Appellate Court Throws Out Portions of Amtrak Attack Convictions Due to Overcharging

It was presented as a seminal case to illustrate the threat that the Broderick Boys  presented for the community of West Sacramento.  In April of 2007, three defendants – Austen Nunes, Pauliton Nunes, and Daniel Bonge went with several others to the train tracks in West Sacramento to drink some stolen beer.

The defendants would be prosecuted for multiple felonies, including attempted murder, and assault with a deadly weapon on a public transit employee with great bodily injury and criminal street gang enhancements.

The defendants were acquitted of attempted murder, but were found guilty of a lesser charge of attempted voluntary manslaughter.  The court sentenced Austen to an aggregate term of nine years in prison, Pauliton to a term of nine years and four months (which included a year for a prior charge), and Daniel to a term of eight years and four months.

On appeal, the Defendants contended the trial court abused its discretion in qualifying Officer Kenneth Fellows as a gang expert because “he lacked expertise in gangs.”  Moreover, they contended that the gang expert’s “testimony improperly invaded the province of the jury.”

Furthermore, they said that there was insufficient evidence to support their convictions of criminal street gang activity, and in any event the trial court should have stayed the sentence for criminal street gang activity pursuant to Penal Code section 654.

The People concede defendants’ three remaining contentions: (1) their convictions for assault with a deadly weapon (counts 2 through 4) should be reversed because those offenses are lesser included offenses of assault with a deadly weapon on a public transit employee, of which defendants were also convicted (counts 5 through 7); (2) the great bodily injury enhancements to their convictions for battery with serious bodily injury (count 8) must be stricken; and (3) the amount of their court security fees must be corrected.

While the court conceded that Officer Fellows lacked the amount of experience in working with and investigating gangs that officers qualified as gang experts in other cases have had, and his experience was not as extensive as the experience of these other officers, he nonetheless had sufficient gang training and experience for the trial court to reasonably find that he was qualified to testify as an expert on the subject.

Moreover, while they noted this is the first time he testified as an expert at trial, they ruled that irrelevant since everyone had to testify as an expert for a first time and moreover he had qualified as an expert three times for preliminary hearing.

The appellate court therefore found that the trial court did not abuse its discretion in finding Officer Fellows a gang expert.

Court Rules That Prosecution Overcharges

Where the court failed to act appropriately in this case and the prosecution overcharged the case was on counts 2, 3 and 4, where the defendants contend the convictions on charges of assault with a deadly weapon must be reversed because the offense of assault with a deadly weapon is a lesser included offense of assault with a deadly weapon on a public transit employee (charges 5, 6, 7).

The people conceded this point, as “Multiple convictions cannot be based on necessarily included offenses,” citing a 2006 ruling which stated, “[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.”

As the court noted, the only distinction in those counts is the identity of the victim happens to be a public transit authority; both crimes are otherwise identical requiring an “assault with a deadly weapon or instrument” or “by any means likely to produce great bodily injury.”

We note that this is a frequent occurrence in Yolo County, where the prosecutor will stack the charges separately and leave it to the judge to throw them out, rather than instruct the jury that there is a lesser included offense that they could consider.  In this case it is somewhat egregious, because the fact that the victims were public transit employees was in fact not in dispute.

The court also strikes the great bodily injury enhancement on the count 8 charge of battery with serious bodily injury, since great bodily injury is already an element of this offense.  Again the people concede this point.

Serious bodily injury is defined as “a serious impairment of physical condition” and the enhancement “provides a three-year enhancement for the infliction of ‘great bodily injury’ during commission of a felony.”

This enhancement “shall not apply if infliction of great bodily injury is an element of the offense.”

Is Gang Membership Itself a Separate Crime?

The court was divided on a final point, where the Defendants argued “654 bars separate punishment for the crime of criminal street gang activity and the underlying felonies used to prove the ‘felonious conduct’ element of that offense because the underlying felonies for which defendants were already separately punished — assault with a deadly weapon (the fire extinguisher) and vandalism — were the acts that transformed their membership in a gang into the substantive gang activity offense.”

The majority of the court disagree, arguing, “It is a crime to actively participate in a criminal street gang with knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity, and to willfully promote, further, or assist in any felonious criminal conduct by members of the gang.”

The bottom line, of the rather lengthy ruling, is the court ruled that “if section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang.”

The court was clearly not willing to go there.

They add, “We believe that when the two offenses are a charge of criminal street gang activity that is based on an underlying felony committed by the defendant and that underlying felony, two distinct criminal acts are involved.”

They add: “This is so because the charge of criminal street gang activity is not based only on the underlying felony that serves as the ‘felonious criminal conduct’ the statute requires, but is also based on the defendant’s ‘active[] participat[ion] in [the] criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity.’ “

The problem with their ruling is that they are now trying to criminalize the fact that they are in a gang – something that the statutes do not do.

Judge Duarete dissents, arguing that here we have a jury that was “specifically instructed that it could consider only the assault and vandalism charges to prove an essential element of the gang charge.”

He adds, “Under these specific circumstances, I fail to see how imposing sentence on the assault and vandalism, as well as the gang charge, of which the underlying charges of assault and vandalism are an integral part, is not punishing the assault and vandalism charges twice, in clear violation of Penal Code1 section 654.”

In dissenting here, the judge, while clearly not in the majority, could have the kernel that renders PC 186.22(a) invalid, at least in cases where the gang charge is based solely on other charged offenses.

The interesting part is that none of the judges agreed on this ruling.  A third judge concurred with the majority opinion, but disagreed on the reasoning.

Judge Nicholson noted within the authorities, “‘[T]he purpose of section 654 “is to ensure that a defendant’s punishment will be commensurate with his culpability.”

He argues, “I believe, therefore, that the determination of whether a defendant can be punished for two crimes or, on the other hand, must be punished for only one of them rests on the simple question of whether punishing the defendant for just one of those crimes ‘ensure[s] that [the] defendant’s punishment will be commensurate with his culpability.’ “

He noted most of the time this is straightforward, because if you have two charged instances of essentially the same act, you would take the longer sentence and suspend the lighter one.

In this case he argues, “Here, imposing the sentence on the assault and vandalism counts and staying the sentence on the gang participation count would fail to ensure punishment commensurate with the defendant’s culpability.”

And reasons: “Legislation dictates that participation in a gang is independently culpable, yet there would be no punishment with respect to that culpability if the defendant were punished for assault and vandalism only. Put another way, a person who commits assault and vandalism while participating in a criminal street gang is more culpable than a person unassociated with a gang who commits assault and vandalism.”

Thus, the court threw out three clear counts, where the prosecution clearly overcharged the case and stacked additional counts that should have been handled as lesser includeds in the predicate offenses and thus thrown out by Judge Timothy Fall.

The other interesting point is the disagreement between the judges about whether charging the defendants for a gang crime based solely on charged offenses violates Section 654.  The two judges that upheld that portion relied on the current state of the law, but it seems conceivable that ultimately the courts will not see gang membership as a de facto crime unto itself.

—David M. Greenwald reporting

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