People v. Superior Court (Du)

5 Cal.App.4th 822 (1992)

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Nature of the Case

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Facts

D and her family owned and operated a liquor store. D worked on the morning of March 16 so that her son, who had been threatened by local gang members, could work at their second store. D's husband, Billy Du, was present that morning, but at D's urging, he went outside to sleep in the family van because he had worked late the night before. D was waiting on two customers at the counter when the victim, 15- year-old Latasha Harlins, entered the store. Latasha proceeded to the section where the juice was kept, selected a bottle of orange juice, put it in her backpack, and proceeded toward the counter. D had observed many shoplifters in the store who would take the merchandise, 'place it inside the bra or anyplace where the owner would not notice,' and then approach the counter, buy some small items and leave. D saw Latasha did with the bottle. It was partially visible. Defendant testified that she was suspicious because she expected if the victim were going to pay for the orange juice, she would have had it in her hand. Thirteen-year-old Lakeshia Combs and her brother, nine-year-old Ismail Ali, testified that Latasha approached the counter with money ('about two or three dollars') in her hand. According to these witnesses, D confronted Latasha, called her a 'bitch' and accused her of trying to steal the orange juice; Latasha stated she intended to pay for it. According to D, she asked Latasha to pay for the orange juice, and Latasha replied, 'What orange juice?' D concluded that Latasha was trying to steal the juice. D began pulling on Latasha's sweater in an attempt to retrieve the orange juice from the backpack. Latasha resisted, and the two struggled. Latasha hit defendant in the eye with her fist twice. D fell to the floor behind the counter, taking the backpack with her. During the scuffle, the orange juice fell out of the backpack and onto the floor in front of the counter. D testified that she thought if she were hit one more time, she would die. D also testified that Latasha threatened to kill her. D picked up a stool from behind the counter and threw it at Latasha, but it did not hit her. D then pulled out a holstered .38-caliber revolver, and, with some difficulty, removed the gun from the holster. As D was removing the gun from the holster, Latasha picked up the orange juice and put it back on the counter, but D knocked it away. As Latasha turned to leave D shot her in the back of the head from a distance of approximately three feet, killing her instantly. Latasha had $2 in her hand when she died. D's husband attempted to revive her and also dialed 911 and reported a holdup. D was transported to the hospital by ambulance, where she was treated for facial bruises and evaluated for possible neurological damage. D testified that she had never held a gun before, did not know how it worked, did not remember firing the gun and did not intend to kill Latasha. A ballistics expert testified that the gun had been altered crudely and that the trigger pull necessary to fire the gun had been drastically reduced. Also, both the locking mechanism of the hammer and the mainspring tension screw of the gun had been altered so that the hammer could be released without putting much pressure on the trigger. In addition, the safety mechanism did not function properly. The court granted a defense motion to dismiss the charge of first-degree murder. The jury was instructed on second-degree murder, two theories of voluntary manslaughter (sudden quarrel or heat of passion and honest but unreasonable belief in self-defense and involuntary manslaughter. D was found guilty of voluntary manslaughter. The jury impliedly found that D had the intent to kill and that the killing was unlawful, i.e., that it was neither justifiable nor excusable. It rejected that D killed in self-defense. D was a 51-year-old Korean- born naturalized American citizen, having arrived in the United States in 1976. For the first 10 years of their residence in the United States, D worked in a garment factory and her husband worked as a repairman. Eventually, the couple saved enough to purchase their first liquor store in San Fernando. In 1989, they purchased the Empire Liquor Market, despite being warned by friends that it was in a 'bad area.' The area surrounding the store was frequented by narcotics dealers and gang members, specifically the Main Street Crips. D's son described the situation as 'having to conduct business in a war zone.' D's son was robbed while working at the store and he incurred the wrath of local gang members when he agreed to testify against one of their number who he believed had committed the robbery. They were robbed, and the store was burglarized over 30 times, and shoplifting incidents occurred approximately 40 times per week. Joseph further testified that his life had been threatened over 30 times, and more than 20 times people had come into the store and threatened to burn it down. Joseph told his mother about these threats every day because he wanted to emphasize how dangerous the area was, and that he could not do business there much longer. The probation officer concluded 'it is true that this defendant would be most unlikely to repeat this or any other crime if she were allowed to remain free. She is not a person who would actively seek to harm another ....' Latasha had just graduated Junior High. She was an honor student and was involved in a youth center, an assistant cheerleader, a drill team member, a good athlete, and a church member. She had lost her mother. The court sentenced D to ten years in state prison (six years for the base term and four for the gun use). Sentence was suspended, and D was placed on probation for a period of five years with the usual terms and conditions and on the condition that she pay $500 to the restitution fund and reimburse Latasha's family for any out-of-pocket medical expenses and expenses related to Latasha's funeral. Defendant was also ordered to perform 400 hours of community service. The court did not impose any jail time as a condition of probation.