In some ways, one has to feel a bit sorry for Deputy DA Jay Linden, on his own as his colleague Ryan Couzens works on another trial and facing the wrath of eight defense attorneys, armed with an endless slew of objections that have made this case move at a snail’s pace.
The four elements that must be proven in this trial in order for the permanent injunction to be implemented are that the Broderick Boys are a criminal street gang, the defendants are members of the gang, they engaged in crimes, and present a current nuisance.
The defense has argued from the start that there is no organized criminal street gang in West Sacramento. There are gang members in West Sacramento, but many of them are either from a variety of Sacramento gangs or they were gang members in prison. Broderick Boys, according to the defense, refers to people who live in the area known as Broderick, rather than a criminal street gang.
The most difficult element, however, to prove will be whether this criminal street gang, should it exist, represents a true public nuisance. The Vanguard has independently examined this claim. We obtained through a public records request a listing of all criminal gang charges through section 186.22 of the California Penal code from 2005 until the time of the request, March of 2010.
As we have mentioned in the past, there are two critical provisions in that penal code. Part A prohibits, “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.”
Part B section 1, “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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished.”
Section 186.22(B)(1) is thus an “enhancement” which is tacked on top of a crime that they committed, whereas 186.22(A) is a stand-alone crime punishable by up to three years in state prison.
Both of these are what we would call indications of gang crimes, crimes that are specifically committed for the “benefit of” or “at the direction of,” or otherwise “promotes, furthers, or assists” that gang. That differs from some of the cases that we have seen where the individual may be a gang member, but the crime has little to do with being in a gang.
For instance, Angel Sanchez and his brother admitted to being gang members on the stand. However, the jury acquitted them on the gang charges, agreeing that while they beat up another individual, the action was not related to their being gang members and was not done in furtherance of a criminal street gang. Likewise, Jesse Garcia, who just received nearly 8 years in prison in a domestic violence case, is a defendant in the gang injunction case as well, but was not charged with a gang crime in his most recent case.
One of the questions is to what extent the plaintiffs will need to show, in order to prove the nuisance, a pattern of gang crimes as opposed to a pattern of crimes committed by alleged gang members.
The Vanguard research indicates that if the question is simply a matter of gang crimes, there really have not been a tremendous amount in West Sacramento. From 2005 until March 2010, there have been a total of 98 individuals charged with gang enhancements, either 186.22(A) or 186.22(B)(1). That comes out to less than twenty gang cases in a year from West Sacramento. Of those 98 defendants, 75 were convicted of some crime. But only 35 were convicted of a gang crime, either 186.22(A) or 186.22(B)(1). That works out to less than seven individuals a year over a five year period being convicted of a gang crimes.
Obviously an element of that may be the fact that some of these individuals are taking plea agreements. However, that defense is questionable at best because some individuals have claimed that they were actually forced to plead to a gang enhancement in order to avoid prison time.
For example, Thomas Cedillo entered a plea in an eight-year-old case from February 25, 2002. He claims he is not a gang member and said on the stand, “I took the plea because people promised not to send me to prison if I accepted it.” Given that he was facing prison, it would make a lot of sense for him to take such a plea. What difference did it make to him if he had to plead to a gang enhancement?
While that is certainly anecdotal, it at least introduces the possibility that pleas do not account for the low number of convictions for gang crimes. But even if they did, 75 total convictions for defendants who were even charged with a gang crimes, works out to less than 15 per year. Is that really the definition of a nuisance?
Adding to the difficulties faced by the plaintiffs in proving the case is the fact that they have chosen to rely heavily on third party hearsay to show that individuals are gang members, rather than direct testimony and evidence. They have done this through statements from police officers regarding conversations with suspects or those in custody.
This has triggered several lengthy debates regarding hearsay exceptions. Right now Judge White is considering testimony assuming that the plaintiffs can show that the individual is unavailable to appear in trial – for instance in prison or taking the fifth – and the individual has made a statement against their own interest. It is up to the plaintiffs to tied all of the strings together to prove the case.
But it seems a problematic way to prove a case. And even some of the case examples that they have used make one pause to believe that there is a true nuisance in West Sacramento.
For example, one of the defendants is Victor Dazo. The plaintiffs called Sgt. Daniel Duchene to the stand on Wednesday, July 28. Sgt. Duchene is a veteran of West Sacramento and has been a Sergeant since 1996.
He described an incident on September 14, 2005 where a person was shot. The person came up to the officers and described himself as shot in the face, but he had no noticeable wounds. They soon figured out he was shot with a high-powered BB gun. So the police set up a 30 yard perimeter.
According to the trial transcript, there was a verbal argument at a residence that occurred between two individuals, including Victor Dazo. During the argument on September 14, 2005, Mr. Dazo exited the residence and made gang threats, purportedly saying, “don’t f— with Broderick.” He then shot the other person, and another resident, with an airsoft gun from 35-40 yards away. Apparently it shoots small yellow projectiles that are hard and plastic, like a pellet gun.
The victim got broken skin and welts on the back of his leg and claims he received them from the gun through his khaki pants. Meanwhile, the other victim got shot multiple times times on head and face, but no marks were left.
Both individuals expressed their fear of the gun’s velocity and distance, and that it would put out their eyes. Neighbors heard shots being fired, but airsoft gun could not make that sound. Apparently it is similar to a BB gun, except pellets are “much bigger than BB and not made of metal.”
Can a high-powered weapon of this sort be dangerous? Sure it can. As the trial transcript said, it could put out someone’s eye. But I have a hard time thinking of a gang incident in Los Angeles or other areas of high gang violence that would involve an airsoft gun.
Mr. Dazo, for what it is worth, accepted a plea agreement to misdemeanor battery (PC 242) and the felony PC 245(A)(1) (assault with a deadly weapon) and PC 422 (Threat to Commit Crime with great bodily injury) were dropped, along with three gang enhancements.
If this is supposed to be an example of the nuisance that the gang poses or an example of the criminal street gang activity, it seems lacking, and in fact proves the opposite point that most of this is fairly minor. No doubt this was a crime, but when you think of criminal street gang activity, most people are not going to think of an argument between friends that escalates to an airsoft gun shooting.
That is not to say there are not more serious crimes with individuals who clearly are dangerous, but the numbers themselves show those serious crimes to be relatively minor and few and far between. Even some of the more notorious cases really pale in comparison to what gang threats exist in other communities.
It is difficult to know what will happen in this case. At some point we will receive the expert testimony and the broader theories and then we will see if the plaintiffs truly can connect the dots. The real question is once the dots are connected will they point to a nuisance, or simply a bunch of people committing crimes in a limited geographic area in West Sacramento.
—David M. Greenwald reporting