A Personal Note from Ninaz Saffari About Our New District Attorney

The morning of November 7, 2020 – the day of this writing – obviously brought historic news for the entire world when CNN formally announced that Joe Biden had won the Presidential election. For myself, however, that same morning brought additional monumental news: the announcement by the Los Angeles Times that George Gascón had handily beaten two-term incumbent Jackie Lacey for the office of District Attorney of the County of Los Angeles.

See: https://www.latimes.com/california/story/2020-11-06/george-gascon-la-district-attorney-race-jackie-lacey-concede.

I couldn’t have been more thrilled. Lacey was your typical hard-on-crime, cops-can-do-no-wrong chief prosecutor who failed to prosecute a single LAPD officer or sheriff’s deputy for on-duty shootings during her eight-year tenure.

In addition, she publicly claimed to support alternatives to incarceration, but privately instructed her supervising assistant DAs to reject the vast majority of diversion requests (including mental health diversion) from public and private defense attorneys alike (not least from myself). Conversely, I had long admired Mr. Gascón as a progressive DA in San Francisco before he ran for office here.

I mention all of this at the outset of this article because one of his campaign promises – which today he confirmed he would immediately follow up on when he takes office on December 7th – was that he would order his prosecutors to no longer seek the death penalty in capital murder cases (i.e., murders involving allegations of special circumstances). He even promised to push to have re-sentenced to life without parole all those previously convicted of capital murder in LA County who had received a death sentence.

The first call I made after reading the article was to the mother of one of my first-degree murder clients – a twenty-one-year-old man facing two counts of capital murder (and a single count of premeditated attempted murder). When I relayed the news to his mother about Mr. Gascón’s election, and about the fact that the death penalty would no longer be a possibility, she burst out sobbing. (I’ll be telling my client this wonderful news in person next week when I visit him in jail.)

I was particularly elated because it appears my client is innocent of all of these crimes, and had nothing whatsoever to do with the three shootings (which all occurred in one incident).

This news, coupled with the new felony-murder law (see below), as well as Governor Gavin Newsome’s truly reformist approach to the state’s criminal laws, has convinced me that criminal justice reform has finally come to the (draconian) Three-Strikes-Law state. It’s about time.

Introduction

A capital murder crime includes any first-degree murder that is so heinous that it automatically merits, at best, life without potential parole (“LWOPP”) or, at worst, the death penalty. These types of homicide crimes require that the prosecutor prove that the killing involves certain “special circumstances” that trigger a capital-murder distinction.

For example, if you wait to ambush your victim, or if you “whack” a fellow mobster on orders from your boss in consideration for taking over the victim’s loansharking rackets, then you’ll be tried for murder with special circumstances. Indeed, any time you kill someone for financial reasons, you can expect to be tried for capital murder in this state.

Similarly, murdering someone in a particularly cruel and inhumane manner – such as mutilating him or her, or using a bomb – will also potentially get you a death-penalty sentence. Recent additions to the special-circumstances category have included hate crimes.

Another type of potential capital-murder crime is commonly known as felony-murder, which entails the killing of the victim during the commission of an inherently dangerous felony.

Although your prosecutor has the authority to charge you with “simple” first-degree murder as opposed to capital murder, he or she will virtually always charge you with special circumstances whenever possible. Doing so puts enormous pressure on you to accept a guilty or no-contest plea to the former, which “only” comes with a sentence of twenty-five years to life but with potential parole (see below).

The Evolution of California’s Death Penalty Law

In 1778, the state enacted its first death penalty law. Over the next two centuries, California executed 709 individuals for a variety of crimes, though typically for murder.

In 1972, however, the California Supreme Court held that the death penalty was unconstitutional in the case People v. Anderson (1972) 6 Cal.3d 628. See: https://caselaw.findlaw.com/ca-supreme-court/1465208.html.

But only a few months later, during that year’s statewide elections, California voters reinstated the death penalty by approving Proposition 17. See: https://ballotpedia.org/California_Proposition_17,_Death_Penalty_in_the_California_Constitution_(1972). Thirteen additional people have been executed since then, bringing the total count to 722 executions.

