A storm has been brewing in San Diego for awhile now, whipping up waves of opinion concerning gang charges.

The facts are these: A group of five guys were out drinking one night at a bar. Another guy accidentally bumps one of them and spills beer on him. The lone guy decides maybe he should leave before something bad happens.

The five bandidos — they called themselves the Bird Rock Bandits — follow him out of the bar and, apparently, to the front door of his house, where they confront him. They challenge him to a fight and, when he starts to get the upper hand against one of their homies, he is sucker-punched by their leader. The sucker punch knocks him unconscious. He falls back, hits his head on the pavement and four days later he dies at the hospital.

After the guy dies and the five gang members are arrested, other people come forward to talk about how they, too, had been assaulted by the Bird Rock Bandits. ^[1]Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine.

As In Cold Blog reported,

Accusations include throwing punches that break facial bones, requiring surgery; intimidating people with violence and threatening to kill them; accosting beachgoers; crashing parties in a chartered bus, beating up guests and even hitting young women who get in their way. ^[2]Caitlin Rother, “Bird Rock Bandits” (May 15, 2008) In Cold Blog.

Sounds like their primary activities are assaults by means of force likely to produce great bodily injury, ^[3]See Cal. Penal Code § 186.22(e)(1). threats to commit crimes resulting in death or great bodily injury as defined in Section 422, ^[4]See Cal. Penal Code § 186.22(e)(24). — at the very least. As if that wasn’t enough,

A gang expert told a judge Tuesday that members of the so-called Bird Rock Bandits had the same gang colors as the Hell’s Angels and wanted to associate with the infamous motorcycle gang. ^[5]“Gang Expert: Men Wanted Hell’s Angels Connection” (May 20, 2008) NBCSanDiego.com.

Apparently, the gang was also known to throw signs. ^[6]See Cal. Penal Code § 186.22(f). Looks like we’ve got a common name, sign or symbol going here.

One expert witness, an investigator for the San Diego District Attorney’s office, said the Bird Rock Bandits showed all the characteristics of a gang including claiming a territory, displaying hand signals, the use of gang defining colors, and most importantly, ongoing criminal activity as a group. ^[7]Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine.

So how come Judge Einhorn decided on May 22, 2008 that these five did not constitute a criminal street gang? ^[8]Did I say “five”? See Cal. Penal Code § 186.22(f): “…any ongoing organization, association, or group of three or more persons…”

It might have something to do with the fact that they didn’t fit the profile. Well, that’s almost what the judge said:

San Diego Superior Court Judge John S. Einhorn said the group known as the Bird Rock Bandits doesn’t fit the definition of a gang under state law. ^[9]Dana Littlefield, “Judge: Bird Rock group doesn’t fit gang definition” (May 23, 2008) SignOnSanDiego.com.

In other words, “They’re white.” Because the truth is, if they’d been brown, black, yellow, green or any other color of the rainbow, the gang charges would stick. The scenario above would have gang cops who didn’t know the color of the people involved in this case drooling. All the elements for California’s Penal Code section 186.22 are there.

Moreover, police officers in our area actually have a hard time recognizing when brown people are committing crimes and when they are not. I’ve had Mexican-Americans — who were not clients — tell me about the cops coming into their neighborhood and busting up street football games, because they thought it was a gang fight. Heck, brown people running around in the street trying to grab at one another? What else could it be? So brown people doing what these white people did? Gang crime. Multiple gang crimes.

Penal Code section 186.22(f) defines a “criminal street gang” as:

[A]ny ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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.

As one of my new favorite sources for the law noted, this is a fairly broad definition that could theoretically cover Enron officials. ^[10]Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine. Well, maybe.

Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. Section 186.22 . . . requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]. . . . Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the [25] enumerated crimes found within the statute. ^[11]People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 [109 Cal.Rptr.2d 851].

And why not? Because the California Supreme Court (and some appellate courts before them) said so.

Besides, the way “primary activities” are “proven” in court is that gang cops — referred to by themselves and District Attorneys as “gang experts” even though everything they say is basically contradicted by the real gang experts — these gang cops testify that the primary activities of some group are one or more of the crimes enumerated in the statute. (Incidentally, at this writing, the number of enumerated crimes is now at 33; it’s no longer 25.) And what cop is going to testify that the primary activities of the uniformed gang members of a state-sponsored gang involve murders, assaults, etc.?

