[Kate Moser]
One of many lingering questions in the Johannes Mehserle trial is how the gun enhancement will play into his sentencing.
Not long after the Los Angeles jury returned the involuntary manslaughter verdict yesterday, Alameda County District Attorney Nancy O’Malley said in a press conference that, in addition to the two to four years in state prison for the involuntary manslaughter crime, the gun enhancement would add three, four or 10 years in state prison.
But there’s an array of perspectives on what Judge Robert Perry can do.
“One of the things that people haven’t talked about is that the judge has two options – one is to send him to prison, and the other is to give him a year or less in the county jail,” said Peter Waite, a prosecutor in the Santa Clara DA’s office.
If the judge sends him to prison, Mehserle has to serve extra time for the gun, Waite added. “I don’t think there’s any other way around it, as far as I know.”
One defense perspective is that Mehserle’s lawyer, Pleasant Hill attorney Michael Rains, could argue that there’s no case law that says specifically the 12022.5(a) gun enhancement applies to a police officer who commits a crime while on the job.
Ropers, Majeski, Kohn & Bentley partner James Lassart, a former state and federal prosecutor, said he’d go back to the intent of the statute.
“It was to keep people from arming themselves with weaponry to commit crimes,” Lassart said. “There should be an exemption for police officers, who are always armed by necessity.”
“It’s an argument – there’s nothing that’s ever decided the point,” he added. “But I think it’s a pretty legitimate argument.”
In 2004, a bill in the state assembly proposed an exception so that the firearm enhancement wouldn’t apply to an involuntary manslaughter conviction. It was prompted by a jury convicting a Riverside County DA investigator of involuntary manslaughter in the shooting death of the driver of a pickup truck. He had been trying to detain the passenger, whose children, riding in the back, had been declared dependent wards of the court.
The bill wasn’t passed.
Mr. Lassart should learn the difference between Penal Code section 12022 and section 12022.5. The former covers being armed in committing a crime; the latter covers use. His point about police officers always being armed is irrelevant.
Posted by: Oski | July 12, 2010 at 06:17 AM