Felony Murder Rule

by Sheldon Siegel

  “You okay with the change in the lineup?” I asked.

  “Sure. It isn’t the first time I’ve been fired on the eve of trial. Now I can catch up on my other cases. I’d feel worse if I was still getting paid. Thankfully, the Vietnamese community raised some cash. It didn’t cover all of my legal fees, but it paid most of my expenses.”

  I was familiar with the financial realities of running a low-rent criminal defense practice where clients frequently had to choose between paying their lawyer or their bail bondsman. Most opted for the latter. It gave me an even greater appreciation for the steady paychecks and health insurance at the P.D.’s Office. “Mind if I ask you something off the record?”

  “Fine with me.”

  “Did you get yourself fired on purpose?”

  “Not this time.” She gave me a knowing grin as she played with the collar of a denim work shirt. Her going-to-court suit was in a garment bag hanging from a nail pounded into her door. “I learned that trick from Rosie.”

  So did I. “You weren’t stalling?”

  “Nope. Thomas fired me fair and square. He didn’t like my recommendation to accept a deal for second degree. If I were in his shoes, I might have done the same thing.”

  “You think he’s going to be convicted?”

  “Doesn’t look good. Every law professor with half a brain will tell you that the felony murder rule is a joke, but that makes no difference out here in the real world. Watch the security video. The facts aren’t in dispute. Tho walked into the store and reached inside his pocket. The owner thought he was pulling a gun and shot him in self-defense. Malice aforethought is imputed to Thomas even though he was in the car. End of story. Thanks for coming. Drive home safely.”

  “Can you see Tho pull the gun?”

  “You can see him reach inside his pocket.”

  “You didn’t answer my question. You sure he had a gun?”

  “You can’t see it in the video. The cops found a gun on the floor next to his body. His prints were on it. That was good enough for them.”

  “Did they find anybody else’s prints on the gun?”

  “The shopkeeper. He told them that he found it under Tho’s body and disarmed it.”

  “Maybe he planted it.”

  “Now you’ll have the privilege of trying to sell it to the jury.”

  I may have no choice. “Was Tho the registered owner of the gun?”

  “There are no weapons registered in his name. And the serial number and the identifying information were removed.”

  “Very professional for a small-time drug dealer. Was anybody else in the store?”

  “The owner’s son and daughter, a security guard, a customer, and a deliveryman. The son worked at the store. He was standing next to his father when Tho came inside. The daughter went to a movie with a friend who dropped her off at the store. She was waiting for her father to drive her home. She was doing her homework at her father’s desk behind the deli counter.”

  “And the guard?”

  “He was behind the counter over by the window. The son and guard corroborated the owner’s story. The daughter said that she didn’t see Tho come inside. The others were in the back. They didn’t see anything, either.”

  “Did the guard have a gun?”

  “It’s the Tenderloin, Mike.”

  “Why didn’t he use it?”

  “He said he was looking out the window when Tho came in. By the time he realized what was happening, Tho was dead.”

  “Was the guard licensed and bonded?”

  “No, just armed and dangerous. He’s the owner’s nephew. He’s no longer working at the store. Evidently, he wasn’t very effective.”

  So it seems. “Anybody else come or go? Passersby? Homeless people?”

  “The only other witness would have been Tho. Unfortunately, he’s still dead.”

  “Did you hire a PI?”

  “Yes. His name is in the file. Feel free to talk to him. He didn’t find any other witnesses.”

  Or nobody wanted to get involved.

  She pointed at a half dozen boxes with the Iron Mountain Storage logo. “I’ll send the files to your office. Which chump is going to inherit this mess?”

  “Don’t know yet.”

  “You gonna do it yourself?”

  “Rosie and I haven’t discussed it.” Technically, that was a lie, but short of a whopper. Besides, it was none of her business.

  She responded with a throaty chuckle. “Mike Daley—still the patron saint of lost causes. I heard you were already over at the Glamour Slammer to see Thomas.”

  “I was.” There were no secrets at the Hall. “Unless Judge McDaniel approves a delay, his trial starts Monday.”

