Alleged home invader faces murder charge

Two men were toting guns when they broke into the back door of an East Oakland home last month, looking for valuables, according to court documents.

It’s unclear if they knew the residence on 102nd Street near International Boulevard was occupied, but the homeowner was there, also armed, according to police.

After an exchange of gunfire, one of the men, Charles Calloway, was dead. His alleged accomplice, David Washington, took off, only to be arrested 10 days later.

Now Washington, 38, faces a murder charge in Calloway’s death, even though police don’t believe he fired the fatal shot, court records show. Washington was expected to enter a plea during a hearing in Alameda County Superior Court on Friday.

His attorney, David Briggs, said that while he had not yet reviewed all of the evidence in the case, he is doubtful about the accuracy of the accounts of the shooting provided by police in court records. He declined to comment further.

The Alameda County District Attorney’s Office declined to comment on the case.

The prosecution — which comes amid a broader rise in home-invasion robberies in Oakland this year — appears to be a rare case that seeks to hold Washington responsible under the theory that he provoked the homeowner to kill Calloway, legal experts said.

In the exchange of gunfire at the East Oakland home on March 15, the homeowner was shot in the foot and was hospitalized, police said. He was not charged with any crime. Under state law, homeowners are allowed to use deadly force to defend themselves against intruders if they fear for their safety, legal experts said.

Washington was identified as a suspect using surveillance video, according to court documents. Police obtained a warrant and arrested him in San Francisco’s Tenderloin neighborhood. Court documents did not specify where the video evidence came from.

In addition to the murder charge, Washington is accused of residential burglary and attempted murder following the alleged gunfight with the homeowner. He also faces a count of being a felon in possession of a firearm.

Court records show he was convicted of robbery in Alameda County in 2004. In December 2020, Washington was charged in Alameda County Superior Court with driving under the influence of alcohol and driving without a license. Six months later, he failed to appear at a court hearing, prompting a judge to issue a warrant for his arrest. He was arraigned last month after his arrest in the murder case, court records show.

He was being held at Santa Rita Jail without bail as of Thursday.

While Washington is not accused of fatally shooting Calloway, California criminal law affords prosecutors leeway to bring murder charges against people who did not personally kill someone.

The felony murder rule, for example, allows prosecutors to charge defendants with murder if a death occurs during the commission or attempted commission of a felony. A new state law set stricter standards in 2019 for murder charges under the rule: Now prosecutors must show that the defendant was the actual killer, acted with the intent to kill, or played a major role in the felony and acted with “reckless indifference to human life.”

Multiple attorneys who reviewed the allegations in Washington’s case but were not involved with it said that while the felony murder rule could apply, it appeared prosecutors were using what’s known as the provocative act theory to bring a murder charge, which applies when a defendant commits an act that causes a victim of a crime to kill someone.

“It is a valid, viable theory of murder,” said San Mateo County District Attorney Stephen Wagstaffe.

Wagstaffe pointed to a case in which two men held up a jewelry store in San Mateo in 1985. The store owner fatally shot one of the men, and the other was charged with murder in his accomplice’s death under the provocative act theory. A jury convicted the defendant, Larry Williams, who was sentenced to 28 years to life in state prison, Wagstaffe said.

Michael Cardoza, a defense attorney who previously worked as a prosecutor in Alameda County, said the prosecution must prove that the provocative act was substantial and caused the homeowner to use lethal force. A burglary alone might not warrant a conviction under the provocative act theory, but gunshots could.

“That’s up to a jury to decide,” Cardoza said. “Was that enough of a provocative act?”

While several types of crime in Oakland are down so far this year compared with the start of 2023, robberies are up, driven largely by home invasions.

As of April 14, home-invasion robberies, which occur when residents are present, were up 119% compared with the same period last year, increasing from 16 to 35, according to the latest available police data. The city recorded 108 home-invasion robberies last year, up from 99 in 2019 and 63 in 2022.

Violent crime was up 10% this year as of April 14 compared with the same period last year, while property crimes were down — burglary decreased 47% and vehicle theft saw a drop of 10%.