On January 17, 2006, Clarence Allen (age seventy-six) was the last person to be executed in the state, dying by lethal injection in San Quentin’s “death chamber”. He had been convicted of three counts of murder with special circumstances, including hiring a hitman and killing a witness in retaliation. He had spent twenty-two years on San Quentin’s so-called “Death Row”. As the oldest prisoner every executed in the state, he was wheelchair-bound, legally blind, and suffering from diabetes.

See: https://www.sacbee.com/news/politics-government/capitol-alert/article227491659.html.

One month later, a California federal judge ruled that lethally injecting a Death Row inmate was a violation of the U.S. Constitution’s prohibition against cruel and unusual punishment.

In November 2016, voters here narrowly defeated Prop. 62, a ballot measure intended to officially ban the death penalty in the state. This was the second time in four years that such a proposition had been (narrowly) defeated.

See: https://www.nytimes.com/elections/2016/results/california-ballot-measure-62-repeal-death-penalty.

On March 11, 2019, Governor Newsom signed an executive order banning – at least while he remained in office – the use of the death penalty in California. At that time, there were almost 740 men on Death Row. Therefore, until and unless we get another Republican governor, it is unlikely any of these condemned inmates will actually be executed.

Governor Newsom cited the following reasons for his decision:

  1. the death penalty has historically not deterred murders and, therefore, has provided no improvement of public safety;

  2. billions of tax dollars have been wasted as a result;

  3. there have been far too many instances where innocent men have been executed;

  4. death-penalty convictions have proven to often result from “human error”; and

  5. it is disproportionately applied to people of color and the mentally disabled.

See: https://www.npr.org/2019/03/12/702873258/gov-gavin-newsom-suspends-death-penalty-in-california.

California Statutes Regarding Homicide Crimes – Murder with Special Circumstances

First-Degree Murder in General – California Penal Code sections 187(a) & 188

Capital murder is a special subset of first-degree murder so it’s important to familiarize yourself with the statutes that cover the latter crime. These two statutes – Pen. Code sections 187(a) & 188 – define murder in general terms as containing the following elements (each of which the prosecutor must prove beyond a reasonable doubt):

  1. the unlawful/killing;

  2. of a human being (which can include an unborn baby); and

  3. with “malice aforethought” (i.e., you acted with premeditation and deliberation, and specifically intended to kill the victim or someone else, but ended up killing the victim instead, or you acted with deliberate disregard for the victim’s life).

See: https://codes.findlaw.com/ca/penal-code/pen-sect-187.html. See also: https://codes.findlaw.com/ca/penal-code/pen-sect-188.html.

Capital Murder – California Penal Code section 189(a)

The first of several statutes which comprise California’s capital murder law covers any situation where you committed first-degree murder but in a way that included at least one of the following special circumstances:

  1. killing with a bomb;

  2. knowingly using special bullets that can penetrate body armor;

  3. killing with poison;

  4. lying in wait;

  5. torturing or mutilating the person to death;

  6. killing someone for the benefit of a criminal street gang (see also California Penal Code section 186.22 at: https://codes.findlaw.com/ca/penal-code/pen-sect-186-22.html);

  7. the killing occurred during the commission or attempted commission one of the following criminal offenses:

    1. arson;

    2. rape

    3. carjacking;

    4. robbery/burglary/home invasion;

    5. kidnapping the victim; or

    6. while discharging a firearm from a moving vehicle.

See: https://codes.findlaw.com/ca/penal-code/pen-sect-189.html.

California Penal Code section 190

The legal threshold for obtaining a first-degree murder conviction – which in this instance would be a capital crime – is lowered when it comes to the killing of a police officer. So long as you knew or reasonably should have known the victim was such and acting in that capacity at the time, then you can be convicted.

See: https://codes.findlaw.com/ca/penal-code/pen-sect-189-1.html.

