Metropolitan News-Enterprise


Wednesday, January 8, 2003


Page 1


Court of Appeal Overturns Gang-Related Murder Conviction

Presiding Justice Spencer, Writing for Div. One, Says Failure to Instruct on Voluntary Manslaughter Was Reversible Error


By KENNETH OFGANG, Staff Writer/Appellate Courts


A gang member’s first degree murder conviction and life-without-parole sentence were overturned yesterday by this district’s Court of Appeal, which said the trial judge erred in not instructing the jury it could convict the defendant of the lesser offense of voluntary manslaughter.

Div. One, in an unpublished opinion by Presiding Justice Vaino Spencer, ordered a new trial for Carlos Antonio Borja, a member of the notorious 18th Street gang. Borja was convicted of the 1999 killing of Oscar Pacheco and the attempted murder of his passenger, Cesar Garcia.

 The victims were shot while Pacheco’s car was stopped at a street light, not far from a dance club that Borja had visited earlier in the evening.

Testimony suggested that while Pacheco was not a gang member, he was a close friend of Garcia, a member of the Mara Salvatrucha gang, commonly referred to as MS. Borja and a close friend of his were shot, and the friend seriously wounded, by MS members less than 24 hours before Pacheco was shot.

Borja was accompanied that night by a fellow member of 18th Street, Alvaro Valdez. Valdez was also charged with the Pacheco murder but testified against Borja as part of a plea agreement that resulted in his being sentenced to nine years in prison for voluntary manslaughter.

Defendant’s Testimony

Borja admitted the shooting, but said he reacted out of fear and anger over the previous shooting and over an assault upon him by an MS member while he and his girlfriend were at a dance club a short time before he shot Pacheco. He did not shoot, he said, until after Garcia acknowledged that he and Pacheco were the shooters the night before.

The other shooting victim, Douglas Rodriguez, was “like a brother” to him, he explained, and he had spent many of the intervening hours at the hospital where Rodriguez’s life was hanging in the balance. He was not seeking trouble the night Pacheco was shot, did not feel that he was under any obligation to retaliate, and only went to the club because his girlfriend asked him to, he testified.

The prosecution presented evidence that neither Pacheco nor Garcia were responsible for the previous night’s shooting, and that neither of them had done anything to provoke Borja’s shooting of Pacheco.

Los Angeles Police Officer Amir El Farra testified, as a gang expert, that an 18th Street gang member would be expected to retaliate following a shooting by someone associated with a rival gang. Failing to do so, the officer said, would show weakness and appear to loosen the gang’s hold on its territory.

El Farra also testified that retaliation would not be limited to the person responsible for the shooting, but would be against as many rivals as possible. The more rivals killed, the greater the killer’s standing within the gang would be, the officer explained.

The jury found Borja guilty of first-degree murder, with special circumstances of lying in wait and shooting from a motor vehicle, and of the attempted murder of Garcia, with true findings on firearms, great bodily injury, and criminal street gang allegations. Los Angeles Superior Court Judge Bob S. Bowers Jr. sentenced Borja to life without parole, plus 25 years to life under the ‘10-20-Life’ law, for the Pacheco murder; life imprisonment plus 20 years for the attempted murder of Garcia; and a three-year gang enhancement.

Spencer, writing for the Court of Appeal, said that Bowers should have given a voluntary manslaughter instruction because there was evidence from which the jury might have concluded that he lacked the intent to commit murder.

‘Heat of Passion’

Borja’s testimony as to his mental state on the night he shot Pacheco and Garcia, the presiding justice wrote, was “sufficiently substantial to place the jury the question of whether defendant acted from the heat of passion upon adequate provocation.”

The panel, however, struck a blow to Borja’s prospects on retrial by holding that El Farra may repeat his testimony.

Borja’s court-appointed counsel, C. Delaine Renard, argued that El Farra invaded the province of the jury by offering an opinion as to the defendant’s intent. But Spencer reasoned that by testifying that the killing of multiple rivals would enhance a member’s standing within the gang, the officer was providing a motive for Borja’s shooting of both the driver and the passenger, not opining as to intent.

Justices Miriam Vogel and Robert Mallano concurred in Spencer’s opinion.

Deputy Attorney General Robert C. Schneider argued for the prosecution.

The case is People v. Borja, B150182.


Copyright 2003, Metropolitan News Company