OUR TOP STORY AMID IN ADDITION, AN EFFORT BY THE SAN DIEGO COUNTY ISSUED ATTORNEY TO PROSECUTE TWO MEN AND GANG CONSPIRACY CHARGES LAST YESTERDAY WHEN CHARGES WERE DISMISSED IN COURT. THE TWO WERE CHARGED UNDER A CONTROVERSIAL STATE LAW PENAL CODE 182.5. EVEN THOUGH PROSECUTORS ADMITTED THE DEFENDANTS WERE NOT INVOLVED IN THE NINE GANG SHOOTINGS AT THE HEART OF THE CONSPIRACY CASE, THEY ACCUSED AARON HARVEY AND BRANDON DUNCAN OF BENEFITING FROM THE CRIMES. THIS PROSECUTION HAS FOCUSED ATTENTION NOT ONLY ON THE LARGELY UNTRIED GANG CONSPIRACY COAT LAW BUT ON THE ENTIRE WAY LAW ENFORCEMENT IDENTIFIES GANG MEMBERS. JOIN ME ARE THE TWO FORMER DEFENDANTS IN THE CONSPIRACY TRIAL AARON HARVEY. WELCOME TO THE SHOW. THANK YOU FOR HAVING ME PICK AND BRANDON DUNCAN KNOWN BY SON AS RAP ARTIST TINY DOO. I READ THAT YOU HAD A CROWD OF SUPPORTERS WHO CELEBRATED THE DISMISSAL OF THE CHARGES YESTERDAY. ERIN, TELL US WHY YOU THINK THE MOVEMENT AGAINST THIS CONSPIRACY PROSECUTION HAS GROWN. Y ? WHY ARE THERE SO MANY PEOPLE RALLYING ON YOUR CAUSE? I BELIEVE PEOPLE ARE STARTING TO WAKE UP TO THE INJUSTICES OF OUR SYSTEM WE LIVE IN. NOT JUST TO SAN DIEGO BUT AROUND THE NATION. DEALING WITH FERGUSON IN NEW YORK AND FLORIDA AND THINGS LIKE THAT. PEOPLE ARE JUST TIRED, SICK AND TIRED OF BEING SICK AND TIRED. STEPPING UP AND MAKING NOISE AND MOVING OF THE RIGHT DIRECTION AND HOPEFULLY WE CAN GET SOME OF THESE LAWS REPEALED. BRANDON, DO YOU TO SEE A CONNECTION BETWEEN THIS PROSECUTION AND THE SUPPORT FOR YOU GUYS AND VARIOUS OTHER MOVEMENTS THAT AS ERIN SAY WAKING UP TO MIGHT BE A BIAS IN LAW ENFORCEMENT? YES. I FEEL LIKE THE SAME EXACT WAY JUST ERIN JUST STATED. IT'S GOING ON AROUND THE WORLD AND A LOT OF THESE ORGANIZATIONS ARE STANDING UP AGAINST WHAT IS GOING ON. STUDENTS ARE SEEING INJUSTICE AND THEY ARE TIRED OF IT. WE WANT TO STAND AGAINST THESE HARSH LAWS THAT ARE GOING ON. AND JUST LAWS PASSING THEM LEFT AND RIGHT TO CONTINUE CRIPPLING OUR COMMUNITIES. WE ARE TIED IT OF IT. THAT'S WE'RE TIRED OF IT, BASICALLY LET ME TAKE YOU BACK TO THE PROSECUTION AND WHAT YOU WERE CHARGED WITH IT WE DID A REPORT ON MIDDAY EDITION ABOUT YOUR CASE AND PROSECUTORS SAID YOU BENEFITED AS A WRAPPER. FROM THE GANG SHOOTERS THAT SHOOTINGS. HOW DID YOU BENEFIT ? THEY SAID I BENEFITED FROM INCREASED ALBUM SALES FROM THIS ONE PARTICULAR ALBUM I PUT OUT. WHICH WAS A FREE MIX TAPE. IT IT'S FREE. HOW CAN YOU BENEFIT OFF OF SOMETHING FREE? IT'S FREE. I WAS NOT SELLING IT. SO THE CONCEPT AS YOU PUT IT IN YOUR ATTORNEY PUT IT WAS THERE WAS ACTUALLY THAT