LAKE COUNTY, Calif. – In response to a state appellate court ruling earlier this year, the Lake County Superior Court has moved forward with the process of modifying the sentences of two men convicted of a 2011 Clearlake shooting that killed a child and injured several others.
Late last month, Paul William Braden, 26, was in Lakeport for a resentencing while his co-defendant, Orlando Joseph Lopez Jr., 28, has not yet returned and may have to be ordered to do so by the court.
In 2012, Braden and Lopez were tried together but with different juries and found guilty of shooting into a crowd of people at a Clearlake apartment, killing 4-year-old Skyler Rapp, and wounding five others, including his mother and her boyfriend.
The separate juries found both Braden and Lopez guilty of first-degree murder, five counts of attempted murder, two counts of mayhem, six counts of assault with a firearm, a count of discharge of a firearm at an inhabited dwelling, and numerous special allegations for use of a firearm.
Calling the crime one of “the most callous and vicious and nonsensical” she'd ever dealt with, visiting Yolo County Judge Doris Shockley gave the men what local prosecutors believe to be among the longest sentences ever dispensed in the local courts.
Lopez receiving a 311-year sentence and Braden, who had a previous felony conviction, got an additional year for a total of 312 years.
In February, the First District Court of Appeal ordered that Braden and Lopez should either be retried on the first-degree murder charge or else have their convictions reduced to second-degree murder, with the two counts of mayhem stayed and the remaining counts upheld, as Lake County News has reported.
The reason for that ruling was due to a 2014 California Supreme Court decision, People v. Chiu.
Braden and Lopez successfully argued to the appellate court that their first-degree murder convictions had to be reversed “because the trial court’s instructions allowed the jurors to convict based on a theory that the premeditated murder was a natural and probable consequence of each appellant’s aiding and abetting of an assault with a firearm,” which is contrary to the Chiu ruling.
District Attorney Don Anderson, who personally prosecuted both men, said that in the 2012 trial's jury instructions, multiple theories for what drove the Rapp murder – aiding and abetting, natural probable consequences or a direct shooter – were offered.
He said that the Chiu decision requires that prosecutors must now give a specific theory of first-degree murder.
Although the Chiu ruling came two years after the Braden and Lopez trial, Anderson said it can be used retroactively.
Within weeks of the appellate decision, Anderson decided not to put the men on trial again for first-degree murder, noting there was nothing to gain by putting the family and witnesses through the lengthy process all over again. Instead, he chose to allow them to be resentenced for second-degree murder for Rapp's killing.
Anderson said that other recent changes to California law in the form of Proposition 57 will not impact the Braden and Lopez cases, because second-degree murder is a violent felony and therefore the new law doesn't apply.
Braden returns from state prison for resentencing
On Oct. 31, Braden appeared before Judge Andrew Blum for his sentence modification, Anderson said.
The changes to Braden's sentence from first-degree to second-degree murder bring it from a total of 312 years down to 248 years, Anderson said.
With neither Braden's nor Lopez's original attorneys being available – Braden's has left the county, Lopez's has died – new attorneys have been appointed to represent them in the latest proceedings.
Christina DiEdoardo said she was appointed to represent Braden, while Mitchell Hauptman now acts as counsel for Lopez.
“I was appointed very late in the game, originally for a very limited purpose,” DiEdoardo told Lake County News.
She said she was looking at doing a check of his DNA for further challenges to his sentence when the appellate court decision was handed down in February.
In March, Braden's and Lopez's appellate attorneys filed a petition for review of the case with the California Supreme Court, which denied that petition on May 25, according to court records. DiEdoardo said such denials from the state Supreme Court are common.
Braden was transported to Lake County this fall for the proceedings; DiEdoardo said she did not know where he was transported from or being housed.
Appellate court records indicated in the spring that, at that time, he was being housed in Kern Valley State Prison, located on 600 acres in Delano. A check of inmate records this week showed that Braden still resides there.
