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A San Antonio man was beaten and robbed of his cell phone. The victim retrieved a handgun and fatally shot the robber. He also wounded an off-duty police officer. He was charged with murder. Closing arguments were Friday.

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Find at least three problems with his defense.

- Jim

1. Being born.

Means, Motive, & Opportunity of deadly force being applied to you. Need all 3 for deadly force to be justified in defense of a person.

1) Deadly force was not used upon him. 1 man punching another is not generally 'deadly force' unless the one throwing the punches is a 'professional' (hands and feet registered as deadly weapons? ), or it is a least a 3 on 1 situation.

2) After the crime was committed, and the guy was driving away, is when the guy got the gun and shot him.

3) He is the one who Escalated it to Deadly force by bringing out a gun. He is then the aggressor in that scenario.

4) Noone actually saw the fight. Can't verify that it actually happened.

5) He shot a Cop too, in addition to the Cop's friend.

* gun in bar is possible 51% violation if CHL - unlawful carry if not CHL
* nine (9) shots fired at retreating subject
* Conflicting recollections of events

Dicion: Actually, the use of deadly force is justified "when and to the degree [the victim] reasonably believes the deadly force is immediately necessary" to prevent robbery or to recover stolen property immediately after robbery or theft (PC 9.42).

That wasn't the root of the defendant's problem, though the fact that the robber was not armed doesn't help his case.

Oldgringo: The defendant likely was carrying illegally. However, that is not relevant to the charge of murder.

- Jim

seamus: Correct, which is why I stated "in defense of a person."

I was going over the reasons why he couldn't shoot the guy over the fight, not really the cell phone part. Thats a whole separate set of rules, sorry I didn't clarify

Personally, I know the law is there, but I'm generally not going to shoot someone in the case of a simple nonviolent theft.
Eg, if some guy grabs a lady's purse on the street, I'm not going to draw and attempt to shoot him. It's too dangerous for many, many reasons.
I'll try to chase him down, yelling for him to stop, and if he pulls a gun and threatens me or someone else, then I will, or course, meet deadly force with deadly force.

Same thing if someone steals a cell phone from someone, on the street, at a bar, restaurant, etc. Even if they elbow them in the face & knock them out to do it.
We are not the police, and can not simply produce our weapons, thereby escalating the situation, whenever we desire.
The best we should do in a situation like that is instead, produce a camera, remember details, license plates, etc.

Now, if someone breaks into my house to steal something, completely different story. I will gladly introduce them to the business end of My 12 Gauge in that case

Shooting nine times at a fleeing target and hitting target in the back is arguably premeditated and is relevant to the murder. The threat to the defendent had passed; ergo, the multiple shots were deliberate and intended to kill at the least.

There were aggravating circumstances, we're looking at 2nd degree murder for the little guy...who 'wore his gun to town'.

depends on what kind of phone it was. if it was an IPhone, well, there's plenty o' folk who'da shot'em for that....

Oldgringo wrote:Shooting nine times at a fleeing target and hitting target in the back is arguably premeditated and is relevant to the murder. The threat to the defendent had passed; ergo, the multiple shots were deliberate and intended to kill at the least.

The use of deadly force is justified to recover stolen property

(PC 4.42) ... when and to the degree he reasonably believes the deadly force is immediately necessary:...
(B) to prevent the other who is fleeing immediately after committing ... robbery ... from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

I think the defendant in this case might have avoided prosecution based on the facts of robbery and recovery of stolen property, if not for a few other unfortunate decisions that he made.

The fact that the stolen property was a cell phone makes the case more problematic than if it had been a wad of cash or an expensive watch.

- Jim

Wow. Remind me never to contact defense attorney Roy Barrera Sr. if I ever need help. It almost seems as if he never read the Penal Code before mounting a defense...since guilty by reason of temporary insanity was never mentioned. Some excerpts that I find most telling to Jim's question:

"The [defense] attorneys described their client as flustered and not in his right mind."

"Murder defendant Christopher Solis told jurors Thursday he wasn't thinking clearly in August 2007, when he shot at a truck leaving a North Side pool hall."

"But despite shooting out of anger at a man who'd just punched him and taken his phone, Solis said he never intended for the bullets to hurt anyone."

"Under normal circumstances, I wouldn't have done anything like this. I lost control" [Solis said].

"I was going to get the gun to scare them so they would give it back to me" [Solis said].

"But the shots were never fired with the intention of harming anyone, said attorney Roy Barrera Sr. Instead, Barrera contended, Solis merely wanted to stop the vehicle because Ramos had moments earlier beaten him up in an unprovoked confrontation, stealing a cell phone.

"Solis was found 'standing in the shadows' of the pool hall by security guards shortly after the shooting, acting nervous but denying that he had seen anything before returning to the bar, said Assistant District Attorneys Kevin O'Connell and Jason Garrahan."

He continued to lie days later, when he told police in an interview that he lost his cell phone and was so drunk that night he didn't remember anything, they said."

Jim,

Thanks for a good drill.

Carrying your gun to a bar isn't recommended procedure nor can I see shooting someone in the back over a cell phone - stolen property or not. Shooter and Shootee lose, Lawyers win.

Let us know what the "jury of his peers" comes up with.

Greg

The jury found the defendant not guilty of murder. They found him guilty of two counts of aggravated assault (one for each person who was shot) and sentenced him to 20 years.

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The jury deliberated the verdicts quite a long time. We can only guess what they disagreed about. I suspect that it was the element of intent in the murder charge.

It almost doesn't matter which charge the defendant was found guilty of. Murder and aggravated assault are both felonies that carry long sentences.

Weapons possession per se was apparently not an issue in this case.

- Jim

Russell wrote:This is a perfect scenario for KEEPING YOUR MOUTH SHUT ...

That was the point that hit me when I first saw this story.

The defendant said that he was trying to scare the robber. The law contains justifications for the use of deadly force, including self defense and recovery of stolen property. Shooting to scare someone is never justified, and is felony deadly conduct or worse (as in this case).

- Jim

This is NOT what I wanted to hear just before I'm about to go on Vacation to San Antonio's River Walk. My wife and I both will be packing wherever we go and avoid all places that had 51% or 30.06's.

Maybe we will get lucky and have a good time.
Maybe I'll just get lucky!
On second thought.... ..a nap sounds good too.
Let ya'll know how SA turns out.