‘Not above the law’: Families of Marines killed in crash push for prosecution of deputy

It’s been almost a year, and Michael Patton still wants justice. To him, that means seeing criminal charges filed against the driver who killed his son.

The person behind the wheel wasn’t a drunk driver or a texting teen. Records show he was an off-duty Los Angeles County sheriff’s deputy who dozed off on his way home from work, killing two U.S. Marines who were stranded on the freeway in Orange County in a disabled vehicle.

Investigators with the California Highway Patrol have asked that prosecutors consider criminal charges against the deputy, Michael Miscione. The Orange County district attorney’s office confirmed last week that a homicide prosecutor is considering the matter.

“The loss of any life is a tragedy not only for the victims’ family, but for the entire community that loved them,� Kimberly Edds, spokeswoman for the district attorney’s office, wrote in a statement to The Times on Thursday. “One of our veteran homicide prosecutors is carefully reviewing the facts of the case to determine what criminal charges can be proven beyond a reasonable doubt.�

To Michael Patton, that came as a welcome development.

“We are hoping to see that the district attorney does prosecute and that he does end up doing some time,� he told The Times. “The police are not above the law.�

In a statement Monday, the Los Angeles County Sheriff’s Department said it was aware of the “tragic accident� involving an off-duty deputy.

“We will continue to monitor the investigation,� the department said.

Miscione could not be reached for comment.

First reported last week by the Orange County Register, the crash that killed James Patton and Samantha Berrios happened in the early hours of Nov. 5, 2022. It was Patton’s birthday weekend — the lance corporal had just turned 20 — so, according to his father, he decided to celebrate by going to a hip-hop show in Los Angeles with two friends. On the way back to Camp Pendleton, the driver hit a median wall on the southbound 5 Freeway, just south of Crown Valley Parkway in Mission Viejo.

According to a California Highway Patrol report, the Marines’ Honda was too damaged to drive, so Patton and his friends got out to call for a tow truck. The driver — Aden Baker — stayed outside the vehicle, but Patton and fellow Lance Cpl. Samantha Berrios got back in the car because they were cold.

Ten minutes later, the car was still sitting in the high-occupancy lane with the lights off at 3:48 a.m. when records say Miscione plowed into them with his Chevrolet truck.

The 26-year-old deputy had just gotten off work at 3 a.m. and, according to the report, was driving about 90 mph — more than 30 mph over the limit — in a construction zone.

When a Highway Patrol sergeant later asked him what happened, Miscione said: “I fell asleep, I fell asleep.� The last thing he remembered before nodding off, according to the report, was getting on the freeway from State Route 91.

The impact knocked off the bumper and cracked the windshield of Miscione’s truck, but records show it smashed the trunk, shattered the windows, flattened the rear tires and even crushed the hood of the Marines’ Honda.

Afterward, Miscione was taken to Providence Mission Hospital for arm and head pain.

Patton and Berrios both died at the scene.

The wreck came less than a week before they were scheduled to deploy to Japan, Nancy Berrios — Samantha’s mother — told The Times.

On the phone from their home in Florida, Nancy and Miguel Berrios described their daughter as determined and highly motivated. She loved music and played lacrosse in school but didn’t have any particular career path in mind. Then in her mid-teens, she decided that the military was exactly the kind of challenge she was looking for.

“She always said she wanted to rise above and feel like she could make a difference,� Nancy Berrios said. “One day just out of the blue, she said: ‘I’m going to be a Marine.’�

At first, her parents were shocked.

“But she kept going and did what she had to do,� her mother said. “She was a tough cookie.�

Though she didn’t come from a military family, Samantha Berrios joined the Marines in 2021 and hoped to one day become a recruiter. She was excited about the upcoming deployment to Japan and thought the trip to Los Angeles with her fellow Marines would be a happy celebration of her last days in California.

As a boy in Cary, N.C., Patton had always dreamed of joining the Marines, his father said. He came from a long line of Army and Navy veterans, and he took pride in knowing his grandfather had been part of the Normandy invasion during World War II.

After high school, he went to Parris Island, where — because he was an Eagle Scout — he started at the rank of private first class. He advanced to lance corporal and was “well on his way to corporal� before he died, his father said.

“He was very gung-ho on the Marine Corps, and he loved every minute of it,� Michael Patton told The Times.

To Patton, it’s frustrating that the California Highway Patrol did not tell reporters about the Marines’ deaths, and that it took nearly a year to complete the accident report and send it to local prosecutors.

“It’s almost like they were saying our son and the Berrioses’ daughter didn’t matter,� he said.

The local California Highway Patrol office in San Juan Capistrano did not return a call requesting comment. In an email, the district attorney’s office in Orange County confirmed that prosecutors just recently received the case.

The Patton and Berrios families, meanwhile, have filed a lawsuit against the deputy, Los Angeles County and several others. The county deferred to the Sheriff’s Department for comment , and it’s not clear whether any of the parties have formally replied in court yet.

“I know that the deputy didn’t leave his house thinking, ‘I want to kill these Marines,’� Nancy Berrios said.

“It was a mistake — and there are consequences for a mistake,� she continued. “In my heart, I know he didn’t mean to. But these are our children.