Eye on the Courts: Rare Example Where Jury Does Not Automatically Grant Gang Enhancements

It is somewhat surprising that the mass local or regional media did not pick up the story of the trial of Bill Wolfington.  After all, it would seem to have all of the elements.  When he was arrested and his story splashed across the news, there was his connection to the original West Sacramento gang injunction, where he was the sole party who was served by then-Deputy DA Jeff Reisig.

So why would his subsequent arrest on murder and gang charges – a case that was briefly considered as a possible death penalty case – not garner more coverage?  That will remain a mystery to me.

Deputy District Attorney Ryan Couzens put the gang issue as the centerpiece to the trial – fear and respect, that is what he said this case was about.  His tie was a video recording from eight days before the murder, showing Mr. Wolfington bragging about his gang credentials.

Mr. Couzens would close his opening statements and closing statements, arguing that Billy Wolfington and Shannon Silva “attacked [Bobby Brittenum] for no good reason other than a perceived act of disrespect.”

The commenters quickly jumped aboard the mantra, arguing that it looked like Mr. Reisig “knew what he was doing,” presumably in pushing for the gang injunction, and in charging this case.  Moreover, commenters took issue with “articles on this forum claiming that the Broderick Brothers were not a criminal gang, and posed no significant threat to the community, in arguing against a gang injunction.”

However, the facts of the case never convinced me that this was a gang crime.  It looked like two guys got into a fight with a third guy.  They were drinking, using drugs and partying and, in the course of that fight, one guy got more than he bargained for when Billy Wolfington pulled out his knife and began stabbing him – over and over again.

So, ironically, this case actually backs up what the defense argued in the Gang Injunction appeal – that the District Attorney’s office in that case was never able to show that the scattered crimes that they cited over more than a decade’s period of time were anything more than a bunch of crimes that occurred in a set geographical area by a number of different individuals.

The District Attorney’s office, as we argued before, can point to very real crimes such as the Memorial Park fight that escalated to a beating or the attack on the Amtrak Train conductor by alleged gang members.  He will probably want to add the Billy Wolfington murder case to his cache of cases committed by gang members in West Sacramento.

But gang crimes are not just a bunch of individual gang members behaving badly; there has to be a notion of central planning or cooperation.  Without this notion, gang members are just labels we put on people who do bad things.

“The real critical thing is the question of acting in concert,” Defense Attorney Mark Merin told the Vanguard.

“It’s not really true,” he continued.  “A nuisance is a condition, something that is ongoing, that can only be caused by people who are acting in concert.”  But a completed crime that occurred in the past was “present at the scene of someone else’s activity, which could be considered nuisance activity.  It can’t be attributable to that person, so you can’t aggregate all of this activity and say that’s the nuisance, because they’re not acting in concert.”

In this case, “The collective activity described by the Court was simply not shown to exist, and there was no evidence of a gang ‘entity,’ that is, an identifiable group which operated, however informally, to aid or co-ordinate individual crimes.”

The bottom line is that we end up in the same place we were when the gang trial concluded.  We have evidence that crimes occurred in a geographic area over a period of more than a decade, the number of crimes that the prosecution actually identified was very low, and most of the claims about gang membership came from highly subjective accounts from police officers – at times relying on memory and a decade-old police report.

And, frankly, the Wolfington case is no different from any of those.  We have a bad crime committed by individuals who are said to be gang members – in the case of Billy Wolfington, probably shown to be a gang member – but that does not make it a gang crime.

A gang enhancement is an added 1 to 3 years per charge when “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.”

Now, if you read the plain language of that section of the Penal Code, it suggests that the DA would have to prove that the individual committed the crime with “the specific intent” to “promote, further, or assist in any criminal conduct by gang members.”

Too often, what really happens is that the gang expert testifies with the opinion that the individual is gang member, the DA proves that the individual committed the crime, and then the DA asserts a vague connection between motivations for gang activity and the crime.

In this case, the DA did not attempt to prove that there was any specific intent to promote or assist criminal conduct by gang members.  Instead, he asserted that Mr. Wolfington was a gang member, that gangs operate on fear and respect, and that this brutal killing caused fear, therefore it was a gang case.

This is not isolated.  Ironically enough, during the Gang Injunction Trial in October 2010, Mr. Wolfington was a named defendant in that trial and was represented by Attorney David Dratman.

In a key exchange, Mr. Dratman asked the gang expert, Detective Joe Villanueva, what Mr. Wolfington did for the Broderick Boys gang.  Detective Villanueva requested a 1040 privilege.

A 1040 privilege (California Evidence Code section 1040) is the part of the evidence code that allows a public entity to refuse to disclose “official information” or “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”

Mr. Dratman became angered by this and argued that it was crucial for the defense to know what Mr. Wolfington did for the gang, in order to place things into context and understand why he was arrested on a particular occasion – an arrest that never made it to this civil proceeding.

Judge White, however, granted Detective Villanueva the privilege, and took the court reporter, the detective, and herself into her chambers.

When they came back out, Mr. Dratman requested that whatever was said should be reconsidered by Judge White, and should not affect her decision when concluding the trial because the defense is unaware of what was stated without their presence. Judge White said the confidentiality of what was spoken will not affect her decision.

This is a microcosm of most gang proceedings, where the DA is never really forced to prove core contentions in the Penal Code that actually show a clear nexus between the actions of the gang member and how that proves specific intent to “promote, further, or assist” the gang.

This latest case is among the few cases where we have seen the jury not compelled to draw the gang nexus loosely from gang member to crime, which would have determined the crime was done with the intent to promote, further, or assist the gang.

The DA was able to get a second degree murder conviction (he sought first degree murder) and will likely lock Mr. Wolfington away for the rest of his life.  And yet, the DA’s office was unable to gain the gang enhancement for one of their poster children of gang activity in West Sacramento.

—David M. Greenwald reporting

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