Last week the second week of the gang injunction trial slogged on with even Judge Kathleen White getting a bit impatient with both the pace of the trial and also the fact that the plaintiffs, the Yolo County District Attorney’s Office, have chosen a piecemeal approach to presenting their case.
In some ways, one has to feel a bit sorry for Deputy DA Jay Linden, on his own as his colleague Ryan Couzens works on another trial and facing the wrath of eight defense attorneys, armed with an endless slew of objections that have made this case move at a snail’s pace.
The four elements that must be proven in this trial in order for the permanent injunction to be implemented are that the Broderick Boys are a criminal street gang, the defendants are members of the gang, they engaged in crimes, and present a current nuisance.
The defense has argued from the start that there is no organized criminal street gang in West Sacramento. There are gang members in West Sacramento, but many of them are either from a variety of Sacramento gangs or they were gang members in prison. Broderick Boys, according to the defense, refers to people who live in the area known as Broderick, rather than a criminal street gang.
The most difficult element, however, to prove will be whether this criminal street gang, should it exist, represents a true public nuisance. The Vanguard has independently examined this claim. We obtained through a public records request a listing of all criminal gang charges through section 186.22 of the California Penal code from 2005 until the time of the request, March of 2010.
As we have mentioned in the past, there are two critical provisions in that penal code. Part A prohibits, “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.”
Part B section 1, “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished.”
Section 186.22(B)(1) is thus an “enhancement” which is tacked on top of a crime that they committed, whereas 186.22(A) is a stand-alone crime punishable by up to three years in state prison.
Both of these are what we would call indications of gang crimes, crimes that are specifically committed for the “benefit of” or “at the direction of,” or otherwise “promotes, furthers, or assists” that gang. That differs from some of the cases that we have seen where the individual may be a gang member, but the crime has little to do with being in a gang.
For instance, Angel Sanchez and his brother admitted to being gang members on the stand. However, the jury acquitted them on the gang charges, agreeing that while they beat up another individual, the action was not related to their being gang members and was not done in furtherance of a criminal street gang. Likewise, Jesse Garcia, who just received nearly 8 years in prison in a domestic violence case, is a defendant in the gang injunction case as well, but was not charged with a gang crime in his most recent case.
One of the questions is to what extent the plaintiffs will need to show, in order to prove the nuisance, a pattern of gang crimes as opposed to a pattern of crimes committed by alleged gang members.
The Vanguard research indicates that if the question is simply a matter of gang crimes, there really have not been a tremendous amount in West Sacramento. From 2005 until March 2010, there have been a total of 98 individuals charged with gang enhancements, either 186.22(A) or 186.22(B)(1). That comes out to less than twenty gang cases in a year from West Sacramento. Of those 98 defendants, 75 were convicted of some crime. But only 35 were convicted of a gang crime, either 186.22(A) or 186.22(B)(1). That works out to less than seven individuals a year over a five year period being convicted of a gang crimes.
Obviously an element of that may be the fact that some of these individuals are taking plea agreements. However, that defense is questionable at best because some individuals have claimed that they were actually forced to plead to a gang enhancement in order to avoid prison time.
For example, Thomas Cedillo entered a plea in an eight-year-old case from February 25, 2002. He claims he is not a gang member and said on the stand, “I took the plea because people promised not to send me to prison if I accepted it.” Given that he was facing prison, it would make a lot of sense for him to take such a plea. What difference did it make to him if he had to plead to a gang enhancement?
While that is certainly anecdotal, it at least introduces the possibility that pleas do not account for the low number of convictions for gang crimes. But even if they did, 75 total convictions for defendants who were even charged with a gang crimes, works out to less than 15 per year. Is that really the definition of a nuisance?
Adding to the difficulties faced by the plaintiffs in proving the case is the fact that they have chosen to rely heavily on third party hearsay to show that individuals are gang members, rather than direct testimony and evidence. They have done this through statements from police officers regarding conversations with suspects or those in custody.
This has triggered several lengthy debates regarding hearsay exceptions. Right now Judge White is considering testimony assuming that the plaintiffs can show that the individual is unavailable to appear in trial – for instance in prison or taking the fifth – and the individual has made a statement against their own interest. It is up to the plaintiffs to tied all of the strings together to prove the case.