YOU CLAIM THERE WAS NO BENEFITED RIGHT. THERE WAS NO BENEFIT. ERIN, STORIES ABOUT YOUR CASE TALKED ABOUT FACEBOOK POSTS THAT MIGHT SEND YOU TO PRISON FOR LIFE. TELL US WHAT THAT WAS ABOUT. WELL, AS A WHOLE, THIS IS PRETTY MUCH JUST A WAR ON PEOPLE OF COLOR. BUT IN PARTICULAR, THEY SAVE MY FACEBOOK PHOTOS WERE CONSIDERED CAN -- GANG-RELATED DUE TO INDIVIDUALS I MAY HAVE BEEN WITH WHO ARE ALSO DOCUMENTED AND THEN YOU HAVE ANOTHER TOPIC ON HOW PEOPLE ARE DOCUMENTED. THEY -- THERE IS A POLICY ON HOW THEY CAN DOCUMENT A PERSON AS A GANG MEMBER IS LIKE McCARTHYISM ALL OVER AGAIN IN A SENSE. AND THEY SAID SIGNS THAT ARE CONSIDERED GANG-RELATED, BUT THESE ARE THE SAME SIGNS EVER-PRESENT COMMUNITIES AND HIGH SCHOOLS AND FOOTBALL TEAMS IN THOSE TYPE OF THING SO THE NARRATIVE THAT THEY WANT TO BETRAY TO THE PUBLIC IS THAT THESE ARE GANG MEMBERS BASED ON PHOTOS. AND WHAT BENEFIT DID THE PROSECUTORS SAY YOU GOT OUT OF THIS? THEY SAY SINCE THEY HAD ME DOCUMENTED AS A GANG MEMBER, THEY SAY WHATEVER CRIMES THE ALLEGED GANG COMMITS THEN MY STATURE GOES UP IN THE NEIGHBORHOOD. THE FEAR OF OTHER PEOPLE, OTHER GANGS OF ME AND MY OWN STATURE WITHIN THE COMMUNITY THOSE UP. I DON'T KNOW HOW YOU CAN MEASURE STATURE, I DIDN'T KNOW I HAD IT STATURE -- I HAD STATURE BUT THAT WAS MY BENEFIT AND JUST TO GO DEEPER THAN THAT WITH THESE NINE ALLEGED SHOOTINGS, THERE IS NOBODY IN CUSTODY FOR THESE NINE. SO BE THERE UNSOLVED CRIMES. THEY DON'T KNOW SPECIFICALLY IF THESE SHOOTINGS EVEN CAME FROM THIS PARTICULAR NEIGHBORHOOD. EARLIER TODAY I SPOKE WITH YOUR ATTORNEY EDWARD KINSEY AND HE REPRESENTED YOU. I HAD A CHANCE TO POSE A FEW QUESTIONS TO HIM. EDWARD, GIVE A BRIEF EXPLANATION OF HOW PENAL CODE 182.5 DEFINES CONSPIRACY WHEN IT COMES TO GANG MEMBERS. 182.5 REQUIRES EXECUTION PROVE THAT A PERSON IS AN ACTIVE GANG MEMBER AND AS SUCH, PROMOTE FURTHER ASSIST OR BENEFIT FROM ANY FELONY COMMITTED BY ANOTHER MEMBER OF A GANG. WHICH IN ESSENCE MEANS THAT YOU CAN BE CHARGED AND THEORETICALLY CONVICTED UNDER THE DISTRICT ATTY.'S INTERPRETATION OF THE LAW IF THEY -- A FELLOW MEMBER OF THE GANG COMMITS A CRIME WHICH YOU DID NOT KNOW ABOUT. YOU WOULD BE PUNISHED TO THE SAME EXTENT AS THAT PERSON. HOW WAS ONE DEFINED AS DERIVING A BENEFIT ? THAT IS THE SUBJECT OF QUITE A BIT OF BACK-AND-FORTH AT THE COURT DURING PENDENCY OF THIS CASE. BENEFIT HAS BEEN DESCRIBED BY THE GANG EXPERTS IN THE GANG EXPERTS ARE SAN DIEGO POLICE GANG DETECT LOOPS. -- THE TEXAS -- DETECTIVES. THEY CAN INCLUDE INTANGIBLES SUCH AS INCREASES DR. -- STATURE IN THE GANG INCREASE OF