AM 600 in San Diego, The DeMaio Report Radio Clip- Criminal Defense

Here is the radio transcript:

Speaker 1:                    On Newsradio 600, KOGO.

Speaker 2:                    Roy Orbison's son, Alex, is going on tour with his dad. How exactly? Well, we'll ask him, live, tomorrow morning at 7:40 on San Diego's morning news.

Carl DeMaio:                So, City Heights man, uh, is, uh, charged with three felonies, including attempted murder, after he mistakenly shot a water department employee two nights ago. 79 year old Nathan Brogan is being held on those charges. Uh, should he be [00:00:30] charged with those crimes? I don't think so. 800-600-KOGO, 800-600-5646. @CarlDeMaio on Twitter and Facebook.

                                    Remember I've got those, uh, Padres tickets to give out so keep listening for that. There is a, um, uh, a variety of, uh, provisions in case law and in, um, um, uh, state law that allow for someone to use deadly force to defend one's home. It's called the Castle Doctrine in California. And to explain [00:01:00] how that might impact this guy's, uh, prosecution is Don Hammond. He's a Southern California criminal defense attorney.

                                    Don, thanks for stopping by.

Don Hammond:            Thank you, Carl, happy to be here.

Carl DeMaio:                So when I see this I'm like, it's just a simple mistake, um, you know, the guy was rattled, um, you know, maybe he was rash, maybe he was a little negligent, um, but, uh, you know, someone's, uh, at-at your front door in the middle of the night and-and making noise, um, you don't know what's happening, particularly [00:01:30] when you're 79 years old. So, w-what sort of defense could this guy potentially mount?

Don Hammond:            Well in terms of defense we're gonna be looking more at the jury instructions for self defense. Um, the penal code section that applies s-specifically to the Castle Doctrine applies when somebody is inside, uh, the defendant's home. Um, so the Castle Doctrine per se wouldn't apply to somebody who hasn't entered the home yet. Uh, but there are jury instructions that contain [00:02:00] what we commonly refer to as "self defense". And if he had a, and most of these things in the law are based on reasonableness. So I mean, he has to actually have believed that he was in danger and that belief has to have been reasonable in order for him to have a defense. Um, so that's the types of things that we would be looking at legally.  Um, be looking at whether he actually believes there was a threat and then whether a reasonable person in his position would have believed that there was a threat. And then you can use that amount [00:02:30] of force necessary to stop the threat.

                                    Um, based on the level of threat that he perceived in this situation, the question is whether lethal force would have been necessary to stop the threat. So there are a lot of complicated issues to look at here. As a defense attorney, uh, we would absolutely go in saying that, uh, you know, he had a reasonable fear, uh, for his life and that he was justified in using deadly force. And we'd have to try to convince, initially defense prosecutors of that and then maybe eventually try to convince jurors of that.

Carl DeMaio:                So there's gonna be [00:03:00] at least, uh, you know, a-a-a play on the concept that he's 79 years old, that's not young. Um, he's kind of frail, and, um, it, that there also may be the point that, um, uh, it was the, in the middle of the night. You don't expect a service call in the middle of the night from the water department, uh, particularly when you don't ex-, you don't suspect that anything's wrong with your-your water. Um, uh, you know, you're not having a leak, uh, you didn't call people. Um, would those two things [00:03:30] be mitigating factors?

Don Hammond:            I think they certainly are mitigating factors certainly initially in the, uh, in sort of a negotiation process with the government and trying to get the case resolved possibly. Um, but with a jury and certainly those things are going to be mentioned, uh, and then, I mean you're always looking for a jully-jury nullification type of thing using those. I mean, it does good to a reasonableness standard, and then like I mentioned this is really the touchstone of this is reasonableness. So when you're looking at whether [00:04:00] a reasonable posi-, reasonable person in the defendant's position would have believed that there was a threat and believed that deadly force was necessary, then we get to look at what he knew at the time and whether, based on what he knew, his actions were reasonable. Um, and that's certainly something we would argue to the jury, that you know, s-, this guy maybe is hard of hearing, maybe he has some medical issues of his own, uh, maybe he's faced prior threats in the past, um, that would cause him to believe [00:04:30] that, you know, somebody's breaking into his house. And those kinds of things can certainly be relevant.

Carl DeMaio:                So, well one of the witnesses offers a little glimpse here as well. Um, Lorena Sweet describes him as a very, very nice man. Uh, says that, uh, um, he looked however a little disoriented, um, when he was standing on his front porch. He was still holding the shotgun, uh, wasn't pointing it at anyone, but he looked disoriented [00:05:00] when he was standing up there. I'm sure he was in a state of shock. Would that also get into, "Look, he wasn't expecting, uh, you know, that this was a water department person. He-he might have legitimately thought that there was something bad going on and now he's shocked because, "Oh my God! It was just the water department guy."

