Raising Reasonable Doubts About Crime and Punishment

It’s the kind of story that immediately outrages many of those who think we already coddle the criminals.

A trucker sleeping inside the cab of his rig is approached by three men he fears are about to rob him. He chases them across a parking lot with a rifle and opens fire to defend his property. But instead of being the hero, he finds himself arrested for his efforts. In fact, he’s facing even more serious charges than the three men he says were after his cargo of frozen seafood.

Some will complain it’s another case of being a double victim--first at the hands of the crooks, then by the system. Or it’s what happens when we live in a society where weapons are so prevalent.

The problem is: It’s incorrect to believe that once we’ve been wronged by a crook, anything is fair game. Not true. You shoot at another human being with a gun, you’d better know what the law is. And in most instances, you’re asking for trouble.

“You can’t shoot somebody for taking your stuff,” said Deputy Dist. Atty. James Mulgrew, a veteran homicide prosecutor.

Fernando Sancho, like lots of truckers, had been the victim of a previous robbery--thieves took not just his goods but his truck--along Beach Boulevard in La Habra. So when he was parked there again Sunday night, he was leery of potential danger and decided to sleep in the cab. His truck was loaded with about $250,000 worth of frozen seafood.

About 1:30 a.m. Monday, while he was sleeping, three men approached the truck. It’s not yet clear what the three were doing. But they have been arrested on suspicion of attempted burglary, and Sancho has told police he was being robbed.

He apparently fired one shot through a truck window, because it was shattered. But Sancho told police he then left the truck and continued firing at the three. That’s apparently what led to his arrest.

Two were shot. They were hospitalized, but their injuries are not life-threatening.

Sancho was arrested on suspicion of attempted murder. It should be clear here that that does not mean he will be charged by the district attorney with attempted murder. The police may arrest on “reasonable suspicion” alone. But prosecutors have to present a “beyond a reasonable doubt” case to a jury. They don’t always charge what the police arrest on. In this instance, the police simply presented the facts to the district attorney’s office, and the case was assigned to its special assignment unit for review.

Assistant Dist. Atty. John D. Conley could not comment on the Sancho case but noted such cases can get complicated.

“So much depends on the shooter’s state of mind,” Conley said.

For example, did Sancho have reason to believe that the three were armed or were sophisticated gang members who might jump him? On the other hand, if Sancho fired while the perpetrators (who, it turns out, were not armed) were scampering to get away, how can he argue that he had a reasonable fear that his life was in danger?

You see the word “reasonable” used here in three different ways. All three ways are defined in the statutes, which gives you an idea how much work a jury would have trying to sort this out.

Some cases are easier to decide. For example, Conley said, the law allows for a “presumption” of danger if you are awakened by a burglar inside your home and you open fire. That would be justifiable homicide in almost all cases.

But if the alarm goes off in your car parked in your driveway, Conley said, and you see a thief inside about to drive off, it would be against the law for you to shoot that person.

That’s exactly what happened to Daniel Bernard McDonald in North Hollywood in 1995. Plagued by a series of car break-ins, he and his son Mark raced outside their apartment when they heard a car alarm. While his son tussled with one burglar, McDonald opened fire on two others who jumped into a getaway car. One of them died, and McDonald was convicted by a jury of second-degree murder. A judge later reduced the verdict to voluntary manslaughter, but McDonald still went to prison for six years.

You have to understand, prosecutor Mulgrew said, that if we did not have such laws, “we’d have chaos.”

“Not only would we have people all over the place shooting to defend property,” he said, “but we’d have people falsely claiming that they fired because they thought they were being ripped off.”

What if three fellows approach your truck because they want to spray the side with their school colors? You’d want to whip their behinds, but wouldn’t shooting them be excessive? What if you simply cannot be sure what the three are doing, but your paranoia over previous robberies convinced you that they mean trouble?

On Sancho’s side, there is not a long history of similar prosecutions in Orange County. And even if the district attorney files what it considers proper charges--whether attempted murder or the lesser charge of assault with a deadly weapon--it might be a tough battle to sell the case to a jury.

Whatever the outcome, Sancho must be wishing he hadn’t been so quick to open fire.

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Jerry Hicks’ column appears Tuesday, Thursday and Saturday. Readers may reach Hicks by calling the Times Orange County Edition at (714) 966-7823 or by fax to (714) 966-7711, or e-mail to jerry.hicks@latimes.com.