FEAR IN THE COMMUNITY BECAUSE OF THE GANG GOING OUT COMMITTING VIOLENT ACTS AGAINST CITIZENS OR GANG MEMBERS AND WITH THAT KIND OF APPROACH, IT BASICALLY MEANS THAT ANY DOCUMENTED GANG OR MEMBER OF THAT GANG AND IN THE CASE OF AARON AND DUNCAN INVOLVED I BELIEVE 443 MEMBERS OF THAT GANG. AND THEY ALL COULD HAVE BEEN CHARGED. SO THAT WAS KIND OF THE PROBLEM IS THAT WE SEEM TO OF HAD SELECTIVE PROSECUTION. DISTRICT ATTORNEYS CHOSE 15 OF THESE ALLEGED GANG MEMBERS AND CHARGE THEM. HOW WAS THE STATE LAW, THIS PENAL CODE 182.5 I'M A HOW IS THAT DIFFERENT FROM THE FEDERAL RICO STATUTES THAT I THINK A LOT OF PEOPLE ARE FAMILIAR WITH ALLOWING THE GOVERNMENT TO GO AFTER MEMBERS OF ORGANIZED CRIME. WELL, I HAVE TO SAY I AM NOT INTIMATELY FAMILIAR WITH RICO. I DO NOT PRACTICE FEDERAL LAW FROM WHAT I KNOW OF IT, IT REQUIRES PROOF THAT A PERSON WAS A MEMBER OF AN ASSOCIATION WHICH I'M NOT SURE HOW THE FEDERAL GUIDELINES INTERPRET ASSOCIATION AND COMMIT A -- AN AGREEMENT TO COMMIT ACTS AS PART OF THAT ORGANIZATION. BUT AS FAR AS MATCHING OF THE ELEMENTS, OF EACH, I CANNOT REALLY SPEAK TO THAT BIXBY MET ONE OF THE THINGS THAT RICO AS I UNDERSTAND IT IS THAT THE PERSON WHO IS BEING PROSECUTED HAS TO EITHER HAVE ORDERED OR HELPED PLAN THE ACTUAL CRIME AND THAT WAS NOT ACTUALLY CHARGED IN THIS CASE, WAS IT? NO, NOT AT ALL. IN FACT, THERE WAS NO EVIDENCE INTRODUCED BY THE PROSECUTION AT ALL AT THE PULMONARY HEARING SHOWING THAT MIKE QUIET -- THAT MY CLIENT, AARON OR BRANDON DUNCAN NEW ABOUT THESE OFFENSES. DIST. ATTY. MADE THE ARGUMENT THAT BECAUSE THEY ARE SITUATED IN THIS GANG SUCH THAT THEY ARE SENIOR MEMBERS BY VIRTUE OF BEING OLDER, THEY WOULD NECESSARILY HAD TO KNOW WHAT WAS GOING ON. THE DAS OFFICE EDWARD SAYS THERE IS A CLEAR EVIDENCE. THEY SAY THERE IS CLEAR EVIDENCE RENDON DUNCAN AND AARON HARVEY WERE GANG MEMBERS AT THE TIME OF THE SHOOTINGS AND THAT THEY HAVE MISREPRESENTED THEIR LEVEL OF GANG INVOLVEMENT. WHAT IS YOUR RESPONSE TO THAT ? MY RESPONSE IS THAT YOU CAN LOOK AT DATA ANYWAY YOU WANT. IT'S JUST A SITUATION WHERE THESE GUYS PARTICULARLY AARON WAS STOPPED EVERY TIME HE LEFT HIS HOUSE, BASICALLY. AND IF HE IS IN THE COMPANY OF A RELATIVE WHO HAPPENS TO BE A DOCUMENTED GANG MEMBER OR NEIGHBORHOOD FRIEND, THEN HE CAN BE STOPPED AND DOCUMENTED AS SUCH. THE USE OF THAT I BELIEVE IS THE PROBLEM, THE REAL PROBLEM. THERE SEEMS TO BE LITTLE OVERSIGHT OF THE GANG DOCUMENTATION PROCESS. FINALLY, EDWARD KINGSLEY, YOU TOLD VOICE OF SAN DIEGO THAT YOU BELIEVE THAT THESE THAT'S DAS OFFICE MAY TRY TO WEAVE OUT CHARGES