Lawyers for a man convicted of second-degree murder and drunken driving charges for a collision that killed a 3-year-old boy in South Los Angeles failed to persuade a judge Monday that he deserved a new trial.
Los Angeles Superior Court Judge Charlaine Olmedo denied the motion for new trial and postponed sentencing for Rafael German to Jan. 29.
The dead boy’s mother — who has been called back to court again and again since German’s conviction on May 7 — cried out in the courtroom when she heard about the postponement.
“Give him his time, why can’t you give him his time?” she pleaded before breaking into tears over her only child.
The judge later assured the woman that there would be no further postponement of the sentence, even if that meant German needed to be forcibly extracted from his jail cell on Jan. 29.
Defense attorney Christopher DeSalva argued in his motion that German, 29, could not be guilty of second-degree murder because there was no implied malice.
DeSalva said the implied malice relied on German’s having seen a warning on Department of Motor Vehicles documents that he could be charged with murder if he killed someone while drinking and driving.
His client didn’t see the warning in small print on a page of the DMV papers he wasn’t required to sign when he renewed his license, DeSalva said.
The defense attorney also argued here was no evidence that his client had shown “conscious disregard of human life,” which would otherwise be necessary to warrant the murder charge.
“Mr. German was driving safely,” DeSalva said. “He was not swerving, not speeding.”
DeSalva said he thought the jurors felt they needed to blame someone for this “horrible tragedy,” but didn’t follow the law.
The boy’s mother was carrying him across the street at night where there was no traffic light or crosswalk, DeSalva said.
“She told the attending physician (at the hospital where she was later taken) that she was smoking crack cocaine on that day,” DeSalva told the judge, adding that the mother denied such use at trial.
The deadly accident was “as likely to have happened if Mr. German was drinking orange juice only,” DeSalva said.
Deputy District Attorney Robert Song spoke briefly, telling the judge, “These arguments have been made and they’ve been made before a jury.”
The prosecutor said there was no misconduct by the jury or erroneous instruction by the judge and therefore no basis to reconsider the verdict.
The judge offered her own review of the evidence, saying German had a blood-alcohol level of .16 — two times the legal limit.
She disagreed with the defense attorney’s assertion that the accident would likely have happened even if his client were sober.
The area was well-lit and there was “ample opportunity” for German to let the mother and son cross the street, Olmedo said.
As for the issue of implied malice, “The defendant (was) aware of the dangers of drinking and driving,” the judge said.
German was arrested, though not convicted, on suspicion of DUI in West Covina about five months before the boy’s death, which Olmedo said should have been warning enough.
The evidence “goes far beyond what is necessary to establish implied malice,” Olmedo concluded.
German was under the influence of alcohol and a drug when he got behind the wheel of an SUV, which struck the woman and her son on Avalon Boulevard at 80th Street on the evening of April 11, 2013.
A group of angry bystanders helped ensure that German didn’t flee the scene, according to the judge.
The toddler died of his injuries at a hospital four days later, just eight days before his 4th birthday.
In addition to the murder count, German was convicted of two counts of DUI causing injury and driving on a suspended license.
— City News Service