How to resolve AdBlock issue? Appellate court overturns first-degree murder convictions of men in 2011 shooting that killed child
LAKE COUNTY, Calif. – An appellate court has overturned the first-degree murder convictions of two men sent to state prison for a 2011 Clearlake shooting that killed a 4-year-old child and injured five others.
In a 57-page unpublished decision filed Wednesday, the First District Court of Appeal ordered that Paul Braden and Orlando Lopez should either be retried on the first-degree murder charge or else have their convictions reduced to second-degree murder.
Sentences for the men on two counts of mayhem also were stayed, but the sentences they received in August 2012 for additional charges – including five counts of attempted murder, six counts of assault with a firearm, a count of discharge of a firearm at an inhabited dwelling, and the findings that numerous special allegations about use of a firearm were true – were upheld.
Braden and Lopez were convicted for carrying out a shooting in Clearlake on the night of June 18, 2011, in retaliation for a fight at a Lower Lake graduation ceremony eight days earlier.
The two men were accused of shooting into a crowd of family and friends at a barbecue at the Lakeshore Drive apartment of Desiree Kirby and her boyfriend, Ross Sparks, and their children, Skyler and Eden.
The shooting killed 4-year-old Skyler, wounded Kirby and Ross Sparks, as well as his brother, Andrew Sparks, and friends Ian Griffith and Joey Armijo.
Braden and Lopez were tried together in a lengthy and complex proceeding that included two separate juries and a visiting judge, Doris Shockley of Yolo County.
In August 2012, Braden and Lopez received sentences of 312 and 311 years, respectively.
At Braden's sentencing, Shockley called him “cold and calculating.”
Basis for reversing convictions
Lopez and Braden argued in their filings that their convictions for first-degree murder must be reversed “because the trial court’s instructions allowed the jurors to convict based on a theory that the premeditated murder was a natural and probable consequence of each appellant’s aiding and abetting of an assault with a firearm,” which is contrary to the California Supreme Court’s 2014 decision People v. Chiu.
In the Chiu case, the state Supreme Court found that an aider and abettor may not be convicted of first-degree premeditated murder under the doctrine of natural and probable consequences, described as those that a reasonable person would know are likely to happen if nothing usual were to intervene.
Rather, the appellate court decision explained that the Supreme Court said that aiders and abettors may still be convicted of first-degree premeditated murder based on direct aiding and abetting principals, with the prosecution required to show a defendant “aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.”
While the state argued that the juries believed that each of the men was a direct perpetrator, not an aider and abettor, the court didn't agree.
“Indeed, the absence of direct evidence regarding who shot Skyler Rapp makes it likely the juries convicted Lopez and Braden on an aiding and abetting theory rather than as direct perpetrators. Although there was certainly sufficient evidence to convict both defendants on a direct aiding and abetting theory, the record provides no basis from which we may conclude beyond a reasonable doubt that the jury did not rely on the impermissible natural and probable consequences theory,” the decision stated.
As for the stays on the two mayhem counts, the court said the defendants cannot be punished for both attempted murder and mayhem counts from one attack on one victim, and that the lesser charge of mayhem should have been stayed.
One portion of the jury instructions that was challenged but upheld in this case – although it's been the basis for successful appellate actions in other cases – regarded the trial court's “kill zone” instruction, which stated, “A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or ‘kill zone.’” Overall, the appellate court found that jury instruction “more nonsensical than misleading.”
In analyzing other failures in the prosecution alleged by Braden and Lopez, the court generally found they were harmless or otherwise didn't have the argued impact on the juries' decisions.
Among those other issues, the court did not find it was prejudicial to Braden to have his trial combined with that of Lopez, and that the trial court did not err in denying his motion for mistrial due to a witness' testimony about a statement Lopez had made incriminating Braden.
In the case of that testimony, it was stricken from the record and the jury instructed to disregard it, which the appellate court found was not an abuse of the trial court's discretion.
The appellate court also found the firearm use enhancements applied to Braden were supported by sufficient evidence, and that Lopez's convictions were supported by substantial evidence.
The Wednesday filing also noted that Lopez filed a petition for writ of habeas corpus, which the court had denied – with a dissent – in a separate order.
