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San Diego rapper Brandon Duncan, aka ‘Tiny Doo,” is sitting in a San Diego County Jail facing life in prison. Brandon Duncan has no criminal record, and prosecutors in the case “admit he has no direct ties” to the crimes he is accused of. And yet, they are charging him with attempted murder because of gang related lyrics that he wrote for his album.

Prosecutors say that on his latest album, Duncan “claims to be affiliated with” a gang that is suspected in several shooting deaths. Because of those claims, prosecutors believe Duncan:

…should be tried along with fourteen other alleged gang members who face attempted murder charges for a series of nine shootings, even though he did not participate in the crimes, because the shootings increased the notoriety of the gang mentioned on No Safety, thus boosting his album sales.

Prosecuting a rapper for things he said in a song doesn’t even sound legal. After all, the First Amendment would seem to guarantee that Brandon Duncan has the right to say whatever he please. However, San Diego DA Bonnie Dumanis’s office thinks otherwise and they are pressing charges based on a California law that allows you to be held accountable for someone else’s actions, as long as the other people involved are members of a gang.

Enter the STEP Act

The law in question is called the STEP Act. And, like many of the laws used to peel back our Constitutional rights, this one was created under the guise of protecting people from terrorism. In fact, the acronym STEP stands for “Street Terrorism Enforcement and Prevention.”

But who are the terrorists that this law was created to fight? Al Qaeda? ISIS? Nope. The STEP act re-christens street gangs like the Bloods and the Crips as street terrorists.

The act, passed in 1998, “both criminalizes participation in a gang and enhances the sentence of defendants convicted of committing a crime on behalf of an active gang.” Both of these elements are key, because they form the core of the prosecution’s theory for charging Duncan.

The first element, criminalizing participation in a gang, is covered by Section 186.22(a) of the California Penal Code, which states:

Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. [emphasis added]

This law criminalizes participation in a gang. You don’t actually have to commit a crime to be punished under this section. You just have to be a gang member.

The Prosecution’s Theory

Because the prosecutors have pictures of Duncan with the accused gang members, and because Duncan raps about the gang on his album, they can establish that he is an active gang member. Further, because he is writing music glorifying gang activities, they can show that he “willfully promotes, furthers, or assists” in their criminal activity. And what’s his benefit? Album sales.

That’s all the prosecutors would need to charge Duncan under the STEP act. But, that section of the penal code only specifies sentences ranging from 16 months to 3 years. Where does the life sentence come from?

The next section of the penal code, 186.22(b) deals with enhanced sentencing for gang related activities. This section allows prosecutors to add more time for any crimes that are gang related. Under section 186.22(b), the enhanced sentencing provision states:

…a defendant can be charged with, in addition to the above, the crime of furthering the interests of a criminal street gang. Under this part of the code, a defendant can face up to an additional 10 years of jail time for any crimes which are knowingly committed in association with, or for the benefit of, a street gang.

Because of the enhanced sentencing, years can be added to any gang-related crime. But the number of years increased dramatically in 2000 when California voters passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act. Prop 21 imposed tougher sentencing guidelines which increased the penalties with language like this:

Any person who is convicted of a felony…committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment…

These gang enhancements are why Duncan is facing so much time. However, there is one glaring problem. The enhanced sentencing is applied on top of an existing charge. Prosecutors admit Duncan has no record and never tried to kill anyone. So how are they charging him with attempted murder in the first place?

Conspiracy to Commit

Thanks to Proposition 21, you don’t have to attempt to murder anyone to be charged with attempted murder. That’s because of the conspiracy clause (182.5) that states that anyone:

…who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.

Promoting, assisting or benefiting from a gang related crime means that YOU CAN BE CHARGED WITH CONSPIRACY TO COMMIT THAT CRIME. And that is what happened to Duncan. The complaint filed by the San Diego DA’s office shows that he is charged with:

…the crimes of Premeditated Attempted Murder and Shooting at Inhabited Occupied Structure, in violation of Penal Code

Based on existing California law, the DA’s office can justify its charges against Duncan by saying:

  • Duncan’s album and other evidence establishes him as a gang member
  • The album assists, promotes and / or benefits from criminal gang activities
  • Gang members who benefit from a crime can be charged with that crime
  • In addition to the original penalties, Prop 21 gang enhanced penalties also apply

Using that logic, you could justify sending a man to prison for life just for making a rap album.

