Monday, July 14, 2003
C.A. Upholds Murder Conviction of Man Who Claimed Girlfriend’s Shooting Was Accidental
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed the murder conviction and 40-year-to-life sentence of a local man who claimed he shot his girlfriend by accident.
Physical evidence established that Melanie Pacheco’s killer acted with malice, Justice Laurence Rubin wrote last week in an unpublished opinion for Div. Eight.
Pacheco, he said, was shot in the back of the head from a few feet away and could not have been shot while grabbing the shotgun with which she was killed, as Michael John Rose claimed. Rubin noted that the safety was in good working order, and that it took nearly nine pounds of pressure to pull the trigger.
The shooting occurred at around 4 a.m. on March 19, 2001. Rose did not testify, but told witnesses that he and Pacheco had an alcohol-fueled and heated argument, that he pulled out the gun intending to make a false suicide threat, and that the gun went off after Pacheco lunged for it.
Los Angeles Police Department officers came to the apartment after a friend of Rose’s called them. They found Rose in the bathtub, almost incoherent, and found a will in which Rose wrote “I am very sorry, Melanie” and “I want it to be known that her death was accidental.”
Justin Harmon, who called the police, testified that Rose called him about a half hour after the shooting and told him that he had accidentally shot Pacheco.
Rose, Harmon said, later called back and said he had been joking. But when Harmon asked Rose to put Pacheco on the phone, Rose said she was out, Harmon testified.
Prosecutors played a recorded statement Rose gave the police. He initially denied that he shot anyone, and said he did not have a girlfriend, but eventually said he had shot Pacheco accidentally after one of their frequent arguments. He said Pacheco was screaming and throwing things at him, that he grabbed the gun, pointed it at her and told her to “shut up,” and that she lunged for the gun, which went off accidentally when she kicked at it.
Jurors found Rose guilty of second degree murder and found true the allegation that he personally used a firearm in the commission of the crime. Los Angeles Superior Court Judge Michael M. Johnson sentenced him to 15 years to life for the murder, plus a 25-year-to-life enhancement under the 10-20-Life Law.
Rubin, writing for the appellate panel, rejected the defense contention that Pacheco’s death was shown to have occurred in the heat of passion, making Rose guilty of no more than voluntary manslaughter.
Rose told the police claimed that he was angry when he pointed the gun, but he never told anyone that he fired in the heat of the passion, Rubin emphasized. Instead, he told a story that was “completely at odds with the physical evidence” and offered no explanation when the police asked him how Pacheco could have been shot in the back of the head, the justice said, permitting the jury, by inference, to find beyond a reasonable doubt that the shooting was intentional, Rubin wrote.
The jurist went on to reject the defendant’s claim that the sentence constituted cruel and unusual punishment. None of the factors cited by the defense—lack of a prior criminal record, military service, education, employment history, or health problems—preclude imposition of a life sentence for murder, Rubin said.
Attorneys on appeal were Lynda A. Romero, by appointment, for the defendant and Deputy Attorneys General William T. Harter and Peggie Bradford Tarwater for the state.
The case is People v. Rose, B159624.
Copyright 2003, Metropolitan News Company