The Alameda County DA's office is set to reduce numerous charges in the Kevin Nishita murder case as it moves closer to a jury trial next year.
Nishita was a retired police officer who was working as a security guard for a KRON-TV news crew when he was killed during a robbery attempt just before Thanksgiving in 2021.
Under the charges as filed under former DA Nancy O'Malley, the men accused of Nishita's murder would not have been eligible for parole if they are one day convicted.
Under DA Pamela Price, the men could be free in less than 25 years.
Virginia Nishita, Kevin's widow, has said she is opposed to the reversal from the DA's office and that her wishes have not been taken into account.
As a result, Nishita has been a vocal proponent of the recall campaign to unseat Price, citing a lack of support and concern for victim families.
But the move falls squarely in line with a pledge Price made earlier this year to review all "special circumstance" murder cases: those in which parole is off the table.
Price's stated position is to avoid those charges "absent extraordinary circumstance," she said in a directive in April.
The directive followed decisions earlier in the year to drop "specials" in the case of David Misch, a convicted killer facing multiple murder charges, and Delonzo Logwood, who had been charged with three murders but ultimately took a plea deal for one count of manslaughter.
"It's hard. Mentally, emotionally, physically," Virginia Nishita said Tuesday morning. "For my family, it's hard. For the grandkids, it's hard. But we're here. And we're gonna hang strong until it's over."
Felony murder theory will play a key role in Nishita case
In addition to dropping the special circumstance murder allegations in the Nishita case, the DA's office has also revised its overall approach to the prosecution, relying on the felony murder rule rather than on who pulled the trigger.
The felony murder rule allows codefendants who are found to have been major participants acting with reckless indifference to human life to be convicted of murder — even if they are not, say, the shooter — when someone is killed during the commission of another serious crime.
Last year, in March, the DA's office charged three men with Nishita's murder, but one of them — 28-year-old Laron Gilbert — has been out of custody on the run ever since, authorities say.
Meanwhile, 27-year-old Shadihia Mitchell and Hershel Hale, 26, both San Francisco residents, were arrested last year and have been held without bail at Santa Rita Jail pending trial.
Read more about Pamela Price on The Scanner.
The DA's office originally charged Mitchell with shooting Nishita. But that's about to change.
In court Tuesday morning, Palden Ukyab with the public defender's office said the DA is planning on "making significant reductions" in the charges against Mitchell, his client.
Ukyab said prosecutor James Logan had emailed him last week to say Mitchell would no longer be charged as the "actual killer and shooter," and that several related allegations would be dropped.
Logan said the DA's office plans to file the updated charges in the coming weeks.
Both sides now plan to return to court Friday to argue a discovery motion and then on Jan. 3, 2024, "to take a deeper dive into scheduling" as they move toward seating a jury.
DA Price and Public Defender Woods issue statements
Tuesday's court hearing followed statements Monday night from the public defender's office as well as the Alameda County district attorney's office.
"For 18 months we have been telling the prosecution that our client Shadihia Mitchell was not the actual shooter, and we are pleased they are finally dismissing the charges alleging that he was," said Alameda County Public Defender Brendon Woods.
"The evidence clearly shows that someone else fired the fatal shots," Woods said, in reference to Gilbert. "Police arrested that man less than one month after this event, but failed to book him on the murder warrant in this case. He’s now been on the run for two years."
Woods also alleged that investigators had pointed to Mitchell as the shooter "to cover up their incompetence by skewing the case."
Read more court coverage on The Scanner.
In her prepared statement, DA Price said her office had "reached a decision regarding the charges" against Mitchell and Hale, adding: "We believe there is evidence to prove guilt beyond a reasonable doubt to charge both defendants … with one count of first-degree murder, which carries with it 25 years to life sentences, as well as arming enhancements."
Price described the charges as "very serious" and said they "reflect my office’s commitment to punishing those who come to Alameda County to inflict harm on people in our community."
The statement from the DA's office addressed the case but lacked key context.
In it, Price made no mention of the fact that she had reduced any of the charges, including dropping the special circumstance murder allegations that could have blocked parole.
She also failed to mention that the murder charges were filed in March 2022 under prior DA Nancy O'Malley.
"Kevin, did they get you?"
Kevin Nishita, a Buddhist and former police officer in Colma, Hayward and San Jose, picked up security work after a 25-year career in law enforcement.
