Review Of The Charges

A thought-provoking piece by Our Tod about how black music gets used against black musicians in the criminal courts created a significant digression into the nature of the charges brought against Brandon “Tiny Doo” Duncan. Having been called out about the law, I responded, and things got confused thereafter.

As proof of my love for you, I have pulled out my legal research tools and set to digging in despite the lateness of the hour. As a sop to the fact that I ought to be unwinding and preparing for sleep instead of looking up legislative history, I’ve permitted myself an unusual mid-week snort of Laphroaig ten-year with a couple of rocks while I research and write.

So here goes. If I can’t sleep tonight notwithstanding the booze, it’s on your head.

What Are The Charges?

The big concern is that journalists have reported that the only charge against Brandon “Tiny Doo” Duncan that he recorded a rap song that has lyrical content supposedly similar to an actual crime committed by actual gang members that Mr. Duncan purportedly associates with.

Were this true, the First Amendment dimension of this case would be clearly defined and lopsidedly in the defendant’s favor. As Ken White at Popehat pointed out back in November of last year, it’s not so clear that this is actually the case, that the District Attorney of San Diego County is going to attempt to prove that Duncan’s only contribution or benefit from the gang activity was his rap music.

Thanks to Ken’s yeoman work, we have the actual criminal complaint available for review. The amendment that Ken found was dated November 18, 2014; the original action was filed several months previously, in June 16, 2014.

As I read that complaint, I see nine counts against Duncan (among others alleged to be members of the Lincoln Park Street Gang) for violation of Penal Code § 182.5. Each count refers to the underlying crimes of “Premeditated Attempted Murder and Shooting at Inhabited Occupied Structure, in violation of Penal Code sections 664/187/189 and 246” on various dates from May to September in 2013 and in February of 2014. In other words, there were nine shootings at inhabited buildings by the gang. Duncan allegedly is a member or associate of the gang whose other members did those drive-by shootings and Duncan either helped make that happen or he realized some sort of benefit from it.

Here’s the big thing to realize:

What, exactly, Duncan is alleged to have done to have either abetted or benefitted from those shootings is not specified. Nowhere in the criminal complaint or the underlying information is Duncan’s status as the Poet Laureate of San Diego’s Lincoln Park Street Gang discussed at all. He is lumped in, along with a bunch of other defendants, as having somehow aided, abetted, assisted, or profited from the shootings.

I can’t tell on that basis whether or not Duncan is being put on trial for writing a rap song that pissed off the D.A., or whether the D.A. says that Duncan had something else to do with the nine shootings.

Now, we could find this out. We could pull the information from the initial filings from the court’s record. We could order a transcript of the preliminary hearing, at which time Duncan would have had counsel appointed for him and that attorney would have had an opportunity to cross-examine the police officers and other witnesses called by the prosecution to demonstrate probable cause against Duncan. The prosecution, for its part, would have been required to demonstrate that it was more likely than not that Duncan could be proven criminally liable for something. Preliminary hearings are not trials and the burdens of proof in them are different.

Getting the preliminary hearing transcript would be the best way, at this stage of the proceedings, to see what kind of evidence against Duncan is really out there. It would also be rather expensive (anywhere from $500 to $2,000 per day that the preliminary hearing took; some take an hour or so, others take several days) and inconvenient (you’d have to track down the right court reporter and wait several weeks for the transcript to be prepared and then go to the courthouse to physically pick it up) for someone without a direct interest in the matter. But it could be done. I can’t find any news reports describing anyone who has actually done that yet because that would require doing actual investigative journalism, a rare bird indeed these days.

I haven’t done those things, either, although I don’t claim to be an investigative journalist. I’m relying on what friends and colleagues advise me goes on at these kinds hearings in other cases they’ve handled. From that, I’ve been informed that judges very often ask questions directly. They very often ask searching questions of prosecutors and do not take D.A. arguments at face value if they sniff a Constitutional problem (usually related to a questionable search) in the facts. These aren’t “ham sandwich” indictments; these are meaningful hearings. Defense attorneys put effort into them because sometimes they get charges thrown out at this stage.

I do not know from reviewing the Superior Court of San Diego’s online case register what judge this hearing was assigned to. I do not practice criminal law in San Diego so the name wouldn’t be helpful to me anyway.

