Wednesday, October 6, 2010
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C.A. Upholds Conviction in Killing of Fellow Gang Member
Justices Reject Claim That Police Circumvented Miranda
By KENNETH OFGANG, Staff Writer
An Orange County gang member who was initially interviewed by police without self-incrimination warnings was not deprived of his constitutional rights by the admission of his second, Mirandized statement at trial, the Fourth District Court of Appeal has ruled.
Div. Three Monday affirmed Jose J. Camino’s conviction for the murder of Rolando Palacios. Evidence at Camino’s trial showed that he and Palacios had been at times associated with the Hard Times gang, and that both were involved in a fight with a rival gang that resulted in Palacios—the only person in Camino’s group to fire a gun—being shot to death by an unknown person.
Prosecutors charged Camino under the “provocative act” doctrine, which holds that a person who, with implied malice and by an act likely to cause death, provokes a reaction which results in the death of someone else is guilty of that death.
Camino was interviewed by police hours after the Sept 2007 shooting, revealing that he, his nephew—Miguel Martinez, a member of the Lil Hood gang—and Palacios had met up earlier and driven into territory claimed by the Lil Hood gang and targeted for takeover by another gang, the Barrio Small Town.
Camino, his nephew, and another Lil Hood member had lost a fistfight in the area against some BST members a few months earlier.
Camino told the police that he, Palacios, and Martinez were standing near a convenience store drinking when they saw three BST members, including one he recognized from the fistfight. When Martinez approached them, Palacios fired two shots, after which the three got back in their car with Martinez driving and pursued the three into an alley.
Palacios, he said, got out of the car and started shooting, but he and Martinez backed the car out of the alley when they heard return fire. They later found him lying in a driveway, heard sirens, and fled; they were stopped by police at around 3 a.m.
After a short breack, police moved Camino to another interview room, and obtained a Miranda waiver. Camino then gave a second statement, substantially identical to the first, which prosecutors later acknowledged could not be admitted in evidence.
Prior to trial, the defense sought to suppress the second interview. Orange Superior Court Judge John Conley concluded that the Miranda waiver was valid, and that police did not violate Camino’s right not to incriminate himself by getting him to repeat his non-Mirandized statements.
Jurors found Camino guilty of second degree murder in connection with the death of Palacios, of the attempted murder of one of the BST members, and of street terrorism, with vicarious firearm enhancements. Camino was sentenced to 60 years to life in prison.
The defense argued on appeal that the second statement to police should have been suppressed as the product of a “question first, advise later” process designed to circumvent Miranda v. Arizona (1966) 384 U.S. 436.
But Justice Raymond Ikola, writing for the panel, cited Justice Anthony Kennedy’s concurring opinion in Missouri v. Seibert (2004) 542 U.S. 600. The high court justice insisted there that “only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning,” would an otherwise properly Mirandized second statement be inadmissible.
Kennedy’s view, Ikola explained, controls because it is the narrowest basis for the court’s divided holding that the defendant’s post-warning statements were obtained in violation of his constitutional rights.
The trial judge’s finding that police did not intend to circumvent constitutional requirements is supported by substantial evidence, Ikola said. He noted that Conley found credible the detective’s testimony that he and his colleague did not Mirandize Camino before the first interview because they did not know what he and Palacios were doing together that night.
“Nonetheless, this is a close case because of the continuity between the two interviews and because of the comprehensiveness of the first interview, which left ‘little, if anything, of incriminating potential left unsaid,’” the justice wrote, citing Kennedy’s Seibert concurrence, “and which defendant describes as having ‘all the earmarkings of a classic custodial interrogation.’”
But the benefit of the doubt goes to the police, Ikola explained, because the defendant, being charged under the provocative acts doctrine, “was not a classic suspect,” and much of the interview appeared to seek out incriminating information about Martinez and the BST members, rather than Camino.
The case is People v. Camino, 10 S.O.S. xxxx.
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