Defense Challenges the Declarations of Detective Villanueva in the Gang Injunction Case

One of the key witnesses was Detective Joe Villanueva, who was the original police officer in West Sacramento assigned to the Community Response Team and charged with working on the anti-gang unit.

As we mentioned in an earlier article, the Court explicitly found that it was “likely that the Plaintiff would prevail” at the trial on the merits, “i.e. establish, by clear and convincing evidence, that there was an on-going public nuisance in a substantial portion of West Sacramento (primarily the Broderick/Bryte community which the Plaintiff dubbed the ‘safety zone’) caused by a criminal street gang (the ‘Broderick Boys’) that should be enjoined to protect the community from continued offensive activities of the gang; and that, on balance, the benefits to be realized from the injunction outweighed any negative impact (harm) likely to be suffered by Defendants and the community.”

Furthermore, The Court found that members of the Broderick Boys “engage in a pattern of criminal and other deleterious activity that is offensive to the senses, significantly harms the property and persons in the Safety Zone, and substantially interferes with the right of community members to comfortable enjoyment of life and property in the Safety Zone.”

However, the trial court and also the Court of Appeals rely primarily on the declaration of Joe Villanueva, previously of the West Sacramento Police Department, then the DA’s Office, and currently a detective with the Fairfield Police Department.

The appeals court wrote, “As to Defendants’ argument that there was no evidence of actual sightings of numerous gang members patrolling the Safety Zone together, we need look no further than the declaration of Investigator Villanueva. As described above, Villanueva indicated Broderick Boy members typically patrol areas within the Safety Zone in small groups, because ‘a guy on the corner isn’t going to get the message of fear and intimidation across to the community and to rival gangs.’ Unless we are to conclude Investigator Villanueva simply made this up, it is reasonable to assume he observed this activity within the Safety Zone or it was reported to him by others.”

The advantage that this full-blown trial now gives us is context to these claims by Detective Villanueva and others.

As the defense writes, “Despite this Court’s and the Court of Appeal’s reliance on the statements made in the 76-page declaration of Investigator Villanueva, the statements contained in it were not supported by the evidence adduced at trial.”

The defense then goes on to list evidence they believe was not supported at trial or in some cases was only “even alleged” by Detective Villanueva during his testimony at trial.

They argue for instance, “No evidence was proffered to support the opinion that Broderick Boys has ‘the commission of criminal acts’ or ‘commission of acts constituting the public nuisance’ as ‘one of its primary purposes.’ “

Instead they argue, “The evidence demonstrated spontaneous, scattered and varied criminal activity that did not provide the basis for an inference that such crimes were the ‘chief’ or ‘principal’ occupation of the alleged criminal street gang.”

In another instance they argue that, “At trial Villanueva did not state any factual basis for the opinion that the Broderick Boys, as a gang, has been involved in criminal enterprise. There was no showing that the commission of individual crimes benefited any gang or were committed for anything other than personal gain.”

Moreover, “There was no evidence presented at trial to support the allegation that Broderick Boys are connected to Nuestra Familia or any other prison gang.”

The plaintiffs also provided no evidence to support the argument that “criminal activity attributed to Broderick Boys interferes with ‘the community’s’ comfortable enjoyment of life and property, as opposed to having an impact only on the individual victims.”

Again they cite the relatively low number of crimes and the lack of nexus between these crimes and “interference with the ‘community’s’ comfortable enjoyment with life or property.”

Moreover they argue, “Other than the natural fear and horror of the victims, there was no evidence presented that any community members were prevented (either through fear or force) from using private or public property, including the streets, sidewalks and parks.”

They also make an interesting claim that there is no evidence “hand signs were ‘displayed’ to a community member or member of another alleged gang” or that these hand signs were “being displayed in order to convey fear, to intimidate, to establish turf, or as a threat not to report crime.”

This is an interesting point that is often taken for granted.  The police in various trials will often use pictures of hand signs as evidence of gang membership, without taking into account that these pictures are not in themselves evidence of the use of the hand sign in a matter, or that the hand sign is either displayed or representative of any attempt to induce fear or intimidation.

Moreover, they argue that “there was no evidence of tattoos displayed in 2009 – 2010 and only evidence of red being worn on a few occasions.”

