The brutal killing of a man whose death shocked the entire community and made many feel unsafe and susceptible to hate and violence because of who they were. A defendant who attributed his actions to mentally breaking under high immediate stress and accumulated psychological trauma. A jury that returned verdicts of “Not Guilty” for murder but convicted on manslaughter. A judicial sentence that many felt was so short it did not punish the convicted defendant or protect public safety.
These descriptions fit both the 2021 killing of Vicha Ratanapakdee (now known as “Grandpa Vicha”) and the 1978 killings of Mayor George Moscone and Supervisor Harvey Milk by former Supervisor Dan White. Both incidents produced community outrage and questioning of the judicial system. San Francisco responded to the Dan White verdicts with violent protests and the ouster of District Attorney Joe Freitas. The trial and sentencing judge Walter Calcagno was left unscathed but, in 1982, California voters took to the ballot box and repealed the “diminished capacity” defense relied upon by Dan White.
Now, in the aftermath of Superior Court Judge Linda Colfax placing Grandpa Vicha’s killer on probation, community members want and deserve to know why. Here are some answers to 10 key questions:
The district attorney charged the defendant with first and second degree murder. What happened?
The jury found the defendant not guilty of murder but guilty of manslaughter and assault with great bodily injury. The jury took into account past psychological and physical trauma during childhood as reasons to reduce the defendant’s culpability for Grandpa Vicha’s death. The jury found that Grandpa Vicha was a particularly vulnerable victim who suffered a coma and death as a result of the assault.
The defendant was convicted of manslaughter but the judge did not sentence him for that crime. Why not?
A judge may sentence a defendant for only one crime despite there being multiple charges for the same offense. In this case, Judge Colfax chose to sentence the defendant for assault with great bodily harm because it gave her greater authority to give him a longer sentence than for manslaughter. A judge can add five more years to an “assault with great bodily harm” sentence, but not for a manslaughter one, based on the severity of the offense, age of the victim, and other factors. Even if there are multiple grounds for the enhanced sentence, the amount of additional time is capped at five years as if there were just one. For the charge itself, Judge Colfax could have given the defendant a shorter sentence of two years instead of three on the grounds that he was 19 years old at the time of the crime, had no adult convictions but suffered childhood abuse, neglect or violence. She declined to do so as “contrary to the interests of justice.”
If Judge Colfax sentenced the defendant to eight years, why isn’t he going to prison for eight years?
A combination of factors, following state laws and rules of court, typically reduce the amount of time actually served from the length of the sentence ordered by the judge. For example, because the defendant had been locked up in San Francisco jails since he was arrested over five years ago, his future sentence is reduced by at least that amount of time.
Why isn’t the defendant going to prison even for this shorter period of time?
Our legislators have determined that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. These factors guide the length of sentencing, parole eligibility, and other conditions. As Judge Colfax described it in court, public safety means preventing future violent acts. Her decision to grant probation immediately was based on the certainty that the defendant would return to society in a short period of time no matter the severity of the prison sentence. She concluded that additional prison and eventual parole offered the public less sense of safety than requiring the defendant to meet behavioral standards, get psychological help, and have to report and answer to her on a regular and frequent basis.
What makes the public safer if he is on probation than if he is in prison?
Judge Colfax took an exceedingly pessimistic view of what she described as the deleterious effects and high recidivism associated with state prison and parole. Prison would be more damaging than helpful. The prison system would not guarantee any type of counseling or training would be available that would reduce the possibility of future crimes and future victims. Following the defendant’s release, supervision by an overworked parole agent would similarly be insufficient. Instead, Judge Colfax has established probation conditions on the defendant such as obtaining stable housing at home or elsewhere, seeking employment, being subject to warrantless searches at any time, attending and engaging in psychological therapy and returning regularly to her court for follow up. The defendant will have a lifetime ban on possessing weapons or ammunition and must stay away from Grandpa Vicha’s family’s neighborhood.
If the judge finds the defendant has violated any conditions, his probation may be revoked and he will be sent to prison to serve the sentence already imposed.
He was already a juvenile offender. What makes anyone think this will do any good?
The jury found the defendant does not present a serious risk to public safety. According to the judge, the defendant abided by probation requirements for earlier juvenile offenses such that the district attorney terminated his probation early. Now, if the judge finds the defendant has violated any conditions, his probation may be revoked and he will be sent to prison to serve the sentence already imposed. In short, he is under her supervision now and she will hold him to account for his future actions.
What message does this send to the public and to criminals?
At the sentence hearing, Judge Colfax heard from and acknowledged the pain and deep loss expressed by Grandpa Vicha’s family and community members. She read into the court record excerpts of more than 25 letters she received from people across San Francisco and around the country whose sense of safety was shattered by the crime; highlighted the pervasiveness of fear among Asian Americans and senior residents especially during the Covid-19 era when anti-Asian violence increased; and emphasized the complete lack of justification for the violence perpetrated against Grandpa Vicha. At the same time, Judge Colfax pointed out that a sentence is not intended to be a message but is a determination of appropriate punishment, rehabilitation, and accountability for the particular defendant and crime in front of her.
What happens next?
Grandpa Vicha’s daughter testified that everything has changed for her family. Her father never got the second chance now being afforded to the defendant. She wants accountability and criminal sentencing that reflects harsh consequences for violence. Time will tell whether the defendant complies with Judge Colfax’s probation requirements and whether she will send him to prison if he does not. The sentencing decision itself, however, is final.
How do we prevent other families from enduring this harrowing experience in the future?
Accountability must be focused also on state legislators who pass criminal justice bills and the governors who sign them into law. They write the policies that judges must follow when assessing a defendant’s capacity to commit a crime or ability to benefit from rehabilitation programs. They decide the framework for giving defendants credit for serving time in jail prior to trial. They decide that a criminal sentence may be increased for just one factor even though there are multiple reasons present to increase a sentence.
The governor appoints state court trial and appellate judges. The governor also runs the prison system while the legislature has oversight responsibilities. Some legislators and judges have given up on the prison system’s capacity to rehabilitate criminal offenders.
When legislators or the governor fail to act, voters often go to the ballot box themselves with propositions and initiatives to enact changes directly. That’s what happened after the Dan White verdict and, more recently, with changing sentencing enhancements.
What can we do now?
The ruling for probation in the Grandpa Vicha case is the product of decisions made by the district attorney, the judge, the jury, the legislature, the governor, and the voters. They can blame one another or work together when voters demand it. Between now and June 3, San Francisco voters will be deluged by appeals from current office holders and people who want to be elected as governor, state legislators, and judges. They need to hear from the voices of San Francisco and beyond that the choices they make or decisions they fail to make determine our safety as a community and state.
