Rapper Tiny Doo and his co-defendants could see charges under a little-used California gang law dismissed on Monday.
The San Diego case received widespread attention because of the charges against Brandon “Tiny Doo” Duncan. Duncan was among those charged in connection with several shootings, allegedly carried out by the Lincoln Park gang. But it’s not claimed Duncan was involved in any of them, as ABC10 reported last year:
Though Duncan hasn’t been tied to the shootings, prosecutors argued that he benefited from the shootings because his gang gained in status, allowing him to sell more albums.
“We’re not just talking about a CD of anything, of love songs. We’re talking about a CD (cover) … there is a revolver with bullets,” said Deputy District Attorney Anthony Campagna. Continue reading..
The album “No Safety” was a mixtape of songs. The Prison Complex spoke with Deanne Arthur of Brian E Watkins and Associates Law, the firm that represents Duncan.
UPDATE: The charges were dismissed on Monday, but as Deanne Arthur explains in this interview the District Attorney could re-file the charges
How did this case get started?
How it got started was that the DA’s office has decided to use a law 182.5 that has not been used before and has been on the books since 2000. It was originally struck-down as being unconstitutional by the legislators (but) it got on the books through Proposition 21 which was pushed through by the District Attorneys Association. They pushed it through (via) Proposition 21. (They) called it basically a crackdown on gang violence. It was put on the books in 2000 and then kind of went silent. There was a lot of uproar when they were trying to originally pass it and then the DA’s Association passed it through Prop 21 and I think they were meticulous in letting it kind of be quiet for a bit so maybe the public would forget how the law came about and knowing that the legislators initially struck it down.
How did Brandon “Tiny Doo” Duncan become involved in this case?
They have targeted Lincoln Park Gang which is a local San Diego gang. Lincoln Park (is also) an area of San Diego. There’s Lincoln Park High School there’s a Lincoln Park Neighborhood. Brandon Duncan was born and raised in Lincoln Park he went to Lincoln Park High School so he is friends (with) and knows everyone from that neighborhood. He was documented as a gang member at 17 and being documented didn’t necessarily mean he had any active involvement. Documentation can just be from the police officers having contact with you.. it has nothing to do with any criminal activity that Brandon Duncan had done, in fact Brandon Duncan has no criminal record at all. Brandon Duncan (is) now 33 years old. When they brought these charges they decided to round up individuals from that Lincoln Park area. Brandon Duncan was arrested (for) 9 shootings that they (the DA) say he had nothing to do with. The shootings are unsolved (and) they don’t even know that the Lincoln Park (gang) were the ones that did the shootings. They arrested him and he actually spent 8 months in jail, just by simply creating the rap album. They didn’t cite specific lyrics they just said the creation of this rap album is what promotes violence. I also have to note that the album was not out there for sale it was a mixtape so they didn’t say that Brandon Duncan was deriving profits. They were just saying he promotes gang violence and he benefits from gang violence by reputation and stature, his reputation is bolstered which enables him to make gangster rap music. At the conclusion of the prelim which was broken up into two parts the judge bound over on the first group (Brandon Duncan’s group of defendants) and he did not bind over the second group meaning that he said that there wasn’t enough probable cause to make them stand trial. He didn’t say that based on any new facts as related to the second group, it was all the same set of facts. The judge basically said he had opportunity to re-read over the law (and) he just determined that the law was not constitutional in the way they were applying it. The defense counsel and the prosecution were arguing over whether the way the law was being interpreted. We determined that “willful” applied to all three elements “promote, further, benefit” whereas the prosecution alleged that you don’t have to willfully benefit. That’s how they (the prosecution) determined you don’t have to have knowledge of the crime. When the judge dismissed the second half (of the defendants) he put on the record that in all fairness he would have to go back and basically unbind over the first half because he had reconsidered his decision. But in the process he learned that he did not have jurisdiction to do that so he continued to have Mr Duncan bound over. Mr Watkins (Brandon Duncan’s attorney) went ahead and put Mr Duncan on calendar to get his bail reduced… he was able to get Brandon Duncan’s bail reduced (from) $1 million.. down to $500,000 and then $50,000 which allowed Mr Duncan to bail out. Mr Watkins made the argument that now Mr Duncan was being held to go forward with a trial simply on a procedural technicality but the judge said that we’ll have to file motions to dismiss because he didn’t have jurisdiction to change his mind. That enabled us to file what we call a 995 motion which is a motion to dismiss… the prosecution (at the same time) filed a motion to reinstate the charges against the other co-defendants. Those motions were heard in front of a new judge and that new judge is also the same judge that will hear all of our motions to dismiss. That judge put on the record that he did not agree with how the prosecution was interpreting 182.5 and that he believed that knowledge is required in order to hold them (the codefendants) liable and (potentially) face twenty five years to life nine times they have to have some kind of knowledge of these crimes and that they have to willfully benefit. There’s no way to impute knowledge on Mr Duncan at this point when the prosecution has said several times that Mr Duncan had no knowledge (of the crimes). He’s part of the codefendants simply over the rap album “No Safety.”
