Examining DA’s Overreach on Gang Charges in Five-Defendant Case

In the recent multi-defendant case in which five youngsters were alleged to have jumped, assaulted and robbed an individual, the Yolo County District Attorney aggressively pursued gang charges despite very thin evidence of gang involvement for the youths.

The district attorney had the opportunity to settle this case for the robbery and assault charges alone, but declined.  Pleading to those charges would have put the matter back in juvenile court, which is where it ended up anyway, after the jury acquitted three of the co-defendants, and convicted the other two of one count each of robbery and receiving stolen property.  Those two were then remanded back to juvenile court.

The jury acquitted on all gang charges and found all enhancements to be untrue.  For the jury, a critical consideration came from the gang expert in this case, who acknowledged that the West Sacramento Police Department was not investigating this as a gang case until a recommendation came in from Supervising District Attorney Garret Hamilton.

The jury apparently reasoned that if the police on the scene had no reason to believe there was gang involvement, that this was probably not a gang case.  Indeed, only one of the individuals even wore colors in the attack and he was wearing a Michael Jordan jersey, which would be questionable evidence at best.

The attackers did not yell out gang slogans as they attacked the victim.  There were no allegations they yelled “Broderick” or “BRK,” as there have been in other incidents.

The only indication at all that this might have been a gang crime was the original statement allegedly made by one of the attackers, asking the victim where he was from.  At the preliminary hearing, Judge Mock ruled that the only possible reason for that question was a gang challenge.

But as Defense Attorney Rod Beede would argue, ” ‘Where are you from?’ is hardly a gang challenge.”

When individual evidence is lacking, prosecutors love to resort to the “totality” of the evidence, but what about the totality of the evidence regarding the ‘where are you from?’ statement that had no other gang slogans used, no colors and no clear identification?

If these youths were trying to represent their gang, where is the evidence of that?

The sum total of evidence of gang membership, or involvement by the defendants at all, is rather thin.  Only one of the five had gang tattoos and that was Mr. Ramirez, the 23-year-old who was apparently hanging around with four kids late at night.

They searched the kids’ homes and found a number of photos, the most revealing of which was one where three of the defendants were posing with “XIV” in arm signals as they posed for the camera.  (XIV is a common Norteño gang sign, it stands for “14” in Roman Numerals, N being the 14^th letter in the alphabet and a widely-used symbol for Norteños).

But, other than that, there were a number of pictures, where maybe one individual was wearing the gang color.  Most of them appeared to have been taken at the same location, probably at a party where the kids were drinking beers.

They found a CD at one of the locations with a red “14,” though it is not clear who owned or possessed it, they found jeans with red trim, they found a red hat, and they found a letter that they argued was gang-related. The letter was neither written by or addressed to any of the defendants.

It should also be noted that, while they pulled out clothing that they argued was gang-related in color, the kids were not wearing it at the time of the attack and the number of red clothes was fairly small.

The photos are concerning.  It is possible that the kids are starting to get involved with gangs or that they admire gangs, but does that constitute evidence that these are, in fact, active gang members and that this crime was committed for the purposes of promoting the gang?

We have often reprinted the Penal Code sections 186.22(A) and (B).  Subsection (A) provides penalties for “Any person who actively participates in any criminal street gang” while (B) provides an enhancement for people who commit a felony “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.”

In this case, the only evidence that appears to exist outside of the “where are you from” is that they may have had some affiliation with a criminal street gang, if you take the “totality” of that scant evidence to be evidence of much of anything.

The parameters of “active participation” are established by both case law and statute.

Of these, (A) is pertinent to this case, because really the DA’s scant evidence presented does not show anything more than nominal or passive participation.  We have no evidence, at least presented in court, that suggests that these kids have been shown operating as active gang members other than perhaps in this case.

In fact, it is notable that Deputy DA Robert Trudgen, in this case, used this case as the example of gang activity.  This led the defense to argue circular reasoning.  The DA was arguing that this event occurred due to the fact that the kids were gang members and that they were gang members due to the fact that they perpetuated this crime.

In the end, the jury bought none of this, but from our observations in other cases, this is a rare occurrence.  And, indeed, as previous articles have demonstrated, case law has been heavily weighted on the side of prosecution in these cases.

—David M. Greenwald reporting

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