AGAINST YOUR CLIENT. ARE YOU CONCERNED ABOUT THAT ? WELCOME IT NOT CONCERNED ABOUT IT. I'M NOT SURE WHAT THEY WOULD DO AT THIS POINT. IF THEY DO THAT, THE CASE BEGINS ALL OVER AGAIN. PRESUMABLY WITH ANOTHER PRELIMINARY HEARING . I WANT TO THANK YOU FOR YOUR TIME. THANK YOU SO MUCH. YOU ARE WELCOME. THAT WITH ATTORNEY EDWARD KINSEY REPRESENTING AARON HARVEY ON THE CHARGES THAT WERE DISMISSED AGAINST HIM AND BRANDON DUNCAN YESTERDAY BY SAN DIEGO JUDGMENT WE CONTACTED THE DAS OFFICE TO JOIN THE CONVERSATION WE WERE TOLD NO INTERVIEWS WERE BEING GIVEN AT THIS TIME BUT WE DO HAVE THE SAN DIEGO COUNTY DA STATEMENT ON OUR WEBSITE AT KPBS.ORG. I WANT TO TALK WITH BOTH OF YOU, BRANDON AND ERIN ABOUT WHAT EDWARD KINSEY WAS TALKING ABOUT. THE PROCESS WITH WHICH YOU ARE IDENTIFIED AS A GANG MEMBER. IS THAT IS SEEMS FROM WHAT YOU HAVE BEEN SAYING AARON, THAT IT'S TOO EASY FOR SOMEONE TO GET IDENTIFIED BY LAW ENFORCEMENT AS A GANG MEMBER. YES. MICA SAYS, THERE'S NINE DIFFERENT CRITERIA WHERE THEY CAN DOCUMENT YOU. ME AND BRANDON SPOKE AT CITY COLLEGE. OVER FIFTYSOMETHING COLLEGE STUDENTS. I LOOKED AROUND AND I HAD THE CRITERIA ON THE BOARD. I ASKED EVERYBODY IF YOU MEET ANY OF THESE CRITERIA ARE MORE THAN TWO OR THREE TIMES, RAISE YOUR HAND. EVERYBODY RAISE THEIR HAND. SO THERE ARE NINE CRITERIA IN THE POLICY IS SO BROAD THEY ARE ABLE AT THE DISCRETION OF THE OFFICER CAN DOCUMENT YOU AND THEY SAY CONTACTS WE THINK CONTACT WE THINK OF PHYSICAL CONTACT. WHEN THEY CAN DOCUMENT YOU OFF OF GOING YOUR FACEBOOK, THEY DIDN'T COME IN CONTACT WITH YOU. SO THERE'S NO DUE PROCESS IN THIS. THEY CAN DOCUMENT YOU ON YOUR FACEBOOK AND NEVER TELL YOU YOU ARE ON THE LIST. IT'S THE SCARLET LETTER, BUT IN THE SENSE THE SCARLET LETTER WAS EVEN BETTER BECAUSE AT LEAST YOU KNEW YOU HAD IT. WHEN YOU'RE DOCUMENTED, THEY DON'T HAVE TO NOTIFY YOU OF THESE DOCUMENTATION. SO YOU'RE WALKING AROUND PRETTY MUCH WITH THIS DOCUMENTATION AND YOU DON'T KNOW YOU'RE ON THE LIST GETS MET BRANDON, LAW ENFORCEMENT WOULD PROBABLY SAY SOMETHING LIKE WHAT WE ARE TRYING TO DO HERE IS WE ARE TRYING TO KEEP THE COMMUNITY SAFER BECAUSE WE ARE TRYING TO IDENTIFY THESE PEOPLE WHO WILL BE COMMITTING VIOLENT ACTS THAT ARE WANT TO BE CAUSING PEOPLE PAIN AND GRIEF AND UPSETTING THE COMMUNITY AND SO FORTH. SO WITH THAT KIND OF MOTIVATION, WHAT WOULD YOU WANT THEM TO DO ? FIRST OF ALL, I WOULD WANT THEM TO GET THE PEOPLE COMMITTING THE CRIMES. JUST BECAUSE SOMEBODY IS A MAN -- GANG MEMBER DOESN'T MEAN THEY ARE COMMITTING A CRIME. FIRST YOU NEED TO TARGET THE PEOPLE THAT ARE