3 men ordered to stand trial in killing in parking lot of Newport Beach mall

An Orange County Superior Court judge Thursday ordered three men to stand trial on charges stemming from a deadly robbery at Fashion Island in Newport Beach.

LeRoy Ernest Joseph McCrary, 26, of Los Angeles, Malachi Eddward Darnell, 18, of Los Angeles, and Jaden Cunningham, 18, of Lancaster, are charged with murder for the July 2 killing of 68-year-old Patricia McKay of New Zealand, who was in town with her husband to visit relatives. The murder charge includes a special circumstance allegation of killing during a robbery.

The three defendants are also charged with attempted robbery. Darnell also faces attempted murder with sentencing enhancements for the personal use of a gun and discharge of a gun, while McCrary is charged with leading police in a pursuit and an enhancement for death of a victim younger than 70 as a result of a robbery.

Senior Deputy Dist. Atty. Mark Birney argued during a preliminary hearing that McCrary was behind the wheel of a Toyota Camry, and Darnell and Cunningham got out and attempted to rob McKay’s husband of his Rolex watch.

Douglas McKay struggled with the suspects until he fell down, and two assailants turned their attention to trying to steal his wife’s purse, Birney said. Shots were fired at one man who tried to intercede in the robbery, authorities said.

Police witnesses testified during the hearing that Patricia McKay wound up on the ground in the roadway, where she was run over by the Camry and dragged about 30 yards as the suspects tried to escape.

Douglas McKay told police he tried to warn the driver his wife was on the ground in front of the car before it took off, police testified.

The three defendants fled from the scene, leading authorities on a chase, during which Cunningham got out of the car and was arrested in the Cypress area, authorities said. The other two defendants continued the chase to the South Gate area, where the car broke down and they were both arrested.

The three men are scheduled to be arraigned Dec. 23.

Cunningham’s attorney, Ray Chen of the Alternate Defender’s Office, did not dispute his client’s role in the robbery, but said he should not be held liable for the killing.

“He used force necessary to commit robbery and nothing else,” Chen said. “The issue is what force Mr. Cunningham used and whether it was in reckless indifference to life. ... If anyone acted with reckless indifference to life it was the driver.”

Cunningham was “unarmed” and was attempting to commit strongarm robbery, Chen said.

“The only force he used was to commit the underlying crime and nothing else,” Chen said.

Orange County Superior Court Judge Gregory Jones said, however, it was a “two-on-one situation” pitting a pair of young men against a 68-year- old man who had a gun pointed at him.

Birney said he disagreed with Chen’s “narrow” reading of the law, which requires “reckless indifference to human life.”

Cunningham “does not disengage’” when McKay is threatened with the gun, Birney argued.

The prosecutor noted that Patricia McKay was “violently attacked. She is thrown to the street by Mr. Cunningham” before “her property is ripped away from her.”

Birney also refuted the argument from defense attorney Joel Garson that the shots fired were not aimed at the good Samaritan who came to the aid of the victims. Birney noted the man told police he felt a bullet whiz past his head.

“He doesn’t shoot once, he shoots three times,” Birney said of Darnell.

Garson said the shots fired represented “more reckless indifference to escape” than to life. “If you watch the video it’s not aattempt to kill,” but rather to get Darnell’s pursuers to back off, Garson said.

“It’s an intent to scare,” he argued.