I don’t have any love for gangs. But there are large First Amendment issues with this approach. Call me old fashioned, but a person should not be charged with a crime they did not commit. And laws that subvert the Constitution are much more dangerous than the ‘street terrorists’ they are designed to stop.

24 Responses

  1. Christian

    This article concerns me because the government has the latitude to define gang and criminal behavior as broadly as it wants.

    How far are we from the government defining a church as a ‘gang or terrorist organization’ because of its engagement in ‘hate speech’? Preach a pro-life sermon and get charged for Tiller’s murder (http://en.wikipedia.org/wiki/Assassination_of_George_Tiller).

    Quote from the article with a few [replacements] show how this is the same justification:

    “Based on existing California law, the DA’s office can justify its charges against [a pastor] by saying:

    [Pastor’s sermon] and other evidence establishes him as a [church] member
    The [sermon/pastor] assists, promotes and / or benefits from [church] activities
    [church] members who benefit from a crime can be charged with that crime
    In addition to the original penalties, Prop 21 gang enhanced penalties also apply

    Using that logic, you could justify sending a man to prison for life just for making a [politically-incorrect sermon].”

    Reply
    • Robert

      I think Christian is missing the point with the ridiculous example. Is the sermon involved with a group of people who continually committ violent acts which is commonly referred to as the the “dirty 33” ?? If so, does the group he belongs to promote, benefit or assist his group to commit more crimes???

      Seems to me, we all live in our perfect protective bubble and pick on random innocent people..

      Maybe we should all go to the trial and hear ALL THE EVIDENCE before we make a rush judgement..

      Remember, the STEP Act was brought on to combat the violence of gang members. The community was living in fear because of the violence they were committing. The victims also refused to cooperate with the police because they feared retaliation . Thus, gang members get away from being charged and continue their crimes with a free will attitude..Until your a victim of a gang related crime I don’t think you will really understand..

      Also if you get a minute, maybe visit his face book or download his latest CD and listen to what he is rapping about.. Maybe then you might see the light…

      Reply
  2. Liz

    I was treated like a gang leader in IL for holding a pro-life rally legally for 50 mins at Jerry Costello’s old office. The office staff called their friends the at the sheriff’s dept. So much for the constitution.

    I hear the Pilgrims were terrorists according to some IL grade schools lessons. Ok we see where they are going with this iron cage. Normal behavior can be gangster terrorism to an all powerful state run by the insane.

    Reply
  3. Tom Simpson

    Group think. Thought crime. Predisposition to commit a crime. These are Orwellian thought crimes that weren’t crimes at all by our legal standards today. Mr. Duncan should be put under oath and asked, are you a gang member? If he claims he is not, and it has been established that there is no proof outside of his song lyrics and associating with certain gang members, he should be set free. If this goes to trial Duncan should be found not guilty. While a person cannot yell fire in a crowded theater and not be charged with a crime, it is a slippery slope to say that Duncan’s music is equivalent. Personally I believe it is disgusting lyrics and he’s getting rick from glorifying gangs. But if that is a crime, then Mario Puzzo is guilty of promoting gangsters by creating the GOD FATHER, which became a popular hit movie.

    Reply
  4. SCOTT

    This is really bizarre to say the least. In California too? I very seriously doubt he will be tried on these charges, and would be surprised if he does any prison time at all. They will likely release him from jail on ‘shock probation’ hoping he discontinues his association with the gang… if he still can that is…

    Gangs are no joke. They are responsible for dealing and distributing drugs to our youth. Forcing youth to join their organizations under threats of bodily harm or even death, threatening to or actually killing any member who may decide to quit, and destroying their own lives and the lives of those around them in the process are only the tip of the iceberg. Therefore, combating them in any way possible, including over zealous laws such as this one, are unfortunately necessary. Since gangs do not play fair against society, society can and sometimes must take extraordinary measures to combat them. Without having heard Duncan’s song or seen his lyrics, I do NOT believe he should be incarcerated, but would hope he could find more positive things to ‘rapp’ about in the future. Compare what he is doing now to an individual who has a great talent for boxing or cage fighting but instead chooses to get drunk and pick fights in bars, or even one who has a talent for building and driving race cars but chooses to race people on the street rather than on the track.
    Society is currently in desperate need of positive and uplifting achievements from talented and creative individuals like Duncan. NOT destruction, which we already seem to have an abundance of

    Reply
    • Nicki

      I live in San Diego and have seen gang violence first hand. Innocents were being shot like a grandmother and her grandchildren because their car was mistaken as another gang members. I’ve seen first hand two people gunned down in front of a church while a little league game was going down at the park next to it. That is why San Diego has these extreme laws. Now, I don’t agree with the unconstitutionality of giving someone life in prison over rap lyrics because in theory I can go write a song now about what I saw and be charged?

