Orange County prosecutors are considering criminal charges against a Los Angeles County sheriff's deputy who was off-duty when he fell asleep at the wheel in November 2022 and killed two Camp Pendleton Marines sitting in a disabled car.
While the crash occurred nearly a year ago, the California Highway Patrol just turned over the accident report to the district attorney's office on Sept. 21, with the recommendation that vehicular manslaughter charges be considered against Deputy Michael John Miscione, 26.
"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," said Kimberly Edds, a spokesperson for the district attorney's office.
The media was not alerted to the deaths of Lance Cpls. James Robert Patton, 20, of Cary, North Carolina, and Samantha Lee Berrios, 20, of Levittown, New York, by the CHP.
"Two Marines die through no fault of their own and there were crickets," complained Patton's father, Michael.
Officials with the CHP station in San Juan Capistrano did not immediately respond to inquiries by the Southern California News Group about why the occupations of the deputy and the victims were not included in the accident report.
The report, obtained by SCNG, said the crash occurred at 3:48 a.m. Nov. 5, 2022, on the southbound 5 Freeway, nearly 1,000 feet south of Crown Valley Parkway, in MIssion Viejo.
Miscione had gotten off work at 3 a.m. and was driving his Chevrolet Colorado truck in the high-occupancy vehicle lane at about 88 mph — more than 30 mph above the construction zone speed limit — at the time of the crash, according to the report.
Miscione told investigators that he fell asleep, unaware that ahead of him was a Honda that became disabled after hitting a median wall. The driver of the Honda, Aden A. Baker, had gotten out of the car and was calling for a tow truck, the report said. The Honda's lights were not on and Baker did not call 911, the report said.
Baker told investigators that Patton and Berrios originally exited the Honda, but got back inside because they were cold, according to the report. He said he warned them that it was dangerous to stay in a vehicle stopped in a traffic lane.
The two Marines were pronounced dead at the scene by paramedics, the report said.
Miscione, who listed the Century sheriff's station in Lynwood as his home address, was treated at Providence Mission Hospital for pain to his arm and head. The report indicated he did not have auto insurance or a home phone.
Responders found Miscione walking in the median after the crash, waiting for CHP officers.
Patton's family has filed a lawsuit against Miscione and is hoping the district attorney files criminal charges.
"If he was so tired, there's other things he could have done," said Michael Patton, who believes Miscione had just worked a double shift. "I think that was a poor choice to get on the road that night."
Miscione could not be reached for comment.
Before James Patton joined the Marine Corps, he was an Eagle Scout who enjoyed camping, hiking and climbing mountains, sometimes with his father.
Michael Patton said James' death has left a gaping hole in the family.
"It's pretty gosh darn devastating," Michael said. "The hardest part of losing him was he was just starting out in the biggest adventure of going from a boy to a grown man."
Samantha Berrios was an air-frame mechanic on Huey and Cobra helicopters, according to her obituary.
She was described as an Explorer who liked to travel, learn about new cultures and dive into the language, cooking and customs of wherever she was at.
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