People v. Mehserle
| Decision Date | 02 July 2012 |
| Docket Number | No. A130654.,A130654. |
| Citation | 2012 Daily Journal D.A.R. 7630,142 Cal.Rptr.3d 423,206 Cal.App.4th 1125,12 Cal. Daily Op. Serv. 6316 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Johannes MEHSERLE, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Rains Lucia Stern, Pleasant Hill, Michael L. Rains and Dylan Schaffer for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General for Plaintiff and Respondent.
Defendant Johannes Mehserle served as a police officer for the Bay Area Rapid Transit District (BART). Shortly after 2:00 a.m. on January 1, 2009, while responding to a report of a fight on a BART train, he shot and killed BART passenger Oscar Grant during a tense confrontation. Defendant was attempting to arrest and handcuff Grant for misdemeanor obstructing a police officer (Pen.Code, § 148), while Grant was lying face down on the BART platform. Defendant shot Grant, who was unarmed, in the back. Defendant contended he meant to pull his taser and shock Grant to subdue him, but accidentally drew his handgun by mistake and fired the fatal shot.
After a trial involving many witnesses, the jury found defendant not guilty of murder or voluntary manslaughter. The jury convicted defendant of involuntary manslaughter (Pen.Code, § 192, subdivision (b)), thus necessarily finding the shooting was not accidental, but criminally negligent. The trial court sentenced him to two years in prison. Defendant raises several contentions on appeal, including the evidence was insufficient regarding criminal negligence to support an involuntary manslaughter conviction, the jury was improperly instructed, the trial court erred by not granting a new trial due to newly discovered evidence, and the trial court erred by denying probation. We disagree with defendant's contentions and affirm the judgment of conviction. We first examine the facts in detail and then review the issues.
The People charged defendant with the murder of Oscar Grant (Pen.Code, § 187, subd. (a)).1 They also alleged three firearm enhancements: personally and intentionally discharging a firearm causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (d)); personally and intentionally discharging a firearm (§ 12022.53, subd. (c)); and personally using a firearm ( §§ 12022.5, subd. (a); 12022.53, subd. (b)).
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. ( People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110;People v. Neufer (1994) 30 Cal.App.4th 244, 247, 35 Cal.Rptr.2d 386.)
A proper understanding of the events surrounding the shooting requires at the outset a description of the weapons defendant was carrying that night and how they were holstered.
Defendant carried two weapons: a black model 226 40–caliber Sig Sauer handgun and a bright yellow Taser International X26 taser. The handgun weighed more than three times as much as the taser. The handgun had no manual safety switch, while the taser had a safety switch that also functioned as an on/off switch. The taser had a red laser sight; the handgun did not.
Defendant's handgun was holstered on his right side, called the dominant side—presumably because defendant is right-handed. The taser was holstered on defendant's left, or nondominant, side, in a cross-draw configuration for use with the dominant (right) hand. The handgun holster had an automatic locking system, requiring a two-step process to remove the weapon: first, a rotating hood must be pressed down and rotated forward; second, a safety latch must be pushed back to release the weapon from its holster. The taser holster had a safety strap and a safety hood.
The facts of the shooting are taken not only from witness testimony, but a BART platform surveillance video and cell phone videos taken by five BART passengers. All of the videos were admitted into evidence.
In the small hours of the early morning of New Year's Day 2009, Grant boarded a BART train in San Francisco with his fiancée, Sophina Mesa, and several other friends. The group was bound for the Fruitvale BART station. The train was very crowded with New Year's Eve celebrants, and people were standing in the aisles.
As the train approached the Fruitvale BART station in Oakland, Grant began to argue with a fellow passenger and the two men started “tussling around.” They attempted to strike each other, but the train was so crowded they were reduced to pushing and shoving. The aggression spread into a large fist fight, involving at least 10 men.
Passengers used the train intercom to report the fight to the operator, who in turn contacted BART central control. Central control apparently contacted BART police, whose dispatcher contacted officers in the field with a report of a fight at the Fruitvale BART station in the train's “lead car, no weapons, all black clothing, large group of B[lack] M[ales].”
