I just spoke to Damon Mosler. He’s the lead prosecutor on the drug bust at San Diego State University that culminated in the arrest of more than 30 students. When the sting happened last week, I wrote this story looking at the possibility that the fraternity boys arrested in the bust could be charged as gang members.

But Mosler just told me he won’t be able to bring gang charges against any of the students arrested during the bust.

A quick refresher: California’s rather liberally worded gang laws mean all sorts of organized groups can be legally considered “gangs” if they engage in a pattern of criminal activity that’s aimed at furthering the gang’s status or standing.

If prosecutors can prove a gang nexus for the crime committed, the sentencing implications for the person charged can be considerable. In some cases, sentences can double if prosecutors can prove the crime was gang-related.

The issue is a key point in the Bird Rock Bandits case that is currently on trial.

Prosecutors in that case are attempting to prove that the individuals who allegedly beat to death a young La Jolla man, Emery Kauanui, had been engaged in gang-related crimes over a period of time. After Kauanui’s death, the authorities were contacted about other incidents allegedly involving the same group of young men, who called themselves the “Bird Rock Bandits.” In order to make the gang charges stick, the prosecutors will have to show that those other crimes and the murder of Kauanui constitute a pattern of criminal activity that meets the statutory definition of gang crime.

In the SDSU case, Mosler said, proving a pattern of gang-related criminal activity won’t be possible. Without being able to prove that the crimes the students were arrested for were part of a pattern of gang-related criminal activity, Mosler said, he can’t pin gang charges on the frat boys.

“There are no predicate acts I can use,” Mosler said. “Under the statute, there’s a laundry list of things I need to bring gang charges and I don’t have that pattern of criminal activity.”

One of the non-students arrested in the sting was referred to as a documented Los Angeles gang member by law enforcement. (The state Department of Justice has defined 10 minimum criteria for an individual to be defined as a “documented” gang member. According to the California Penal Code, an individual has to meet at least two of those criteria on two or more occasions in order to be classified as a documented gang member. Criteria include admitting to being a gang member, displaying symbols and/or hand signs representing a gang, associating with known gang members, etc.)

I asked Mosler if he would be seeking gang charges against that individual.

Mosler said he probably wouldn’t because the crimes he is alleged to have committed in San Diego do not appear to have been in furtherance of his gang, which is mandated by statute.

“I would be hard-pressed to prove it was gang-related because of where he is at and how his gang is doing,” Mosler said. “He appears to have just been a businessman, doing his thing in San Diego, unconnected to his gang.”


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