LAKE COUNTY, Calif. – An appellate court has overturned the first-degree murder convictions of two men sent to state prison for a 2011 Clearlake shooting that killed a 4-year-old child and injured five others.
In a 57-page unpublished decision filed Wednesday, the First District Court of Appeal ordered that Paul Braden and Orlando Lopez should either be retried on the first-degree murder charge or else have their convictions reduced to second-degree murder.
Sentences for the men on two counts of mayhem also were stayed, but the sentences they received in August 2012 for additional charges – including five counts of attempted murder, six counts of assault with a firearm, a count of discharge of a firearm at an inhabited dwelling, and the findings that numerous special allegations about use of a firearm were true – were upheld.
Braden and Lopez were convicted for carrying out a shooting in Clearlake on the night of June 18, 2011, in retaliation for a fight at a Lower Lake graduation ceremony eight days earlier.
The two men were accused of shooting into a crowd of family and friends at a barbecue at the Lakeshore Drive apartment of Desiree Kirby and her boyfriend, Ross Sparks, and their children, Skyler and Eden.
The shooting killed 4-year-old Skyler, wounded Kirby and Ross Sparks, as well as his brother, Andrew Sparks, and friends Ian Griffith and Joey Armijo.
Braden and Lopez were tried together in a lengthy and complex proceeding that included two separate juries and a visiting judge, Doris Shockley of Yolo County.
In August 2012, Braden and Lopez received sentences of 312 and 311 years, respectively.
At Braden's sentencing, Shockley called him “cold and calculating.”
Basis for reversing convictions
Lopez and Braden argued in their filings that their convictions for first-degree murder must be reversed “because the trial court’s instructions allowed the jurors to convict based on a theory that the premeditated murder was a natural and probable consequence of each appellant’s aiding and abetting of an assault with a firearm,” which is contrary to the California Supreme Court’s 2014 decision People v. Chiu.
In the Chiu case, the state Supreme Court found that an aider and abettor may not be convicted of first-degree premeditated murder under the doctrine of natural and probable consequences, described as those that a reasonable person would know are likely to happen if nothing usual were to intervene.
Rather, the appellate court decision explained that the Supreme Court said that aiders and abettors may still be convicted of first-degree premeditated murder based on direct aiding and abetting principals, with the prosecution required to show a defendant “aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.”
While the state argued that the juries believed that each of the men was a direct perpetrator, not an aider and abettor, the court didn't agree.
“Indeed, the absence of direct evidence regarding who shot Skyler Rapp makes it likely the juries convicted Lopez and Braden on an aiding and abetting theory rather than as direct perpetrators. Although there was certainly sufficient evidence to convict both defendants on a direct aiding and abetting theory, the record provides no basis from which we may conclude beyond a reasonable doubt that the jury did not rely on the impermissible natural and probable consequences theory,” the decision stated.
As for the stays on the two mayhem counts, the court said the defendants cannot be punished for both attempted murder and mayhem counts from one attack on one victim, and that the lesser charge of mayhem should have been stayed.
One portion of the jury instructions that was challenged but upheld in this case – although it's been the basis for successful appellate actions in other cases – regarded the trial court's “kill zone” instruction, which stated, “A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or ‘kill zone.’” Overall, the appellate court found that jury instruction “more nonsensical than misleading.”
In analyzing other failures in the prosecution alleged by Braden and Lopez, the court generally found they were harmless or otherwise didn't have the argued impact on the juries' decisions.
Among those other issues, the court did not find it was prejudicial to Braden to have his trial combined with that of Lopez, and that the trial court did not err in denying his motion for mistrial due to a witness' testimony about a statement Lopez had made incriminating Braden.
In the case of that testimony, it was stricken from the record and the jury instructed to disregard it, which the appellate court found was not an abuse of the trial court's discretion.
The appellate court also found the firearm use enhancements applied to Braden were supported by sufficient evidence, and that Lopez's convictions were supported by substantial evidence.
The Wednesday filing also noted that Lopez filed a petition for writ of habeas corpus, which the court had denied – with a dissent – in a separate order.
Once the case is transferred back to the local courts, the District Attorney's Office will have 60 days – unless that time is waived by the defendants – to bring Braden and Lopez to trial solely on the premeditation and deliberation element, according to the ruling.
If no new trial is held, the trial court shall proceed as if the appellate court's ruling “constituted a modification of the judgment to reflect a conviction of second degree murder and shall resentence appellants Lopez and Braden accordingly.”
District Attorney Don Anderson, who personally prosecuted the case, had only received the ruling Wednesday afternoon so has not yet had a chance to fully analyze the document and conclude on a course of action.
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Appellate court overturns first-degree murder convictions of men in 2011 shooting that killed child
- Elizabeth Larson
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