Court of Appeal:
Youthful Slayer Did Not Knowingly Waive Miranda Rights
18-Year-Old, Justice Moore Says, Did Not Appreciate His Need for Counsel
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal, in an opinion that was certified for publication on Friday, has reversed a second-degree murder conviction because of the circumstances under which the defendant made an admission to police, including his being cloaked in a paper gown, without socks, after his clothes were taken the day before for a forensic examination.
The defendant, Ismael Avalos, then 18, did not knowingly and intelligently waive his right to counsel, Justice Eileen C. Moore said in an opinion that was filed Nov. 4.
On May 25, 2012, Avalos fired two shots at another youth—as did Avalos’s companion, according to Moore—killing the victim. One shot was to his head.
Picked up by Anaheim Police the following morning, Avalos was questioned for about five hours before declaring: “I wanna talk to a lawyer.”
Homicide detective Julissa Trapp told him:
“I respect your decision that you wanna talk to a lawyer, but if for some reason you want to change your mind and you wanna talk to me, you can, just ask for me. I don’t care if it’s 2:00, 3:00 in the morning I’ll come back. Okay? Because I care about you getting your story the right way out. Okay?”
He spent the night in a holding cell. Avalos, still in the paper gown provided the previous afternoon, asked to speak to the detectives again.
Brought back into the interrogation room, he queried, “Whatever I tell my lawyer, he’s going to tell you the same thing, right?”
Then-Detective Sgt. Daron Wyatt gave a noncommittal response.
He waived his Miranda rights, admitting shooting the victim, but told homicide detective Karen Schroepfer:
“I, I self-defended myself, you know?”
Under these circumstances, Moore wrote, there was not a valid waiver of the Miranda rights. The murder conviction must be reversed, she said, because “Avalos’ statements from the second day’s interview were an important part of the prosecution’s closing argument to the jury” and “the error was not harmless beyond a reasonable doubt.”
In particular Moore faulted Trapp, saying that “rather than scrupulously honoring Avalos’ invocation” of the right to counsel,” she “encouraged Avalos to speak to her further without the presence of an attorney” by expressing a concern for his story coming out “the right way.”
She set forth:
“Avalos’s repeated questions over two days demonstrate he did not have the ‘requisite level of comprehension’ of the role of an attorney sufficient to make a knowing and intelligent waiver of the right to have an attorney present during the questioning….Further, Detective Trapp’s statement to Avalos purporting to ‘care about you getting your story the right way out’—after Avalos said, ‘I wanna talk to a lawyer’—likely further blurred in Avalos’ mind the distinction about the role of an attorney versus that of a police officer.
“In sum, based on Avalos’ age (18), lack of experience with the criminal justice system (a high school student with no evidence of any prior arrests), and all the surrounding circumstances (e.g., Detective Trapp’s statement exhorting Avalos to talk after he had invoked the right to counsel, the cold room, the paper gown, the lack of socks, etc.), we do not find that Avalos made a voluntary, knowing and intelligent waiver of the right to counsel prior to the interview on the second day.”
Retrial Not Barred
The jurist pointed out:
“We note, of course, the prosecution may retry Avalos, because we are not reversing based on insufficient evidence.”
Avalos’s substantive gang conviction was reversed owing to a change in the governing statute while the case was on appeal.
Moore recited that “Avalos and his companion fired two shots each.” The companion was George Galvan.
However, on Oct. 30, 2019, jurors in Orange Superior Court, while convicting Avalos, acquitted Galvan. The prosecution’s theory was that Galvan was a co-conspirator and that he participated as the driver of the get-away car.
Avalos was sentenced on March 13, 2020, by Judge Gregg L. Prickett to 40-years-to-life in prison.
The case is People v. Avalos, G059107.
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