But it seems a problematic way to prove a case. And even some of the case examples that they have used make one pause to believe that there is a true nuisance in West Sacramento.
For example, one of the defendants is Victor Dazo. The plaintiffs called Sgt. Daniel Duchene to the stand on Wednesday, July 28. Sgt. Duchene is a veteran of West Sacramento and has been a Sergeant since 1996.
He described an incident on September 14, 2005 where a person was shot. The person came up to the officers and described himself as shot in the face, but he had no noticeable wounds. They soon figured out he was shot with a high-powered BB gun. So the police set up a 30 yard perimeter.
According to the trial transcript, there was a verbal argument at a residence that occurred between two individuals, including Victor Dazo. During the argument on September 14, 2005, Mr. Dazo exited the residence and made gang threats, purportedly saying, “don’t f— with Broderick.” He then shot the other person, and another resident, with an airsoft gun from 35-40 yards away. Apparently it shoots small yellow projectiles that are hard and plastic, like a pellet gun.
The victim got broken skin and welts on the back of his leg and claims he received them from the gun through his khaki pants. Meanwhile, the other victim got shot multiple times times on head and face, but no marks were left.
Both individuals expressed their fear of the gun’s velocity and distance, and that it would put out their eyes. Neighbors heard shots being fired, but airsoft gun could not make that sound. Apparently it is similar to a BB gun, except pellets are “much bigger than BB and not made of metal.”
Can a high-powered weapon of this sort be dangerous? Sure it can. As the trial transcript said, it could put out someone’s eye. But I have a hard time thinking of a gang incident in Los Angeles or other areas of high gang violence that would involve an airsoft gun.
Mr. Dazo, for what it is worth, accepted a plea agreement to misdemeanor battery (PC 242) and the felony PC 245(A)(1) (assault with a deadly weapon) and PC 422 (Threat to Commit Crime with great bodily injury) were dropped, along with three gang enhancements.
If this is supposed to be an example of the nuisance that the gang poses or an example of the criminal street gang activity, it seems lacking, and in fact proves the opposite point that most of this is fairly minor. No doubt this was a crime, but when you think of criminal street gang activity, most people are not going to think of an argument between friends that escalates to an airsoft gun shooting.
That is not to say there are not more serious crimes with individuals who clearly are dangerous, but the numbers themselves show those serious crimes to be relatively minor and few and far between. Even some of the more notorious cases really pale in comparison to what gang threats exist in other communities.
It is difficult to know what will happen in this case. At some point we will receive the expert testimony and the broader theories and then we will see if the plaintiffs truly can connect the dots. The real question is once the dots are connected will they point to a nuisance, or simply a bunch of people committing crimes in a limited geographic area in West Sacramento.
—David M. Greenwald reporting
dmg: “The defense has argued from the start that there is no organized criminal street gang in West Sacramento.”
dmg: “From 2005 until March 2010, there have been a total of 98 individuals charged with gang enhancements either 186.22(A) or 186.22(B)(1).”
Hmmmmmmmmmmm…………
Hmmmm, what? Only 35 convicted over a five year period constitutes an organized street gang?
dmg: “Hmmmm, what? Only 35 convicted over a five year period constitutes an organized street gang?”
Hmmmmmmmmm – the defense is arguing NO organized criminal street gang activity – which damages the defense’s credibility. They would have been better off arguing as you did that gang activity is minimal rather than arguing there is none…
ERM
“Hmmmmmmmmm – the defense is arguing NO organized criminal street gang activity – which damages the defense’s credibility. They would have been better off arguing as you did that gang activity is minimal rather than arguing there is none…”
I don’t believe the defense attorneys are claiming NO criminal street gang activity has existed in the past and does not exist at all presently. They are arguing that no such organized criminal street gang, as characterized by the DA’s Office (Broderick Boys) exists.
The point here is that the DA’s office (plaintiff) has to prove (preponderance of evidence), as I understand it, the following:
(1) The criminal street gang (the Broderick Boys) in fact exists.
(2) The defendants are members of the criminal street gang (Broderick Boys.)
(3) The defendants participated in criminal activity (not sure what this means exactly-in the furtherance of a criminal street gang or just crime in general?)
