Avila

Gamaliel Avila was charged with attempted murder and related offenses arising from a December 1996 shooting. While in custody following his arraignment, he confessed to an unrelated attack on a rival gang which occurred in November 1996. The prosecution responded by amending the original complaint to include charges from the earlier incident. A jury found Avila guilty of all counts except the attempted murder.

On appeal, Avila asserts his statement regarding the November 1996 assault was taken in violation of his Miranda “right to counsel” and should have been suppressed. Based on the holdings of Miranda and its progeny, the prophylactic “right to counsel” stemming from the Fifth Amendment can be validly invoked by the suspect only when he is both in custody and under either the threat or influence of interrogation. Since Avila’s Miranda rights were invoked long before the custodial interrogation resulting in his statement, his assertion was anticipatory and thus, meaningless.

Additionally, Avila contends a clerical error occurred in the abstract of judgment. As the Attorney General concedes the clerical error, the abstract of judgment must be modified to reflect the…