A finding that a group to which a defendant belongs is a criminal street gang cannot be based solely on the relationship between that group and a larger criminal organization, the Fifth District Court of Appeal ruled yesterday. The justices overturned the special-circumstance finding that a convicted murderer from Madera County, Michael Alan Williams, killed his victim as part of gang activity, as well as his separate conviction of actively participating in a gang. The court said there was enough evidence to prove that Williams' group, the Small Town Peckerwoods, was a criminal street gang, but that jurors may have "erroneously considered evidence related to some larger Peckerwood organization." In an unpublished portion of the opinion, however, the panel upheld Williams's conviction of the first degree murder of Rose Johnston in 2004. Johnston's burned out car was found in an orchard in rural Madera County two days after she was last seen alive, at a party attended by members of the Small Town Peckerwoods. Charred remains found in the car were later identified as hers. Investigators soon established that she spent time with members of the group and began questioning some of them, including Williams, who by that time was in jail for an unrelated offense. Williams said Johnston was a "homie hopper," meaning a woman who dated multiple gang members, but that he had no problems with her. He claimed to have seen her leave the party before he did. Investigators, however, ultimately concluded that Williams and fellow gang member Raymond Elisarraras killed Johnston by stabbing her and then drove the body out to the orchard in Johnston's car before setting it ablaze. They said Williams was upset because Johnston had sparked a rivalry between two of the members, leading to a fistfight at the party during which a knife was pulled. The two were charged with the murder, but Elisarraras committed suicide before trial. Among the witnesses at Williams' trial was a Madera police officer who qualified as an expert on gangs. He explained that the Small Town Peckerwoods, with about 16 members who wore "STP" tattoos, were a cell of a loosely organized gang with about 100 members on the West Coast. Members, he said, took their orders from "shot callers" who answered to higher authorities within the prison system, as indicated by a poem found in what was believed to be Elisarraras' bedroom: "We're Peckerwood Soldiers down/for a cause, California convicts/and solid outlaws. The rules/we live by are written in/stone, awesome an fearless we're/bad to the bone. We live in California Prisons/all long the way, the man tries/to down us with each passing day./Our bodies are solid an blazen/with in, warbirds on SS lightning/bolts the way that we think. When we go into battle our/hands are held high, some/may get hurt yet others may/die. It's a small price we/pay to survive in the yard, we're/Peckerwood Soldiers down for a/cause, California convicts and/solid outlaws." Besides the Small Town Peckerwoods, the Madera cells included the Crazy White Boys, Krazy White Boys, and Dirty White Boys, the officer testified. The crimes committed by the gang, he said, included arson, assault, and homicide. Williams was convicted of first murder with a gang special circumstance, and of participation in a criminal street gang, and Madera Superior Court Judge Jennifer Detjen sentenced him to life imprisonment without parole, plus one year. Presiding Justice James Ardaiz, writing for the Court of Appeal, agreed that testimony about the gang's activities and the crimes its members had committed supported a finding that it was a criminal street gang. Ardaiz also concluded, however, that the trial judge erred in allowing jurors to consider the larger gang's activities in determining whether the Small Town Peckerwoods met the statutory definition of a criminal street gang as an organization whose members have engaged in a pattern of felonies involving theft, guns, violence, or drug dealing. He distinguished People v. Ortega (2006) 145 Cal.App.4th 1344, in which the court held that the defendant could be found to have committed a crime on behalf of the Norteno gang in the absence of proof as to what specific subset of the gang the defendant belonged to. The evidence in that case, Ardaiz said, established that all of the subsets of the Nortenos shared the same goals and activities. "Here, by contrast, Dilbeck testified that Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization," the presiding justice wrote. "Insofar as is shown by the record before us, his conclusion appears to have been based on commonality of name and ideology, rather than concerted activity or organizational structure." Ardaiz went on to explain: "In our view, something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization. There was no such showing here. Dilbeck's general references to 'shot callers' answering to a higher authority within the prison system were insufficient, absent any testimony that the group calling themselves the Small Town Peckerwoods contained such a person, or that such a person was a liaison between, or authority figure within, both groups."
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