LAKE COUNTY, Calif. – After an appellate court this week threw out the first-degree murder convictions of two men who killed a 4-year-old boy and wounded five others during a 2011 shooting, Lake County's district attorney said he will not seek a retrial, clearing the way for the men to be resentenced to a lesser murder charge.
On Wednesday, the First District Court of Appeals handed down the decision in the case of Paul Braden and Orlando Lopez, sent to prison in August 2012 for killing Skyler Rapp and injuring his mother, stepfather and three family friends on the night of June 18, 2011, in Clearlake.
In their appellate case, Braden, 25, and Lopez, 28, had challenged their first-degree murder convictions, citing a 2014 California Supreme Court case, People v. Chiu.
That case established that an aider and abettor may not be convicted of first-degree premeditated murder under the doctrine of natural and probable consequences – what a reasonable person would know would be likely to happen unless something unusual intervened – but rather that the prosecution had to show participation that included both knowledge and intent.
The appellate court ultimately agreed, and also threw out two mayhem charges against each of the men – relating to the shootings of Skyler and his mother, Desiree Kirby – that should have been stayed because the defendants, by law, cannot be punished for both attempted murder and mayhem counts from one attack on one victim.
Otherwise, the court upheld the numerous remaining counts against the Braden and Lopez – five counts of attempted murder, six counts of assault with a firearm, a count of discharge of a firearm at an inhabited dwelling, and numerous special allegations relating to the use of a firearm.
The appellate court ruled that once the case returns to Lake County Superior Court, District Attorney Don Anderson would have 60 days – unless there was a waiver granting more time – to retry the two men solely on the premeditation and deliberation elements.
Otherwise, if Anderson takes no action, the appellate court ruled that Braden and Lopez would be resentenced for second-degree murder.
Anderson, who personally prosecuted the two men, told Lake County News on Friday that he does not intend to hold another trial in the case.
“The final result is going to be nothing,” he said.
He added, “I'm not going to put the family or witnesses or anybody through that exercise for what we have to gain.”
Rather, he is willing to accept the resentencing to the lesser charge of second-degree murder.
Anderson explained that the appellate ruling really will have little impact on reducing the lengthy prison sentences Braden and Lopez are serving.
At their August 2012 sentencings, Braden received 312 years to life in prison and Lopez 311 years to life, respectively. Braden had received one year longer than Lopez because he had a prior state prison term on his record.
Anderson said a first-degree murder conviction carries a 25-years-to-life sentence, versus the 15 years to life required under second-degree murder.
The two mayhem charges accounted for 25 years to life plus nine years and 25 years to life plus three years, he said.
Based on Anderson's initial calculations, even with no action on his part to retry them, Braden and Lopez are still facing 243 years to life plus 13 life sentences in prison.
He said he is not sure if the men will have to be sent back to Lake County for resentencing, or if they will need to have new attorneys assigned.
Visiting Yolo County Judge Doris Shockley, who heard the case, will have to return for the new sentencing, Anderson said.
Anderson said he likely will submit a declaration to the court about his plans not to pursue a retrial.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it. . Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.