Have you been ARRESTED or contacted by the Police, a Detective, FBI, or CPS?
Have you been ARRESTED or contacted by the Police, a Detective, FBI, or CPS?
This is the first in a series of articles about my defense of Los Angeles Defense Attorney Law Firm (LADALF) client John McVoy, Jr. – most particularly at his relatively recent trial at the Governor George Deukmejian Courthouse in Long Beach where John was charged with:
One count of First-Degree Murder (in general) at California Penal Code section 187(a), California Penal Code section 188, California Penal Code section 189(a) & California Penal Code section 190; or, in the alternative, one count of Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187;
Two counts of Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & Penal Code section 187(a)); and
One count of felony Child Endangerment (California Penal Code section 273a).
Of the more than sixty (60) trials I have completed to date over the last 17 years, this one has bothered me the most. I have never experienced such open hostility and profound bias from a California state judge. The end result of this? Despite the fact that all the jurors believed John had been defending himself at the time of the subject killing, the judge refused to allow self-defense as an option – either as a complete defense (also known as a “perfect defense”, meaning that the defendant is not guilty of any crime), or an “imperfect” defense (meaning that the defendant would be convicted of a “lesser included offense”, such as:
Voluntary Manslaughter (Penal Code section 192(a)) or
Involuntary Manslaughter (Pen. Code section 192(b)).
At trial, I presented overwhelming evidence that the killing had occurred purely by accident while John had been defending himself against a vicious attack that nearly resulted in his own death. As a result, the judge was required as a matter of law to allow the jury to consider self-defense. She also refused to allow the jury to consider the lesser included offenses of Voluntary Manslaughter and Involuntary Manslaughter, which she was also required to allow in the jury instructions.
In denying John’s lawful right to a self-defense and a manslaughter instruction, the judge committed what is known as constitutional error (for violating John’s rights under the United States and California Constitutions), as well as prejudicial error (because of the resulting murder conviction).
But for the judge’s legal “errors” (which both myself and at least two of the jurors were convinced resulted from her own prejudices towards John and I), at best John would have been acquitted. In fact, he was acquitted on all the other charges against him – a verdict that resulted because the judge inexplicably allowed the jury to consider self-defense as to those charges.
At worst, John would have been convicted of Voluntary Manslaughter (Penal Code section 192(a): https://codes.findlaw.com/ca/penal-code/pen-sect-192.html./) or Involuntary Manslaughter (Penal Code section 192(b): https://codes.findlaw.com/ca/penal-code/pen-sect-192.html./) – either of which would have resulted in a far less egregious sentence than he ultimately received. In fact, with the numerous years he had spent in jail awaiting trial, including his good time credits, either conviction could – at least with most other judges — have resulted in him being immediately released upon sentencing.
This case will also stand out as one of the most profound and disturbing I’ve ever handled because never in my almost two decades of practicing criminal law have I been contacted by a juror after trial – much less two jurors. Specifically, they each independently (i.e., without knowledge of the other contacting me) told me how deeply troubled they were by the judge’s refusal to allow a self-defense or a manslaughter instruction in regard to the Murder charge (Pen. Code section 187(a), and by the fact that, according to both of them, all 12 jurors felt they had no choice but to convict John of some crime without being allowed to consider self-defense. And since the only option was Second-Degree Murder (Pen. Code section 192(a)&(b)), that’s what they did. (Both told me that all 12 jurors immediately rejected First-Degree Murder since there was never any evidence that John had intended to kill anyone that night.)
Fortunately, I am confident that based on the judge’s numerous legal errors, the 2nd District for the California Court of Appeal will overturn the guilty verdict and: (a) find John not guilty; (b) find him guilty of one of the two degrees of manslaughter; or (c) remand the case back to the judge for a new trial. This opinion is shared by several highly experienced and respected appellate lawyers I spoke with at length about the case after John’s conviction.
In the meantime, however, John – who had already spent five years in jail awaiting trial and now was recently transferred to a state prison – will continue to endure what can only be characterized as a genuine travesty of justice.
Aside from describing the dramatic events involving a case that would eventually receive so much media attention that even a London tabloid reported on it, this series of blogs provides “insider” details about how a defense against a murder prosecution is put together and presented. The following links will bring up some of these articles:
But for the judge’s numerous legal errors, however, this series would have been entitled “How to Obtain an Acquittal in a Murder Trial”.