  “You could have sent a deputy. You wanted to talk to him yourself.”

  “It’s a murder trial on a short timeline.”

  “It will help Rosie’s campaign if you get an acquittal.”

  “Not necessarily. Besides, this has nothing to do with politics.” That much was true.

  “Either way, Thomas is your headache now.”

  It was an opening. “Is he a headache?”

  “Compared with most of my clients, no. He isn’t a bad kid. No convictions, but he’s been picked up for shoplifting a couple of times. I’m sure he’s smoked some weed. In this neighborhood, it’s impossible to avoid the wrong people.”

  “Was Tho the wrong people?”

  “Absolutely. He got tossed out of Galileo for selling marijuana behind the football stadium. He was arrested a couple of times for possession, but the charges never stuck, and they couldn’t nail him for selling.”

  “Anything more serious?”

  “He was hauled in for an armed robbery at a 7-Eleven in the Excelsior, but the charges were dropped. Seems the primary witness disappeared.”

  “You think Tho had anything to do with it?”

  “Don’t know.”

  “Did he ever do time?”

  “A couple of days in juvie on a possession charge when he was fifteen.”

  “You got the name of his supplier?

  “If I did, I would have cut a better deal for Thomas.”

  “Family?”

  “Tho’s father is long gone. His mother is addicted to crystal meth. When she’s clean, she lives in a shelter. You can talk to her if you’d like, but you won’t get much.”

  “Thomas seems pretty smart. His mother said he got into State.”

  “He’s filled with hormones, attitude, and unrealistic expectations. If you were eighteen, would you cop to second degree murder?”

  “If it was the best deal I could get.”

  “You understand the system. He doesn’t.”

  True. “Did he ever lie to you?”

  “He claimed he didn’t know that Tho had a gun. I still don’t buy it. Guys in this neighborhood talk about three things: girls, cars, and guns.”

  “You sure Tho was packing?”

  “Pretty sure.”

  “Any idea where he got the piece?”

  “He probably stole it or picked it up on the street.”

  “What do you know about the shopkeeper?”

  “His name is Ortega Cruz. He’s owned the store for almost thirty years. Divorced. Lives in the Mission. A nineteen-year-old son who works at the store. A seventeen-year-old daughter who goes to Mercy High. No arrests. No domestic violence. No alcohol or drugs.”

  “He had an Uzi behind his counter.”

  “Actually, it was an AR-15 bought legally in Nevada. Passed the background check.”

  “It’s illegal here unless it’s modified to comply with California law.”

  “It wasn’t modified. The cops confiscated it.”

  “Maybe he’s trigger happy. Had he ever used it?”

  “He shot a robber a couple of years ago. The guy survived, but he died a year later at Pelican Bay.”

  “Did Cruz ever threaten anybody else?”

  “Nothing reported to the cops.”

&nbs
p; “You think it was a good idea to have a semi-automatic weapon in a store?”

  “No, but I don’t write the gun laws.” She opened her top drawer. “You want to see my nine-millimeter? It’s a sweet little piece.”

  “That won’t be necessary.” She wasn’t the only attorney I knew who was packing. “You aren’t leaving me with any good options, Sandy.”

  “There are no good options, Mike. That’s why I recommended a deal.”

  “I trust you requested a delay?”

  “Of course, but Judge McDaniel has extended us twice. It won’t take long to get up to speed. Unless you find some new witnesses, the trial will take just a couple of days.”

  We spoke for a few more minutes. As I was heading toward the door, my iPhone vibrated. Rosie’s number appeared on the display. Her tone was businesslike. “Judge McDaniel signed the order appointing us as Nguyen’s counsel.”

  No surprise. “Did she grant the extension?”

  “She’s still thinking about it. Her clerk said that the judge wants to meet with us at one o’clock. The D.A. is sending somebody over.”

  I glanced at my watch. 11:50 a.m. “There’s still a little time. I’ll stop at the D.A.’s Office on my way to Judge McDaniel’s chambers and see what I can find out.”

