Jim Porter: gang warfare
November 4, 2010
TRUCKEE/TAHOE, Calif. and#8212; On July 1, 2005, Los Angeles police officers observed Rodrigo Perez spray painting graffiti that identified the Eighth Street gang on two walls at Christopher Dena Elementary School. I mean, what is the point?
A gang consultant later testified that the gang commits such crimes as murders, attempted murders, robberies, narcotic sales, drive-by shootings, assaults with deadly weapons, sexual assaults and carjackings. Perez was marking the Eighth Street gangand#8217;s side of Grande Vista Avenue and#8212; to be distinguished from the other side of Grande Vista which and#8220;belongedand#8221; to the Varrio Nueva Estrada gang. VNE commits the same assortment of crimes.
A couple of days later, seven uniformed officers responded to a report of a carjacking at 1:30 a.m. Police officers were standing on the Varrio Nueva Estrada side of Grande Vista with the carjacking suspects and carjacking victim when a shot was fired from the passenger-side window of a car passing 60 feet away.
The recovered bullet, from a .40-caliber semiautomatic Glock handgun, almost severed the middle finger of Officer Rodolfo Fuentes.
Juan Jose Morales testified, in hopes of receiving leniency on another case, that defendant Perez decided to drive by the Varrio Nueva Estrada gang territory, and seeing some gang members on the Eighth Street gang side of the street, he did what came naturally. He shot at the group. When the officers ducked, their badges flashed in the street lights and at that point Perez realized he had just shot at police officers. Oops.
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At his trial, Perez testified on his own behalf, which is unusual. However, he testified as usual. He claimed he ceased his gang activities in 2004. He denied spray painting the nearby elementary school two days before the shooting. He said he was in the car but his friend shot at the Eighth Street gang members, much to his surprise. He denied several post-shooting incriminating conversations with his gang member friends, all of whom testified against him to reduce their own sentences, admitting he had fired the gun. Finally, the vehicle used in the shooting was owned by his girlfriend.
Based upon that overwhelming evidence, a jury convicted Perez of eight counts of premeditated attempted murder (there were seven officers and one civilian), assault with a semiautomatic firearm, seven counts of assault with a semiautomatic firearm on a police officer, and felony vandalism (where the bullet ricocheted), further finding all the crimes were committed for the benefit of a criminal street gang, which brought enhancements. All-in-all, Perez received an aggregate prison term of 40 years to life.
The Court of Appeal upheld the conviction with one justice dissenting, arguing it should be one conviction of premeditated attempted murder of a police officer, not seven. Perezand#8217;s court appointed attorney appealed.
Murder v. attempted murder
The California Supreme Court looked at whether Perez could be convicted of attempted murder of seven officers versus one given the single shot. As they wrote, the mental state required for attempted murder is different than murder. Murder does not require the intent to kill. Implied malice and#8212; a conscious disregard for life and#8212; suffices.
In fact, I remember the law school case of implied malice murder. (I canand#8217;t remember what I had for lunch today but can recall the Banks case like it was yesterday). Banks shot at a moving railcar killing a hobo inside. (Is it politically correct to say hobo?) He was convicted based on implied malice, a conscious disregard for life. No intent to kill is necessary.
However, attempted murder requires specific intent to kill. The prosecution had to prove Perez acted with a specific intent to kill all seven officers, which it could not do.
The Supreme Court overturned the seven counts of attempted murder leaving one count, upholding the other convictions, ensuring Perez will do his well-deserved time.
Be thankful you are not living anywhere near Grande Vista Avenue.
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmand#8217;s website http://www.portersimon.com.