THE PEOPLE, Plaintiff and Respondent, v. ISMAEL AVALOS, Defendant and Appellant. (Cal. Ct. App., Nov. 4, 2022, No. G059107) 2022 WL 17401172
Summary: Avalos, an 18-year-old high school student, was arrested on a murder charge and questioned him in an interrogation room at a police station. During the interview, a forensic technician removed his shirt, pants, socks, and shoes. The technician gave him a paper gown to wear. After about five hours of questioning by police, Avalos said, “I wanna talk to a lawyer.” After further dialog, a detective said, “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?”
Avalos spent the night in a holding cell and then one of the jailers he wanted to speak to the detectives again. Avalos was brought back to the same interrogation room for a second interview, wearing the same paper gown from the day before. Avalos asked, “You guys don’t have any socks do you?” An officer asked him if he was cold, Avalos said that it had been colder where he was being held. Avalos asked, “Whatever I tell my lawyer, he’s going to tell you the same thing, right?” Avalos waived Miranda rights, and admitted shooting the murder victim, stating: “I, I self-defended myself, you know?”
Avalos was convicted of murder with a firearm enhancement and a gang crime. On appeal, Avalos contends the trial court erred by admitting the second interview into evidence over his objection. Avalos also argues that due to a recent change in the law, his substantive gang conviction must be reversed.
The Court of Appeal held that given Avalos’s state of mind and the surrounding circumstances Avalos did not make a voluntary, knowing, and intelligent Miranda waiver prior to the second interview. Also, given the detective’s statement encouraging Avalos to speak to her because she cared about him getting his “story the right way out”—after he had invoked the right to counsel—it appears the detective, rather than Avalos, initiated the second interview. (See Edwards, supra, 451 U.S. at pp. 484-485) [after invoking the right to counsel, police cannot question the suspect any further “unless the accused himself initiates further communication, exchanges, or conversations with the police”].) The Court of Appeal found the admission of the interview into evidence was not harmless beyond a reasonable doubt.
The Edwards Rule
Under the long standing Edwards rule: “If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a [Miranda] waiver and his statements would be considered voluntary under traditional standards.” (McNeil v. Wisconsin, supra, 501 U.S. at pp. 176-177.)
The fundamental purpose of the Edwards rule “ ‘is to “[p]reserv[e] the integrity of an accused’s choice to communicate with police only through counsel,” by “prevent[ing] police from badgering a defendant into waiving his previously asserted Miranda rights.’These benefits are typically realized in ‘the paradigm Edwards case. That is a case in which the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated. After the initial interrogation, and up to and including the second one, he remains cut off from his normal life and companions, “thrust into” and isolated in an “unfamiliar,” “police-dominated atmosphere,” where his captors “appear to control [his] fate.” ’ ” (People v. Molano (2019) 7 Cal.5th 620, 655.)
After invoking the right to counsel during questioning, a suspect may later change his mind, but the police cannot prompt or encourage a suspect to change his mind.
Avalon’s invoked his right to counsel after about five hours of questioning by saying, “I wanna talk to a lawyer.” Detective Trapp acknowledged Avalos had invoked his right to counsel by stating: “I respect your decision that you wanna talk to a lawyer.” Under Miranda and its progeny, all questioning should have stopped until Avalos was provided an attorney. An exception exists if Avalos himself changed his mind and initiated further “conversations … with the police.” (See Edwards, supra, 451 U.S. at pp. 484-485; see also Maryland v. Shatzer (2010) 559 U.S. 98 [Edwards rule applies for 14 days if there is no break in custody].)
Detective Trapp encouraged Avalos to speak to her further without the presence of an attorney by saying, “but if for some reason you 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?”
Detective Trapp’s statement had no conceivable purpose other than to encourage Avalos to continue to talk to her (without the presence of counsel). Once Avalos invoked the right to counsel, everything changed. From that point forward, Trapp was required to scrupulously honor Avalos’ invocation of his right to counsel, and she was prohibited from encouraging Avalos to speak to her any further.
Avalos’ statements from the second day’s interview were an important part of the prosecution’s closing argument to the jury; therefore, the prosecution has not proven beyond a reasonable doubt that Avalos’ statements during the second interview “ ‘did not contribute to the verdict obtained.’
1) the trial court erred by admitting the second interview of Avalos; and 2) the error was not harmless beyond a reasonable doubt. 75.)
Street Terrorism Conviction
Avalos challenged his criminal street gang (street terrorism) conviction. (See Pen. Code, § 186.22, subd. (a).) Statutory changes instituted by Assembly Bill No. 333 became effective while his appeal was pending. The Attorney General conceded the street terrorism conviction must be reversed. The Court agreed.
“A person who actively participates in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail … or by imprisonment in the state prison ….” (§ 186.22, subd. (a).)
Under the street terrorism statute, a “ ‘pattern of criminal gang activity’ ” is ordinarily established by the prosecution proving up certain enumerated offenses committed by a gang’s members, also known as predicate offenses. Among other changes, AB 333 reduced the number of predicate offenses to those that benefit the gang and that are “more than reputational.” (§ 186.22, subd. (e).) Absent a contrary intent, legislative changes that reduce punishment—or reduce the possibility of punishment—apply retroactively to cases on appeal. (In re Estrada (1965) 63 Cal.2d. 740, 744-746; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.)
Here, Avalos was alleged to have been a member of the ATC criminal street gang. The prosecution established the “ ‘pattern of criminal gang activity’ ” by proving up the gang’s predicate crimes of felony vandalism and unlawful possession of a firearm. However, with the recent statutory changes, felony vandalism no longer qualifies as a predicate offense. (See § 186.22, subd. (e)(1).)
Because the statutory change applies retroactively, the Court reversed Avalos’ street terrorism conviction. (§ 186.22, subd. (a).)
The Court of Appeal reversed Avalos’ murder and substantive gang convictions and remanded the matter consistent with the holdings in this opinion.
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