On Wednesday a three-judge panel of the 3rd District Court of Appeals (DCA) heard oral arguments by appellate attorney Cathleen Williams representing eight of the original parties to the Gang Injunction, which was imposed in 2011 by Yolo County Judge Kathleen White after a six-month trial.
While the appellate brief attacked the admissibility of dozens of hearsay testimonies by three gang experts during the civil trial, the oral hearing focused on a more fundamental problem, what Cathleen Williams called the “lack of nexus” which was that the injunction basically represents the opinions of gang experts with no evidence to support these opinions.
As the appellants argued in their brief, “there were no actual witnesses who had first-hand observations or interactions which revealed the Broderick Boys’ composition and organization as a gang as defined by Engelbrecht – that is, an ongoing organization, association, or group in which ‘active’ members ‘participated or acted in concert:’ in other words, collaborated with each other on behalf of the gang entity over time.”
Further, “This was an especially difficult problem in this case because there was no ongoing congregation of identified gang members at any particular place or time in the community, a type of collaboration which in itself can constitute a public nuisance and lay the basis for group liability.”
Instead, the Yolo County DA’s office relied upon “successive and scattered crimes as the basis of their theory that a public nuisance had been created by gang-identified individuals working in collaboration. But, the fact that various individuals committed independent crimes actually or potentially punishable under the STEP Act – the crimes our communities are plagued with – could not carry the People’s burden.”
Ms. Williams pointed out that in this case, the West Sacramento Police Department alleged that there was an organizational group that directed, coordinated and planned a series of crimes. These crimes were laid in testimony over what would be a ten-year period, with 94 people involved over a huge area of town.
This is unlike the controlling case of Timothy Acuna where there was a small area, and gang members were continually loitering and congregating, creating an instant atmosphere of fear and trepidation. In that case, there was inferred collaboration as the members who were eventually enjoined were all present in close temporal and special proximity.
One of the judges pointed out that this was a substantially different argument than presented in the briefs. That this represented an insufficiency of evidence argument, which calls for a tough review level where they would assess whether the trial court abused its discretion.
But Ms. Williams called it “a critical shortcoming” in the prosecution’s case. She said that under a gang injunction they have the burden of showing the the alleged gang members participated and acted in concert to bring a nuisance. She argued that there is not just a need to show individual liability which they would have to under the STEP (California Street Terrorism Enforcement and Prevention) Act, but “vicarious liability.”
Indeed, the court in ruling for the DA’s office simply aggregated the acts of the 94 people over ten years.
The DA never showed evidence of shot callers or a hierarchical structure.
For example, Ms. Williams pointed to the fight at Memorial Park, which the Vanguard had previously reported on in great detail. The point she makes is that there is no evidence of continuing collaboration. The gang members got together, had a fight, committed assaults and crimes, yelled gang slogans, etc.
But these actions occurred at one point in time. There was no evidence that they ever reassembled. No evidence of direction, planning or coordination. No high ranking members were identified. There was no evidence of a decision-making process. And there was never an attempt to trace money throughout the gang.
She argued again that what is missing here is any evidence of acting in concert or of an ongoing organizational structure.
Deputy Attorney General Rob Nash countered with a brief argument that attempted to paint a very different picture. He noted that there was a picture of graffiti that was presented at trial. One of the people who lived near the graffiti was concerned that it was a threat. She testified to an atmosphere of fear and intimidation. And that it went unchecked and, as a result, people did not want to come forward.
The three-judge panel pressed Mr. Nash on the sufficiency of the evidence. He pointed to the threefold evidence of name, sign and symbol and argued that these acts which included assaults, intimidation, the announcing of presence, gang signs and graffiti amounted to an attempt at fear and intimidation which represented an ongoing nuisance.
In the appellants’ brief they argued that, in order to establish a public nuisance, the DA needed to “tie all the crimes together, such that each supposed gang member could be held responsible for the cumulative effect of all the other supposed members’ crimes as well as his own. Only by tying the crimes together could the People factually support its theory that there was a public nuisance, that is, a continuing violation of the public peace, caused by a collaborative group (gang), and, as well, generate a basis for finding group liability for all the individual acts thus aggregated.”
To solve this problem, “the People relied entirely upon police employed experts and the inadmissible hearsay evidence introduced through them ‘not for the truth of the matter stated,'” as well as other improperly admitted hearsay.
Throughout the trial, attorneys for the alleged Broderick Boys gang members “objected to the inadmissible hearsay cited by the experts for precisely the reasons outlined by Sanchez.”
The appellate brief argues, “Appellants’ counsel objected that this testimony constituted hearsay and stated ‘there’s no exception for it, and it’s being offered for its truth right now.’ The trial court denied the objection, stating that the hearsay was being offered not for the truth of the matter stated but rather ‘as the basis for his opinion.’”
The brief continues, “Additionally, the trial court admitted on this ground two wholesale compendia of information central to the People’s theory that the Broderick Boy gang was responsible for a public nuisance. The trial court admitted a comprehensive summary of the 108 crimes and incidents alleged to constitute a public nuisance, which included multiple layers of hearsay.”
As the brief notes notes, “As it turned out, on the basis of this muddled record, the trial court ruled that almost one hundred people who were not shown to collaborate in any ongoing common enterprise or on behalf of any ongoing group were collectively liable for over 108 crimes and incidents during a ten year period, crimes which cumulatively were held to be a public nuisance.”
It continues, “Why? What was the ‘pattern’ common to the scattered individual or transient group crimes? All these men (and a few women) ‘wore red’ at some time within this ten year period, and, in many cases, apparently subscribed to a violent and widespread Hispanic gang culture, or vocally claimed, with or without the commission of a crime, to be ‘Broderick Boys.’ In this case, ‘membership’ though such indicia was found sufficient. From this nominal ‘membership,’ the existence of a gang was inferred (or presumed) by the experts.
“The scant, secondhand, and spurious evidence that a gang actually existed as a result of collaboration or organization was dependent on expert testimony that used inadmissible hearsay as the basis of its crucial opinions.”
Ms. Williams in her conclusion argues that the evidence presented by the DA during the Gang Injunction trial doesn’t even establish that there is even a gang in a legal sense. She argues this is not just a failure of proof here. The legal significance is profound in that all you have is guilt by association.
The appellate court has up to a year to rule on this matter and, in the meantime, the gang injunction itself may expire in a year and it is possible that it would not be renewed.
—David M. Greenwald reporting