If the same rules were applied, however, cops would be gang members. Take the local “anti-gang” task force in the Fresno area. Their name is MAGEC. The acronym stands for Multi-Agency Gang Enforcement Consortium. Various of their members have monikers. (If they were non-gang members, they’d be “nicknames.” But only normal people have nicknames. If you’re a gang member, it’s not a nickname; it’s a moniker.) They have their colors. Watch them in the street and you’ll see that they have hand signs. And here’s the hard part for people to get used to: some of them sometimes commit crimes.

The problem here is that California’s Penal Code §§ 186.20 et seq., otherwise known as the Street Terrorism Enforcement and Prevention Act of 1988, or STEP Act, is unconstitutionally vague in that persons of ordinary intelligence, including counsel for defense and for the people, trial courts and courts of appeal and ordinary citizens are “required to speculate” as to the meaning of its terms.

In reversing yet another Court of Appeal for its interpretation of the STEP Act, the California Supreme Court stated:

Step by step, this court [the California Supreme Court] continues its struggle through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. ^[12]People v. Sengpadychith (2001) 26 Cal.4th 316, 319 [109 Cal. Rptr. 2d 851]. The Court itself cited the extensive trail through the thicket by citing the following: Stats. 1988, ch. 1242, § 1, pp. 4127-4129, see People v. Robles (2000) 23 Cal.4th. 1106 [99 Cal. Rptr. 2d 120, 5 P.3d 176]; People v. Castenada (2000) 23 Cal. 4th 743 [97 Cal. Rptr. 2d 906, 3 P.3d 278]; People v. Zermeno (1999) 21 Cal. 4th 927 [89 Cal. Rptr. 2d 863, 986 P.2d 196]; People v. Loeun (1997) 17 Cal. 4th 1 [69 Cal. Rptr. 2d 776, 947 P.2d 1313]; People v. Gardeley (1996) 14 Cal. 4th 605 [59 Cal. Rptr. 2d 356, 927 P.2d 713].

Were it not for the difficulties in interpreting the STEP Act, the California Supreme Court would not have to struggle step by step through a thicket of statutory construction issues to provide interpretations so that persons of ordinary intelligence would no longer have to speculate about the meaning of its terms, particularly when, as in each case cited by the California Supreme Court in Sengpadychith, ^[13]People v. Sengpadychith (2001) 26 Cal.4th 316, 319 [109 Cal. Rptr. 2d 851]. the California Supreme Court’s interpretation comes too late to enable such persons to modify their behavior and avoid the loss of liberty. California’s repeated assertions that this is not a problem does not change that fact; the “thicket of statutory construction” continues to need pruning, shaping and trimming right up to the present, just as has been necessary for the last decade. This is evidence that the act is overly vague and requires everyone – until the California Supreme Court re-alters the legal landscape each time – “to speculate as to the meaning of penal statutes [specifically, the meaning of the STEP Act].” ^[14]People ex rel. Gallo v. Acuna,14 Cal.4th at p. 1115.

The case law resulting from the struggle has only made things worse.

The California Supreme Court held in Gardeley, that the enumerated crimes under § 186.22(e), utilized to determine both whether a group is a “criminal street gang” and whether that criminal street gang has engaged in “a pattern of criminal behavior,” did not need to be gang-related. ^[15]Gardeley, supra, 14 Cal.4th at p. 624, fn.10 The Second Appellate District carried that a step further: the crimes that determine if the gang is a criminal street gang and that the gang has engaged in a pattern of criminal behavior do not have to be committed by gang members! ^[16]People v. Augborne (2002) 104 Cal.App.4th 362, 371 [128 Cal.Rptr.2d 258].

Based on these rulings, a gang can be found to be a criminal street gang, engaging in a STEP-Act-defined pattern of criminal behavior if non-gang members commit crimes enumerated under § 186.22(e) where the crimes are not gang-related. It is no wonder persons of ordinary intelligence struggle to understand what is prohibited!