Furthermore, while some testified that certain individuals had tattoos, they presented no evidence that “they were being displayed.”

They further argue, “Only James Hopkins III displayed his tattoo by removing his shirt to reveal the non-gang related tattoo of “BERZERK” across his chest prior to fighting Chris Castillo, who was alone at that point.”

And Mr. Hopkins was the supposed victim, not an alleged gang member.

They further argue that plaintiffs did not offer evidence to support Mr. Villanueva’s opinion that the display of red “sends a clear message to the rivals and the public that they are seeing a Broderick Boy gangster and they should be afraid.”

They present no evidence of an alleged gang member “standing in the street displaying his gang colors” or even wearing red in public in 2009 and 2010.

They also offer no evidence in support of the opinion again expressed by Detective Villanueva that “[T]he primary activity that Broderick Boy gang members engage in is felonious assaults.”  On the contrary, they argue, “There was only scant evidence that individuals identified by law enforcement as gang members committed felonious assaults at all; five occurred in the last two years in a neighborhood of over 14,000 residents in the area, based on calculation of density per square mile.”

One of the things the Vanguard was told by people living in the safety zone is that the area has a drug problem rather than a gang problem.  The plaintiffs spent a lot of time showing the use and possession of drugs by alleged gang members but they failed to show that the “possession of a controlled substance for sale was done for anything more than personal gain, and thus no support for the opinion that the alleged gang itself, as opposed to individuals alleged to be members, is involved in ‘illicit drug trade.’ “

We are also left with a number of individuals committing crimes without a real demonstration that these crimes were being committed for the purpose of helping the gang.  This is despite claims by Detective Villanueva and others that “Broderick Boys also routinely commit robberies, felony vandalism, narcotics crimes, witness intimidation and vehicle theft.”

For example, the prosecution only introduced evidence of one incident of witness intimidation, but that involved a domestic violence dispute without any evidence to tie the incident to the activities of the alleged gang.

Another key allegation was the fact that Nortenos and Surenos are bitter enemies, and as West Sacramento is controlled primarily in the safety zone by Nortenos, that Surenos were alleged to be “[t]he primary rivals” of the Broderick Boys criminal street gang and that they will attack Sureno gang members “who enter their turf, flash the color blue in public or who somehow disrespect the Broderick Boys.”

There was very little testimony of such attacks on alleged Surenos, perhaps only one case that even involved a Sureno who was the victim.

The defense also argues that there was a lack of evidence to support claims that individuals “prey on innocent people in order to instill fear in the community and/or profit from their loss” and “civilians are often targeted for assaults because of some act or perceived act of disrespect or simply because a Broderick Boy gang member feels like acting out violently.”

The plaintiffs also presented no factual basis for the statement that a lot of “these” crimes go unreported or that fear and intimidation are the cause for unreported crime.

The bottom line here, as is clear from the 95 statements made by the defense, is that the factual basis of the declaration made by Joe Villanueva, who was the chief reason that Judge White granted the preliminary injunction, was far from a declaration made based on facts that could be introduced and proved as evidence, and is more likely mere unsupported conjecture.

As both courts indicate, “It was Villanueva’s declaration that provided the basis for the existence of a gang; the membership of the gang; the structure, customs, and activities of the gang; the connection between individual crimes and ‘gang activity,’ and most significantly, the effect of the gang and its activities on the residents of Broderick-Bryte.”

As the defense writes, “When the Plaintiff presented its case for a preliminary injunction, it promised that the claims of its officer declarants and officer gang experts, that their description of a brutal, out-of-control gang and the community’s need and plea for an injunction in order to regain the rightful use of private and public spaces within the ‘Safety Zone’ and peaceful security would be supported by evidence, including the experiences of citizens of the area. That showing was not made, by clear and convincing evidence, at trial.”

To be sure, there were some incidents where clear indications were that someone used clear gang terminology when depicting “scraps” or telling an individual not to ” ‘expletive’ with Broderick.”

However, what there is not is any evidence of routine or habitual examples of such intimidating behavior including loitering and gathering in groups meant to intimidate enemies and the public.  Nor, as we have mentioned, is there a record of consistent and violent gang crimes committed for the clear purpose of some organized gang.

And while the plaintiffs may be correct that the case law does not require such findings, common sense should.

—David M. Greenwald reporting