Capital Murder – California Penal Code section 190.2

California’s murder-with-special-circumstances law is further set forth in Penal Code section 190.2. Some of these special circumstances identified therein include the following (this statute identifies a total of twenty different circumstances):

  1. you murdered or had someone murdered for any type of financial benefit;

  2. this would be at least your second conviction for either degree of murder;

  3. you murdered or had murdered two or more people in the same incident or series of incidents;

  4. you killed someone or had someone killed with any type of incendiary or explosive device;

  5. you killed someone while evading police apprehension, or as you were trying to flee prison or jail;

  6. you murdered any type of law enforcement officer, agent, or official (including a judge or magistrate) while he or she was acting in that capacity and you were aware (or should have been aware) he or she was acting as such;

  7. you murdered or had murdered a witness or victim to another crime (though not one you necessarily committed) to preclude a police report or court testimony. Or you did the same in retaliation for the witness or victim having done so; or

  8. you ambushed the victim.

See: https://codes.findlaw.com/ca/penal-code/pen-sect-190-2.html. See also California Penal Code section 190.25 at: https://codes.findlaw.com/ca/penal-code/pen-sect-190-25.html.

As stated above, punishments are either LWOPP or the death penalty.

Felony-Murder – California Penal Code sections 189 & 190.2

As with capital murder, felony-murder is a special kind of first-degree murder charge which can also overlap with special-circumstances murder in the sense that both cover certain shared murder scenarios as well as in regard to potential LWOOP and death sentences.

First-degree felony-murder has always included any situation where you personally killed someone during the commission of an intrinsically hazardous felony (identified in the felony-murder statute). See Penal Code section 189(a).

In addition, on January 1, 2019, the state’s new felony-murder law was enacted, which limited accomplice liability for first-degree murder crimes to the following circumstances:

  1. you actively participated in that felony, and although you didn’t personally kill anyone, you intended to do so; or

  2. you actively participated in that felony, and although you didn’t intend to kill anyone, you acted with wanton recklessness towards human life; or

  3. you actively participated in that felony, and although you didn’t intend to kill anyone or act with wanton recklessness towards human life, a police officer was killed during the commission or attempted commission of that felony.

See: https://www.latimes.com/politics/la-pol-ca-felony-murder-signed-jerry-brown-20180930-story.html.

Once again, even if you aren’t the actual killer, so long as you actively participated in the underlying inherently-dangerous felony and acted recklessly – i.e., in such a way that resulted in the victim’s death – you can still be convicted of first-degree murder under this statute. Pen. Code § 189(e)(3).

Unlike capital murder, which carries a mandatory LWOPP term or the death penalty, a felony-murder charge can also result in a twenty-five-to-life sentence or life with potential parole.

Defenses to Homicide Crimes – Murder with Special Circumstances

In addition to all of the underlying defenses which are applicable to first-degree murder charges, the following also particularly apply to capital murder charges. In other words, if you have a successful defense to the underlying murder charge, then you obviously cannot be convicted of a special circumstances murder.

Conversely, however, if the jury does find you guilty of first-degree murder, the jurors will then have to determine whether any special circumstances apply. Accordingly, that’s when the following defenses come into play:

If you’re alleged to have personally killed the victim(s):

  1. you didn’t intend to hurt, much less kill, anyone or lay in wait;

  2. you didn’t know your actions could cause death (nor should you have reasonably known);

  3. the underlying felony was not inherently dangerous or one of the 20 special circumstances set forth in Pen. Code § 190.2);

  4. you weren’t acting for financial gain (i.e., you never expected to profit from the victim’s death so if you did ultimately profit, it wasn’t your motivation);

  5. this is your first murder conviction;

  6. there was not more than one victim in this instance;

  7. you didn’t use any type of destructive instrument;

  8. you weren’t trying to prevent your arrest or complete your escape from lawful custody;

  9. the victim wasn’t a person covered by the hate-crime statute, or a police officer, politician, judge, rival gang member, or kidnap victim.

