Thursday, March 20, 2008
C.A. Upholds Robbers’ Murder Convictions in Accomplice’s Death
By KENNETH OFGANG, Staff Writer
Two men whose accomplice was killed by a man they allegedly tried to rob were properly convicted of first degree murder under the “provocative acts” doctrine, the Court of Appeal for this district has ruled.
Div. Five Tuesday affirmed the convictions of Reyas Concha and Julio Hernandez for the murder of Hernandez’s cousin, Max Sanchez, and the attempted murder of Jimmy Lee Harris.
Harris, the owner of a beauty salon at Normandie and Vernon avenues in Los Angeles, said Concha and Hernandez approached him in the parking lot of his shop, demanded money and “smokes,” and threatened to kill him if he didn’t give them any.
Stabbed After Chase
When he ran off, he said, the two were joined by Sanchez and another man, and all four them chased him to a house and grabbed him as he tried to scale a five-foot fence. He was stabbed in the back, he said, before he remembered that he had a knife in his pocket and began stabbing his assailants.
He eventually ran to another house, where the occupants noticed blood all over their porch and cuts all over Harris, and called police. Paramedics took Harris to California Hospital Medical Center, where he received 60 switches.
A number of witnesses apparently observed the chase and heard Harris’ cries for help, but did nothing. Justice Richard Mosk, in a footnote to his opinion for the Court of Appeal, said the facts were reminiscent of those surrounding the death of Kitty Genovese.
Reminiscent of Genovese Case
Genovese was murdered in New York City in 1964 as more than three dozen of her neighbors reportedly heard her scream or saw at least portions of the three separate attacks by Winston Moseley, who was recently turned down for parole for the 13th time.
Sanchez and Concha both showed up at California Hospital Medical Center that night with stab wounds. A police officer who went to Concha’s residence found bloody clothing in the house and in a van, which matched the description given by a witness who saw it near the scene of the assault.
Police interviewed Concha, who acknowledged having fought with a black man, and admitted that he owned the van and had taken Sanchez to the hospital.
Hernandez told police that he went to the hospital with Sanchez after the two of them fought with “some black fool” and that he learned the next day that his cousin had died.
A deputy medical examiner determined the cause of death as stab wounds to the heart and lung.
A Los Angeles Superior Court jury found both defendants guilty of first murder and attempted murder with premeditation, and found that Hernandez used a deadly weapon, but deadlocked as to robbery charges. Hernandez admitted a “strike” prior conviction and was sentenced to 81 years to life in prison by Judge Kathleen Kennedy-Powell, who sentenced Concha to 40 years to life in prison.
Mosk, writing for the Court of Appeal, said the trial judge correctly instructed the jury that the defendants were guilty of first degree murder if their “provocative acts” led to the killing of Sanchez by Harris.
Mosk rejected the argument that jurors might have been misled into believing that the defendants could be convicted on the basis of provocative acts by Sanchez. That was not reasonably possible given the evidence, the jury instructions, and the special verdict forms on which jurors found that the defendant’s actions caused Sanchez’s death, Mosk wrote.
Justice Orville Armstrong concurred, while Presiding Justice Paul A. Turner argued in a partial dissent that the defendants should have been convicted of second degree murder, not first degree. Turner disagreed with his colleagues’ conclusion that the doctrine of transferred intent applied.
The case is People v. Concha, 08 S.O.S. 1576.
Copyright 2008, Metropolitan News Company