Three Tragedies

Three tragedies were in court last week. The first was Sparrow Browne-Steel who got four years and eight months for the vehicular manslaughter of her cousin and her dearest friend she killed driving drunk out of her mind.

The next case was an elderly couple who were each sentenced to 100 hours of community service at the animal shelter for leaving their dog tied up when they went out of town. The old folks returned to find their dog had tried to jump the fence and hanged itself. The person they'd asked to come by and check on the animal hadn’t bothered.

But the case of a man who accidentally shot and killed his nephew was by far the saddest on the day, and might have become even sadder if not for defense attorney Keith Faulder.

19 year-old Jaime ‘Flaco’ Rodriquez was charged in the death of his nephew, a 12-year-old boy. The handgun Rodriquez was showing off discharged and struck the boy in the jaw. The autopsy report showed that a fragment of the .380 bullet sheared off and went into the 12-year old’s skull, killing him. Rodriquez was charged with involuntary manslaughter but also with Penal Code 246.3, the willful, negligent discharge of a firearm. Had Rodriquez been convicted of this additional charge he would have gone to prison for a very long time. His record isn't exemplary to begin with, and he certainly isn't the kind of guy you want running around with a gun.

Apparently, Rodriquez was attempting to unload the gun, a Makarov .380, when it went off. He had taken out the clip, or magazine, and pulled back the slide to clear the action when something went terribly wrong and the weapon discharged.

The Makarov pistol was made in East Germany during the cold war and issued to Soviet KGB officers who liked it because it is so small and easy to hide, fitting unobtrusively in most pockets. It fires a projectile small enough to be handy for execution-style murders (silencer optional). Like many things made in the Soviet Union it was cheaply produced. A double-action automatic, it has become widespread in the West since the Berlin wall came down, and criminals like it for the same reasons the spies liked it.

It was bad enough that the young Mr. Rodriquez had a criminal record, but trying to disown his role in this tragedy when the detectives showed up didn't help his case any. Detective Luis Espinoza said that a woman at the scene, 112 Canyon Drive in Ukiah, Jessica Campos, walked him over to a bush where the Makarov had been left, wrapped in a towel. This and other evasions may explain why Rodriquez was charged with the additional negligent discharge count. The .380’s magazine was still on the blood-soaked patio, and at first Rodriquez said somebody else must have left it there.

Finally, the detectives gleaned enough information from others at the scene to put the finger on Rodriquez and he admitted he was holding the gun when it went off.

Detective Espinoza said, “He told me the gun was pointed down when it went off and I advised him I didn’t believe that.”

Defense attorney Keith Faulder represented Rodriquez.

“Was a bullet recovered from the wall?”

“Yes, I believe there was.’

“How far up?”

“Approximately four feet.”

“How tall was [the victim, Antonio Rodriguez-Victor].”

“I don’t recall.”

“But my client is four-foot-ten, isn’t he?”

“If you say so.”

“Did my client describe what he was doing when the gun discharged?”

“Yes.”

“He’d removed the magazine, hadn’t he?”

“Yes. He said ‘charger’ which I took to mean the magazine.”

“Before it discharged?”

“Yes.”

“And he was moving the slide when it went off?”

“Yes. He cycled the action. And while pulling the slide he was raising the firearm and it went off. ‘I didn’t know a round was in it,’ he told me.”

“Did he also tell you [the victim] was like a son to him?”

“He did, yes.”

“Did he appear to be distraught?”

“He did at the end, yeah.”

Deputy DA Jon Hopkins asked, “Didn’t Rodriquez at first say someone other than himself had been holding the gun when it went off?”

“Yes, he did.”

Faulder came back with, “The People have not met their burden for count two, your honor. The law requires a willful discharge of the firearm, which in this case clearly did not happen. The negligence is secondary to the willfulness. A person who accidentally discharges a firearm is not applicable under the law. The action described by my client is consistent with the autopsy report and other physical evidence. [The victim] was four-feet-five inches tall; my client is four-foot-ten; the bullet lodged in the wall at four feet.”

Faulder apologized that he didn’t have a copy of the California Criminal Instructions with him, but asserted that gross negligence and willfulness both had to be met for the negligent discharge count.

Judge John Behnke was not at first persuaded.

“He was showing off,” the judge said. “We know this by his own statement to the officer. But was he showing off the gun or showing off with the gun?”

Faulder: “On the involuntary manslaughter, I’m going to submit, but as to the [negligent discharge], Flaco believed the gun was unloaded, so neither willfulness nor negligence has been shown.”

