People v. Ware

Facts

In response to the April 2011 killing of Dereck Peppers, who was a member of the 5/9 Brim criminal street gang, a set of the Bloods gang, the Brim gang declared war on rival Crips gangs. This resulted in multiple injuries and deaths. D was a member of the 5/9 Brim gang. D was charged along with fellow gang members Dionte Simpson and Victor Ware, with multiple offenses stemming from the events of the early 2010's. Among other things, the prosecution alleged that all three were participants in a conspiracy spanning a roughly two-year period between January 1, 2012, and April 23, 2014, and involving at least 20 Brim members in total. The prosecution alleged the object of this conspiracy was the murder of rival gang members. The prosecution presented evidence that both Simpson and Ware had either committed or aided and abetted shootings aimed at rival gang members. The prosecution presented no evidence that Ds either committed or aided and abetted any act of violence. Nor did the prosecution present direct evidence that D agreed with others to commit violent acts. The prosecution relied on four categories of circumstantial evidence: (1) evidence of D's gang membership; (2) evidence that D had access to a gun on at least one occasion during the conspiracy; (3) evidence of D's involvement in the events surrounding the August 27, 2013, shooting of Byreese Taylor; and (4) evidence of D's social media posts celebrating violence against rival gangs. 

P presented extensive evidence establishing D's membership in both the 5/9 Brim and a subset of the gang known as the “Hit Squad.” This evidence included a photograph showing a large “B” tattooed on D's chest, as well as photographs from D‘s phone and social media accounts in which he or other gang members made Brim or “Crip killing” gang signs and wore red clothing associated with the gang. In addition, D was a member of the Southside Brim Gang Facebook group. In his social media posts, he used unusual spelling and terminology common among Brim members, replacing the letter “C” with either a “K” or “Ck” (for “Crip killer” or “Crip killing”) or “B” (for “Blood”), and occasionally signing off his posts with “5/9” (for the 5/9 Brim). One of his nicknames was “Bick Nick.” The prosecution also introduced a photograph showing another one of D's nicknames written on the wall of a house belonging to an alleged coconspirator, alongside the nicknames of other Brim and Hit Squad members. A witness testified that D was part of the Hit Squad, also known at various times as the “Young Hit Squad” and the “Tiny Hit Squad.” According to the witness, this subset of the Brims had more “shooters” and “K's,” meaning “kills,” than another subset, the “Hound Unit.” On a traffic stop, P was found with a loaded firearm concealed in a sock tucked into his pants. Hoskins was arrested with a fellow Brim member. While the two were in the patrol car, D told the other Brim member that he would take responsibility for the gun and other contraband found in the car. There was no evidence linking the gun to any prior shootings. D was also a longtime friend of Hurst who drove a car involved in the shooting of Byreese Taylor. Officers searched the car and found a mixture of DNA on the passenger side of the vehicle from at least four individuals, including D's as “a possible major contributor to that mixture.” The prosecution expert could not, however, determine when the DNA had entered the van or whether it had arrived through direct contact or was transferred from another object. P introduced several photographs of D and his alleged coconspirators that were taken in the vicinity of the shooting. This included a photograph, uploaded to D‘s Facebook account on February 21, 2013-about six months before the Taylor shooting-showing Hurst “tossing up 5/9 Brim and Crip killer” signs. The prosecution noted that the photograph was taken at a known WCC hangout about a mile from where Taylor was shot and argued that the photograph demonstrated the two were “laying the groundwork” for the Taylor shooting. The prosecution also introduced two photographs-posted on Instagram by another Brim member, Edward Paris, on the morning of August 27, 2013-showing D and Paris standing in the same park, throwing up gang signs, and appearing to give the middle finger to WCC. The photographs were taken about seven hours before Taylor was shot and one mile away from the location of the shooting. P introduced Facebook messages that Hoskins sent after the shooting to Taylor and Hurst's girlfriend, in which D discussed the case against Hurst and tried to dissuade Taylor from testifying so that Hurst could “beat his [c]ase.” D threatened to reveal that Taylor was “snitching” to the police, but ultimately did not carry out this threat. Six months after the shooting, D posted on Facebook (in gang talk) calling out Hurst for talking to the police about the circumstances of the shooting. P introduced extensive evidence of his social media posts and photographs, as well as photographs of D uploaded to other 5/9 Brim members' accounts, to demonstrate D's awareness and approval of the violent rivalry against Crips. Some of the posts were close in time or location to gang-related shootings, which the prosecution offered as proof that D was “encouraging, promoting, and furthering the violence.” P introduced a number of D's Facebook posts in which he celebrated violence against rival gangs and described his life as a gang member. 

D and his codefendants were found guilty of conspiracy to commit murder, in addition to other offenses. D was also convicted of participation in a criminal street gang conspiracy, in violation of Penal Code section 182.5, while his two codefendants were convicted of various offenses including attempted murder. The jury found the conspiracy was for the benefit of a criminal street gang. D appealed. The Court of Appeal reversed the gang conspiracy conviction for lack of evidence. It rejected D's challenge to his murder conspiracy conviction, finding sufficient evidence that D and his alleged coconspirators “came to a mutual understanding to murder rival NC and WCC gang members and that [Hoskins] participated in the conspiracy.” It held that “the prosecution failed to prove that D was a direct participant or aider and abettor in any of the shootings,” but there was sufficient evidence from which a jury could conclude D knew about the conspiracy and had the requisite intent to join it and facilitate the object offense. It concluded that because of “D's relationship to the coconspirators,” a reasonable jury could combine evidence of d's social media activity, proximity to firearms, along with his alleged coconspirators' conduct to infer that D “knew of the conspiracy and had the deliberate, knowing, and specific intent to join” it. The opinion “upholds the conspiracy to commit murder convictions … based on the broad context of forming an agreement amongst the gang members to kill rival gang members, without any agreement as to specific time, person or place that any killing would take place.” D appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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