Once the case is transferred back to the local courts, the District Attorney's Office will have 60 days – unless that time is waived by the defendants – to bring Braden and Lopez to trial solely on the premeditation and deliberation element, according to the ruling.
If no new trial is held, the trial court shall proceed as if the appellate court's ruling “constituted a modification of the judgment to reflect a conviction of second degree murder and shall resentence appellants Lopez and Braden accordingly.”
District Attorney Don Anderson, who personally prosecuted the case, had only received the ruling Wednesday afternoon so has not yet had a chance to fully analyze the document and conclude on a course of action.
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Police seek CVS shoplifter; man attempted to use pepper spray on store manager
LAKEPORT, Calif. – The Lakeport Police Department is asking for the community's help in locating a male subject involved in a shoplifting incident and an attempted assault on the store's manager.
Shortly before 7 p.m. Saturday a white male subject entered the CVS Pharmacy in Lakeport, according to a police department report.
Police said the man selected merchandise and ultimately proceeded to the bathroom. Store management saw him and followed him to the bathroom, and when he emerged, he no longer was holding the merchandise and appeared to have it under his clothing.
When confronted by the manager, the subject denied having any concealed items and walked to the store exit, police said.
The manager followed, telling the man to stop. Police said the subject exited the store, pursued by the manager.
Police said the subject produced a small can of what was believed to be pepper spray and attempted to spray the manager but missed. Fearing for his safety, the manager discontinued pursuit of the man while other employees called 911.
The subject was described as a white male adult, with greasy blond shoulder length hair. He was estimated to be 5 feet 10 inches to 6 feet tall, with a thin build, wearing a black blazer-style jacket, black baggy pants and a white shirt.
The photo above indicates he also has a short beard and mustache, and had headphones around his neck.
Anyone with information about this case is asked to contact the Lakeport Police by phone at 707-263-5491 or via the department's Facebook page.
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Police arrest Kelseyville man for armed robbery
CLEARLAKE, Calif. – A Kelseyville man was arrested this week in connection to an armed robbery last weekend in Clearlake.
Charles Levon Sells, 51, was arrested in the case. He is on Post Release Community Supervision out of the Redding area, according to Sgt. Rodd Joseph of the Clearlake Police Department.
Just after 2 p.m. Sunday, Clearlake Police officers responded to a report of an armed robbery which had just occurred at Cheaper Cigarettes, located at 14962 Lakeshore Drive, Joseph said.
Joseph said officers arrived and determined the lone male responsible for the robbery had entered the business via the unlocked rear door.
The male subject, described as a white male adult wearing a dark hooded sweatshirt and a multi-colored mask over his face, pointed a handgun at the employee inside the business and demanded money, Joseph said.
The employee complied with the robber's demands and the robber fled the business with an undisclosed amount of currency. The store employee, though scared, was not injured in the robbery, according to Joseph.
During a check of the area, officers located a single glove on the ground of a vacant residence near the scene of the robbery. Joseph said neighbors had asked police to check this vacant property as people are often seen trespassing here.
This single glove matched gloves the male subject was seen wearing at the time of the robbery. Joseph said officers collected this glove for later DNA analysis through the California Department of Justice.
A few hours later, neighbors who were trying to resecure the entrance gate to this vacant property called police to report seeing something suspicious under a shed on the property. Joseph said it was in the same general area where officers had earlier located the single glove.
Officers returned to the vacant property and retrieved several items from under the shed. Joseph said the items seized included a replica firearm, a significant amount of cash, a mask, a gray-hooded sweatshirt and the other matching glove.
All items found appeared to match what was either used or taken during the robbery, Joseph said.
Joseph said officers coordinated with neighbors to watch for any suspicious persons and/or vehicles at this vacant property, as it was expected that the robbery suspect would likely return to claim the stolen property and evidence.
On Monday afternoon, neighbors called police to report suspicious persons on the vacant property, Joseph said. Officers responded only to find the suspicious persons had fled in a vehicle.
He said officers began checking the area for a similar vehicle. About 15 minutes later, Det. Ryan Peterson spotted a similar vehicle at Flyers gas station, located at 15010 Lakeshore Drive.
Officers and the detective conducted a high risk car stop on the vehicle and detained two persons. Though these two persons were not identified as being involved in the robbery, evidence obtained from the car stop led to a possible suspect being identified, Joseph said.
