DA Uses Grand Jury Process to Keep Adult Charges on Four Juveniles

The early months of 2015 in West Sacramento saw a string of robberies, several of which involved the robbery of a pizza delivery driver where the assailants selected dark areas with little or no lighting, concealed their identities, and attacked their victims, robbing them and taking their vehicles.

After months of investigation, four juveniles were arrested.  As one of the defense attorneys put it in their motion to dismiss, “Some of the defendants are accused in some of these robberies, others in unrelated robberies, and in fact there is no count of the charging Indictment in which all four defendants are jointly charged.”

All four of these defendants are minors as young as 15, but the prosecution, led by Deputy DA Jared Favero, direct filed the case as an adult matter.  They were able to do so alleging “that the defendants were over the age of 14 and committed the crimes for the benefit of a criminal street gang.”

The matter came for preliminary hearing nearly a year ago in November 2015.  At the time, the court held the defendants to answer on the main charges, but dismissed the gang charges and enhancements against all of the co-defendants.

As a result of losing the gang charges, the district attorney’s office lost the ability to direct file the case in adult court, and it would have reverted to a juvenile matter.  On January 5, 2016, the prosecution moved to dismiss the case and the defendants, again, juveniles, were allowed to go home.

But on April 2, 2016, the prosecution refiled the criminal complaint with the original allegations for gang charges except, instead of moving forward with the preliminary hearing, the prosecution sought a grand jury indictment.  By going the grand jury route, the DA was able to get the gang charges through, which the Yolo County judge had originally dismissed.

There are four incidents alleged – February 9, March 29, April 12, and April 26.  The grand jury however, did not indict the individuals on any charges  stemming from an April 26 carjacking.  Originally only defendants 1 and 4 (due to their juvenile status, the Vanguard will not name the defendants and will identify them by their charging number and attorney), faced those charges.

Overall, the grand jury indicted the individuals on 11 counts.

February 9

On February 9, 2015, a pizza delivery driver from Pizza Guys delivered a pizza.  Three individuals approached him from a darkened corner, attacked him, beat him and chased him, taking his property and car.

As defense attorney Robert Spangler notes, “After developing leads, a photo lineup was prepared for (the victim). He was unable to identify anyone, stating clearly that it was too dark, he was too scared and that his assailants wore hoodies. The street was darkened with no lighting.”

The victim was directed to a “show up” line up of three individuals who matched the general description of the assailants.  The police “pinged” his phone which had been stolen, “and three young Hispanic males were identified at that house and exposed to the ‘show up.’”

The victim again “viewed each of them and was unable to identify anyone, again stating the stress he was under, the darkness and the hoodies worn by his attackers.”

March 29

On March 29, 2015, three victims (two brothers and their friend) were hanging out and kicking a soccer ball around when two assailants came out of some bushes, attacked and robbed them.

The incident occurred at a canal in West Sacramento near midnight. It was dark and there was no lighting.

Once again, the defense notes, the assailants not only wore hoodies. but also bandanas covered much of their faces. The victims were attacked with fists and feet, and with a gun and a pipe.

Once again, each of these three victims made it clear that, due to the stress of the attack, the darkness of the scene and the hoodies and bandanas worn by the attackers, they would not be able to make any identification.

April 12

On April 12, 2015, it was another pizza delivery guy, this time from Mountain Mike’s, who was approached by up to four people.  They surrounded him, struck him in the jaw, and he was beaten until he lost consciousness.

The porch was dark, as was the street, and the victim could not identify his attackers.

April 26

On April 26, another pizza delivery guy was attacked by two who were on a darkened porch.   One of them attacked him with a stun gun and then he was beaten by what he would later say was up to four individuals.

Once again, the street was dark and unlit and there was no porch or other lighting illuminating the scene. His assailants beat him while he was on the ground after stun-gunning him, took his property and then left after taking his car.

Defense Moves to Dismiss

The Vanguard has been contacted by family members of the four juveniles, concerned about the process, the use of gang charges to hold adult charges against the kids – particularly after a judge dismissed the gang charges (a rare occurrence) at a preliminary hearing, only to have the DA go a grand jury route to reinstate the gang charges along with the subsequent adult direct filing.

The families believe that the individuals are innocent of these charges.

While there are clear identification issues in all four of the incidents, in one the incidents the grand jury could not sustain charges and defense attorney Rod Beede, representing the second defendant, moved to dismiss the charges on those grounds.

