Jury Deadlocks on Whether Shooter Was Attempting to Murder Police

Deputy DA Clinton Parish likes to brag that he saves his best arguments for what is supposed to be the rebuttal closing argument – the argument that the DA gets due to the fact that they have the burden of proof in the case, when the defense attorney cannot respond.

He punctuated an explanation of the “kill zone” with a PowerPoint presentation that was accompanied by generic gunfire sound-effects that were blasted on his speakers at the jury. 

In his final act, Mr. Parish told the jury to imagine it is Thanksgiving dinner and the story of this trial is being told to family.  He relayed a story at breakneck pace that could have been out of the Fast and Furious.  The story began with a man taking a blow torch to a Sacramento ATM, then culminated in a high speed pursuit, tearing through the streets of Sacramento and then West Sacramento.  It ended with a car hitting a fire hydrant and a foot chase, and with the man opening fire on the police.

Mr. Parish was dramatic in his presentation, delivering it rapidly, and he closed his story talking about how the man shot at the police, “bang,” and shot again “bang, bang,” and finally the fourth shot, “bang.”

Mr. Parish said, and your family turns to you and asks, what happened?  “Nothing, he was shooting at the ground, we walked him.”  He turned to the jury and said that this man is guilty of attempting to murder two police officers, please convict him.

While Mr. Parish’s closing remarks were long on drama and short on facts, indeed, the defendant had already admitted to the Sacramento-based crimes of theft and evading police.  At the same time, the jury came remarkably close to, in essence, “walking” the defendant.

The jury, despite the fact that the targets of the shooting were police officers, despite all of the crimes that Mr. Barahona committed and admitted to, carefully weighed the evidence and reached a rather remarkable verdict.  They hung on both attempted murder charges. 

They hung 7-5 for guilt of the attempted murder of the first officer, Officer Stolztus, who was in his car when the first 3 shots were fired. They convicted the defendant of assault on this officer. They hung 10-2 for acquittal of the attempted murder of the second officer, Office Cuevas, who was out of his vehicle throughout the firing.  They acquitted the defendant of the assault on Officer Cuevas (for some reason, two jurors thought Mr. Barahona tried to murder Officer Cuevas, but none thought he had tried to assault him).

The defendant is not off scott-free, as he faces 25 years for the conviction on the third count.  The defense told the Vanguard that they had argued all along that it was a “Negligent Discharge,” arguing that he was firing into the ground attempting to dissuade the officers from pursuing him.

The DA at the last moment agreed to add four charges of negligent dsicharge and to allow the jury to rule on them.  The jury convicted on all four of those charges.

He had faced life without parole had he been convicted of all charges, but they beat three of the four most serious charges, assuming the DA does not attempt to retry (which the defense believes they will not).

Ronnie Barahona faced a six-day trial.  A resident of South Sacramento, he went and cut out an ATM with a blow-torch in Sacramento County, along with an accomplice, in the early hours of Wednesday, December 20, 2009. 

At some point, he drove away from the scene in a truck, leading the police to West Sacramento on a chase at high speed. 

He collided with vehicles along the way, refused to pull over, ran stop-signs, narrowly missed a house after driving across the lawn, and then crashed into a fire hydrant in a residential area. 

He got out and continued to flee on foot, pursued by Officers Stolztus and Cuevas of the Sacramento Police Department.  He had a gun with him, which he fired four times before tossing it over a fence and continuing to run.  

He hid in the rafters of a garage nearby and waited.  The police located him with the aid of police dogs.  He came out and was arrested. 

Once in custody, he cooperated with the police and voluntarily directed them to where he’d thrown the gun away.  Fragments of one bullet were found.  Three bullets were not located.

Deputy District Attorney Clinton Parish explained in his closing argument to the jury that Mr. Barahona had tried to kill the two officers when he shot at them while trying to escape.  He said that Mr. Barahona broke into the ATM not because he had fallen on hard times but because he wanted money for drugs. 

He said that Mr. Barahona had shown absolutely no regard for human life in his attempt to escape the police that day.  Mr. Barahona had admitted to drug use, and some photos of drugs found were used at trial.

Mr. Parish explained that for the charge of attempted murder, the critical issue of intent is proven by circumstantial evidence and that you “can’t crawl into the defendant’s mind a year and a half later.” 

He told them that the only way for them to form a judgment about intent would be by looking at the circumstances.  He explained that the defendant had brought the gun with him to the ATM to begin with and since the police would reasonably be expected to respond to a crime, that the gun was intended for them. 

Mr. Parish said that the high speed chase and the three crashes that occurred during it show that the defendant had no regard for human life.  

He said that when the defendant crashed the truck and fled on foot, he decided to take the gun with him. 

Finally, Mr. Parish said that the defendant fired the gun, fired it again, fired it again and fired it again.  He said “You can’t go back and be in his mind.  You look at circumstantial evidence.”

Mr. Parish used the diagram of the crime scene to demonstrate the concept of a “kill zone” and that anyone within the “zone of harm” around an intended victim is to be thought of as a target of the attack also.  He pointed out that the difference between the two officers was a couple of inches of aim.

Mr. Parish emphasized how both officers were in the kill zone.  He held the gun up and showed that to aim from one officer to the other at a range of 200 feet would require only a minute movement of the shooter’s wrist.

Mr. Barahona vehemently denied the charges against him.  When asked on the stand whether he had attempted to kill anyone on the four occasions he had fired, he responded “absolutely not.” 

