Victim gets the best of his attackers
April 17, 2008
People v. Concha and Hernandez is fun reading. It doesn’t say much for our society, but the point of law is intriguing and at the end the day the good guy wins and the bad guys get their just deserts.
Jimmy Lee Harris, all 6’2″ and 225 lbs of him, was accosted outside his store in LA by four threatening men with shaved heads who were 5’5″ and 5’6″ tall.
“Give up the money or we’re gonna kill you and the smokes.”
Harris sarcastically replied that he did not have any “smokes.” He grabbed two of his attackers, Concha and Hernandez, throwing them backwards, then took off running down Normandie Avenue.
As he zigzagged down Normandie, his four attackers pursued him for over a quarter of a mile. A witness watched and listened to Harris yelling for help, but did nothing. He finished his cigarette and went back inside.
Harris came upon two different couples asking for help. They ran off. He tried to scale a fence, but was too tired. The four pulled him off and began stabbing him in the back with a broken Pacifico bottle and a can opener. They pummeled him with their fists and stabbed him.
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Harris remembered he had a small pocket knife, which he pulled out. He fought back, stabbing “as many of the assailants as I could.”
Seeing an opportunity to escape, he started running but not before punching Concha on the chin. One of the attackers, Sanchez, ran in the other direction holding his side as a result of knife wounds.
Harris ran to several houses asking the residents to call 911. One man came to the door with a gun, telling Harris “to step off the porch.” Others simply closed their doors. Finally, a couple called the police, who responded promptly with paramedics who treated Harris’s wounds, which required 60 stitches.
The incident reminds me of the Kittie Genovese case. In 1964, in Queens New York, Kittie Genovese was stabbed and raped while neighbors stood by quietly, such that not getting involved at a crime scene became known as “the Genovese syndrome. “
Under the so-called felony murder rule, if one of several criminals acting in concert kills someone while committing a felony, for example, one of a gang of bank robbers shoots a teller, the murder is attributed to all of the bank robbers. This is to avoid one of the non-shooting robbers from claiming, “I didn’t know Joey was going to shoot anyone, we were just supposed to rob a bank.”
But the Jimmy Lee Harris case is different because the person that did the killing was the victim not the criminal.
Query: can Concha and Hernandez be convicted of murder of their accomplice, Sanchez, at the hands of the knife-wielding Harris who was fighting in self defense?
The answer is “yes” due to a rule I have never heard of before ” the “provocative act murder.”
“When the defendant or his accomplice intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response, the defendant is guilty of murder.”
Usually the provocative act murder involves a case where the defendant instigates a gun battle, provoking the police to shoot back and someone dies. But provoking a knife fight response falls within the rule.
The trial court and the Court of Appeal ruled that the four attackers provoked Harris’s fighting back, and found Concha and Hernandez guilty of first degree murder of their accomplice Sanchez. Concha will be doing 40 years to life, while Hernandez, based on a prior strike conviction, drew 81 years to life.