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A Rainbow of Gangs

May 29, 2008 By Leave a Comment

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

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

Sounds like their primary activities are assaults by means of force likely to produce great bodily injury,3 threats to commit crimes resulting in death or great bodily injury as defined in Section 422,4 — 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

Apparently, the gang was also known to throw signs.6

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

So how come Judge Einhorn decided on May 22, 2008 that these five did not constitute a criminal street gang?8

[Read more...]

Endnotes:
  1. Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine. [↩]
  2. Caitlin Rother, “Bird Rock Bandits” (May 15, 2008) In Cold Blog. [↩]
  3. See Cal. Penal Code § 186.22(e)(1). [↩]
  4. See Cal. Penal Code § 186.22(e)(24). [↩]
  5. “Gang Expert: Men Wanted Hell’s Angels Connection” (May 20, 2008) NBCSanDiego.com. [↩]
  6. See Cal. Penal Code § 186.22(f). Looks like we’ve got a common name, sign or symbol going here. [↩]
  7. Scott Bass, “Bird Rock Bandits Case: Preliminary Hearing Decision This Week” (Unknown Date) Surfer Magazine. [↩]
  8. Did I say “five”? See Cal. Penal Code § 186.22(f): “…any ongoing organization, association, or group of three or more persons…” [↩]
Filed Under: Gangs Tagged With: , , , , , ,

The Unreliability of Shepard’s Citations

May 26, 2008 By

As judges come and go, courts periodically “change their minds” about what the law is. This happens for lots of reasons, but a full discussion of that will have to wait for another day. What I want to talk about here is this: When courts do change their minds about what the law is, how do lawyers keep up? If I’m writing a motion, appeal, writ or just generally arguing about the law in court, how do I know that the law I’m relying on, or “citing,” as legal precedent is accurate?

This is particularly important in today’s world, where courts increasingly tend to follow their own personal tastes, or even whimsy, instead of relying on the rule of law, and where literally thousands of sometimes contradictory cases are available to justify their doing this. If an attorney has any hope of properly representing his client in the face of judicial abdication of the law, he practically has to be able to rub the courts’ collective noses in the fact of what the law actually is.

And to do that, you have to have a way of knowing what is still good law and what is not.

[Read more...]

Filed Under: Legal Research & Writing Tagged With: , , , ,

Unveiling Final Probable Cause Design

May 23, 2008 By

Well, hopefully this will be the last, “Administrivia” posting for awhile. Tomorrow or the next day, I hope to start a little bit more interesting posting. But, hey, I do want to preserve the record.

Today, I reminded myself how to do a little bit of CSS and HTML coding. I also re-learned the nice, but sometimes frustrating, Adobe ImageReady CS2, because I had to completely rebuild the navigation menu.

Let it be known that this day — this wonderful day that went wrong in so many other ways — I at least finally integrated the Probable Cause blog into the rest of my website!

By the way, those of you using Internet Explorer 6: You might want to upgrade. Once I rest up a bit and get some real work done, I’ll consider fixing the navigation bar so it doesn’t run up into the graphic on your antique microsofty browser. Better yet? Get Firefox!

Oh, “p.s.,” I did all the above thanks to the help of Joni Mueller of Pixelita Designs.

Filed Under: Administrivia Tagged With: , , , , , , ,

The Really Low Standard of Review

May 18, 2008 By 1 Comment

First, let’s have a “shout out” to Joni Mueller of Pixelita Designs. When I first started thinking about putting up a legal blog, I had already finished the design of the website for my law practice. Since many people liked the look, I didn’t want my blog, Probable Cause, not to fit into the overall design of the site. The problem was, I’d never used WordPress before and didn’t know how to modify any of the templates. I posted a note on the WordPress Forums. In came Joni Mueller to save my day giving me some pointers and sending over a tweak of the theme design I liked so that I could start modifying the colors and other parts to make it fit into the rest of the RHDefense site.

When asked what she’d like me to say about her here, she replied,

We’ve been around since 2003, we believe in standards compliant and accessible web sites and Ivan does great graphic artwork. I try to put my English degree to good use (B.A., Trinity Univ., San Antonio, Texas, 1981) by writing solid copy when asked.

Thanks for the help, Joni!

Anyway, as you can see, Probable Cause is well on the way to getting some new skin. I hope to have the design completed and fully integrate it into the rest of the website, complete with its own button, by the end of the week.

And, lastly, a little explanation about “The Really Low Standard of Review.” That subtitle for the Probable Cause blog was chosen for a few reasons.

For one thing, I lost a Petition for a Writ this past week that so far as I or anyone I know can tell, I should not have lost. The Court denied the Petition without explanation in what we call a “postcard” denial.

A “postcard denial” is summary disposition without a rationale—something akin to “The petitioner’s claims are without merit,” or its more tersely worded cousin, “Denied.” Such denials can mask deficient state adjudication, and their confused treatment by the federal courts reflects both divergent conceptions of comity and different
readings of legislative purpose. – Leo Kovarsky, “AEDPA’s (Imaginary) Purposes” (2007) BePress

Frankly, the inexplicable loss on this Petition, particularly without explanation, makes me wonder about the point of being an attorney. From all appearances, the rule of law is dead.

But I’ll address those issues in another post someday. The point here is that when I thought about what happened, I realized that the Standard of Review (and that was one of the topics of the Petition) has dropped even lower than it ever was before. Today, the Standard of Review appears to be: “Do we, the Justices of the Court of Appeal, like the appellant, or do we want him to lose?” If we want him to lose, that’s all that’s required; no amount of settled law or legal reasoning is going to change the result.

Another reason for the choice of subtitle is as a kind of joke on myself. (I mean, other than the one the Court played.) Of all the standards of review — “beyond a reasonable doubt,” “clear and convincing evidence,” etc. — “probable cause” is fairly low. So far as I know, other than “because the Court said so,” the only standard lower than probable cause is “reasonable suspicion.” And, oftentimes, probable cause and reasonable suspicion appear to be the same thing. At any rate, it doesn’t take much to get to probable cause. So the idea here is that, if you’re reading what I write, you don’t have a very high standard for deciding what you’ll spend your time reading!

My only hope is that you’ll find my writing more useful than the Court did with my last Petition.

(And for any potential clients out there, I don’t often lose — maybe that’s why I took this last loss so hard. Hmm…no. I’m pretty sure it was because the Court was wrong, and I hate losing when I’m right.)

Filed Under: Administrivia, Rule of Law Tagged With: , , , , ,