In our October feature story, Menace to Society-- which detailed the way police and prosecutors accuse people of being gang members for easier conviction and grant money-- 21-year-old Jacori Bender got sentenced to four years in prison, for felony gun possession and being a gang member.
The gang enhancement stemmed from the charge that Bender was "an active participant in a criminal street gang" who carried the firearm "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members." Throughout Bender's trial, the prosecution team, with help from a police "gang expert," presented various facts about Bender's life as evidence that he was a gang member-- even facts that appeared to suggest the exact opposite.
Gang enhancements only apply to felonies. And prosecutors can charge gun possession as a felony or a misdemeanor. So District Attorney George Gascon's decision to make Bender's gun possession charge a felony-- based on the claim that Bender was a gang member-- opened the door for the testimony about Bender's social life, his wardrobe, his past misdeeds, and other personal details otherwise not allowed into trial.
A state court of appeals, however, has determined that Gascon's office overreached by charging the crime as a felony, a ruling that nullifies Bender's status as a validated gang member. Judge P.J. Ruvolo wrote in the unanimous decision: "We conclude that the prosecution failed to prove that appellant actively participated in a street gang while carrying the gun. We therefore reverse the felony gun possession conviction, and remand for further proceedings."
"There is insufficient evidence in the record," the ruling continued, "to show specific felonious conduct by gang members that was distinct from appellant's possession of the gun, and appellant's felony conviction on count 2 must be reduced to a misdemeanor."
The court also called into question the second felony charge, which accused that Bender violated the law by possessing a firearm within 10 years after being convicted of a misdemeanor (in 2008 he plead guilty to making threats to a public housing security guard). In its decision, the court ordered a new hearing for a judge to rule on whether that charge should be dropped to a misdemeanor.
Bender's appeal targeted the subjective nature of gang enhancement charges. He did not contest that he possessed a gun on the night of May 28, 2010. But he did argue "that the conviction must be reduced to a misdemeanor, because the prosecution did not produce evidence sufficient to establish the additional element that he was an active participant in a criminal street gang."
Ruvolo explained that "in order to elevate loaded gun possession to a felony under the gang participant gun possession statute, the prosecution must prove that in connection with the gun possession, felonious conduct 'distinct from' the gun possession was committed by gang members 'distinct from' the defendant himself."
And the court found:
No such proof was offered in the present case. Even assuming for the sake of argument that appellant and his companions were members of the Oakdale Mob gang, the prosecution did not offer any evidence that at the time of appellant's arrest, any gang members other than appellant had just committed, were committing, or were about to commit any felonious criminal conduct distinct from the gun possession itself.
As Menace to Society described, fourteen of the 20 incidents on Bender's gang validation sheet involved "affiliating with documented gang members" or "frequenting gang areas." Which for Bender translated to: hanging out with his friends in his neighborhood. The prosecution's gang expert, Inspector Leonard Broberg, also cited a evidence Bender's proximity to three shootings for which he was not charged with any crimes.
And that was the strong part of the prosecution's argument. Other aspects of the case against Bender illustrated the way the prosecution sought to force seemingly innocuous pieces of Bender's life into the narrative that he was a gang member:
When questioned about Bender not having any gang tattoos, Broberg explained that "the fact that he made a conscious decision not to get one -- he understands what tattoos mean. So the lack of the tattoo actually, with that knowledge, strengthens" the case against him.
In other words, a lack of evidence is evidence. And there's more: Citing a Field Information Card showing that Bender was walking on Oakdale Avenue by himself at 4:30 p.m. on a Monday afternoon, Broberg said, "If he's by himself, the safest place for him to be would be in the Oakdale Mob territory, which is where he is at, and he is by himself."
On the day Bender was arrested for criminal threats, the inspector also testified, he was wearing red, the color associated with the Oakdale Mob: red boxers under his blue jeans and a red mohawk. It was the only time he was documented "wearing gang clothing." Bender shaved the mohawk soon after the arrest, though, telling an officer that he was concerned the hair color would link him to the gang. "When we are talking about him removing the red mohawk," Broberg stated, "he's saying others are trying to classify him or identify him as Oakdale."
The appeals court ruling came too late to alter anything about Bender's sentence. He began serving his time in April 2011, and was released this past fall. But it does erase the two strikes on his record.