BAKERSFIELD, Calif. (KGET) — A Bakersfield man who was previously serving a life term behind bars was sentenced Tuesday to 13 years in prison after his murder conviction was overturned.
Theron Ausbie, 24, pleaded no contest to voluntary manslaughter and robbery after an appellate court, citing errors in the transcript of his confession and the trial judge’s failure to properly instruct the jury, overturned his 2015 murder conviction in the death of 45-year-old Kelly Gill.
The felony murder rule, under which Ausbie was originally convicted, was altered by state legislation that took effect Jan. 1. Prosecutors have said a plea agreement was offered in part due to the change in the law.
Under the previous iteration of the felony murder rule, defendants could be found guilty of murder and sentenced to life terms in prison in cases where they weren’t the actual killer but committed a dangerous felony such as robbery or burglary that resulted in the death of another person.
But Senate Bill 1437 now requires a person to actually commit or aid in a killing, or have the intent to kill, during the commission of a crime in order to be charged with murder. Otherwise, they could only be prosecuted for the underlying crime, whether it’s robbery, burglary, carjacking or other serious offenses.
Ausbie’s co-defendant, David Martinez, pleaded no contest to second-degree murder in Gill’s death and is serving 15 years to life.
Ausbie, Martinez and Gill, among others, lived together at a residence in the 2300 block of Castro Lane, according to court documents.
Ausbie and Martinez came up with a plan to rob Gill of his disability checks, documents said. Gill had Wilson’s disease, resulting in too much copper in his blood and causing fatigue and loss of function in his arms and legs.
The robbery went wrong, an acquaintance of Ausbie’s told police, and Gill was suffocated on May 18, 2013.
Police found Gill’s body two days later, wrapped in blankets and clothing in the closet of Ausbie’s room, according to the documents. An autopsy showed Gill died from neck compression, similar to force used in a chokehold.
Ausbie told investigators both he and Gill were drunk and he hadn’t meant to hurt him, according to the documents. He said Gill tried to grab his throat, and a struggle ensued during which Gill died.
A jury convicted him of murder.
But the 5th District Court of Appeal, in overturning the conviction, said Superior Court Judge Charles R. Brehmer erred in not giving the jury instructions in lesser-included offenses to first-degree murder, such as second-degree murder, voluntary manslaughter and involuntary manslaughter.
The appellate court said leaving out those instructions left the jury with an “all-or-nothing choice” – either it found Ausbie guilty of murder or had to acquit him.
Also, when a recording of Ausbie’s interrogation was played, jurors were provided with a transcript containing inaccuracies, the appellate court said.