These defenses, as well as many other applicable murder-with-special-circumstances defenses, will be provided to jurors as part of the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”). Specifically, they are contained in the following CALCRIM sections:

– CALCRIM number 700 (“Special Circumstances: Introduction”) at: https://www.justia.com/criminal/docs/calcrim/500/700/;

– CALCRIM number 720 (“Special Circumstances: Financial Gain”) at: https://www.justia.com/criminal/docs/calcrim/500/720/;

– CALCRIM number 721 (“Special Circumstances: Multiple Murder Convictions (Same Case)”) at: https://www.justia.com/criminal/docs/calcrim/500/721/;

– CALCRIM number 722 (“Special Circumstances: By Means of Destructive Device”) at: https://www.justia.com/criminal/docs/calcrim/500/722/;

– CALCRIM number 723 (“Special Circumstances: Murder to Prevent Arrest or Complete Escape”) at: https://www.justia.com/criminal/docs/calcrim/500/723/;

– CALCRIM number 724 (“Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter”) at: https://www.justia.com/criminal/docs/calcrim/500/724/;

– CALCRIM number 725 (“Special Circumstances: Murder of Witness”) at: https://www.justia.com/criminal/docs/calcrim/500/725/;

– CALCRIM number 726 (“Special Circumstances: Murder of Judge, Prosecutor, Government Official, or Juror”) at: https://www.justia.com/criminal/docs/calcrim/500/726/;

– CALCRIM number 728 (“Special Circumstances: Lying in Wait—After March 7, 2000”) at: https://www.justia.com/criminal/docs/calcrim/500/728/;

– CALCRIM number 729 (“Special Circumstances: Murder Because of Race, Religion, or Nationality”) at: https://www.justia.com/criminal/docs/calcrim/500/729/;

– CALCRIM number 730 (“Special Circumstances: Murder in Commission of Felony”) at: https://www.justia.com/criminal/docs/calcrim/500/730/;

– CALCRIM number 731 ({Special Circumstances: Murder in Commission of Felony—Kidnapping With Intent to Kill After March 8, 2000”) at: https://www.justia.com/criminal/docs/calcrim/500/731/;

– CALCRIM number 733 (“Special Circumstances: Murder With Torture”) at: https://www.justia.com/criminal/docs/calcrim/500/733/;

– CALCRIM number 734 (“Special Circumstances: Murder by Poison”) at: https://www.justia.com/criminal/docs/calcrim/500/734/;

– CALCRIM number 735 (“Special Circumstances: Discharge From Vehicle”) at: https://www.justia.com/criminal/docs/calcrim/500/735/;

– CALCRIM number 736 (“Special Circumstances: Killing by Street Gang Member”) at: https://www.justia.com/criminal/docs/calcrim/500/736/.

The specific applicable statutes referenced in these CALCRIM sections are as follows:

Pen. Code § 190.2; Pen. Code § 190.2(a)(1); Pen. Code § 190.2(a)(3); Pen. Code § 190.2(a)(4)&(6); Pen. Code § 190.2(a)(5); Pen. Code § 190.2(a)(7)-(13); and Pen. Code § 190.2(a)(15)-(22).

If you’re alleged to have aided and abetted the special-circumstances murderer:

  1. you didn’t intend to hurt, much less kill, anyone;

  2. you weren’t a major participant in the underlying felony;

  3. at no time did you act with reckless indifference to the victim’s life; and/or

  4. your participation only occurred after the underlying felony.

– CALCRIM number 702 (“Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder”) at: https://www.justia.com/criminal/docs/calcrim/500/702/;

– CALCRIM number 703 (“Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder”) at: https://www.justia.com/criminal/docs/calcrim/500/703/.

The specific applicable statutes referenced in these CALCRIM sections are as follows: Pen. Code § 190.2(c)&(d).

Examples of Homicide Crimes – Cases Involving Murders with Special Circumstances

Eight alleged gang members arrested for first-degree murder after firing into Long Beach party

Two days before Halloween 2019, Long Beach PD alleged that eight gang members drove in three vehicles to a costume party taking place in the backyard of a Long Beach residence.

The vehicles allegedly parked in an alley behind the residence, before three of the suspects crept up behind the house, took up firing positions over the backyard fence, and unleashed a fusillade of bullets that left three people dead and nine people wounded. The decedents were identified as Maurice Poe (twenty-five), Melvin Williams (thirty-five), and Ricardo Torres (twenty-eight).