"After retiring, Kevin still had the passion to serve and protect others, so he continued as an armed security guard, specifically protecting the Bay Area news media TV teams," Virginia wrote in an obituary in the months after her husband was killed.
"He was generous and compassionate, always opening his home for anyone who needed help without a second thought," she wrote. "He knew the importance of family and would make our family vacations fun with his jokes, Stitch costume, Snoopy slippers, etc. For our regularly scheduled family dinners he would make his yummy macaroni salad for us to enjoy."
On Nov. 24, 2021, Nishita was guarding a KRON4 news crew working on a story about "flash mob robberies" in downtown Oakland when he was killed.
According to court records and witness testimony, Nishita was helping reporter Maureen Kelly set up equipment when a car pulled up next to them at 14th and Webster streets at about 12:20 p.m.
Two masked men jumped out of the car. One of them had a gun.
Kelly testified that she immediately put her hands in the air and was walking away from her camera when she heard four gunshots.
She "screamed and crouched down, trying to make herself smaller," according to court records. "Then she turned back around and saw Kevin Nishita lying on the ground."
Kelly knelt down next to him, asking, "Kevin, did they get you?"
He said yes, and started unbuttoning his shirt, according to court records. Kelly remembered thinking, "I hope to God he has a vest on" — but he didn't.
Kelly used her jacket to apply pressure to his wound, a single gunshot to the abdomen. Initially, Nishita was conscious and talking.
He "helped calm her down, because she was starting to panic. He looked at her and said, 'It's going to be okay,'" according to court records.
Arriving Oakland police officers put Nishita in a patrol car and rushed him to Highland Hospital. He was eventually listed in stable condition but died several days later, on Saturday, Nov. 27, 2021.
Judge: "They all committed this offense"
The whole incident happened so fast that the masked men fled the scene without taking the news camera that had likely attracted their attention.
Oakland homicide investigators were able to identify the trio, in part, from surveillance footage of crimes in San Francisco two days earlier.
Police were able to match the getaway car in those incidents to what happened in Oakland. The trail led them to Laron Gilbert, the registered owner of the car.
From there, cellphone records and other surveillance footage helped police figure out the trio's movements on the day of the shooting, according to court records.
Prosecutors say the group circled the block at least once before deciding to commit the robbery.
And the men chose to maximize the risk rather than to minimize it, authorities say.
"These defendants chose noon, on the day before Thanksgiving, on a busy street corner in downtown Oakland where at least six people were close by… and the hair salon next door was busy with customers," Deputy District Attorney Emily Tienken wrote in a motion in February.
After gunning down Nishita, she wrote, the group ended up "amicably shopping together" at H&M, at Serramonte Center in Daly City, before hanging out in the vicinity of the Berkeley Marina.
"There is no evidence that the plan, or the use of the gun, came as a surprise to either defendant, or disturbed them to the degree that they chose not to go shopping together afterwards," Tienken wrote. "This casual trip to the mall after having lethally wounded a man shows a lack of empathy that rises to literal indifference to human life."
Read more Oakland coverage on The Scanner.
In September 2022, Judge C. Don Clay held Mitchell and Hale to answer on the charges that were originally filed against them.
"There's no question all three of them are involved," he said at the end of the preliminary hearing. "They're all together. They all committed this offense."
In a preliminary hearing, however, the standard of proof is much lower than at trial: The evidence must only "lead a person of ordinary prudence to entertain a strong suspicion of guilt."
That's a far cry from the "beyond a reasonable doubt" standard required at trial.
During the four-day hearing, based on transcripts reviewed this week by The Scanner, both attorneys argued that the felony murder rule should not apply to their clients.
Hale's defense attorney argued that Hale, who is alleged to have gotten out of the car with the shooter, may not even have known anyone was hurt because everything happened so fast, and could not have predicted Gilbert would open fire.
Representing Mitchell, Ukyab also argued that Gilbert had been the shooter.
"There is a mountain of evidence pointing to Laron Gilbert," Ukyab told the judge.
In her statement Monday night, DA Price urged anyone with tips about Gilbert to alert law enforcement.
Gilbert, she wrote, "is still at large. He is considered armed and dangerous. If anyone knows his whereabouts, we ask you to contact Oakland police."