It’s possible that the judge was asleep at the switch and didn’t think of the First Amendment at all when it came time to discuss evidence against Duncan; and moreover that no defense attorney raised the issue directly if the subject matter of the testimony was the rap song’s lyrics. Unlikely, though. Other reporting about the case indicates that Duncan’s lawyer is quite aware of that issue and has raised the issue already. **

We do not know, and are not likely to learn until the time of trial, what evidence there really is against Duncan. We can safely assume, however, that there is more evidence than just the song lyrics. If there isn’t, my thoughts about this prosecution are going to be radically different than I’ve written to date. However, I’m confident in the safeguards I’ve seen in play that there is more going on than just “That scary-looking black man there wrote some scary-sounding music and he’s friends with these other scary-looking black guys who might or might not have done bad things.”

Does that mean I think the charges against Duncan are fair? No, it means I don’t have enough information to decide that one way or the other, but I do have enough confidence in the system to presume that there’s something else going on.

So What Are These Charges Anyway?

California Penal Code § 182.5 was adopted as section 3 of Proposition 21, which was approved by the voters of California on legislative referendum, March 7, 2000 by a vote of 4,491,166 in favor and 2,742,148 against. The law provided an alternative route for prosecutors to seek liability for criminal conspiracy.

I break down the elements of the text of the statute as follows:

1. Defendant actively participates in a “criminal street gang,” as defined.

2. Defendant knows that gang’s members engage in or have engaged in a pattern of specific kinds of criminal activity.

3. Defendant willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by the gang’s members.

If the People prove these elements beyond a reasonable doubt, the defendant is guilty of criminal conspiracy to commit the felony referenced in section 3.

This is either easier than, or shorthand for, the usual elements of criminal conspiracy, which are:

(a) the agreement;
(b) with specific intent (that is, to realize a particular objective);
(c) of two or more persons ;
(d) to pursue an unlawful object or use unlawful means to pursue the object of the agreement; and
(e) an overt act in furtherance of the objective.

Cal. Penal Code § 182, People v. Morante (1999) 20 Cal.4th 403, 416.

Only one case has addressed this relatively new law in any substantial manner: People v. Corey Ray Johnson, et al. (2013) 57 Cal.4th 250. In Johnson, the defendants were alleged to be members of a 200-member strong gang based in Bakersfield named the “Country Boy Crips.” (Yeah, really. They went by “CBCs” for short.)

The CBCs had beefs with a couple other gangs, resulting in a five-month chain of murders and shootings from March to August of 2007, in which three murders and two lifelong crippling injuries were inflicted; only one of the victims was a rival gang member. The favored mode of attack appears to have been firing many bullets through the walls and windows of dwellings.

These three fellows were convicted of three counts of first degree murder, with “special circumstances” of multiple murder and gang murder rendering them eligible for the death penalty, with two additional counts of attempted murder, shooting at an occupied vehicle, and as relevant to our discussion, active gang participation and conspiracy. All three successfully earned their “Menace 2 Society” merit badges on these charges. Three life sentences ineligible for parole each on the murder charges, and additional terms totaling variously 196 years to 238 years in addition for the various attempts and assaults.*

But, what’s important here are the last two counts brought against them: active gang participation and conspiracy. “Active gang participation” is made a crime by Penal Code § 186.22(a) and it’s probably about time we look a little bit deeper at what is subsumed into the “as defined” we’ve been glossing over so far in the Penal Code § 186.5 elements:

First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. A person who is not a member of a gang, but who actively participates in the gang, can be guilty of violating section 186.22(a). A criminal street gang is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of [enumerated offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” A pattern of criminal gang activity is “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more [enumerated offenses].” Johnson, supra, at 259-260 (most internal citations omitted).

The “[enumerated offenses]” includes attempted murder, the underlying crime in the nine charges against Duncan.

