Self defense shot hit 9 years old dead.

[P_Pac]

I've found this on LA times.

What are your thought on this? What Texas law do we have about defense shoot but hit innocent bystander?

Here's the news and link

2 men freed in L.A. girl's killing
Police say the gunmen were firing in self-defense at a rival gang member when the girl, 9, was hit by a stray bullet that entered her Angelino Heights home.
By Richard Winton and Tami Abdollah, Times Staff Writers
January 17, 2007


A few days after a bullet from a gang shooting tore into an Angelino Heights home last month, killing a 9-year-old girl, police announced with much fanfare that they had arrested the two gunmen.

But the suspects — Cesar Zamora, 23, and Steven Castanon, 20 — are now out of jail and back in their old neighborhood, to the dismay of residents who held candlelight vigils to memorialize Charupha Wongwisetsiri.

Police released the men without filing charges after determining that Zamora or Castanon fired the shot that killed Charupha in self-defense when a rival gang member pulled up in a car and tried to shoot them in front of their apartment complex next to Charupha's home.

The situation has shaken and angered residents of Angelino Heights, a diverse neighborhood with commanding views of downtown Los Angeles. The area includes rows of grand Victorian houses restored by television writers and downtown office workers side-by-side with apartments housing working-class families.

"They made it big news when they arrested them and then they quietly let them go," community activist James McHargue said. "I think it is outrageous if the prosecutors don't charge the people who fired these guns."

Bob and Patti Good, who helped organize a candlelight vigil for the girl, can't understand why the two shooters are back on the street.

All of a sudden, the men "who gunned down that little girl" are back, said Bob Good, 62, a title insurance officer. "They are looking for him and he's looking for them. Is there going to be more violence now?

"Usually if someone gets killed it's a bad guy, but now it's an innocent party. You cannot get more innocent than a little girl, and people identify with that."

Authorities insist that they are simply following the law.

"Evidence was presented that it was self-defense, and we did not feel we could charge the two people at this time," said Jane Robison of the Los Angeles County district attorney's office.

Instead, police detectives say they now are trying to build a murder case against the man who tried to shoot at Zamora and Castanon — even though his gun jammed and he didn't get off a shot.

He caused "this horrible event, and we hope to make a strong case against him in this murder," LAPD Lt. Paul Vernon said.

Legal experts said the circumstances of the shooting would make it difficult to build a murder case against Zamora and Castanon.

According to police, the men were sitting outside an apartment on East Kensington Road when a car pulled up. One man got out, walked onto the apartment property and pulled out a gun. Witnesses said he tried to shoot but his gun apparently jammed, according to law enforcement sources.

Zamora and Castanon pulled guns of their own and fired several times. None of the shots hit the gunman, who fled in the car. But one bullet traveled down the street and into Charupha's home.

Police believe the shooting was gang-related. But detectives concluded that the pair had the right to shoot because the gunman had pulled out a weapon and seemed ready to fire at them.

Robert Pugsley, a criminal law professor at Southwestern Law School, said the circumstances of the shooting would give Zamora and Castanon a strong self-defense case in court.

"A person has a right of self-defense, and third-party damage, as sad as it may be, is considered an unintended consequence," Pugsley said.

Prosecutors could bring charges if the shooting suggested an act of recklessness, but the sudden nature of the Angelino Heights attack — a gunman leaping out of a car and aiming a weapon — would make that a hard point to prove, he said.

Peter Keane, a professor of law and former dean of Golden Gate Law School, agreed. But prosecutors can pursue an "unreasonable self-defense" manslaughter charge if they believe the gunman's actions were based on an unreasonable belief compared to the threat, Keane said. In that case the killing is not a murder but a manslaughter because they did not act with malice, he added.

The issue of self-defense in gang shootings in which bystanders are killed or wounded has been a matter of debate for years in Los Angeles.

In 2003, a mother decorating her Christmas tree in South Los Angeles was killed by a stray bullet fired during a gun battle between two gangs.

