Judge Reduces Sentence in Fatal Shooting

In an unusual move, a Superior Court judge threw out the second-degree murder conviction of a North Hollywood apartment house manager who shot a fleeing car burglar, reducing the offense to voluntary manslaughter and sentencing him to the minimum six years in prison.

Over the prosecutor’s protests that the crime was “a classic case of vigilantism,” Judge Sandy R. Kriegler said that although Daniel Bernard McDonald committed “an intentional killing,” he acted “without malice or forethought.” Furthermore, the judge said, McDonald was defended by an incompetent lawyer at his trial.

“This decision is based simply on the evidence presented in this case and by nothing else, including the media,” Kriegler said shortly before announcing the sentence.

McDonald, 46, who suffers from pancreatitis, originally faced 15 years to life when he was convicted Sept. 20 of second-degree murder.

Instead, the judge sentenced him to the minimum three years for voluntary manslaughter plus the required three years for using a firearm when committing a felony.

Just after 3 a.m. Dec. 7, McDonald and his son, Mark, raced outside their apartment complex--which they said had been plagued by a series of car burglaries--after hearing a car alarm go off. Minutes later, while his son tussled with a burglar, McDonald fired seven shots at two men as they jumped into a getaway car.

Henry Lemus, 23, was hit in the back. He was dumped by an unknown driver at Hollywood Presbyterian Hospital, where he died.

McDonald had long complained to police about a rash of car break-ins in his area and the case again raised the issue of citizens using deadly force against street criminals.

Eleven months earlier, Sun Valley resident William Masters had shot and killed an 18-year-old graffiti artist who he said had threatened him with a screwdriver. The district attorney’s office declined to bring murder charges against Masters, saying he had acted in self-defense, but Masters was later found guilty of a misdemeanor charge of carrying a concealed, loaded pistol and was sentenced to three years probation and ordered to give up his guns.

Before handing down sentence Wednesday, Kriegler heard emotional pleas from family members and friends of McDonald, who asked the judge to spare the ailing man from prison.

“This is a man who is loved by many people,” McDonald’s sister Karen Stephens said tearfully.

“He is honest and decent. He is not a murderer and doesn’t deserve to be in prison. I beg you, and thousands of other people who know him would say the same thing, Danny doesn’t have an enemy in the world.”

Tibor Neumann, owner of the apartment building McDonald managed, said his employee was caught up in the heat of the moment.

“What happened is completely out of his character,” Neumann told the judge. “This man is not a murderer; he just lost his cool in the heat of passion.”

But Deputy Dist. Atty. Richard Walmark said McDonald’s actions clearly merited time behind bars.

“Here we have a defendant who ran the length of a baseball field, shot seven rounds and killed a human being,” Walmark argued. “All the conduct that occurred that evening was a classic case of vigilantism.”

Kriegler also refused defense attorney Norm Kallen’s plea for probation for the apartment manager, saying that “people who commit intentional killings do not get probation in my court.”

And when Kallen argued for a new trial for McDonald, the judge said new proceedings would likely end in another conviction, at the same time commenting that the defense presented by McDonald’s original trial attorney, Brian Smith, was “constitutionally deficient.”

“Many jurors were crying in the jury box and said they would have liked to present a different verdict in this case if they could,” the judge said, but they were limited by Smith’s reliance on an argument of self-defense.

Reached at his Van Nuys office, Smith disagreed with the judge, insisting that his defense was adequate and saying that there was jury misconduct in the case. “I was contacted by a juror who basically said there was predetermination in the jury and that they wanted to vote immediately [after they received the case] without even going over the evidence,” Smith said.

He denied that his strategy was incompetent and said if he was negligent then “the judge should have granted a new trial.”

Smith said it is a “standard tactic to burn the attorney in order to save the client” when a new lawyer is motioning for a new trial.

After McDonald was sentenced, friends and family members hugged each other in the hallway and huddled around defense attorney Kallen as he explained in detail what happened. As he spoke, McDonald’s sister broke down in tears and said she feared her brother would not survive prison.

“He’ll die in there,” Stephens said. “I know he will. He’ll never get out of there.”