The train reached the Fruitvale station and stopped at the platform. The train doors opened. The fight stopped. BART Police officers Anthony Pirone and Marysol Domenici were on the street level of the station.2 Pirone went up to the platform and saw five African–American men, including Grant and Michael Greer, and one woman standing on the platform by the lead car and talking. As Pirone approached, Grant and Greer got back on the train. According to a bystander, Pirone appeared to be agitated and said, “This train isn't fucking going anywhere, I'm not stupid, I see you guys.”
Pirone ordered the three men who remained on the platform, who apparently were Jackie Bryson, Nigel Bryson and Carlos Reyes, to stand against the platform wall and keep their hands visible. He pulled his taser and pointed it at the men as he ordered them to the wall. Pirone called Domenici and told her to come up to the platform, where he instructed her to watch the detained men against the wall.
Pirone ordered Grant off the train. By one account he said, “Get off the fucking train, otherwise I'm going to pull you out.” By another account he said, “Get off the train motherfuckers.” By his own account, Pirone said, “Get the fuck off the train.” Grant got off the train. Pirone took Grant over to the three detainees and shoved him against the wall. The men sat down after being ordered to do so by Domenici.
Pirone went back to the train for Greer and ordered him out, saying “Get the fuck off my train.” Pirone denied using profanity when he ordered Greer off the train, because of the presence of female passengers. Greer did not comply. Pirone said, Pirone grabbed Greer by his hair and the scruff of his neck and forced him off the train. Train passengers described Pirone as hostile, angry, mean, and aggressive. One passenger said Pirone acted “like a punk.” Defendant concedes Pirone was “verbally and physically abusive in his attempt to remove both Greer and Grant from the train.”
According to Pirone, Greer struggled to break free once the two were on the platform. Pirone, therefore, pushed Greer and knocked him off balance. Pirone said Greer spun around and raised his fists, so Pirone used a takedown maneuver and swept Greer's legs out from under him, knocking him to the ground. Pirone handcuffed Greer. Several passengers testified that in their opinion Pirone used excessive or unnecessary force, or that his behavior was excessive.
Grant, Jackie Bryson, and Reyes jumped to their feet and shouted, “This is fucked up, this is fucked up.” Domenici told them to “stay out of it.” The three continued to yell at Pirone to stop what he was doing. Pirone approached Reyes and told him to “shut the fuck up.” A cell phone video taken by a passenger shows Pirone striking Grant with his fist. There was testimony that Pirone shoved Grant against the wall. Pirone forced Grant to his knees. A passenger's video shows Pirone drawing his taser and pointing it at the detainees. Grant pleaded with Pirone not to tase him because “I have a daughter.” Domenici drew her taser and pointed it at the seated detainees, who kept their hands up and kept saying “don't tase me.”
According to a BART surveillance video, defendant and his partner, Officer Woffinden, arrived on the platform at 2:08:27 a.m. Defendant ordered the men who were approaching Domenici to “get back.” Defendant drew his taser and pointed it at the detainees, including Grant. The taser's red laser sight was trained on Grant's chest and groin. Woffinden drew his baton and ordered four or five people away from the detention area. At 2:09:24, Officer Guerra joined defendant to help guard the detainees.
Grant answered a call from his fiancée Mesa, who was on the street level, and said, Mesa thought he sounded scared.3
Referring to Grant, Pirone said, “that motherfucker is going to jail” for “148,” a reference to Penal Code section 148, resisting a police officer. Pirone testified he gave the order to arrest Grant and Greer. Defendant thought Pirone told him to arrest Grant and Jackie Bryson. Pursuant to BART policy, Officers Pirone and Domenici were the officers in charge because they had been the first on the scene.
When he heard he was going to be arrested, Grant stood up and asked, “Who can we talk to?” A cell phone video shows Pirone grabbing Grant and forcing him back down. Defendant admitted he put his hand on Grant's head to help force him back down.
Jackie Bryson stood up. Defendant pushed...
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