The LAPD eventually arrested the two suspects who fired the shots after someone in a passing car sprayed bullets in their direction.

But prosecutors decided not to pursue the case, agreeing with investigators that the men apparently acted in self-defense.

The reasoning doesn't sit well with some residents of Angelino Heights.

Jim Prager, 60, an attorney, said Zamora and Castanon need to be held accountable.

"They ran away to another known gang house … they are not innocent people. This represents a lazy" prosecution, he said.

Neither Zamora nor Castanon could be reached for comment. (Castanon was arrested Monday night in Hollywood on suspicion of weapons possession.)

Prosecutors and police say they are doing all they can. They said they could still charge Zamora and Castanon with a lesser crime — such as a weapons or probation violation — but it remains unclear whether they will.

Before the shooting, LAPD officials had identified the apartment where the shooting took place as a gathering point for gang associates.

The city attorney's office has taken initial steps to have the residence declared a nuisance property because of gang activity.

On the streets of Angelino Heights, Charupha's killing has sparked a new push by residents to work with police to reduce crime and take other steps to improve the neighborhood.

But Charupha's stepfather, Allan Maxwell, said he'll now sell their home and move to his wife's native Thailand, where they have already bought a home.

"With a self-defense plea there's nothing the guy can do," he said. "I talked to the detectives, and from their point of view it sounded like nothing is going to come of this.

"I'd like to see them suffer some consequence. But short of becoming a vigilante, I don't know what to do."

Maxwell, who has Parkinson's disease, said that when he heard the first shot that night he screamed for his wife and daughter to get on the floor in the kitchen, where his daughter was playing and his wife was doing dishes.

He said if politicians continue to do no more than pay lip service to combating gangs, others also will leave the neighborhood.

"Politicos make their statements about how they're going to end gang violence and get these creeps out of the area.

"People just sold the house next door to [the gang house] and moved to Arcadia because they had two younger children," he said.

*


--------------------------------------------------------------------------------
richard.winton@latimes.com tami.abdollah@latimes.com
http://www.latimes.com/search/la-me-sel ... full.story

[txinvestigator]

Texas Penal Code

§9.05. Reckless injury of innocent third person.

Even though an actor is justified under this chapter in threatening
or using force or deadly force against another, if in doing so he also
recklessly injures or kills an innocent third person, the justification
afforded by this chapter is unavailable in a prosecution for the reckless
injury or killing of the innocent third person.

Recklessness would have to be proven.

Texas Penal Code
6.03

(c) A person acts recklessly, or is reckless, with respect to
circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care that
an ordinary person would exercise under all the circumstances as
viewed from the actor's standpoint.

[seamusTX]

To be charged with a crime, you have to act intentionally or recklessly. I think the relevant law Texas law would be

PC § 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even
though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent
third person.

Recklessness is somewhat in the eye of the beholder.

The shooter would also be liable to civil suits, though in the case of the typical gangbanger or criminal, there would be no assets to go after.

- Jim

[lrb111]

There are so many things "wrong" in this story that the only excuse is that "it's Kalifornia".

If it were Texas.
reckless endangerment.
Unlawful carry of a weapon.
Gang member with weapon. Just for starters....

[srothstein]

Seamus,

Just for technical accuracy, there are 4 culpable mental states where you can be charged with a crime. They are intentional, knowingly, recklessly, or with criminal negligence. We do have a charge of criminally negligent homicide as a possibility.

In the specific case, the law appears to say that if I use a weapon in self defense, and recklessly injure another person, I can be charged for the assault or murder. Proving the recklessness is normally the hard part, but it would be relatively easy in cases like this.

If I were the D.A. in a case like this, I would first show whether or not he guns used were legally owned or carried. Then I would show that a reasonable person takes some marksmanship classes to ensure they hit their target. Then I would get an expert on the use of force to show that the potential for hitting a person in the background should be considered when the shooting back is considered (I hope CHL's are taught this, I know police are). If I can show that the shooter disregarded these activities that a reasonable person would have, I can negate his self-defense defense.