When asked whether he had pled guilty to all the other crimes he’d been charged with, he said that he had.  He stated that the gun had been loaded more than a month prior to the incident and that he shot the gun at a friend’s private property once in a while.

In his closing argument to the jury, Mr. Barahona’s Defense Attorney Daniel Nicholson explained that this had always been a case of gross and negligent discharge of a firearm, not of attempted murder. 

He pointed out that Mr. Barahona had pled guilty to all his other crimes.  He pointed out that the charge of negligent discharge had been added just yesterday, on day 5 of  the 6-day trial, otherwise Mr. Barahona would have pled guilty to that as well. 

Mr. Nicholson said, in firing the gun, the defendant’s intent was never to kill and that in his actions he had not committed assault.

The defendant had explained during his testimony that this was a crime of last resort, that he had broken into the ATM because of hard times and the prospect of losing his home. 

He has said that “times were tough” but that what he’d done was a “bad decision.”  In text messages he’d written to his wife while hiding in the rafters from police he wrote “Baby I fucked up.”

Mr. Nicholson highlighted the defendant’s own testimony that he’d shot at the ground and not at the officers.  He spoke about the physical evidence that bullet fragments had been found at a distance, the bullet having hit the concrete in a direct line and then a chain link fence before coming to rest. 

Officer Soltztus has testified that the defendant had pointed the gun directly at him.

Mr. Nicholson said that to convict the defendant, that the jury would have to believe the account of Officer Stolztus which was “wholly incredible.” 

Mr. Nicholson pointed out that the officer’s testimony was “dramatically different from what the facts showed.” 

The officer had testified that he had been out of his vehicle and been shot at twice but the police car video shows that he had been inside his patrol vehicle while three of four shots were fired. 

The officer had stated that he’d been outside his vehicle for two or three minutes when the video shows he was outside for only 11 seconds. 

The officer had said he’d moved to a point outside of his vehicle but it was impossible to travel that distance in 11 seconds, let alone that the officer said he had walked. 

The officer had not been able to identify the kind of gun it was, but had been able to tell what angle it was held at. 

The officer had said that the distance between him and the defendant when the fourth shot was fired had been 75 feet, and he’d said it was from where he sat in the witness chair to the back of the court room. 

Measurement showed that that distance is actually 50 feet.  Furthermore, the distance from where the officer had been to where the defendant had fired from (where the shell casing was found) was 200 feet.

The officer, Mr. Nicholson concluded, was either “incompetent or lying.”

Mr. Nicholson pointed out that the theory that Mr. Barahona had decided to run by any means necessary meant that the jury would be guessing at his intent to kill.  He said that such a guess would not be proof beyond a reasonable doubt. 

He stated that the defendant had fired only to keep the officers from coming closer.  Mr. Nicholson said that the assertion that the defendant had brought a gun with him was wrong, that the gun had been in the vehicle.

Mr. Nicholson said that gross and negligent discharge is what this case is about, that it was not a victim-specific crime, which murder is.  He pointed out that if the intent had been to kill the officers, then why abandon the gun when rounds remained?

Mr. Nicholson explained that to convict the defendant of attempted murder, they would have to decide on which shots in particular constituted the attempt and that the unknowns were too great to be able to specify that.  He asked them to acquit Mr. Barahona of counts 1-4, attempted murder and assault with a semi-automatic firearm.

Critical to the most serious charge of attempted murder was how the defendant had held the gun when he had fired it.  The firearms experts of both sides has said that the bullets had traveled in a southward direction, the direction that the officers were in from the defendant. 

The defendant had said he’d fired downward at the ground and not directly at the officer. 

That was not contradicted by any other evidence, other than Officer Stolztus, who testified that the defendant pointed directly at him. 

The investigating officer in the case had questioned the defendant and also testified about how the defendant had explained he’d held the gun when he’d fired it. 

The investigative officer had said that the defendant’s arm was held out below the horizontal, at about 80 degrees.  The officer then said it was about 3/4 of the way up.  The officer clarified that the 80 degrees was an “guesstimate,” that he had not measured and that three quarters of the way up was what it looked like.

Mr. Parish, on the one hand, hammered into the jury that just a small movement of the shooter’s wrist to the left or right would point the gun from one officer to the other. 

On the other hand, he said nothing about the shooter’s arm being a quarter of the way down from the horizontal which would be way off target at a range of 200 feet. 

Mr. Parish did not dispute that, for the fourth bullet, the shooter’s arm was lowered and that the range was 200 feet, but he still asked for an attempted murder conviction for that very bullet.  Neither did defense counsel address this point.

There are a few key points that clouded the ultimate issue.  First, the distance that Mr. Barahona was firing at made it difficult to assess intent.  Second, as mentioned, even a slightly downward angle of his arm would likely put the bullets into the ground.  Moreover, the lack of finding three intact bullets made less clear any intent of Mr. Barahona.

The fact that one officer was in his car for the first three shots, and the only shot that occurred when he was out of the vehicle was the fourth shot, which was the one most directly fired into the ground, is the reason for the discrepancy in the jurors’ verdict on both the attempted murder and assault charges for the two officers.

During a hearing in which Mr. Nicholson sought to dismiss some of the charges against Mr. Barahona due to lack of evidence, he called it a slam dunk, that the defendant was not trying to kill or assault Officer Stolztus but a layup for the first officer.

Mr. Parish at that time conceded that it was not the best case for attempted murder, but argued that the “best possible light” standard was enough to keep the charges in place. Judge Mock agreed, but the DA’s office also agreed to add negligent discharge charges.

—David M. Greenwald reporting