  8

  “IT WAS A PROVOCATIVE ACT”

  The District Attorney of the City and County of San Francisco flashed the radiant politician’s smile that her three ex-husbands and the voters of my hometown found irresistible. Nicole Ward stood behind a custom cherrywood desk in her immaculate corner office on the third floor of the Hall of Justice. In lieu of bookcases filled with legal tomes, her walls were lined with photos of herself with the Bay Area’s A-list power brokers. She had just turned fifty-five, but her creamy skin, Botoxed forehead, and perfect makeup made her appear a decade younger.

  She repositioned the sleeve of her eighteen-hundred-dollar St. John Knit blazer and extended a willowy hand. “I miss seeing you in court,” she purred.

  She hadn’t appeared in front of a judge in years.

  “Great to see you, too, Nicole,” I lied. I shook her hand and took a seat in a leather armchair opposite her desk. I admired the framed portraits of her impeccably coiffed twin daughters. Jenna was a Tri-Delt at Stanford. Missy was a DG at Cornell. “How many more tuition years?”

  “At least three. Jenna wants to go to law school. Missy is talking about a Ph.D. in psychology. It’s tough to make ends meet on a public servant’s salary.”

  “Yes, it is.” It’s easier when your second ex-husband’s venture capital firm was one of the early investors in Facebook.

  Her phony smile broadened. “How does Grace like USC?”

  “Loves it.”

  “Glad to hear it.”

  Sure you are. Over the years, we’d been on opposite sides of several big-time cases, and we were adept at the Kabuki dance of exchanging fake pleasantries. Now firmly entrenched in the top slot at the D.A.’s Office, Ward was a fixture on local TV and, on occasion, CNN. She had perfected the art of talking and grinning simultaneously while saying nothing of substance.

  She pointed at the paunchy Deputy D.A. sitting next to me. “You know Andy?”

  “Of course.”

  Andy Erickson was in his late thirties, but his rumpled appearance and thinning hairline indicated that the stress of being Ward’s personal lapdog was taking its toll. I remembered his first day in court a decade earlier when he was assigned to prosecute one of my regulars for assault after he’d gotten into a brawl with a homeless guy over a stolen roast chicken. I got the charges dropped on the condition that I found a job for my client, a former small-time heavyweight prizefighter named Terrence “The Terminator” Love. To Rosie’s dismay, I hired Terrence as our receptionist and occasional bodyguard at Fernandez and Daley. The Terminator never missed a day and now worked for us in a similar capacity at the P.D.’s Office. Meanwhile, Erickson grew up to be a competent prosecutor. On occasion, I took him out for a beer. He reciprocated by sharing his dad’s seats behind the Giants’ dugout. San Francisco is still a small town where everybody in the justice system knows everyone else.

  Ward didn’t realize that she was still grinning as she tried to feign sincerity. “Everybody says that Rosie is going to win the election. I’m pulling for her. It’s always better to have somebody competent running the P.D.’s Office.”

  “I trust that she can count on your vote?”

  “Absolutely.” Her forehead looked like it was going to crack as she arched a painted eyebrow. “Give her my best.”

  “I will.” Rosie and Ward detested each other. “People whose opinions I respect tell me that you’re going to run for mayor.”

  “Maybe someday.” Her plastic smile widened. “What brings my favorite Public Defender to my office on this fine afternoon?”

  As if you don’t know. “Thomas Nguyen.”

  “I heard you paid him a visit.”

  “I did. You must have more pressing matters than monitoring who comes and goes at the Glamour Slammer.”

  “The Hall of Justice is my home. I like to keep tabs on my guests.”

  Especially when they’re involved in a case that could get you some T.V. time.

  Ward pointed at Erickson and invoked a sugary tone. “Andy is doing an excellent job. We made a generous offer on Tuesday. Frankly, I was disappointed that Sandy Tran couldn’t persuade her client to accept a deal for second degree murder.”

  Nice try. “You heard that we’ve been appointed.”

  “We have. Have you assigned a Deputy P.D.?”

  “Not yet. Sandy is sending over the files. We have a meeting with Judge McDaniel at one o’clock to discuss an extension. I understand that you’re invited, too.”

  “We’ll be there.”

