C.A. Reverses Woman’s Murder Conviction for Aiding and Abetting Brother

Thursday, January 28, 2010

Page 3

C.A. Reverses Woman’s Murder Conviction for Aiding and Abetting Brother

By SHERRI M. OKAMOTO, Staff Writer

This district’s Court of Appeal yesterday reversed the conviction of a local woman accused of aiding and abetting her younger brother in killing the man who had made derogatory comments about her sexual orientation in a liquor store parking lot.

In the published portion of its decision, Div. Three ruled that Los Angeles Superior Court Judge Norm Shapiro had committed prejudicial error in instructing the jury that Lisa Brown was “equally guilty” as the direct perpetrator of the crime, Bennie Nero. The court, however, affirmed Nero’s conviction and sentence.

Nero testified that Brown had served as his legal guardian since their mother passed away when he was 13. He said he and his sister went to the liquor store to buy beer and the victim, Milton Yates, approached Brown, a lesbian, while uttering anti-gay epithets and making crude hand gestures.

Yates also allegedly threatened Nero and challenged him to a fight. Nero accepted, and at some point during the altercation, one of the men produced a knife. Nero eventually obtained control of the weapon and used it to stab Yates four times.

Involvement Denied

The prosecution argued that Brown had given her brother the knife, but Nero denied any involvement on her part. He claimed that he had acted in self-defense and that his sister had implored him to stop the fight.

Shapiro instructed the jury on first- and second-degree murder, voluntary manslaughter, and aiding and abetting under CALJIC Nos. 3.00 and 3.01.

He explained:

“Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include those who directly and actively commit or attempt to commit the acts constituting the crime, or, two, those who aid and abet the commission or attempted commission of a crime.”

After deliberations began, the jury asked if it could find Brown an aider and abetter, but guilty of a lesser homicide-related offense than Nero, and Shapiro responded by re-reading CALJIC 3.00 and 3.01.

The next morning, the jury returned a verdict finding both Nero and Brown guilty of second-degree murder. Shapiro later sentenced each defendant to 15 years to life in prison for the murder, adding a year to Nero’s sentence for using the knife.

Writing for the appellate court, Justice Richard D. Aldrich concluded that Shapiro had misinstructed the jury by reiterating CALJIC 3.00, based on People v. McCoy (2001) 25 Cal.4th 1111.

Although the California Supreme Court did not explicitly say in McCoy whether an aider and abettor may be guilty of lesser homicide-related offenses than the actual perpetrator, Aldrich said the decision “nonetheless suggests it.”

Mental State

Aldrich explained McCoy’s holding—that an aider and abettor may be guilty of greater homicide-related offenses than the perpetrator—was based on the court’s conclusion that an aider and abettor may harbor a greater mental state than that of the direct perpetrator on the premise that one actor’s mens rea may not equal another’s.

“McCoy emphasized, repeatedly, that an aider and abettor’s mens rea is personal, that it may be different than the direct perpetrator’s,” Aldrich said, positing that CALJIC No. 3.00, and CALCRIM No. 400, which both use the “equally guilty” language, therefore “can be misleading.”

“And where, as here, the jury asks the specific question whether an aider and abettor may be guilty of a lesser offense, the proper answer is ‘yes,’ she can be,” Aldrich added.

Jury’s Questions

Based on the jury’s question during deliberations, Aldrich reasoned the jury clearly was considering whether to find Brown guilty of a lesser offense and the trial court’s response improperly foreclosed this option. As a result, Aldrich said, the matter had to be reversed an remanded as to Brown.

In the unpublished portion of his opinion, however, Aldrich concluded that the trial court had not committed prejudicial error by disallowing testimony from a defense video expert as to whether a surveillance video which captured images of the fatal altercation with Yates showed where the knife had come from, since such testimony would be “tantamount to an opinion concerning Brown’s guilt or innocence.”

Presiding Justice Joan D. Klein and Justice Walter Croskey joined Aldrich.

The attorneys on the case, which was People v. Nero, B206799, were Brett Harding Duxbury, by appointment, for Nero; Matthew Alger, by appointment, for Brown; and Deputy Attorneys General Yun K. Lee and Corey J. Robins.