer any evidence or even argument in support of such a position — and it is a position they bear the burden of proving. Their arguments are raised for the first time on appeal, but none of the appellants cite to any evidentiary support for their argument. Indeed, Anthony DeLeon does not even raise the claim11 on appeal — and it was his counsel’s argument that the trial court’s statement was addressing.12
Korsmo, J.f 116 As the party claiming coercion, the defendants bore the burden of proving its existence. Horn v. State, 52 Wn.2d 613, 614, 328 P.2d 159 (1958); State v. Bird, 31 Wn.2d 777, 781, 198 P.2d 978 (1948). They did not attempt to do so. Accordingly, the issue is not properly before this court. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). On that basis alone, we should not even analyze this claim.
¶117 All three defendants challenged the admission of the jail booking statements at the CrR 3.5 hearing on the basis that they were the product of custodial interrogation, which needed to be preceded by fresh Miranda warnings. Report of Proceedings (RP) at 83-87, 89. Each counsel presented additional reasons for finding the questioning to be custodial. Counsel for Anthony DeLeon argued that the gang question was not a routine booking question because it called for an incriminating response and needed an independent Miranda warning. Id. at 88. Counsel for Ricardo *223DeLeon argued similarly and contended that this was a new interrogation that required new warnings. Id. at 90-91.
¶118 It was in answering this argument of counsel that the trial court made the statement that the majority now says was ambiguous in context. Majority at 201-02. It was not. The context was the court’s discussion of the argument that the question did not meet the booking question exception because it called for an incriminating answer. The trial court rejected the prosecutor’s argument that the answer was admissible independent of Miranda because it was a booking question, stating:
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.
RP at 93. In context, the word “coerced” — if it even was used by the trial court in what is otherwise an ungrammatical statement — meant simply “compelled” or, more accurately, “incriminating.” The court was not making a finding that asking these defendants their gang affiliation was coercive.
¶119 The lack of findings concerning any coercive aspect of the questioning also are easily understood. There were no findings because no one thought there was any coercion and, therefore, did not discuss the issue. The lack of eviden-tiary support for the coercion claim is fatal to the majority’s contention that this is not a per se rule.13 No defendant said that he thought he would be protected from opposing groups only if he answered the question. There simply is no suggestion that answering the question was the quid pro quo for safe housing. Indeed, none of the defendants even *224suggested that they needed or desired protection from other gangs, let alone that answering the question honestly was the only way they believed they would be protected. Instead, the majority’s decision is based on appellate counsel’s speculation about what may have been going on inside the minds of their clients. To find coercion here, the majority would have to find it in every instance where the question of gang affiliation at booking is asked. That simply is not the rule.
¶120 While I do not doubt that there could be situations where asking during the jail booking process about gang or other affiliation might be coercive, there was no evidence of that presented here. In the absence of evidence, the majority can reach its conclusion only on the basis of a per se rule rather than its purported totality of the circumstances approach. For that reason, as well as the fact that appellants did not raise the issue below and thus failed in their burden of proof on this point, I part company with the majority in its treatment of this belatedly raised claim.14 I therefore respectfully dissent.
After modification, further reconsideration denied April 23, 2015.
Review granted at 184 Wn.2d 1017 (2015).
Anthony DeLeon challenges the use of the jail form on several grounds, including Miranda and multiple evidentiary bases, but he does not claim that his answer was coerced. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Tellingly, none of the defendants sought a jury instruction to put the voluntariness issue before the jury. CrR 3.5(d)(4); State v. Smith, 36 Wn. App. 133, 141, 672 P.2d 759 (1983).
Since we review a coercion finding for substantial evidence, State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991), the lack of evidence of coercion is fatal to appellants’ claim.
I join the majority and the concurrence in their respective acknowledgements that ER 403 permits the trial courts discretion to limit the quantity and nature of gang affiliation testimony. Trial courts cannot act in a vacuum, however, and therefore defense counsel must raise timely objections at trial or, perhaps more importantly, obtain some relief via motions in limine that require the gang evidence to be carefully tailored. Counsel also can avoid a great deal of testimony by stipulating, where appropriate, that a particular organization is a criminal street gang. To the extent that my learned colleague concurs on the basis of former policies of the Sentencing Reform Act (SRA), one of the short answers is that the legislature has seen fit to alter those policies over the intervening three decades, as is its right as the policy-making body in our governmental structure. To the extent the concurrence believes that the prosecution has too much discretion in its charging decisions, I would simply note that nothing in the SRA alters- — or could alter — the executive branch’s authority to decide what charges it will or will not pursue. These are age old debates that likely will last as long as our structure of government. Changes in legislative or executive policies must come from those branches of government — whether induced by a change of heart or a change brought by the electoral process — not from the judicial branch straying outside its boundaries into the policy decisions of the other branches.