Don Hammond:            Yeah, I'm sure Mr. Brogan, I don't think anybody's saying that Mr. Brogan, you know, sort of woke up that morning with the intent to go out and shoot somebody, um, he-he's not that kind of guy and very few people are. I mean, I-I've represented a lot of lifers, at the board of parole hearings I've met a lot of [00:05:30] murderers and they're, most of the time they don't wake up in the morning with the intention of going out and killing somebody, or shooting somebody that day.

                                    Um, and I-I would hope that any one of us after having shot somebody, whether it's justified or not, would look, you know, bewildered and, you know, kind of, you know, spaced out about what the heck just happened and what have I just done. Um, so I think that it, you know, it sort of cuts certainly to his intent that he, he didn't come out the door, guns blazing, hoping to have to use deadly force. Um, that he came into the situation [00:06:00] as a confused guy, not knowing what was going on, and, you know, he perceived a threat that he thought was reasonable, and that he had to stop the threat so he used, uh, his deadly force.

                                    So that's certainly one factor that-that we would argue. Um, I would consider whether he has any medical issues. Certainly at that age, um, you know, maybe he has some sort of, you know, Alzheimer's or dementia or something that would impact his, uh, his mental state. And that could be another possible defense here, that he didn't have the requisite, [00:06:30] what we call, in the law we call it mens rea, it's a fancy Latin term for the mental state that's necessary to commit the crime. Um, so you know, maybe there's something going on in his head that prevented him from being able to form that mental state necessary to actually be guilty of an assault with a deadly weapon or an attempted murder, or these kinds of crimes that they've charged him with.

Carl DeMaio:                Well you, it just, you know, I-I look at this and, uh, you know, the interesting, you know, uh, argument that you've-you've raised about [00:07:00] the reasonableness standard, uh, was he reasonably, um, feeling like his life was in danger, that there was a threat, um, I-I-I think on that front he's probably gonna have an ar-, a-a hard, uh, argument to make because it's just someone on his front step. Um, but on the Castle Doc-Doctrine, if the guy was physically in his home, and of course you-you would presume that no one has a right to just simply come into your home, and he, uh, shot, uh, out of fear, that, that might be a more sustainable defense, or a more clearcut, [00:07:30] um, uh, shield.

Don Hammond:            Absolutely. Uh, once somebody is inside the home and it's presumed, um, that it's reasonable, and it's presumed that there's a reasonable fear of imminent peril or death, is what the statute actually says.

Carl DeMaio:                Even if it's like some-

Don Hammond:            Yeah.

Carl DeMaio:                Even if it's someone who came in, you know, saying, "Oh I smelled smoke. I was just coming to check it out", uh, and they could have legitimately, you know, be there, that might still, because a person's in the home and the other person doesn't know why they're there, that could be enough to-to defend [00:08:00] yourself.

Don Hammond:            That would certainly be, I think that would be enough, yes. Um, and the-the statue requires that they unlawfully be in the home. Um, so you know, if it's the police coming in because they have a warrant ...

Carl DeMaio:                Right, [crosstalk 00:08:13].

Don Hammond:            ... or because they got a call or something, you don't get to shoot the police. Uh, but you know, it's a closer call if it's a neighbor who's entering, you know, because they smell smoke or something ...

Carl DeMaio:                Right.

Don Hammond:            ... like that. But I still think that, you know, as a homeowner it's, you know, hopefully you smell the smoke yourself and you're, you know, up and trying to figure out what it is, but, uh, [00:08:30] certainly you wake up in the middle of the night and there's somebody in the house you don't expect to be there, you have a reasonable belief hat they're there to cause harm, and you have the right to use whatever force is necessary to protect yourself.

Carl DeMaio:                Well, and-and-and it's interesting because a lot of people say, "Well you stepped on my property, I'm gonna shoot them", it's like, no, that's not the only, you know, you, just because they're on your property does not mean you have the right to take someone's life or-or injure them. Um, and it's-it's really fascinating, um, how this law actually, um, applies. I appreciate you stopping by Don. Uh, [00:09:00] when we come back I'm going to explain what I think is gonna happen to this 79 year old, uh, home owner. Uh, will he be convicted of murder? Uh, or will some other fate intervene? That's on the DeMaio Report. Plus your-your calls, 800-600-KOGO, 800-6


Don Hammond