Court of Appeal Voids 1 Charge Against Penn in Police Slaying Case

A state appellate court has barred prosecutors from retrying accused police killer Sagon Penn on a charge of assault with a deadly weapon, but the deputy district attorney handling the case said Thursday that he has asked for a rehearing and is prepared to take the matter to the California Supreme Court.

In a significant victory for the defense, the 4th District Court of Appeal ruled that jurors in Penn’s first trial had, in effect, already found him innocent of the assault charge because it was mistakenly made part of an attempted murder count, of which the 25-year-old Southeast San Diego man was acquitted.

The charge in question was based on Penn’s driving a patrol car over Police Agent Donovan Jacobs as he fled the scene of a deadly March, 1985, encounter in an Encanto driveway. The episode left Police Agent Thomas Riggs dead, and Jacobs and Sarah Pina-Ruiz, a civilian observer in Riggs’ car, wounded.

In a seven-page ruling written by Justice Donald Work and signed by Justices Edward Butler and Daniel Kremer, the court concluded that an “acquittal was rendered on every valid charge submitted to the jury relating to the automobile assault.

“As a result,” Work wrote in the ruling issued late Wednesday, “(prosecutors) are precluded from filing new criminal charges arising out of that incident.”

Penn’s attorney, Milton Silverman, called the decision “quite significant” because “it narrows the focus of our case” and “removes the whole issue of the car, which is something we spent a fair amount of time on” in the first trial.

Silverman said that the ruling, if it is not reversed, will seriously limit prosecutors in their presentation of injuries Jacobs sustained as a result of being struck by the patrol car.

“They will not be able to present it as an assault, so it puts the whole thing in a different light,” Silverman said. Judge J. Morgan Lester “will have to determine what testimony (about the car) is and is not admissible,” Silverman said.

When asked whether the ruling represented a serious blow to the prosecution’s case, Deputy Dist. Atty. Michael Carpenter replied, “Yeah, sure.” He declined further comment.

But Deputy Dist. Atty. Wayne Mayer, who is co-counsel in the retrial, said prosecutors will ask the appellate court for a rehearing on the assault charge. On Thursday, the justices rejected a prosecution request for a stay of their order, meaning Lester was compelled to formally strike the assault charge against Penn or risk being in contempt of court.

The appellate court has 10 days to decide whether to reconsider the ruling. If the justices decline, Mayer said the district attorney will petition the state Supreme Court to review the matter. That process could take months, and could delay the retrial, Mayer said.

After a widely publicized trial that spanned 12 weeks, Penn was found innocent in June of charges that he murdered Riggs and attempted to murder Jacobs. The jury deadlocked, heavily in favor of acquittal, on the remaining charges--voluntary manslaughter in Riggs’ death, attempted murder in the shooting of Pina-Ruiz, and attempted voluntary manslaughter and assault with a deadly weapon in the wounding of Jacobs, who was both shot and run over by the squad car.

Penn is being retried on those charges now, with the exception of the assault charge voided by the appellate court. The third week of jury selection in the case will wind up today.

During Penn’s first trial, Silverman argued that his client shot the officers and Pina-Ruiz in self-defense. Silverman contends that Penn was provoked to wrest Jacobs’ gun away and open fire because Jacobs was taunting him with racial slurs and both officers were beating him with their police batons.

Prosecutors contend that the officers used reasonable force in their efforts to arrest Penn after a traffic stop. Carpenter argued during the first trial that Penn sparked the altercation by refusing Jacobs’ request that he remove his driver’s license from his wallet.

The long-running case has heightened racial tensions and triggered reports of police misconduct in the black community.

According to the appellate court’s ruling, prosecutors erred in the first trial by failing to charge Penn with a separate count of assault with a deadly weapon in connection with the automobile incident. Instead, the district attorney placed that alleged crime under the umbrella of an attempted murder charge.

The justices found fault with such a strategy, noting that “the court lacks jurisdiction to convict a defendant of an offense neither charged nor necessarily included in the crime charged.”

Moreover, because Penn was acquitted of the attempted murder count that included the automobile assault, there has been a “final conclusion of all charges related to those specific circumstances” surrounding the patrol car.

“The bottom line is, (prosecutors) tried in the first trial to have their cake and eat it too,” Silverman said. “They could have charged attempted murder and had a separate charge of assault with a deadly weapon. But they didn’t want to do that. They didn’t want to weaken their case. So they elected to try to convince the jury Penn was guilty of attempted murder. And they failed.”