RESPONSIBLE FOR THOSE CRIMES THAT YOU HAVE AND NOT JUST TARGET ANYBODY. JUST BECAUSE OF WHERE THEY GREW UP OR BECAUSE THE WHAT COLOR THEY ARE WEARING. IT'S TOO BROAD, IT'S NOT RIGHT. FOR THE MOST PART, HOW I FEEL I FELT LIKE THEY SHOULD HELP THE COMMUNITY. IF YOU WANT TO ERADICATE GANGS, YOU HAVE TO HELP THE COMMUNITY. THESE KIDS OUT HERE HAVE NOWHERE TO GO. NOTHING TO DO. TO PLAY SPORTS. BECAUSE SO MUCH MONEY TO PLAY FOOTBALL. $3-$400 TO PLAY ON A YOUTH FOOTBALL TEAM. THINK ABOUT HOW MANY PARENTS IN THE INNER-CITY HAVE THAT TYPE OF MONEY TO PAY EVERY YEAR FOR FOOTBALL. A LOT OF THEM DO NOT SO YOU HAVE KIDS THAT ARE JUST STUCK IN THE STREETS HANGING OUT ON STREET CORNERS AND HANGING WITH THE WRONG PEOPLE. SO COME IN AND PUT MONEY IN THE COMMUNITY THAT CAN HELP KIDS AND CHILDREN BE BETTER THAN WHAT YOU WANT THEM TO BE. DON'T HAVE TO GO TO PRISON TO CHANGE WHO THEY ARE. YOU TO BOTH SPENT MONTHS IN JAIL, RIGHT ? SEVEN MONTHS. YES. WHAT DID THAT DO TO YOUR LIVES ? WELL, FIRST I WAS LIVING IN VEGAS STUDYING REAL ESTATE. I FINISHED MY REAL ESTATE COURSES AND I WAS JUST STUDYING -- TAKING THE NATIONAL TEST AND WORKING AS A CLUB PROMOTER TO PAY MY RENT. SO FINANCIALLY, IT'S DEVASTATING. LIVING IN JAIL IS SO EXPENSIVE. COMMISSARY, PHONE TIME, THINGS OF THAT NATURE. THEN MY BILLS I HAD TO BREAK THE LEASE ON MY APARTMENT. I FORGOT TO CANCEL A CELL PHONE BILL, AUTOMATIC PAID TO MY BANK SO I'M OFF -- OVER DRAFTED AND BAIL. SO FINANCIALLY I AM THOUSANDS AND THOUSANDS OF DOLLARS IN DEBT. BRANDON IS NODDING. YES, SAME THINGS. ATTORNEY FEES, BILLS, WHILE I WAS INCARCERATED I LOST MY GRANDFATHER. THAT'S SOMETHING I CAN NEVER GET BACK. I WAS NOT ABLE TO BURY MY GRANDFATHER. IT BOTHERS ME BAD THAT YOU KNOW I DID NOT COMMIT A CRIME, NOTHING TO DO WITH THESE ALLEGED CRIMES BUT YET YOU FEEL LIKE IT IS ALL RIGHT TO HOLD ME IN JAIL OVER THIS. AND I CANNOT BURY MY GRANDFATHER. IT'S CRAZY. SORRY TO TELL YOU THIS, I HAVE TWO MINUTES. I WANT TO KNOW WHAT YOU WILL DO NOW. THAT WAS ROUND ONE OF 15 ROUND BOUT. THERE ARE STILL 18 PEOPLE BEING CHARGED 182.5 SO THIS IS STILL ONGOING. AND THEY TURNED A REAL ESTATE AGENT INTO AN ATTORNEY. THAT'S WHAT YOU'RE HEADING FOR ? I'M AN ACTIVE ACTIVIST IN MY COMMUNITY. I WILL BE ATTENDING LAW SCHOOL AND AGAIN, THIS IS JUST ROUND ONE OF 15 OF US IN DIFFERENT COMMUNITIES AND -- AND ORGANIZATIONS THAT WILL FIGHT THIS TOOTH AND NAIL TO GET THESE THINGS CORRECTED. I HAVE TO END IT THERE. I WANT TO THANK YOU BOTH A LOT, AARON HARVEY, BRANDON DUNCAN IQ FOR COMING IN A SPEAKING WITH US. THANK YOU FOR HAVING US.
