The California Supreme Court in San Francisco today unanimously upheld the triple murder conviction and 100-years-to-life sentence of a man found guilty of three gang-related killings in San Pablo in 2007 and 2008.
Jose Mota-Avendano, 27, a member of a Sureno-affiliated gang called Varrio Frontera Loco, was convicted of the three first-degree murders in Contra Costa County Superior Court in 2010 and sentenced the following year.
Witnesses at the trial said the gunfire slayings were part of a bid by Mota-Avendano and others to enhance the gang’s position by assaulting rival Norteno gang members.
The three victims were each wearing a piece of clothing that was red, the color of the Nortenos. Prosecutors said the first victim, 15-year-old Antonio Centron, may have had a loose gang affiliation while the others did not have gang ties.
Centron was killed on Dec. 22, 2007, as he walked along a San Pablo street with two other teenagers. Mota-Avendano was not alleged to have been present with other Sureno gang members at the murder but was convicted as a co-conspirator.
Luis Perez, 27, was fatally shot as he stood on a street while wearing a red jacket on Feb. 18, 2008. Mota-Avendano was a passenger in a car that carried the shooter and was convicted of murder as an accessory. The shooter, Jorge Camacho, was found guilty of that murder and two others in a separate trial and sentenced to two life terms.
Rico McIntosh, 37, who was wearing a red bandana, was killed on April 26, 2008 by Javier Gomez, who was riding in a car driven by Mota-Avendano. Mota-Avendano was convicted of first-degree murder as an accessory and Gomez, who confessed to the shooting and alleged that Mota-Avendano gave him the gun, was convicted of second-degree murder and sentenced to 40 years in prison.
In his appeal to the state high court, Mota-Avendano argued that the trial judge, John Kennedy, should not have allowed prosecutors to present evidence that while being booked into jail on May 3, 2008, Mota-Avendano told a sheriff’s deputy that he was an active member of the Sureno-affiliated Varrio Frontera Loco.
The deputy was asking about possible gang affiliation for purposes of deciding where to house Mota-Avendano in jail.
Mota-Avendano argued that the use of the deputy’s statement as evidence at his trial violated his constitutional right not to incriminate himself because he was not warned he was entitled to remain silent.
The jury’s conclusion that he was a gang member provided the basis for an additional conviction of participating in a violent criminal gang and gang enhancement findings in the murder convictions.
In today’s opinion by Justice Carol Corrigan, the state high court said that while jail officials are allowed to ask about gang affiliations for administrative purposes, the evidence should not have been allowed at the trial.
“Questions about Mota’s gang affiliation were reasonably likely to elicit an incriminating response potentially exposing Mota to prosecution for the crime of gang participation and to enhanced punishment,” Corrigan wrote for the seven-member court.
But the court said the error did not affect the trial outcome because independent evidence of Mota-Avendano’s gang affiliation was “amply established” by testimony from three fellow gang members or associates and by a San Pablo police officer. Mota-Avendano’s conviction should therefore be upheld, the court said.
“The erroneous admission of his challenged statements was harmless beyond a reasonable doubt,” Corrigan wrote.
The alleged leader of the gang, Gamaliel Elizade, was convicted of the three murders in the same trial and sentenced to 103 years to life. Gomez was also convicted by a separate, second jury in that trial of the second-degree murder of McIntosh.
Elizalde, Gomez and Mota-Avendano all appealed to the state Supreme Court after a state appeals court in San Francisco upheld their convictions in 2013.
The court declined to hear Elizalde’s and Gomez’s appeals, thus leaving those convictions in place. It said that in Mota-Avendano’s case, it would consider only the issues of the whether the deputy’s evidence of gang affiliation was admissible and whether that affected the trial outcome.
Julia Cheever, Bay City News