So when it came time to analyze “gang conspiracy,” the 182.5 charge, the Johnson Court went to substantial length to distinguish the 182.5 elements from traditional criminal conspiracy, which is worth quoting at length:

Section 182.5 created a new form of conspiracy that is distinct from the traditional understanding of the crime in five significant ways. First, under traditional conspiracy principles, when two or more defendants conspire to commit a substantive offense, they need not have previously known each other, have any ongoing association, or plan to associate in any way beyond the commission of the substantive offense. Traditional conspiracy, then, encompasses a stand-alone agreement by former strangers to commit a single crime. In order to violate section 182.5 and, thus, commit a “182.5 conspiracy,” a defendant cannot be a complete stranger to the gang. He or she must be an active gang participant with knowledge of other members’ pattern of criminal gang activity.

Second, a traditional conspiracy encompasses an agreement to commit “any crime.” Therefore, it is possible to conspire to commit a misdemeanor. A 182.5 conspiracy relates only to the commission of a felony.

Third, traditional conspiracy requires both the specific intent to agree, and specific intent to commit a target crime. A 182.5 conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime. Even without a prior agreement, an active and knowing gang participant who acts with the required intent to promote, further, or assist in the commission of a felony by other gang members can violate section 182.5. That act of assistance or promotion replaces the required prior agreement to commit a crime that is ordinarily at the heart of a traditional conspiracy.

Fourth, traditional conspiracy liability attaches once an overt act is committed. A 182.5 conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.

Fifth, section 182.5 brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense. This constitutes a substantial expansion of a traditional conspiracy application. The “one who benefits” provision recognizes that gang activities both individually and collectively endanger the public and contribute to the perpetuation of the gang members’ continued association for criminal purposes. Due to the organized nature of gangs, active gang participants may benefit from crimes committed by other gang members. When such benefits are proven along with the other elements of the statute, section 182.5 permits those benefitting gang participants to be convicted of conspiracy to commit the specific offense from which they benefitted. Johnson, supra, at 261-262.

That last paragraph bears some rumination, because it addresses the “benefit” element that is under discussion. What kind of “benefit” are we talking about? The reporting is correct that this is nebulous, but it comes down to anything that incentivizes any sort of gang activity. The conspirator, typically meaning a fellow gang member, might have no idea at all that his brother banger is going out to do some crime. But if he realizes a benefit from it – for instance, the brother banger caps a rival gang member’s soldier, resulting in expanded or more secure territory – then the first member’s liability for conspiracy to commit that crime is complete because the first member’s membership in the gang is now worth more than it was before the crime.

Until and unless we know what the actual evidence to be proffered against Duncan is, we can’t say whether the 182.5 theory against Duncan is that he somehow benefitted from the crimes strictly because it helped him sell more rap records, or inspired his lyrics. We can infer from Duncan’s inclusion in the lengthy charges that Duncan is alleged to have been actively involved in the Lincoln Park Street Gang in some fashion – he may or may not have been a member, but association is part of it. If the First Amendment problem with that seems as blindingly obvious to you as it does to me, it’s a reasonably good bet that it was something that the district attorney thought of and the judge thought of, too. The fact that this case has been going on for as long as it has and an apparently capable attorney aware of this issue has not been able to do anything with it suggests (not proves) that there is something more going on.

Maybe the judge is holding on to a decision like this to leverage a plea agreement. Maybe the charges have been brought against Duncan in an attempt to “roll” him, to get him to agree to testify against the other defendants. Maybe… maybe a lot of things. We can’t know from the sorts of documents that are easy to get and we can never really know until the case is totally resolved. The popular media’s reporting of this prosecution has been foggy at best. My man Ken at Popehat had the same complaint.

So Can I Be Pissed Off At The Justice System Now?

Of course. That’s always your right. And you might be justified in being pissed off. You might also not be. Too soon to tell. My suggestion is to follow the instructions given to jurors: don’t make up your mind one way or the other until you’ve got all the evidence in front of you.

As for me, my Scotch is gone and I’ll visit with you all in the morning.

* The old courthouse joke would go something like this – “Judge says, I sentence you to serve 196 years in prison.” Defendant says, “But Judge, I can’t possibly actually serve 196 years!” The judge says back, “Do the best you can.”
** According to his lawyer, Duncan made the album in 2012, and the shootings described in the complaint all happened in 2013. It’s hard to see how such a thing could conceivably constitute a “benefit” from the shootings unless the shootings actually boosted album sales, which seems, well, highly improbable.

Image originally created by author.

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.