by Millie Lapidario
The Recorder, August 22, 2007 

A recent appellate ruling from Southern California has caused quite a rumble in San Francisco — and among gang prosecutors across the state.

The ruling led to the demise of a San Francisco murder case earlier this week: San Francisco Superior Court Judge Wallace Douglass sided with Public Defender Jeff Adachi on Tuesday and threw out a murder count against Pounloeu Chea in a pretrial hearing, citing a July 23 Second District Court of Appeal ruling in People v. Medina, 07 C.D.O.S. 8714.

Chea, 26, faced a murder charge for allegedly aiding and abetting a fellow gang member who fatally stabbed a 19-year-old. The government contends Chea was one of a group of Cambodian gang members who exchanged blows with two guys in a September 2006 fight over a parking space outside a club in The Richmond. What started with a yelling confrontation led to a fist fight, and then to the killing.

In the Second District case, the court reversed two murder convictions in an aiding and abetting case involving a gang fight. Siding with the state prosecutor would have meant holding an aider and abettor “responsible for any crime that was a natural and possible consequence of the target crime,” Justice Steven Suzukawa wrote.

The panel could not conclude that the unplanned fight between unarmed combatants was reasonably likely to lead to the fatal shooting.

Especially troubling for prosecutors, though, are six factors the appellate court used to consider whether the defendants could have foreseen death. Among them are whether the defendant knew there was a weapon, whether the fight was planned and whether the defendant agreed to or helped in the killing.

“That’s the first time those six factors have been articulated,” said Deputy Attorney General Mary Sanchez, who prosecuted the Medina case on appeal. Sanchez explained that judges previously had more discretion in deciding on motions to dismiss, adding that she has been getting phone calls from worried prosecutors throughout the state, fearing judges would start latching onto those factors rather than considering the cases as a whole.

“Those six factors really limit what the judge can look at,” she said.

And for the defense, that’s a good thing. It worked in Chea’s case, where Adachi referred to them in court filings as “the Medina ‘natural and probable consequence’ test” — which he argued Chea failed because none of the factors existed.

According to Assistant District Attorney Harry Dorfman, Chea was liable for murder because he set the violent course of events in motion and should have seen it coming. Gang prosecutions of group rumbles have long relied on the argument that one is guilty of crimes that were “natural and probable consequences” of that person’s conduct.

Other prosecutors throughout the state say it’s too early to tell whether the Medina ruling will set off a flood of murder dismissals, but according to Sacramento County Supervising Deputy DA Rodney Norgaard, the fact that the murder charge in the San Francisco case got thrown out less than 30 days after the Medina ruling demonstrates plenty more could come.

Norgaard, who heads the gang unit, said that in the last five years his office has been able to secure more than 80 life sentences based on the theory of aiding and abetting. In his experience, juries tend to agree with prosecutors on the “natural and probable consequences” theory.

“Anybody who knows anything about gangs knows that when they disrespect each other, it leads to a murder,” he said. “Let a jury decide. They’re the ones that live in the community.”

But Adachi explained that if anyone involved in a fight is liable for murder, there ends up being no distinction in criminal liability between being involved in a simple assault versus a murder. “My client,” Adachi said, “had no idea that anyone would be stabbed.”

The Medina ruling may not be final, however. Deputy AG Sanchez said she plans to file a petition for review in the California Supreme Court, as well as a request for depublication.

“The decision’s not final,” said Sanchez, who declined to preview what she’ll argue in those filings.

Chea remains charged with two counts of assault, accessory after the fact and participating in a gang and will go on trial for those charges in November. According to Adachi, the most Chea faces if convicted is six years of prison.

Chea’s co-defendant Sarith Soun, the alleged stabber, is also charged with murder. Another two of the alleged gang members were indicted by a grand jury on manslaughter after Chea’s preliminary hearing; the grand jury rejected the prosecution’s murder and gang charges, according to Adachi.

Dorfman has not yet decided whether he would appeal Douglass’ ruling, but said “it’s on the table.”