According to authorities, this was supposed to be an attack on a rival gang, but none of the party guests were involved in any such criminal group. It’s unclear what led police to the suspects, or why it took so long to execute search and arrest warrants, but more than ten months later – between September 2 and 5, 2020 – thirteen suspects were arrested in various cities in and around Long Beach, while two more were arrested while already in custody on unrelated charges.

Specifically, the following men (those alleged to have been in the three vehicles) were charged with first-degree special-circumstances murder for lying in wait, multiple murders, and murder committed for the benefit of a criminal street gang:

David Long (twenty), Ryan Sim (eighteen), Josh Sam (forty-one), Dan Sourn (twenty-six), and Jeremy Penh (twenty-five) – all Long Beach residents; Kaylin Thik (twenty-one) of Ontario; Grant Johnson (thirty-five) of Orange; and Chris Williams (twenty-eight) of Redlands.

At the time of their arrests, Sourn and Penh were both reportedly in jail awaiting trial on another murder charge (from 2018) and attempted murder charge (earlier that same year), respectively. All eight murder suspects are now facing LWOPP. Had Jackie Lackey been elected to a third term as DA, however, they could have been looking at a death sentence if convicted.

See: https://www.foxla.com/news/12-arrested-in-long-beach-halloween-party-shooting-that-left-3-dead-9-wounded.

Two fellow basketball players are sentenced to life without parole in murder-for-hire scheme

In the late summer of 2001, Angeleno Derek Smyer (twenty-one at the time) got into a heated argument with his romantic partner Crystal Taylor (twenty-seven) after he learned she was pregnant with his baby, which she was determined to have.

As a result, to kill Taylor, Smyer hired a transplanted East Coast gang member named Skyler Moore (twenty), whom he had met while playing pick-up basketball in Redondo Beach. On or about September 25th, Moore shot Taylor to death outside of her Hawthorne residence. She was more than five months’ pregnant.

It would take almost sixteen years for Smyer to be convicted by a jury of first-degree murder with special circumstances (hiring a hitman and multiple murders), following a trial which ended on or about May 7, 2017.

Shortly thereafter, Moore was convicted in a separate trial of similar special circumstances (murder for financial gain and laying in wait). In addition, Smyer was convicted of soliciting murder; Moore was convicted of murder in the 2nd degree (for the unborn baby); and both were convicted of conspiracy of murder.

See: https://da.lacounty.gov/sites/default/files/press/050817_Two_Men_Found_Guilty_in_2001_Murder_for_Hire_of_Pregnant_Woman.pdf.

After both men were sentenced to life without parole, they appealed their convictions on the ground that authorities had unlawfully elicited Moore’s confession with the promise of better treatment and conditions as he was then currently in the solitary confinement wing of another prison for an unrelated murder. But in early April 2019, the Court of Appeal for the Second District (which covers LA County) ruled against them, upholding the convictions.

See: https://www.nbclosangeles.com/news/convictions-killing-pregnant-woman-hawthrone/163526/.

The Los Angeles Criminal Defense Attorney Law Firm (LADALF)

The following are the three first-degree murder cases LADALF is currently handling:

Los Angeles Times: Homicide Report – Our Client was Later Charged for First-Degree Murder of This Alleged Victim

July 3, 2020

https://homicide.latimes.com/post/ian-brown/

Daily Breeze: Our Client was Later Charged with Two Counts of Capital Murder and One Count of Premeditated and Deliberate Attempted Murder

September 19, 2019

https://www.dailybreeze.com/2019/09/19/man-girl-killed-in-wilmington-shooting-identified-as-police-continue-search-for-suspect/

CBS News Los Angeles: Our Client was Charged with Once Count of First-Degree Murder of a Woman and Once County of Attempted Murder of Her Husband

January 13, 2017

https://losangeles.cbslocal.com/2017/01/13/man-charged-with-killing-woman-who-was-holding-toddler-shooting-her-husband-in-long-beach/