Notwithstanding, as the two jurors confirmed (see below), all 12 jurors believed I had done an outstanding job defending John throughout the trial. Accordingly, throughout this blog series, I’ll stop my narrative from time to time to give “trial tips” for newly minted defense lawyers, attorneys interested in switching over to a criminal defense practice, or otherwise any other criminal defense lawyer who’s interested in sharpening their trial skills.
At the time of the incident, John, a White male, was 35 years old, six feet all, but weighing only 150 pounds. He lived in Corona, CA, and came from a good, loving, and supporting family. His father, John Senior, with whom John lived, is a CPA and his sister Jillian, like their father, was present for virtually every hearing. They would also be present for almost every day of the trial.
It’s critical that the jury sees members of the defendant’s immediate family present in court each and every day. At the risk of stating the obvious, the jury must see that the defendant has a devoted family who unequivocally believes in his or her innocence. Every juror obviously has family members whom they love, so they will inevitably – and perhaps unconsciously – empathize (at least to some degree) with your client. All it takes is for a single juror to empathize with him or her to such a degree that a hung jury results.
John worked as a part-time freelance musical equipment salesman for Kay’s Guitars in Irvine, CA (earning strictly commissions at a business where he had previously been employed) full-time). Otherwise, his father helped financially support him.
As far as his personality, John is an intelligent, sensitive, extremely introverted, quiet, and almost painfully shy person – all traits that came through when he testified at trial. All three prosecution witnesses would confirm these character traits, as well as the fact that they had never once witnessed him acting aggressive or hostile towards anyone. John had been married once but had gotten divorced seven years before the incident. He has no children. According to his father, John was so devastated by this breakup that he essentially lost interest in seeing anyone else.
John’s debilitating health conditions played a critical role at trial and were central to his self-defense claims. Specifically, he is an extremely frail man who suffers from not one, but two chronically degenerative diseases — rheumatoid arthritis and Crohn’s disease. According to the Mayo Clinic:
Rheumatoid arthritis is a chronic inflammatory disorder that can affect more than just your joints. … [T]he condition can damage a wide variety of body systems, including the skin, eyes, lungs, heart, and blood vessels. An autoimmune disorder, rheumatoid arthritis occurs when your immune system mistakenly attacks your own body’s tissues.
See: mayoclinic.org.
Similarly, the Mayo Clinic states:
Crohn’s disease is a type of inflammatory bowel disease (IBD). It causes inflammation of your digestive tract, which can lead to abdominal pain, severe diarRea, fatigue, weight loss, and malnutrition. Inflammation caused by Crohn’s disease can involve different areas of the digestive tract…. This inflammation often spreads into the deeper layers of the bowel. Crohn’s disease can be both painful and debilitating, and sometimes may lead to life-threatening complications.
See: mayoclinic.org.
John had been an ardent longtime fan and supporter of a garage rock band called Below The Fault Line. The band had developed a popular local following and had finally began seeing commercial prospects come to fruition thanks to a sponsorship deal of some kind. John’s involvement with the band would also prove to be extremely important at trial for numerous reasons discussed below.
The band had been formed years earlier by two close friends for 15 years – Victor Garcia (age 32 at the time of the incident), in whose Long Beach home the incident occurred, and Ramon Chavarria (age 31, friends with Victor since high school).
Another longtime fan was Miguel Rea (age 37), a Moreno Valley resident and also a close friend of Victor’s for 15 years – they, too, had gone to high school together. (There were several other band members but since they weren’t called as witnesses and otherwise had nothing to do with this case, I see no reason to identify them.)
John had met Victor six years before the incident when John had a regular full-time on-site job at the guitar store in Irvine. He and Victor, as well as Victor’s wife, Susan Yang Garcia (age 33 on the night of the incident), had become fairly good friends, with John occasionally socializing with them at their modest home.
Approximately three years before the incident, John met Ramon and the other band members. From that point on, John became a fan and also supplied the band with free musical equipment. He eventually would occasionally play guitar for them and, therefore, became a de facto band member. In fact, during the two months prior to the incident, John had been rehearsing with the band in the attached garage at Victor’s house in Long Beach most Tuesday nights. (Sometimes the band would rent out a professional recording studio to play.) On the night in question, the band was scheduled to rehearse at the Garcias’ home with Ramon and several other hangers-on to also be present.