Detectives began following up on suspect leads, which took them to Clearlake and Kelseyville. Joseph said the suspect ultimately was identified as Sells.
At about 6 p.m. Tuesday, an anonymous caller telephoned the Clearlake Police Department to report that Sells was at a residence in the 14800 block of Saroni Parkway in Clearlake, Joseph said.
Clearlake Police officers quickly surrounded the home and located Sells inside. Joseph said Sells was taken into custody without incident and made incriminating statements to police.
Sells was later booked into the Lake County Jail on one count of robbery. He remains in custody with bail set at $110,000.
The Clearlake Police Department thanked those witnesses who came forward, which led to this case being solved so quickly, Joseph said.
Anyone with information on this case is urged to contact Det. Elvis Cook at 707-994-8251, Extension 315.
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Courthouse museum to host native drummers Feb. 16
LAKEPORT, Calif. – The Native Men’s Group of Lake County Tribal Health and the Historic Courthouse Museum invite the public to join them next week for an evening of social songs and drumming.
The drumming event will be held from 5:30 to 6:30 p.m. Tuesday, Feb. 16, at the museum in downtown Lakeport.
All are welcome – tribal and non-tribal, men and women and children, too.
“We are really excited as this is the first time they have hosted an event like this at the museum and we hope it will be the first of many such partnerships between the museum and the tribal communities of Lake County,” said Tony Pierucci, curator of the county's museums.
The Historic Courthouse Museum is located at 255 N. Main St., Lakeport, telephone 707-263- 4555.
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VIDEO: Deputies, Clearlake Police apprehend suspect in Northern California bank robberies
CLEARLAKE OAKS, Calif. – An Antioch man suspected of a series of bank robberies in Northern California was arrested Sunday morning in Clearlake Oaks, with authorities releasing video of a high speed pursuit with the man and his subsequent arrest.
Wesley Allen Krohn, 31, was arrested in the case, according to Lt. Steve Brooks of the Lake County Sheriff's Office.
At 8 a.m. Sunday the Lake County Sheriff’s Office received information from the Clearlake Police Department that Krohn was at a residence in Glenhaven, Brooks said.
Brooks said Krohn was reported to have made statements that he would “shoot it out” if he was ever contacted by law enforcement.
Sheriff's deputies and Clearlake Police Department officers responded to the area and staged at a location within close proximity of the Glenhaven residence, Brooks said.
Krohn was observed leaving the area of the address and heading eastbound on Highway 20. Brooks said a sheriff’s deputy pulled in behind the suspect vehicle and confirmed it was registered to Krohn.
The suspect vehicle turned into the parking lot of a business and then left the business heading westbound on Highway 20 at a high rate of speed, Brooks said.
Deputies and Clearlake Police officers attempted to overtake Krohn's vehicle, which Brooks said was traveling at approximately 80 miles per hour.
As they approached Highway 20 and Foothill, Brooks said a deputy noticed that Krohn was several hundred yards ahead, was still accelerating and starting to pull away from the two pursuing law enforcement vehicles.
A deputy, who had taken a position at Lakeview Drive and Highway 20, deployed his spike strip as the suspect vehicle approached his location. Brooks said the spike strip was successful in deflating the tires on Krohn’s vehicle.
The pursuit continued for a short distance until Krohn brought the vehicle to a stop in the middle of Highway 20 near Pingree Road, Brooks said.
Krohn exited the vehicle and started running southbound toward the shore of Clear Lake. Brooks said a deputy exited his vehicle and ordered Krohn to get down on the ground with his hands extended to his side.
The deputy noticed Krohn reach for a semiautomatic pistol from the area of his waistband and throw it to the ground. Brooks said Krohn then was taken into custody without further incident.
Clearlake Police officers later took custody of Krohn and transported him to their department office for further investigation, Brooks said.
Krohn later was transported to the Lake County Hill Road Correctional Facility, where he was booked on a federal no-bail warrant and numerous local charges, according to Brooks.
Sheriff Brian Martin thanked his deputies and dispatchers as well as the officers from Clearlake Police Department who worked together to ensure Krohn – who authorities called a “dangerous criminal” – was taken into custody.
Video of the pursuit and Krohn's capture can be seen above.
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