He argues that the victim was told “fourth-hand hearsay” that an individual “might be selling his microphone and he reported this information to law enforcement the day after he was attacked.”  The victim never actually saw any of this, he only learned about it “fourth-hand hearsay.”

He then apparently “conducted a lengthy independent investigation and discussed this matter with his friends and with law enforcement called up from the internet pictures of (Defendant 2), and reviewed Facebook pictures of (Defendant 2) carefully.”

The victim then contacted law enforcement and “identified some of the defendants as being his attackers, with inconclusive language such as ‘it looks like the one.’ Days after this identification, he was shown another photographic lineup and picked out (Defendant 2) as his attacker.”

Mr. Beede argues that the sole basis for his identification “was his own independent investigation and he made it clear in law enforcement interviews and in his Grand Jury testimony that he was told to pick out someone from the (Defendant 2) lineup and knew who that person was, not from any observations he had made the night he was attacked, but from his discussions with his friends and information provided to him by law enforcement as to fingerprint and other physical evidence obtained on some of the defendants (not defendant 2).”

He continues, “Based on all of the above, which seems almost incontrovertible, we simply have a victim who has no personal information against defendant (Defendant 2) but can only relate to law enforcement what he subsequently discovered as above described. Succinctly put, his testimony against defendant (Defendant 2) would be something along the order of, “though I don’t recognize him as my attacker from the night of the attack, I think he might have been selling a microphone that looked like mine on the internet which I never saw but heard fourth-hand from friends and then I picked out the (Defendant 2) picture from the lineup based upon suggestions from my friends and others, including law enforcement, that I do so.”

Mr. Spangler makes a similar argument against the identification of his client, Defendant 3.  He notes that the victim was shown three different six-pack photo line ups and he identified Defendants 3 and 4.

Mr. Spangler argues, “This is a far cry, we assert, from the signature of (Victim) on the ID cards as to who he was identifying· and to what degree of certainty. This, as we will see, was not the certainty law enforcement and the prosecution were looking for and another interview with (Victim) was arranged and six-pack photo lineups were again prepared.”

Mr. Spangler continues, “On May 28, 2015, about two weeks later, (Victim) was again contacted by Detective Palmer. (Victim) was shown ‘several’ lineups, and finally, Detective Palmer, law enforcement and the prosecution got what they wanted.”

The detective stated, “I presented him with the first lineup with (Defendant 2)  in the number two position and he stated, ‘He’s the main one.'”

Mr. Spangler continues, “He then signed the admonition sheet with that lineup attached. The words are quoted but are written by the detective. (Victim) gave no further statement or explanation and was apparently asked for none. (Victim) wasn’t asked to explain how he could make such an identification when on the night of the attack (and at least once thereafter) he was clear that he could not even describe two of his attackers and, as for the two he saw, he could not identify them for reasons he clearly gave, as enumerated above.”

Officer Keenan Hironoka’s report “detailing the microphone investigation by (Victim) after reports through a chain of four of his unidentified friends was never explored. That would come later and explain clearly the basis for this and frankly all eye witness identifications of anyone. We claim these identifications have absolutely nothing to do with observations made on the night of the robbery/attacks, and should be ruled inadmissible by this Court.”

As Mr. Spangler points out, “It is fair to say (the victim) is not simply the most important witness against (Defendant 3), but he is the only substantive witness against him.”

He said, for Defendant 3, “only (the victim’s) statement binds him in any way to the (Victim) Mountain Mike’s robbery. As we have seen from the above, (the victim’s) eyewitness identification is based solely on his own independent investigation based upon ‘fourth-hand hearsay.’”

In the wake of the preliminary hearing, after which Judge Rosenberg held all of the defendants to answer on all of the substantive charges and enhancements, except the gang charges and enhancements, for which he ruled evidence insufficient, arraignment was set.

Just before arraignment, the prosecution announced it would dismiss and refile the entire case, and seek additional discovery of the defendant’s juvenile records in order to bolster gang allegations.

Judge Rosenberg grated a continuance in order to allow the prosecution to obtain juvenile records.

Because there was no charging document for this interim period of time, some of the defendants were actually released from custody for weeks.

However, instead of having a hearing on the discovery request, the DA went to the Yolo County Grand Jury.

Writes Mr. Spangler, “With no defense attorneys present they presented the case exactly as they wanted with no interference and obtained an Indictment on each of the defendants for all of the charges, all of the enhancements, including those involving gang charges and enhancements.”

