Friday, June 26, 2015
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S.C.: Questions About Gang Affiliation Violated Miranda Rights
By KENNETH OFGANG, Staff Writer
Jailers violated the Miranda rights of a murder suspect when they asked about his gang affiliation while he was being booked, the state Supreme Court ruled yesterday.
In an opinion by Justice Carol A. Corrigan, the court unanimously agreed that Jose Mota-Avendano’s unMirandized statements were improperly used against him, but that the error was harmless because there was enough independent evidence to establish his gang ties.
Mota was one of three defendants who were jointly tried for the murders of three men in separate instances in Contra Costa County. Several witnesses identified him as a member of Varrio Frontero Loco, or VFL, a subgroup of the Sureño gang.
Witnesses testified that the 2007 and 2008 killings were part of an effort to reassert VFL’s position, which began to deteriorate after a former leader fled after committing a murder, by attacking Norteños.
Mota was convicted of all three murders in the first degree and of conspiracy to commit murder and to participate in a criminal street gang. He was sentenced to 100 years to life in prison.
Motion to Suppress
On appeal, he argued that the trial judge erred in denying his motion to suppress his admissions to VLF membership during the booking and classification process at the jail. Jailers testified that they normally ask inmates during intake whether they have been to the jail before, whether they have a gang affiliation, and whether they fear for their safety.
The responses are used to classify gang-affiliated inmates, for their own safety and that of other inmates and jail personnel, according to testimony.
Mota told a deputy, prior to receiving his Miranda warnings that he belonged to a Sureño gang. He also said that he had never killed anyone, that he was “a gang-banger…not a murderer,” and that he would talk to police after he spoke to his lawyer.
During his subsequent classification interview, which was also before he received Miranda warnings, that he was affiliated with a Sureño gang, specifically VFL, and that he was active in the group.
Contra Costa Superior Court Judge John W. Kennedy ruled that the statements were admissible because the questioning was a necessary part of the booking process, was intended for the safety of the defendant and others, and was not conducted for the purpose of obtaining incriminating information.
The First District Court of Appeal affirmed, holding that Kennedy erred in denying the motion to suppress, but that the error was harmless, the same conclusion Corrigan reached yesterday.
‘Routine Booking Question’
The justice distinguished Pennsylvania v. Muniz (1990) 496 U.S. 582, which recognized a “routine booking question” exception to the Miranda rule and held that biographical data obtained during unMirandized questioning was admissible. While that exception is now “firmly recognized,” Corrigan said, the deputies here exceeded its scope by asking questions that were “reasonably likely to elicit an incriminating response.”
Corrigan went on, however, to conclude that the error was harmless. Three witnesses with personal knowledge of Mota’s VFL affiliation testified to it during the trial, she noted.
To the extent that the witnesses may have been accomplices, she said, the corroboration requirement was met because a police officer testified as a gang expert, opining that Mota was a gang member based on his having worn a blue bandana, identifying himself as a Sureño, during a 2005 robbery, having used a Sureño gang sign following his arrest for that crime, and having been photographed making such signs at the funeral of a fellow VFL member.
The case is People v. Elizalde, 15 S.O.S. 3227.
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