Suspect in alleged road rage killing of Aiden Leos faces ‘depraved heart’ murder charge

Orange County prosecutors say they will try to prove that the man accused of killing 6-year-old Aiden Leos in a road rage shooting on the 55 Freeway committed the crime with “malice aforethought,” a charge that if affirmed by a jury could result in a sentence of 40 years to life.

Marcus Anthony Eriz, 24, has been charged with murder and discharging a gun into an occupied vehicle. His arraignment Tuesday was rescheduled for later this month, and he has not offered a plea. Neither he nor his attorney could be reached for comment.

Here is what we know about the charges:

What is ‘malice aforethought’

“Express malice” means the accused intended to kill the victim. “Implied malice” means the accused demonstrated a conscious disregard for human life.

Orange County Dist. Atty. Todd Spitzer said he believes he can prove implied malice using the “depraved heart” theory.

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To win a depraved heart murder case, prosecutors must prove that a suspect showed a depraved indifference to human life and recklessly engaged in conduct that created a grave risk of death to another person and caused their death.

“Our theory today is that it’s reckless indifference to life,” Spitzer said.

“We would not file these charges unless we could prove them beyond a reasonable doubt,” Spitzer added.

Louis Shapiro, a Los Angeles defense attorney, said the prosecution could be a challenge.

“This is an awful act, but proving malice aforethought is very hard to prove. The facts of this case don’t on its face seem like a malice aforethought act and more of a spur-of-the-moment decision,” Shapiro said.

Depraved heart charges have been used in other high-profile cases, including against police officers in the Freddie Gray murder case in Baltimore in 2015. Those charges were eventually dropped.

What do authorities say happened?

Aiden was fatally shot on the morning of May 21 while riding in the back of his mother’s car on his way to kindergarten.

Aiden’s mother, Joanna Cloonan, told another motorist that she and her son were in the carpool lane when another car cut her off as she started switching lanes to exit.

She made an obscene gesture toward the people in the other car, who then maneuvered behind her and fired a gun at her vehicle, officials said.

A bullet entered Cloonan’s car from the rear, striking her son in the back.

She pulled over and took the bleeding boy into her arms until paramedics arrived. Doctors could not save him.

“It could’ve happened to any one of us,” Spitzer said while holding up a photograph of Aiden during a news conference Monday. “We all drive the freeways of Southern California. We’ve all gotten upset at other motorists. Other motorists have gotten upset at us. I’ve thrown some gestures about myself. But it’s never come to a situation of violence and certainly not in my realm or your realm, to the loss of a life.”

What evidence has been presented by authorities?

Spitzer on Tuesday said he believed the gun recovered by California Highway Patrol officials this week was registered to Eriz but did not say where it was recovered.

Surveillance, investigation and tips all played a part in identifying Eriz and Lee, officials said. But Spitzer said officials could not discuss the specific techniques used in the investigation.

After circulating an image of the vehicle said to belong to the suspects in the weeks after the shooting, investigators received hundreds of calls and emails. A reward funded by family members, donations, county officials and local businesses climbed to $500,000.

Officials are still reviewing the potential distribution of that reward. Spitzer said it is contingent upon both an arrest and a conviction.

What about the driver?

Wynne Lee, who authorities say was driving the car that Eriz was riding in, has been charged with one felony count of being an accessory after the fact and a misdemeanor count of having a concealed firearm in a vehicle.

Prosecutors say Lee, 23, concealed the shooting, which led to the accessory charge.

Lee faces up to three years in prison and one year in jail if convicted of the two charges.