He continues, “Unfortunately for the prosecution, because of the inherent unfairness of the proceeding which was conducted by Deputy District Attorney Jared Favero under the careful watch of elected District Attorney Jeff Reisig, whose presence was announced to the Grand Jury at the commencement of the proceedings, actual witnesses had to be called and for the first time, (the victim) testified. Having reviewed the transcript of those proceedings, the Grand Jury failed in its duty when it indicted (Defendant 3).

Gang Charges

Officer Jason Winger testified before the grand jury that on April 30 he conducted “a gang surveillance of Elkhorn Park in West Sacramento. The purpose of the surveillance was to see if (Defendant 1) and (Defendant 4)  were known gang members,” writes Deputy Public Defender David Muller.

Writes Mr. Muller, “He took a substantial number of photographs and observed defendant (Defendant 1)s and defendant (Defendant 4) were moving amongst other known gang members. He observed a number of acts that he believed were hand to hand drug transactions, and that defendant (Defendant 1)s and defendant (Defendant 4) were not involved in the sales but (were) in the vicinity.”

Then Officer Anthony Herrera testified as a gang expert.

In his motion to dismiss, David Muller argues that Defendant 4’s due process rights were violated “when the people failed to introduce exculpatory evidence to the Grand Jury.”

He cites, “It is the duty of the office of the district attorney to gather all the information made available throughout the office and present that information to the grand jury. The grand jury, not the prosecutor, has the duty to sift through the evidence and weigh it to come to a fully-informed conclusion.”

“Defendant 4 contends the prosecutor erred in various ways in its presentation of evidence to the grand jury,” his attorney argues. “The first error is the prosecutor’s failure to present known exculpatory evidence to the grand jury regarding the substantive gang offense and gang enhancements, specifically: (1) During the course of the preliminary 8 examination, it was disclosed that Detective Palmer conducted probation searches of the defendants residence and did not find any stolen property; (2) Detective Herrera testified at the preliminary examination that he was present during the probation search and did not find any gang material or gang related evidence; and (3) that between the time periods of February through April of 2015, no one within the hierarchy of the Broderick Boys was telling the young guys in the neighborhood to put in work; (4) there was no evidence the charged acts enhanced the reputation of the Broderick Boys or that any of the charged defendant’s gained ‘respect’; and (5) failed to advise the grand jury that in a prior proceeding a sitting magistrate found insufficient evidence to sustain the substantive gang charges as well as enhancements.”

James Granucci, representing Defendant 1, noted, “Detective Herrera opined that in a hypothetical tracking the events of the February 9,2015 robbery, the robbery was ‘committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members,’ ‘if [the subjects involved] were known to [him] to be gang members.'”

This was so “even though there was no indication that there was gang clothing or gang signs or symbols flashed or gang slogans yelled out” because crimes like these helped enhance the gang’s reputation for violence.

Mr. Granucci argued that the prosecution failed to present direct or even circumstantial evidence that Defendant 1 was an active gang member or that he performed his alleged crime for the purposes of street gang activity.

He writes, “Detective Herrera stated that (Defendant 1) was a gang member based on reports, field identification, Facebook records, the type of crimes he was committing, and who the crimes were committed with. Unlike the cases above, there was no testimony detailing the contents of the information Detective Herrera relied upon. His testimony that such records exist does not rationally support the grand jury’s decision that (Defendant 1) was, in fact, an active participant in a gang.”

Later he would add, “The prosecution unsuccessfully attempted to bridge this evidentiary gap when Detective Herrera opined that gang members only commit crimes with other gang members. This opinion is improper, however, because it is not supported by the record.”

He says the evidence “in the record makes Detective Herrera’s opinion speculative at best and patently unreasonable at worst. Detective Herrera stated that (Defendant 1) was a gang member based upon reports, field identification, Facebook records, and the ‘type of crimes he was committing and who they were committed with.’ However, the grand jury did not know what, if anything, those reports, field identification, or Facebook records revealed. The only other evidence about (Defendant 1’s) associations were that (Defendant 4) was “close” to him, that both (Defendant 4) and (Defendant 1) were seen in a public park with 20-30 other people not committing any crimes, and in a single photograph where some people were flashing gang signs.”

Conclusion

The motions were in front of Judge Dave Reed last week to make a ruling.  He is still weighing the evidence.  It is important to note again that the evidence for gang involvement was found insufficient by Judge Rosenberg, who dismissed those charges.

—David M. Greenwald reporting

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