Thursday, November 10, 2011
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C.A. Revives Suit Against Deputy Who Shot Fleeing Car Thief
By SHERRI M. OKAMOTO, Staff Writer
The parents of a 25-year old man killed by a Los Angeles sheriff’s deputy as he and his girlfriend were attempting to flee in a stolen truck can pursue a wrongful death claim against the county, the Court of Appeal for this district said yesterday, even though the girlfriend was later convicted of assaulting the officer who fired the fatal shot.
Div. Eight explained that a judgment in favor of the parents of Glenn Patrick Rose would not imply the invalidity of Sarah Morales’ conviction based on the events of May 13, 2008 which resulted in Rose’s death.
The shooting transpired after Rose and Morales allegedly stole a 1991 Honda Accord and led California Highway Patrol officers on a pursuit from the Pomona Freeway and to surface streets in Covina.
After the Honda became disabled, the couple abandoned the car in an alley in the 300 block of 1st Avenue, and took a 1989 burgundy pickup truck that was parked in the same alley.
Sheriff’s Deputy Steven Winter and three other officers stopped their patrol vehicles in the alley and ran to the truck, with Winter approaching the driver’s side, where Rose was seated.
Melee Alleged
While the truck was still parked, Rose allegedly attempted to strike Winter through the driver’s window, and Morales kicked and punched the officers who had approached the passenger side of the truck.
Rose then started the truck and drove it forward, colliding with a CHP patrol car across the alley. Rose put the vehicle in reverse, moving it toward Winter, who was running after the truck, and then hit the patrol car again.
He reversed a second time, in the direction of Winter, who moved out of the truck’s path and to the passenger side of the vehicle. Rose then brought the truck to a momentary stop, at which time Winter drew his gun and shot at Rose. A shot hit Rose in the chest and caused fatal injuries.
Convicted on Seven Counts
Morales was later tried and convicted of two counts of driving a vehicle without the owner’s consent, three counts of assault with a deadly weapon or by force likely to produce great bodily injury or death on a peace officer—including one count based on actions directed at Winter, one count of evading a pursuing officer, and one count of resisting an executive officer.
Writing for the appellate court yesterday, Justice Madeleine Flier noted the prosecution’s theory at trial was not that Morales was the direct perpetrator of the assault on Winter, but that she was guilty as an aider and abettor of Rose.
In 2009, Rose’s parents filed a lawsuit in the U.S. District Court for the Central District of California against Los Angeles county and Winter, asserting violation of 42 U.S.C § 1983 and state law claims for battery and negligence.
Federal Claim Dismissed
The district court found the Sec. 1983 claim was barred by Heck v. Humphrey (1994) 512 U.S. 477 and dismissed it, along with the state law claims which it declined to exercise supplemental jurisdiction over.
In Heck, the United States Supreme Court considered whether a state prisoner could challenge the constitutionality of his conviction in a suit for damages under Sec. 1983, and held such a prisoner could not if a judgment in his favor would necessarily imply the invalidity of his conviction or sentence.
Rose’s parents appealed the dismissal to the Ninth U.S. Circuit Court of Appeals and filed a wrongful death suit in the Los Angeles Superior Court based on their state law claims for battery and negligence.
Los Angeles Superior Court Judge Dan T. Oki sustained the defendants’ demurrer to the complaint and dismissed it, finding the wrongful death claim was barred “because any recovery of damages based on Deputy Winter’s alleged use of unreasonable force would necessarily imply the invalidity of Morales’ criminal conviction for assault with a deadly weapon on a peace officer and resisting a peace officer.”
Flier, in her decision yesterday for the appellate court, disagreed with Oki’s conclusion that the wrongful death suit could be barred by a third party’s underlying conviction.
She said that “[t]he Heck rule came into being because the Supreme Court wanted to prevent defendants’ collateral attacks on their convictions through the means of a civil lawsuit,” which was not the situation being presented to the court.
“Here, it is not the case that Rose was convicted of ADW on Deputy Winter and now seeks to profit from his own bad act by bringing an excessive force lawsuit,” Flier said, and so the bar applicable to claimants seeking “a second bite at the apple” should not be applied to a wrongful death lawsuit when Rose was never convicted of a crime arising from the facts.
The justice suggested that if Rose had survived and been charged with a crime, he could have received a separate trial from Morales and could have been found not guilty. Although this outcome would have been inconsistent with the outcome of Morales’ trial, it would not invalidate her conviction, Flier said.
“Rose is entitled to his day in court, Morales already had hers,” she remarked.
Dale K. Galipo and Melanie T. Partow of the Law Offices of Dale K. Galipo represented Rose’s parents. The county was represented by David D. Lawrence and Jin S. Choi of Lawrence Beach Allen & Choi.
The case is Beets v. County of Los Angeles¸ 11 S.O.S. 6039.
Copyright 2011, Metropolitan News Company