Miguel would later confirm to police that John “sponsored the band and would sometimes give the band musical equipment.” John also gave them a discount (his own wholesale purchase cost) for larger pieces of equipment. As a result, John quickly became a valuable addition to the band – a fact which the prosecution’s witnesses would unsuccessfully attempt to dispute at trial.
Importantly, however, in the months leading up to the incident, John had grown increasingly disillusioned with the band, whom he believed were taking advantage of his generosity. For example, at no time did any of the members ever offer to reimburse him for any of the equipment he gave them. This, too, came across at trial.
Perhaps even worse, numerous tough-looking young men with gang tattoos began hanging around the band – men whom Victor proudly boasted were actual Long Beach gang members. John began to feel uncomfortable around these men, as well as with Victor’s increasingly swaggering behavior around these individuals.
A defendant’s self-defense claim can have its genesis months or even years before the alleged crime. As such, anything and everything that happens during that period which would support the claim that the defendant began to feel he or she was in danger of imminent serious physical harm or even death at the time of the alleged crime will be admissible at trial. Here, however, I did not attempt to introduce evidence of these supposed gang members hanging around the band because none of these individuals ever directly or indirectly threatened John. In other words, simply because these men may have contributed to John’s growing sense of unease was not in and of itself supportive of a self-defense claim because none of them were involved in the incident.
Victor’s increasingly disturbing behavior in the months and weeks leading up to the incident, however, would be directly relevant, admissible, and crucial for John’s self-defense claim. Specifically, whenever John intimated to Victor that he wanted to leave the band, Victor would become aggressive and threatening, clearly implying that he would physically harm John if he tried to do so. Keep in mind that despite John being three inches taller than Victor (who stood 5’9”), Victor outweighed him by a whopping 75 pounds (Victor weighed 225 and was stocky & muscular). In addition, Victor carried himself like a tough-guy street fighter. Victor would also make hostile racist remarks, repeatedly telling John in a menacing manner about how much he hated White people, then laughing it off as a “joke”.
(All of the prosecution’s witnesses agreed that John had never any conflicts with anyone else in the band. He never drank alcohol or did drugs, and only occasionally smoked marijuana.)
This situation finally came to a head approximately two weeks before the incident when Victor showed John his brand-new 12-guage tactical assault shotgun (the kind SWAT teams use), implying that he would use it on John if he tried to leave the band. John testified to all this at trial, and all 12 jurors believed his testimony while rejecting the prosecution witnesses’ claims that Victor had merely been “joking”. The next time John and Victor saw each other was the subject evening.
John’s claims of self-defense never wavered once in the five years leading up to his trial. Indeed, as he told police the night of the incident (according to a police report), “he had signed an agreement to be in their band. … McVoy said he was afraid that if he didn’t go to band practice [that night], they would kill him.”
So that tragic day, John left his job as a “retail guitar salesman” from the Kay’s Guitars in Irvine and drove directly to the Garcias’ home in Long Beach. His plan was to tell Victor once and for all that he was leaving the band. Unfortunately for everyone involved, John armed himself for his own protection.
The gun John would fire twice that night was a double-action, five-shot .41-caliber Long Colt revolver that dated back to the Wild West/post-Civil War era. (Think of a shorter-barreled version of the pistol Clint Eastwood carries in the 1990 film Unforgiven.) In other words, it was over a hundred years old, and had been in John’s family for many decades. (Interestingly, the judge would order that the firearm be returned to John’s father after the trial because of its “family heirloom” status.)
Prior to the incident, John had only fired it once before when he went to the woods to see if it actually worked. The gun was so old and poorly cared for (i.e., not regularly cleaned and oiled), it was almost miraculous that it didn’t explode in John’s hand when he fired it. (The bullets themselves were no longer manufactured and were therefore purchased many years before at a gun show.)
I had retained the services of two different expert witnesses in regard to the Colt. The first was an expert on gunpowder residue and the second was prepared to testify about the working mechanisms of the Colt itself. It should go without saying that anytime you have a trial involving the discharge of a firearm, you are going to want to have at least one defense expert lined up to counter the testimony of the prosecution’s expert. In fact, you should always have an expert ready to reject such testimony, regardless of the subject matter to which the prosecution’s expert is going to testify. Here, as it turned out, I didn’t need to call either expert because nothing the DA’s expert said on the stand hurt our defense.
And so that evening, John drove from Irvine to Long Beach with the Colt in the center of his rear waistband. But he never intended to actually fire it, only to frighten Victor if Victor sought to attack him or even shoot him with the shotgun.