In one case I handled, the Fifth Appellate District said that the STEP Act has merely been “fine tuned [sic] by case law.” This “fine tun[ing],” however, has introduced greater flexibility into the law, making application of the law even more discretionary and non-intuitive.

Particularly when thinking of behavior, ordinary parlance and the view of persons of ordinary intelligence is that a pattern requires more than one event. ^[17]See Ensor, CIA agent fired for ‘pattern of behavior’, CNN.com (April 25, 2006) found at http://www.cnn.com/2006/POLITICS/04/24/cia.firing/ (last visited January 14, 2007). The STEP Act originally required, among other things, “a pattern of criminal activity.” ^[18]Cal.Pen.Code § 186.22(f). There were temporal qualifiers which might serve to help with the characterization of the activity as demonstrating a “pattern.” ^[19]Cal.Pen.Code § 186.22(e). Yet the statute also contains the phrase “or by two or more persons” from which the Court in Loeun found that a “pattern” could be established by whatever crimes the District Attorney decided were criminal street gang crimes; that is, the actual charged crimes in any given case could also be used to establish the pattern of criminal activity. ^[20]People v. Loeun (1997) 17 Cal.4th 1, 5 [69 Cal.Rptr.2d 776].

Acts on one occasion, therefore, can show a criminal street gang’s “pattern” of behavior. From this, you can see the fallacy of stating that the Bird Rock Bandits are not gang members under this law. They’re not gang members because the court said they’re not. That’s all. They’re too white and/or too rich to be gang members. Under the law itself, different charges against Seth Cravens, 22; Eric House, 21; Orlando Osuna, 23; Matthew Yanke, 21; and Henri “Hank” Hendricks, 22, could easily total up to more than “two or more persons.” Boom! You’ve got your gang, along with it’s “predicate” crimes to establish the pattern. ^[21]In Gardeley, supra, 14 Cal.4th at 609, fn.1, the California Supreme Court said, “We use the term ‘predicate offenses’ throughout this opinion to describe the component crimes that constitute the statutorily required ‘pattern of criminal gang activity.’ We agree with the following observation by the Court of Appeal in People v. Olguin (1994) 31 Cal.App.4th 1355, 1383, footnote 13 [37 Cal. Rptr. 2d 596], as to using the term ‘predicate offenses’ to describe the crimes that establish a ‘pattern of criminal gang activity’: ‘While the statute does not use the word “predicate” it has become the accepted usage for reference to the statutorily required offenses. This is unfortunate since it implies precedence, which . . . is not a requirement, but it seems too well entrenched in the case law to change now.'”

You see how a person of ordinary intelligence would not know that the STEP Act applied to his actions if the law was applied the same to everyone. A person would not be aware that he or she was doing those acts “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 [its] members” until the end of a trial. This is because, at that trial, his own acts could be used to satisfy all the elements, including the “pattern” of criminal conduct from which he would have been expected to know he was in violation of the Act. Thank goodness some judges can spot the difference between white boys and non-white boys!

So this is how loosely the STEP Act is written: Imagine a District Attorney could be found who would exercise his discretion to add the gang enhancement to a charge against a member of the Los Angeles Police Department. (Admittedly, no such DA could be found, but the reasons are political, not legal.) Imagine a gang “expert” testified against the LAPD officer using exactly the same criteria utilized against “ordinary” gang members. If this were done, and a jury could be found who would apply the exact same standards of proof currently utilized against “ordinary” gang members, a true finding on the enhancement would be returned.

Except for one thing: “Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime, is not a primary activity of the department.” ^[22]People v. Gamez (1991) 235 Cal.App.3d 957, 970-971 [286 Cal.Rptr. 894]. But only because the Gamez Court said so. ^[23]Ibid.

Where the application of the same analytical process and rules cannot differentiate between criminal street gangs and the Los Angeles Police Department — without the fact-finder taking notice of the fact that one group is the LAPD — then the law is vague and unconstitutional.

And individual judges have to remind us that white boys and law enforcement officers — like the Bird Rock Bandits or the LAPD — can’t be held to the same standard as everyone else.