Wednesday, April 22, 2015
C.A. Upholds Conviction in Killing of Alleged Child Molester
Panel Says Involuntary Manslaughter Instruction Not Required in Admitted ‘Out of Control’ Killing
By KENNETH OFGANG, Staff Writer
A judge need not instruct sua sponte on involuntary manslaughter as a lesser included offense of murder, in the absence of substantial evidence the defendant killed without malice, the Court of Appeal for this district ruled yesterday.
Div. Seven affirmed Beatrice Brothers’ conviction and 12-year sentence for voluntary manslaughter in the death of Bobby Ray Gates. Brothers had been originally convicted of first degree murder, but the Court of Appeal reversed in 2011, concluding in an unpublished opinion that a jury instruction, the former CALCRIM No. 400, might have resulted in Brothers being found guilty of first degree premeditated murder based solely on the mental state of her codefendants.
The instruction has since been revised.
Brothers was one of three defendants tried separately in the killing of Gates, whose partially nude body, wrapped in a burning bedspread, a blue tarp and plastic, was found in Sylmar on Dec. 6, 2005. The 44-year-old San Fernando resident was blindfolded and tied, most likely after he was killed, authorities concluded.
He was also brutally beaten and singed with cigarettes, and a suffocated with a cloth, which the coroner was the immediate cause of death.
Charged with Brothers were her boyfriend, Samuel Persons, and his nephew, Christopher Yancy.
Yancy was convicted at his separate trial of second degree murder and sentenced to 16 years to life in prison. Persons was convicted of first degree murder and sentenced, as a second strike offender, to 61 years to life.
Prosecutors said Brothers initiated the beating and torture of Gates, and enlisted the assistance of Yancy and Persons, because she believed he had molested her granddaughter and a boy who lived with her and whom she treated as one of her own family members. Gates was the boyfriend of the boy’s mother, with whom he was living in a converted garage on Brothers’ property.
Brother’s daughter, the mother of the girl who was allegedly molested, testified against her at the first trial. That testimony was read into the record at the second trial after the witness invoked the Fifth Amendment.
Brothers, who did not testify at the first trial, took the stand at the second and admitted that she beat Gates in a rage when he did not deny molesting the children, saying he must have been drunk. After she told Persons and Yancy, whom she said came over to the house for some reason but whom she had not summoned, then tied Gates up and moved him to the garage.
The three of them continued to beat Gates, she said, but she did not burn him with cigarettes, and he was alive when she left the garage to attend to her dog, and never saw him again, she said.
Los Angeles Superior Court Judge Dalila Lyons, who presided at Brothers’ second trial, instructed the jury on murder, first degree murder by torture , first degree felony murder by torture, aiding and abetting, provocation reducing murder to manslaughter, and voluntary manslaughter No instruction on involuntary manslaughter was requested or given.
Presiding Justice Dennis Perluss, writing for the Court of Appeal, said no such instruction was required.
“In contending there was substantial evidence to warrant the instruction, Brothers relies on her testimony that she did not know ‘this was going to happen.’ Brothers did not explain what she meant by that off-handed remark in her testimony; and, assuming Brothers meant she did not intend to kill Gates, intent to kill is an element of express, not implied, malice....Even crediting Brothers’s testimony in its entirety, there was simply no evidence from which a reasonable juror could entertain a reasonable doubt that Brothers had acted in conscious disregard of the risk her conduct posed to Gates’s life. Brothers’s own account unequivocally established she engaged in a deliberate and deadly assault because she had been enraged, ‘out of control,’ and unable to calm herself. She admittedly beat Gates repeatedly on the head and face with the large wooden broom handle with great force….There was no evidence of an accidental killing, gross negligence or Brothers’s own lack of subjective understanding of the risk to Gates’s life that her and her confederates’ conduct posed. On this record, the trial court had no sua sponte duty to instruct the jury on involuntary manslaughter.”
The case is People v. Brothers, 15 S.O.S. 1963.
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