A judge Monday dismissed all charges against a San Diego rapper and another man who were accused under a conspiracy law that allows for the prosecution of gang members if they benefit from or promote crimes committed by fellow gangsters.
After a daylong hearing, Judge Louis Hanoian threw out all charges against rapper Brandon Duncan and co-defendant Aaron Harvey.
The charges stemmed from nine shootings in San Diego between May 2013 and February 2014.
Hanoian ruled that several other co-defendants must stand trial in the case.
Prosecutors alleged Duncan rapped about gang violence, which benefited a gang.
Duncan, also known as Tiny Doo, said the case will not prevent him from writing his music.
"If you want to hear my music, you want to listen to it ... it's not promoting anything," Duncan said outside court."I'm not telling nobody to commit no crime, I'm not telling nobody to do anything. It's just artistry."
Superior Court Judge David Gill recently dismissed charges against some of the defendants, saying prosecutors didn't present enough evidence to prove that those defendants willfully benefited from the violent crimes alleged. Other defendants, who were split into a different group — were bound over for trial.
Hanoian on Monday granted a defense motion to dismiss charges against Duncan and Harvey, ruling that the defendants could not face a conspiracy charge without a specific crime attached to it.
District Attorney Bonnie Dumanis said in December that case was not about punishing someone for rapping, but rather "protecting our neighborhoods by taking violent gang members off the streets and holding them accountable for the crimes they commit using a law that the voters passed and the court recognized as constitutional."
Bonnie Dumanis' office released the following statement after the ruling:
"The District Attorney's Office respects the decision of the court today. This ruling and future court opinions will help determine if California Penal Code 182.5 is a viable legal tool in our fight against violent crime committed by San Diego street gangs across the County.
"In recent weeks, the District Attorney has reached out to community members, state and local legislators, and faith-based leaders, meeting with them to discuss their understandable concerns about the use of this law. While a debate over the law can be constructive and educational, combatting the scourge of deadly gang violence remains our focus. Instead of waiting for more shootings and murders to victimize the community we used this law to cripple the organization.
"During the pendency of this case and today in court, all judges reviewing the case have found on the record that each and every defendant charged is in fact, an active gang member. Of the 33 individuals charged as part of two criminal cases, 12 have pleaded guilty to various charges, including attempted murder, robbery, possession of firearms and conspiracies to do shootings and assaults under PC182.5. After the hearing today the conspiracy charge (PC 182.5) was dropped against defendants Harvey and Duncan. The five other defendants whose cases were being heard on this motion continue to be held on charges of conspiracy to commit murder, attempted murder, and shooting at an inhabited dwelling. Three of these defendants remain charged with conspiracy under Penal Code section 182.5.
"It's unfortunate that in spite of the evidence transparently available in the court record and court's rulings that clearly establish their active gang membership during the time of the shootings, the media and community has allowed itself to be manipulated by individuals who are misrepresenting their true level of gang involvement. "
