On Friday afternoon, following nearly three full days of deliberation on the two-and-a-half week, co-defendant murder trial, the jury delivered a split verdict – delivering a guilty verdict for Billy Wolfington of second degree murder without the gang enhancement but acquitting co-defendant Shannon Silva.
The verdict can only been seen as a blow to the prosecution, who initially contemplated the death penalty, before seeking first degree murder charges on both defendants stemming from the September 2, 2011, stabbing death of 29-year-old Bobby Brittenum.
The prosecutor in the case, Ryan Couzens, who was co-counsel on the Gang Injunction Trial from 2010, was unable to convince the jury that this was a gang crime and the jury found gang enhancements untrue against Billy Wolfington, who was notoriously the sole-named defendant in the original 2005 West Sacramento Gang Injunction.
Mr. Couzens sought to charge both co-defendants with first degree murder, despite huge disparities in the responsibility for the crime. Mr. Couzens tried to tie Mr. Silva to the murder charges through two theories – one of which was aiding and abetting and the other as a theory of natural and probable consequences.
Under an aiding and abetting theory, the prosecutor would have had to have shown that Mr. Silva, through his actions, intended to assist Mr. Wolfington in the stabbing murder. This required some knowledge of acting in concert and conspiracy.
On the other hand, the theory of natural and probable consequences would have had to show that when Mr. Silva threw the same punch, as a reasonable person, Mr. Silva would have had to have known that the natural and probable consequences of committing his battery on Mr. Brittenum would be murder.
In our estimation, and apparently the jury’s as well, the facts did not add up to Mr. Silva on either theory. In our view, it was unclear from the evidence whether Mr. Silva simply attacked Mr. Brittenum in throwing a sucker punch, or whether it was a more mutual fight.
Defense Attorney Danny Brace clearly got it wrong in his opening statement that Mr. Silva was actively trying to break up the fight, but the evidence showed that, after exchanging some punches with Mr. Brittenum, Mr. Silva was on the other side of the room.
The prosecution attempted to argue that Mr. Silva was stabbed by Mr. Wolfington due to his proximity to the stabbing, but that was contradicted by both eyewitness testimony as well as physical evidence showing that blood on Mr. Silva’s shirt was solely his own blood.
The prosecution was hindered by the fact that investigators never found the knife to be able to test it for DNA evidence.
That would seem to preclude an aiding and abetting theory, as Mr. Silva was never close enough to the stabbing to get blood from the victim on his shirt.
The jury apparently did not believe that it was a natural or probable outcome that throwing punches would lead to a stabbing. The only question was whether Mr. Silva engaged in a simple battery. We do not know what the jury concluded there – we could have gone either way.
But in the end, Mr. Silva ended up spending a year and a half in custody, for a crime for which he would be acquitted.
Deputy Public Defender Ron Johnson did an admirable job defending Billy Wolfington, in a case in which he acknowledged having stabbed the victim. He tried to argue self-defense here, and the theory that there was a second knife that ended up stabbing Mr. Silva and cutting Mr. Wolfington’s hand.
However, at the end of the day, we just felt there it was not credible that Mr. Brittenum would have stabbed at Mr. Wolfington 17 times without Mr. Wolfington having suffered more than the superficial cuts to his hand. The depth and severity of the blows also weighed against Mr. Wolfington.
So we did not buy into the self-defense theory offered by the defense. That said, we do not believe this was a planned attack on Mr. Brittenum. We believe it arose from an argument over whether or not to leave. We believe that Mr. Brittenum was combative, if not threatening, to Mr. Silva and Mr. Wolfington.
In short, we do not see the evidence of premeditation and, given the duration of the attack – 15 to 20 seconds, it is hard to imagine a lot of thought going into it.
That leaves us with second degree murder, which we believe to be the right verdict, given the facts of this case.
We commend the jury here in failing to find gang enhancements true. Mr. Couzens has spent a career arguing that gang members seek fear and intimidation, which would seem to suggest that almost any crime committed by a gang member is a gang crime.
We give a lot of credit to the jury because, given Mr. Wolfington’s history as laid out by Officer Labin Wilson, most juries probably would have gone along with the gang enhancement. But we just did not see this as more than a fight over whether or not Mr. Brittenum should leave, that unfortunately escalated to a brutal stabbing.
The Penal Code 186.22 subsection (b) charge requires the jury to find that there was a “specific intent” to “promote, further, or assist in any criminal conduct by gang members.” As we have noted, gang laws in terms of suspending ordinary rules of evidence are some of the most archaic around, but often crimes by gang members lack the clear nexus to an organized gang.
Here, the prosecution tried to tie comments by Billy Wolfington, who mentioned he’s from Broderick, as being gang-related. However, Mr. Johnson was able to recast the statement as indicating that Mr. Wolfington, who along with Mr. Silva was mixed race, was called a white boy and the rejoinder was no, he’s not a white boy, he was from Broderick.
There was disagreement from the witnesses as to whether he actually called himself a Broderick Boy.
Mr. Couzens attempted to tie fear and intimidation of the witnesses into the gang charges. The problem was, it was difficult to separate fear and intimidation that would normally accompany a brutal stabbing during drug-induced paranoia, from fear and intimidation specifically derived from the fact that these may have been gang members.
It is less than clear, at least with regard to Mr. Silva, who met Mr. Wolfington on the protective custody yard as a gang dropout, that he even had current gang ties. Mr. Wolfington had made recent statements that would seem to tie him to current membership.
Simone Mitchell would testify, after being arrested and taken into custody, that she did not believe this was a gang-related fight. Instead, she argued that a fight erupted over the demand by Mr. Silva and Mr. Wolfington that everyone leave the room and the insistence by the victim in the case, Bobby Brittenum, that he not leave, despite the urging of others.
Mr. Wolfington does not get off scot-free here. The second degree murder charge carries with it a potential life sentence as it would appear, given Mr. Wolfington’s gang history and his trouble in prison previously, it would be unlikely he would be paroled.
On the other hand, Mr. Silva, who was shown to be a minor participant, now has the opportunity at least to turn his life around and make something of himself.
This was a sad incident and a senseless killing. Mr. Wolfington, who was from a very troubled upbringing, had never committed anything near this level of violence. He will now pay for his mistake likely for the rest of his life.
—David M. Greenwald reporting