      Reply
  5. Rocco Capone

    Government at all levels is totally out of control. I think this is partially due to the White House being totally out of control. The attitude that government needs to control all aspects of our lives is pervasive starting with Barack Hussein Obama and moves down from there. Just like a plumber once told me: “Remember, shit runs downhill.”

    Reply
  6. GETTINGMINE

    I do agree our U.S. Government is totally out of control. You can also argue; so are many people in the United States….out of ‘control’.

    The argument currently in the U.S. is there are a ‘disproportionate’ amount of “young” blacks in Prison, in Jail. And the “problem” (‘experts say’) is because they are arrested disproportionately to ‘whites’….

    This is an obvious ‘Blanket statement’ and not broken down in terms of the ‘reasons’ they are ‘all’ arrested prosecuted, tried, sentenced and incarcerated.

    One question should then become what is the ratio of blacks in ‘gangs’ to whites in ‘gangs’?

    With the knowledge there is about Gangs, how they operate, how they make their money WHO they appeal to (young kids to adults and predominantly Blacks – in this instance).

    What ELSE influences them….I would gather from this article it is ‘glorifying Gangs’ through RAP.

    I never heard of a Race making money off their own race at the ‘expense’ of their own race….especially at the rate ($$) these rappers are.

    The young impressionable and misguided black youth are drawn to Gangs. A contributing factor? Broken families, Government Poverty, ignorance, lack of self-confidence and self reliance, false pride, and an obsession with perceived racism and oppression are prevalent in many black communities.

    Another question should be asked; Is this ‘rapper’ a contributor or a healer to what ails the black community? Could he have started a company which could employ black people to lift them out of their self induced or other poverty? Give them hope? No. He will, like many blacks who come into a little or a lot of power….use his own people to continue to enrich themselves. Which is the reason we have places like Detroit.

    We certainly do have a first Amendment right to free speech. You also have to remember THIS IS CALIFORNIA land of the extreme Left.
    This ‘proposition 21’ could not have passed without the help of CA VOTERS and thankfully applies to the Liberal Government that is now (and forever) in charge of California.
    Elections and Votes have consequences.
    And that is to the detriment of this particular Rapper who insists on making money off of the downtrodden, and ignorance of his own people (race).

    Apparently this is not despicable to a great number in the black community who continue to support ($$$)this kind of gang or other ‘culture’. And rappers will continue to make money off of ‘his perceived oppressed’ people.

    If blacks are so oppressed in America how is it there are so many in high Political places, Hollywood, Owners of Businesses, Professors, TV, Companies, Technology, Science, Medical, Non-Profits, Pastors, Police….perhaps the black ‘haters’ aren’t hanging around the ‘right’ people. or taking their good advice?

    Reply
    • Nicki

      Actually look at the demographics of San Diego. I live here and can tell you that hispanic gangs are rampant and out number black gangs at a higher level. It’s about who the police are targeting at the moment. Don’t try to say that a great number in the black community support this life style. While the MAJORITY do not support gang culture we have even had protest in our own communities to stop gang violence and I can tell you that black gang violence is in a concentrated area of San Diego. Please do not write about the black life experience If you have never lived it. I went to school in a rich upper class area and kept my head in a book but that never stopped me from being followed around in stores or pulled over excessively and I can compare it to my white friends, one who got pulled over for speeding because they thought the motorcycle cop was trying to race them and get a warning while I get pulled over for a tale light that is really not out just as an excuse to pull me over several times.

      Reply
  7. George

    “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” George Washington

    Reply
  8. Vicky

    I was completely on Duncan’s side until it came out that there were pictures of him with the gang members. I am sorry I, like the prosecution, have a hard time believing he is not in that gang, and I feel he has knowledge of their criminal activities.

    Reply
  9. Siaka

    So sad for Jorge and Beth. When our little Cali died, feidnrs told us she is waiting at the Rainbow bridge, with all the other dogs. One day we’ll come along, and then we’ll all go off together.

    Reply
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