DEFENSE: Cain Velasquez Is Likely Being Overcharged in Heat of Passion Chase of Accused Child Molester

MMA: UFC Fight Night-Phoenix- Ngannou vs Velasquez
Joe Camporeale-USA TODAY Sports

Former UFC Champion, Cain Velasquez is facing charges of first-degree attempted murder after allegedly chasing a vehicle with three people in it for 11 miles, according to police. They claim he was shooting into the vehicle. It sounds like a scene out of a movie.

Police say Velasquez was allegedly trying to shoot a man accused of molesting his close relative who is a child. In the car was the accused man, his mother who operated a daycare that Velasquez contracted with for two years and her husband.

It’s unclear if the child who was allegedly molested was Velasquez’s own child or another relative but the relationship was close and police say it was Velasquez who had contracted with the woman operating a daycare out of her home. Her adult son, lived in the home around the kids and police say they found enough evidence of a sexual assault to charge him.

Despite a prosecutor recommending the accused child molester be held in jail, he was let out on bail by a Judge.

Police claim that Velasquez went to the daycare operator’s home and chased the car with her, her husband and son in it, shooting into the vehicle on more than one occasion during the chase. They accuse Velasquez of trying to kill the accused molester but say he shot the stepfather instead.

In California, there is a legal theory called the Kill Zone Theory which stands for the premise that even if you accidentally shoot or hurt someone else, and not your intended target, you are still liable for the crime. In other words, the intent to kill someone transfers to the other person, because you are essentially endangering everyone in that zone. So Velasquez is being charged with first-degree attempted murder and prosecutors are accusing him of planning it (aka premeditated). It says in the police documents that police recovered a gun from Velasquez’s car that had nine bullets in a 10 round magazine and another 10 round magazine as well as shell casings on the passenger seat. It also says that the people in the car identified Velasquez as the person who shot at them.

Generally, the use of a gun and particularly shooting at someone in California can be used as evidence of a direct step toward attempting to commit murder. Loading a gun can also be used as evidence of planning. For there to be an attempted murder, prosecutors can’t just prove planning. A direct step must be taken. Being convicted of First-degree attempted murder could carry a life sentence in California, with the possibility of parole. The proven use of a gun enhances the sentence significantly because California has tough gun laws. It’s called “10-20-life.” Just for firing a gun, an extra 20 years can be added to someone’s sentence and killing someone or causing serious bodily injury with a gun can add 25 years to life to someone’s sentence, if convicted. Velasquez could already be facing Life if convicted on a first-degree attempted murder charge and the use of a gun resulting in injury, could add another 25-life onto that.

However, prosecutors also have to prove intent to kill to get a conviction. Here is where Velasquez can try to mount a defense. He can claim he didn’t intend to kill anyone but was trying to just scare them or injure the accused molester. But Velasquez’s biggest defense is that this was a heat of the moment shooting, (if in fact he did what he is accused of.)

To charge someone with voluntary manslaughter rather than attempted murder, you need to believe the person acted in the heat of passion. Heat of moment crimes require provocation. But the provocation does not need to happen just before the crime occurs. While sometimes there is a fight followed by a shooting, the time period where someone becomes heated can also last a long time. It does not need to be short in duration.

Should you take the law into your own hands? No. Just look at what’s happened. Velasquez is now potentially facing life in prison if convicted and the accused molester is free on bail. However, under the law, if a reasonable person in the same circumstance would feel compelled to do what Velasquez did than the provocation is sufficient to justify a heat of passion charge. Now that doesn’t mean a reasonable person would go on a high speed chase and try to shoot someone in the car. The test is only asking whether a reasonable person would feel like they wanted to. In my opinion, anyone would get heated over finding out a minor child was allegedly molested, especially if the child was a relative. The provocation could have theoretically lasted long enough for someone to get a gun, load it and go on a vigilante chase.

The prosecutor probably chose the first-degree attempted murder charge because he felt that he had a strong and provable case. There was a gun recovered and shell casings, there were witnesses, Velasquez was identified by the victims, and proof of the loading of a gun and firing of it could potentially fulfill a burden to prove planning and a direct step in furtherance of a crime. Plus, the prosecutor may want to try to make an example to prevent other people from trying to take the law into their own hands.

However, given the circumstances, I think Velasquez has a very strong defense that he is being overcharged. If in fact, Velasquez did what he’s being accused of, it appears to have been done in the heat of the moment or heat of passion. In my opinion, anyone with a rational mind would likely feel that way. The argument by a defense attorney would be that there was sufficient provocation, it lasted a while and a reasonable person would feel that heat in the same circumstance.

The difference in sentencing is drastic when being convicted of manslaughter vs attempted murder. Rather than facing a double life sentence, Velasquez would be facing a max of about five years for a voluntary manslaughter charge. Now perhaps he can strike a plea deal on a lesser charge or perhaps a jury will acquit him or if they find him guilty it will be on a lesser charge.

Either way, the circumstances here need to be known. In my opinion, he is way overcharged. A lot of people feel the same way since there is a Free Cain movement on social media and many of his fellow fighters are coming to his DEFENSE.