Judge, citing new state law, frees a woman convicted of murder
Family, prosecutor decry jurist’s decision, defendant apologizes for ’13 shooting
ARTINdZ >> Citing a 2019 law that changes the way murders can be prosecuted in California, a Contra Costa Superior Court judge reversed the murder conviction against a woman who was implicated in a 2013 robbery outside a casino in San Pablo.
The ruling by Judge Anita Santos is expected to free 32-yearold Brittany Bernard, who was convicted as an accomplice in the killing of 43-year- old Rodel Sarmiento. Bernard’s boyfriend, Kevin Thongsay Vilayngeun, 40, followed Sarmiento from the San Pablo Lytton Casino and fatally shot him during a robbery attempt. Bernard was accused of luring Sarmiento from the casino, using a feigned romantic interest in him.
But Bernard was in a different car, a short distance away from the murder scene, when Sarmiento was fatally shot. That’s what made her eligible for legal relief under Senate Bill 1437, a state law de
“Please allow me to believe in our justice system again. hive me that at least.” — Rodel Sarmiento’s daughter
signed to prevent accomplices from being charged with murder in homicide cases when they weren’t the actual killer and when they’re deemed to not be a major participant in the killing.
Under the previous law, a person could be charged with murder simply for participating in a felony, if another participant killed someone. Proponents of the law said that the old legal system punished people who’d shown no murderous intent for factors out of their control.
Bernard’s attorney, Paul Feuerwerker, argued at a hearing in September that Vilayngeun had acted on his own when he shot and killed Sarmiento and that Bernard was far enough away that it was impossible for her to prevent the
murder. He said that until Vilayngeun “deviated from the plan,” it was a “run of the mill robbery.”
Prosecutors contended that Bernard’s involvement in the robbery plot was enough to make her a major participant, arguing that the killing wouldn’t have happened if not for her role.
According to a transcript of the Dec. 14 hearing, Santos said that she sided with Bernard’s position “not because that’s what the court wanted to do, but that’s how the court saw it, after great consideration and legal understanding, I was required to do so under the law.” She said the crime was “vicious, callous and cruel,” with a vulnerable victim in the sense that he was alone and drawn to the location where he was ultimately killed.
Before Santos formally granted the petition, she heard from two members of Sarmiento’s family. His daughter said she blames Bernard for the murder and
that “without my father, my life has been obstacle-filled to say the least.”
“I had to accept at a young age that no one is looking out for me in this cruel world,” she said. “The only way to succeed is to advertise yourself as a charity case or work harder than a person with a complete family.”
She said her father’s murder was “premeditated, planned and carried out by the same woman who might walk out free.”
“I understand I am young, but I know that justice — ‘Injustice anywhere is a threat everywhere,’ Martin Luther King said. If everyone has a right to their own dreams, I have a right to mine. Which is to see my father again, just for a second, just to remember his voice, because after a while the memories get lost in the outermost parts of my mind,” she said. “Sadly this dream of mine is no longer possible. If so, please allow me to believe in our justice system again. Give me that
at least.”
At the hearing’s end, Bernard — appearing remotely by video — apologized for her role in the killing.
“I’m sorry for all the pain that I caused,” Bernard said, “The time that I served in here has not gone to waste. I’m not the same person I was before. And if I do get out, I’ll make sure that I won’t ever do any thing like this again. I just want to say I’m so sorry.”
The prosecutor, Deputy District Attorney Chad Mahalich, said in court he would have appealed Santos’ ruling, but that higherups in his office prevented him from doing so. That has been a common theme in other homicide cases prosecuted by Mahalich; last year, he publicly criticized a decision by his boss, District Attorney Diana Becton, to not challenge a state law that allowed a then-15year-old murder defendant to be prosecuted as a juve
nile, not an adult. When Mahalich refused to preside over a plea hearing where the teen was sentenced in that case, Becton issued a reprimand letter on Mahalich’s personnel file.
At the hearing, Mahalich called SB 1437 a “sloppy bill” that “failed victims of murder and their families.” Then he turned to address Bernard, telling her he hoped she would do “something worthwhile” with her freedom, but he doubted it would happen.
“You don’t deserve to be free,” Mahalich said, according to the transcript. “You knew exactly what ( Vilayngeun) was going to do and you targeted Rodel Sarmiento and took him from a place of safety and set him up to be murdered. If you think you didn’t do that, you are living in a dream world. … You deserve to rot in a prison cell.”