Judge Behnke defined negligence as something done “without due caution and circumspection. We have an 11-year-old boy shot in the head at very close range and, at the level of a preliminary hearing, it doesn’t make sense to [dismiss the charges]… It’s not reasonable to conclude that the gun went off by pulling the slide back. But not only that, the defendant lied about numerous aspects of the incident until the officers confronted him with hard facts. As far as I need to go for the purposes of the prelim is whether the defendant knew the gun was loaded. Now, I will say, nothing I’ve heard convinces me he intended to shoot and kill his nephew – I’m not seeing that at all. But we’re not deep enough in to conclude that the gun went off by some other reason than by pulling the trigger, and pulling the trigger is willful and negligent.”

Deputy DA Hopkins quickly flipped through his file and found a place where the defendant admitted to the detective that he pulled the trigger. He didn’t mention that the guy expected to hear a hollow snap – not a report. “Snapping-in, or “dry firing” being a common — if misguided — practice among gun owners.

Faulder: “But, your honor. People are routinely killed by guns that were thought to be unloaded.”

Behnke: “That’s why you do not handle guns in a negligent manner! And it’s hard to put any credence in anything he said to the officers after having started with a complete fabrication and then working down to the truth as the officers fenced him in with the facts.”

Faulder, who is in line for a judge’s robe of his own, cited a sample of case law Judge Behnke wasn’t well-versed in, apparently, and there was a break while the judge retired to his chambers to study it. When he emerged he was much calmer and agreed that for the defendant to have willfully and intentionally fired the gun he would have to have known there was still a bullet in the chamber, after having cycled the action, by pulling the slide back, to clear it out.

It is truly an idiotic thing that somebody will have the ungovernable impulse to pull the trigger after the slide goes home, expecting to hear the familiar “click” of the firing pin hitting an empty chamber, but we’ve all seen and done it a thousand times. And many of us have also experienced that once-in-a-thousandth time shock when a live round was still in there – when the bolt doesn’t seat enough for the extractor to lock onto the rim of the shell and draw it out, so we figure there must have not been a round in the chamber. Or — more likely in the case of a cheaply made mass-produced pistol like a Makarov — the extractor is worn or faulty. Luckily for most of us there wasn’t a kid standing down range when that happened.

Behnke: “The defendant would have to believe the gun was loaded to be guilty of this offense. Nothing makes me believe he intended to kill his nephew. It’s a tough go to assume he knew the gun was loaded.”

Behnke turned to Deputy DA Hopkins and asked, “Wouldn’t the prosecution have to show he knew the gun was loaded?”

Hopkins looked blank.

“I can give you some time if you need it.”

“I don’t believe I need any time.”

“Is there some theory the prosecution is espousing that he knew the gun was loaded?”

Hopkins kept his theories to himself, if he had any.

“In that case, I’m not going to hold him to answer on the 246.3. It just doesn’t seem like the right thing to do.”

Flaco Rodriquez was then duly held to answer for the involuntary manslaughter. Without Faulder’s deft arguments about intent, this case could have turned into a worse tragedy than it already was.

* * *

Sheriff’s Press Release, June 20, 2015

Guns Aren't Toys: Example 48,346,912

On June 18, 2015 at 12:18 AM, Deputies from the Mendocino County Sheriff's Office were dispatched to the 100 block of Canyon Drive, in Ukiah, for a reported victim of a gunshot wound. Officers from the Ukiah Police Department arrived on scene along with Deputies. Upon arrival, the victim, a 12 year old male juvenile was located in the roadway suffering from a possible gunshot wound to his face/neck area. First aid and was administered and emergency medical services were called. It was initially reported that the victim and the suspect, Jaime Rodriguez, 19, of Ukiah, were victimized by subjects in a vehicle during a drive-by shooting. Additional investigation revealed that the suspect, victim, and another juvenile had been in the rear yard of the house at 112 Canyon, when the suspect, Rodriguez, produced a handgun and started to manipulate it. According to interviews of the suspect and a witness, the suspect negligently fired the weapon, striking the victim at near point blank range. Rodriguez then carried the victim to the roadway and a neighbor called 911. The 12 year old victim was transported to the Ukiah Valley Medical Center where life saving measures continued. Once the victim was stabilized enough for further transportation, he was flown via air ambulance to an out of county hospital. Jaime Rodriguez was subsequently booked in the Mendocino County Jail for discharging a firearm in a grossly negligent manner, willfully causing great bodily injury to a child, as well as three unrelated arrest warrants. The firearm was recovered and there are no known suspects outstanding. Any persons with knowledge or information about the shooting are encouraged to contact the Mendocino County Sheriff's Office Criminal Investigations Unit (707) 234-2100. [Antonio Rodriguez-Victor subsequently died of the gunshot wound.]

Jaime 'Flaco' Rodriguez Jr. has prior arrests for burglary, vehicle theft, DUI, receiving stolen property, under influence of controlled substance, possession of drug paraphernalia, misdemeanor hit&run, and related resisting arrest charges.

Ed Note: Bruce McEwen knows guns. A former Marine, McEwen was editor of Guns Magazine in 1984.