Metropolitan News-Enterprise


Tuesday, March 17, 2015


Page 1


C.A. Rejects Challenges to Life Terms for Teenage Killers


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday affirmed the imposition of life sentences on three defendants convicted of a San Diego County murder they committed before turning 18.

Justice Joan Irion, in her opinion for Div. One, rejected federal constitutional challenges to Rashon Abernathy’s 50-year-to-life sentence, and Sendell Jones’ and Shaquille Jordan’s 25-year-to-life sentences, for the killing of 18-year-old Garrett Berki. The sentences imposed by San Diego Superior Court Judge Kerry Wells do not violate recent U.S. Supreme Court decisions limiting the extent to which life-without-parole, or functionally similar, sentences may be imposed on juveniles, the jurist said.

Berki was killed after answering a Craigslist ad offering a laptop computer for sale. Jurors found that Abernathy fired the fatal shot, but that all three defendants participated in the robbery.

Abernathy’s sentence was the minimum that could be imposed under the 10-20-Life Law. He could have received an 83-year-to-life sentence for the murder and other crimes, including the robbery of Berki’s girlfriend, which would have been cruel and unusual, Wells said, according to news accounts of the sentencing.

The judge, however, applied the criteria of Miller v. Alabama [2012] 132 S.Ct. 2455.

That ruling struck down a statute mandating a life sentence without possibility of parole for juveniles convicted of the highest degree of murder. But it held that such a sentence may be imposed after a weighing of aggravating and mitigating factors.

Ali Faudoa, Berki’s girlfriend, testified that they went to a location in the Paradise Hills area to buy a MacBook Pro computer advertised on Craigslist for $600. The defendants grabbed the money and the victims’ cellphones and got into a stolen car.

Faudoa said she and Berki were going to report the theft to police when Berki spotted the defendants’ car and gave chase. The cars exited the freeway several miles away and ended up front-to-front in a cul-de-sac.

Abernathy, according to the testimony, fired one shot through the windshield of the victims’ car, striking Berki in the shoulder. Berki died about 45 minutes later.

Jordan drove off but crashed the car nearby and the defendants ran off, but were arrested a short time later.

The jury also found Abernathy guilty of robbery for stealing $600 from a Navy man who responded to a Craigslist ad to buy a similar computer a few days before the fatal robbery.

In rejecting Abernathy’s claims under Miller, Wells noted that the crime was one of “pure greed.” She cited the earlier robbery and the sophisticated nature of the robbery scheme.

Irion, writing for the Court of Appeal, noted that the issue of whether Miller applies to a “de facto” LWOP sentence like Abernathy’s is presently before the Supreme Court. But assuming that it is, she said, the sentence was still valid.

“In light of the fact that the trial court undertook a substantive and meaningful analysis of whether, in light of Abernathy’s age at the time of the murder and other related factors, it should impose a sentence less than 50 years to life, we conclude that the trial court fully complied with the requirements of Miller.”

As to the other defendants, Irion questioned whether their sentences, which may allow them to leave prison in their early 40s, can be considered to a life-without-parole sentence. She also noted that there were considerable aggravating circumstances as to them, because even though they were no-shooters, they were in on the planning of the robbery and were active gang members, not immature young people drawn into a crime they lacked predisposition to commit.

In an unpublished part of the opinion, Irion said the trial judge’s error in omitting a jury instruction on whether the defendants had reached a “place of safety” and thus were not guilty of murder under the felony-murder rule was harmless. Because jury instructions for the arming enhancement and the charge relating to the robbery of Faudoa also contained the “place of safety” language, jurors necessarily found that the trio had not reached a place of safety, the justice explained.

The case is People v. Jordan, D064010.   


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