“In Mr. Braden's case, the modification is definitely appreciated. His sentence is pretty substantial,” DiEdoardo said.
DiEdoardo said Braden also has indicated that he will further challenge his sentence. “He's planning to continue to pursue federal remedies,” including federal habeas corpus, she said.
As for the basis of his plans for appeal, “He hasn't shared that with me because it's not relevant to what we're looking at here, but I know he wants to continue this proceeding,” said DiEdoardo.
DiEdoardo called the incident that led to Braden's prosecution “pretty horrific,” adding that from Braden's perspective, the sentence he's facing is likewise horrifying.
When Braden was sentenced in August 2012, he maintained his innocence, blamed his conviction on a jailhouse informant, blamed another man who had reached a plea agreement and testified against him and took issue with his then-attorney. When he used profanity in his statement to the court, he was upbraided by the judge who he then also criticized.
Shockley called him “cold and calculating” just as the victims had testified after giving him the 312-year sentence.
Court reschedules resentencing for Lopez
Still to receive his modified sentence is Lopez, whose case was scheduled for Tuesday afternoon, also before Judge Blum.
Anderson told Lake County News that Lopez's sentence is to be modified from 311 years to 247 years.
Hauptman told the court during the brief hearing that Lopez previously had declined to be transported to Lake County for the resentencing.
The reason, said Hauptman, is that Lopez is now housed at Salinas Valley State Prison in Soledad, and doesn't want to leave there until it can be guaranteed that he will be transported back. Otherwise, he will lose his job, housing and other programming, and likely will be sent to another facility.
Lopez wanted Judge Blum to order that he be returned Soledad, but during the Tuesday hearing Blum said it was up to the state prison system – not him – to determine Lopez's housing.
Hauptman said he could write Lopez back and explain that, and the court could attempt to order him to appear.
“I ordered him here before,” said Blum.
Blum said county correctional officers had responded to Salinas Valley State Prison to transport Lopez back to Lake County, but he refused to come. The state prison officers said they would only physically remove Lopez if Blum signed what's called an “extraction order.”
“I got the impression he didn't want to be here,” Blum said.
Lopez has since indicated that he is now willing to return so he can see his family at the holidays, Hauptman said.
Hauptman asked for the court's indulgence to continue the matter one more time to allow him to again ask Lopez if he wanted to come to Lake County or would simply authorize Hauptman to appear on his behalf.
Blum noted that, while defendants generally have to be present for sentencing, in this situation, “the sentence is merely being modified somewhat” and to Lopez's favor, so he questioned if Lopez even needed to be there.
Hauptman said Lopez wanted to be present for the resentencing if he can be assured he will be returned to the same housing.
“To my knowledge, I cannot guarantee such a thing,” Blum said.
Because Lopez had shown interest in being present for the matter, Anderson asked Blum to issue an extraction order to stop further delays.
“I don't want to keep dragging this out either,” said Blum.
Hauptman said they had about 100 years to sort it out, then added he didn't want to be facetious. He suggested enforcing transport could result in a public safety issue.
Blum agreed to hold the matter over. Lopez, he said, “either wants to be here or he doesn't,” and added he was willing to proceed without Lopez if Lopez does not wish to be there. That's something he wouldn't normally do on a felony case, but he pointed out that it is a modification directed by the court of appeal.
Hauptman said he read Lopez's response so far as conditional on being able to return to the prison where he's now living. “He's not being a jerk about it,” said Hauptman, noting Lopez's polite and respectful tone in the letter, and adding it was a reasonable response for someone serving life in prison.
He asked for the matter to be held over until December, and Blum agreed. “You can tell him I cannot guarantee where he will be returned to. That is entirely up to the Department of Corrections and Rehabilitation,” said Blum.
The matter was continued until Dec. 6, with Blum ordering Lopez to be present.
“If he hasn't given something definitive at that time, I will order his extraction,” said Blum.
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