(4) The defendants in that criminal street gang are a “nuisance” to that area (Safety Zone).
The defense is saying (1) doesn’t exist, but NOT denying that there is any gang activity at all, past or present, in that area.
That’s what I have gathered anyway. Someone please correct me if I’m wrong.
SM, FYI in order to meet your cited standard all one needs to establish is that it is more likely than not, i.e., 51%.
Primoris,
Thanks and I am aware of that.
Just a comment on legal terminology; how “nuisance” is defined.
I’d use the term “nuisance” for crimes of low-level non-deadly weapons; petty theft, etc.
I’d use the term “menace” for crimes involving assault, robbery, deadly weapons,witness intimidation, etc.
But for purposes of injunction; do these crimes fall under legal term “nuisance”?
I’d be interested in hearing comments from West Sac residents in Broderick area if they would feel reluctant to testify as witnesses to crimes by certain people due to fear of retaliation; and if they feel safe walking outside alone in the neighborhood in the evening.
Re: 15 convictions per year
Isn’t it true that about 5-10X as many street crimes are reported as there are convictions for any of these crimes? (correct me on this if I have the stat wrong; also I realize it varies widely between crime types).
Therefor 15 convictions/yr translates to 75-150 crimes per year; 80-90% of which nobody is every charged and convicted for committing; although the crimes themselves were reported and did occur.
SM: Yes that is correct.
“the defense is arguing NO organized criminal street gang activity – which damages the defense’s credibility.”
What the defense is doing is forcing the plaintiffs to prove that there is organized street gang activity, since this is a court trial rather than a jury trial, I don’t think they have to worry about their credibility, only whether the legal points can be proven. It’s a tactical decision. From my standpoint, I don’t think they can prove the nuisance aspect but they may be able to show that there is enough street gang activity to convince the court of the first element.
Toward jimt’s point, if that supposition is true, and it might be there ought to be the ability of the plaintiff’s to show a number of unreported crimes. By the same token however, if that principle holds in West Sac, it should hold elsewhere, and the defense should be able to compare West Sac gang activity to other cities with and without injunctions to see if West Sac has a higher or lower amount of crimes. My sense is given the ease at which the DA is willing to tack on 186.22 enhancements, West Sac’s numbers are extremely low to try to argue a true nuisance. I just don’t buy the 75-150 crimes per year.
“if they feel safe walking outside alone in the neighborhood in the evening.”
Last year I was invited to Broderick, people were out walking in the evening, they had their garages open, people really are not afraid to go out at night. At least where I was, I have seen far far worse neighborhoods where people would never have their garages open, everything is tightly barred up, and no one is out at night.
FYI, nuisance is defined as follows: Black’s Law Dictionary
“That activity which arises from unreasonable, unwarranted, or unlawful…injury to the right of…the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage… Maintaining a public nuisance is by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare…”
As you can see, nuisance is defined pretty broadly. I suspect this is going to come down to the judge’s discretion more than anything. Isn’t she the one who approved the injunction thus far?
I live in Broderick and have lived there since 1995…I am not afraid at all to go out at night…matter of fact, softball fields there and during season, there are plenty of people out and about.
My 17 y.o. goes plays soccer with friends at park and the only safety concern I have is that she’s a young lady and would be more afraid of rapists than alleged gang members.
David,
To point #3, specifically what type of criminal activity must they prove the defendants took part in?
From prior comments by Greenwald and msymt, sounds like residents aren’t terrorized or intimidated by roving gangs of punks; that’s good news! Thanks for info. and comments, I’ll be following this story…
[quote]As you can see, nuisance is defined pretty broadly. I suspect this is going to come down to the judge’s discretion more than anything. Isn’t she the one who approved the injunction thus far? [/quote]
Yes, the Judge is the one who approved the temporary injunction. However, this very different from that. The burden was much lower. There was no fullblown trial. It was merely about declarations from law enforcement.
If you are interested Elaine, look up the Acuna case, that’s the authority on gang injunctions and I think defines nuisance for this purpose.
SM: That’s part of the debate. The defendants are arguing they must show a pattern of 186.22-type behavior, the plaintiffs are arguing that actually if you read Acuna, all you need to show are gang members are creating crime and “nuisance”