There’s been a lot of attention paid to Brandon Duncan, but another defendant in that same group is Aaron Harvey, can you tell us how he came to be involved?
Aaron Harvey was also one of the codefendants in Mr Duncan’s group and Aaron Harvey is similarly situated to Mr Duncan in that he has no criminal record. Mr Harvey was pulled out of Las Vegas to answer these charges. Mr Harvey has grown up in Lincoln Park.. his family still lives there, his parents still live there, his brother still lives there. The other codefendants Mr Harvey is friends with. They considered him an active gang member simply by hanging out with his neighbors hanging out with his friends that he went to high school (with). The only difference between Mr Harvey and Mr Duncan is that Mr Harvey is on trial through association on Facebook and Facebook posts …and Mr Duncan is there for the album “No Safety” but they both run into freedom of speech issues.
Why do you think the DA has chosen to use this law now?
I can’t say what is in their mind about why they are trying to use it now. One argument that they tried to make was social media has become so much bigger now but I don’t give merit to that argument because social media has been around for years. (Maybe) it’s just a new group that have come in and decided they want to make a name for themselves (with this prosecution). I can’t get into their head as to why they would use it.
Do you think this is a bad law or bad application of the law?
It’s two-fold. I think that the law is vague which allows for this type of misapplication and allows for these young men to have spent almost a year in jail while we try to figure it out. But the main problem is that the DA’s office is applying it wrong. You don’t have to be a lawyer to read a common sentence “willfully promote, further, or benefit,” anyone who’s ever had an English class knows that that “willfully” applies to all three words. And as lawyers we all know laws do not have extra wording in them, every single word means something. So I do think it is a travesty how they have misinterpreted this law where it seems pretty clear to anybody. I think they have wholly misapplied it.
What in your opinion are the wider implications of this case?
This case has huge implications because it (represents) such an infringement on free speech and due process. It’s infringing on due process in that you’re rounding up these individuals (who do not necessarily have) knowledge of crimes. Just because that you dislike what Mr Duncan is rapping about or you dislike what Mr Harvey put on his Facebook, doesn’t allow you to criminalize that behavior. People might feel comfortable that this just applies to gang members (and say) “I’ll never be in that position” but if we permit (the DA) to use this, what is to stop them expanding on anything else they don’t like. I think this is just a stepping stone and we need to stop it here.
Could you sum up what will happen on Monday?
On Monday, all the co-counsel that represents all the co-defendants all will go before Judge (Louis R) Hanoian who was not the presiding Judge. Judge Gill has heard all the prelims in this case but a 995 (the motion being made on Monday) is basically talking about the previous judge and we-have to say that that judge made a mistake so a new judge has to hear it. I’m pretty sure they’re not going to go into factual issues as much as application of the law so everyone’s going to argue that the DA’s office is applying the law wrongly just as we have been doing in the prelim. I’m optimistic so I believe that he will grant our motion to dismiss
That won’t necessarily be the end of this case though?
Although Mr Duncan is being charged for creating a rap album the underlying charge is shooting into an inhabited dwelling and attempted murder. The underlying felony is violent, so anytime you have a violent felony and it’s dismissed prior to trial the DA has the opportunity to re-file that case three times…I believe the DA is already appealing Judge Hanoian’s ruling to deny their motion to reinstate the charges against the others, and they may take the opportunity to re-file against all the codefendants. My hope would be that the DA’s office would make a better decision on who they want the defendants to be in this case and if they do decide to re-file that they will re-file only against the defendants that have some type of culpability or probable cause to believe that they should be part of this complaint. They (should) not go forward on all the individuals that they know had absolutely nothing to do with, or no knowledge of these crimes.
This interview has been edited for clarity
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