  “It would make life easier if we can tell the judge that you have no objection.”

  “Can’t help you.”

  “Sure you can.”

  “No, I can’t. We’ve been extended twice. Judge McDaniel is getting impatient—and I don’t blame her.”

  Your concern is noted. “I’m asking you as a matter of professional courtesy. It will be difficult to get up to speed by Monday.”

  “It’s an open-and-shut case. The facts aren’t in dispute.”

  “There’s no such thing as an open-and-shut case. The facts are always in dispute.”

  “Not here.” Ward pointed at Erickson. “Give Mike the highlights, Andy.”

  He deserved better than to be treated like a trained seal.

  Erickson spoke as if he was reading from a script. “Nguyen and Tho stopped at Alcatraz Liquors on Eddy Street. Tho went inside. Nguyen stayed in the car. Tho reached inside his pocket and started to pull a gun. The owner of the store—one Ortega Cruz—shot him in self-defense. It was caught on the security video.”

  “He needed a half dozen bullets to defend himself?”

  “The Bushmaster fires a lot of rounds in a hurry.”

  No kidding. “Tho didn’t pull a gun.”

  “It was in his pocket.”

  “No, it wasn’t.”

  “Yes, it was. His prints were on it.”

  “It could have been planted.”

  “It wasn’t.”

  “The shopkeeper’s prints were on the gun, too.”

  “He found it under Tho’s body and disarmed it. We offered Nguyen a deal for second degree murder with a sentence of fifteen years. He’s only eighteen. He’ll be out when he’s thirty-three. Sandy probably told him to take the deal.”

  True. “He didn’t go inside the store.”

  “It’s still felony murder.”

  “Tho didn’t pull the trigger.”

  “Doesn’t matter.”

  “Yes, it does. People v. Washington. The felony murder rule applies only if the shooter is the defendant or an accomplice, not if he’s the intended victim.”

  Erickson glanced at Ward, who switched to a more subdued smile. “Glad you’re still
keeping up with the law—even if you aren’t trying cases anymore.”

  That’s gratuitous. “Washington was decided in 1965.”

  “I know. People v. Lima was decided in 2004. People v. Concha was decided in 2009. Both cases came to the same conclusion: if a defendant or his accomplice engages in a ‘provocative act’ and his intended victim kills one of them in a reasonable response, the defendant is guilty of murder even though he didn’t pull the trigger.”

  In fairness to Ward, it was a reasonably accurate summary of the law. “Nguyen was outside in the car. How was that ‘provocative’?”

  Her grin finally disappeared. “Tho’s behavior was a provocative act that’s imputed to Nguyen.”

  “Since when is walking into a store a ‘provocative act’?”

  “It is if you pull a gun.”

  “You don’t know for sure that he did.”

  “The owner of the store found it under his body. Tho’s prints were on it.”

  “So were the shopkeeper’s.”

  “He disarmed it.”

  “Maybe he’s a trigger-happy nutjob who keeps an Uzi behind his counter.”

  “Actually, it was an AR-15 purchased legally in Nevada.”

  “Last time I looked, it was illegal in California.”

  “The police confiscated it.”

  “They should have arrested him.”

  “He acted in self-defense. They gave him a warning.”

  “Are they planning to give it back?”

  “No. It’s an illegal weapon.”

  “And you decided not to press charges.”

  “He wasn’t arrested.”

  It was a convenient excuse. “Does he own any other guns?”

  “Several. All licensed and registered.”

  One of which is undoubtedly under the counter at his store. “You think it’s a good idea to have a semi-automatic rifle in a liquor store in a crowded neighborhood?”

  “That isn’t the issue, Mike. You know that if it were up to me, those weapons would be banned. The shopkeeper bought it legally. He used it in self-defense. End of story.”

  “Come on, Nicole.”

  “You come on, Mike. Sandy Tran argued this issue. Judge McDaniel ruled in our favor. The law is well-established. An act is provocative if its natural consequence is dangerous to human life. Tho walked into a liquor store in the Tenderloin at night with a gun. It created an inherent danger to human life—the shopkeeper’s and his own.”