November 7, 2010 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
If you are reading this, you are likely aware that Los Angeles County Superior Court Judge Robert Perry sentenced former BART police officer Johannes Meshserle to two years in a California state prison for the killing of Oscar Grant on an Oakland train platform. What follows is a simple factual explanation of how this sentence was arrived at under California law. This is not an editorial on whether we believe this is the right sentence or wrong sentence, there’s plenty of other people out there doing that. These are just facts as to how and why the sentence is what it is.
In criminal trials, juries don’t decide penalties they only decide guilt or innocence (there are exceptions, like in death penalty cases). In fact, a criminal defense attorney is not supposed to mention sentencing or punishment to the jury at all during trial. If a defendant is convicted, the attorneys usually return to court at a future date to file briefs and make arguments as to the appropriate sentence. The judge then applies California’s determinate sentencing law to trial evidence, the defendant’s criminal history, and the attorney’s arguments when deciding the proper sentence. In certain situations, the judge does have the discretion to set aside the jury verdict and impose a sentence he or she believes to be in the interests of justice. The defense may also file a motion asking the judge to order a new trial with a new jury.
In the Mehserle case, a Los Angeles jury convicted Mehserle of involuntary manslaughter in violation of California Penal Code Section 192(b), the jury found that even though Mesherle acted “without malice” he acted “without due caution and circumspection” which is far different than voluntary manslaughter, in which the jury would be required to find that Mehserle acted “without malice” but acted a “upon a sudden quarrel of heat of passion” (for those playing along at home, check out California Penal Code Section 192(a)). The jury also found that the allegation that Mesherle personally used a firearm in the commission of the offense to be “true” (California Penal Code 120225(a)).
The Potential Sentence and The Actual Sentence
A conviction of involuntary manslaughter carries a sentence that can range from probation to a state prison sentence of two, three, or four years. Since Judge Perry denied the defense’s request for probation, Judge Perry then had to decide whether Mehserle would get two, three, or four years in state prison. Under California’s determinate sentencing laws, the “presumptive” sentence is the mid-term, which in this case is three years. A judge may consider mitigating factors in favor of low term, or aggravating factors in favor of high term.
Here, Judge Perry looked at numerous factors including video evidence presented at trial in which Mesherle appeared shocked and deeply distressed immediately after realizing he had used his firearm and not his taser and shot Oscar Grant in the back. There were two witnesses who both said that they heard Mehserle threaten to use his taser on Mr. Grant immediately before the shooting. Mehserle took the stand in his own defense and testified that not a day went by when he didn’t think about what he had done to Oscar Grant. This evidence likely played a large part in convincing the court that this was an accidental shooting which merited the low-term of two years.
As for the ten year enhancement for personal use of a firearm, Judge Perry found that he had made a mistake when instructing the jury on this enhancement. For a jury to find it “true” that the defendant personally used a firearm in the commission of a crime to be, they must find that the defendant intentionally used the firearm. Judge Perry did not believe he accurately instructed the jury on this point and felt that had he done so, in light of the evidence presented at trial that this was an accident; any reasonable jury would have decided that this allegation was “not true.” The 10 year firearm enhancement was then set aside (or dismissed).
Why Mehserle Will Only Serve 7 Months
Under California law, most sentences are served at 50% time. The exceptions are serious and violent felonies under California’s “three strikes” law in which, depending on the circumstances, prison terms can be doubled and served at 85%. Involuntary manslaughter is a “serious” felony but not a “violent felony” so it is not a strike, this means that Mehserle will only serve 50% of his time, that means 1 year instead of 2. At the time of sentencing, Mehserle has been in custody for 146 days, which is credited towards his prison sentence, with the 50% rule this 146 days turns into 292 days credit. This means that Mehserle will serve somewhere between 7 and 8 months in prison.