But the D.A. also has to worry about the politics of it. If I release a gang banger for this, do I catch hell for releasing a gang shooter? If I prosecute him anyway, do I catch hell from the regular shooting community for prosecuting a self-defense case? That is one of those decisions I am glad I don't have to make too often because I really hate to see someone prosecuted or released for his status. That is just wrong.

[HighVelocity]

Police say the gunmen were firing in self-defense at a rival gang member

Since when are gang members carrying and using firearms ILLEGALLY allowed to claim self defense?

[stevie_d_64]

You know...I feel a lawyer is going to come in here and tell us that every round that leaves your barrel, regardless of why and what you are aiming at, will have lawyer attached to it...

Either a criminal lawyer, or a civil lawyer...

Anyone who takes their self-defense seriously enough will understand that it is not only that you must be responsible for what you do, you should always expect to be accountable for that same action...

All kidding aside, I know everyone here feels that way...

[seamusTX]

But the D.A. also has to worry about the politics of it. ... If I prosecute him anyway, do I catch hell from the regular shooting community for prosecuting a self-defense case?

They don't seem to worry about that most of the time, e.g. the Fish case.

- Jim

[Thane]

Firearm safety rule number four:
Always be sure of your target and what lies beyond and to the sides of it.

While I am the wrong person to talk to in regards to anything criminal these two men may or may not have done in their exchange of gunplay, I can most certainly declare that the deceased child's family has potentially excellent grounds for a simply massive lawsuit against the two shooters, and also against their adversaries, should they ever be caught.

Once you pull that trigger, you, the shooter, are personally responsible for EVERYTHING that bullet touches, passes through, and where it comes to rest, regardless of whether you're committing a crime or defending against one. Defense of your own life may be extenuating circumstances, but not exonerating ones.

[txinvestigator]

There are so many things "wrong" in this story that the only excuse is that "it's Kalifornia".

If it were Texas.
reckless endangerment.
Unlawful carry of a weapon.
Gang member with weapon. Just for starters....

There is no crime of "reckless endangerment" in Texas.

[txinvestigator]

To be charged with a crime, you have to act intentionally or recklessly. I think the relevant law Texas law would be

PC § 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even
though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent
third person.

Recklessness is somewhat in the eye of the beholder.

The shooter would also be liable to civil suits, though in the case of the typical gangbanger or criminal, there would be no assets to go after.

- Jim

Recklessness is defined by specific definition as I posted above.

It is subjective.

[stroo]

There is a lot unknown here. But not to defend gang members, but simply being a gang member does not make it illegal to own a gun or use it in self-defense. We all equate gang member and felon. But the may not have been the case with these. Hard to believe but maybe they haven't been convicted of any crime yet. In that case, gun ownership would still be legal.

[Venus Pax]

One should wonder what would have happened to a legally armed gun owner having been in this situation. I have a sneaky suspicion that charges would have been filed in Kalifornia.

[lrb111]

There is a lot unknown here. But not to defend gang members, but simply being a gang member does not make it illegal to own a gun or use it in self-defense. We all equate gang member and felon. But the may not have been the case with these. Hard to believe but maybe they haven't been convicted of any crime yet. In that case, gun ownership would still be legal.

Being a gang member in Texas excludes one from being able to carry under the presumption of traveling.

[txinvestigator]

There is a lot unknown here. But not to defend gang members, but simply being a gang member does not make it illegal to own a gun or use it in self-defense. We all equate gang member and felon. But the may not have been the case with these. Hard to believe but maybe they haven't been convicted of any crime yet. In that case, gun ownership would still be legal.

Being a gang member in Texas excludes one from being able to carry under the presumption of traveling.

Actually it is a "criminal street gang as defined by TPC 71.01."

(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.