Self-defense was not a factor for five young men, including three from Berkeley, charged in the fatal shooting of a lone 24-year-old in Oakland last year, an Alameda County Superior Court judge ruled this week.
Judge Jeffrey Horner said he was not at all convinced by defense attorney arguments that the armed men were simply trying to protect themselves during the fatal shooting of Anthony Jordan Stevens on July 9, 2016, near the intersection of 92nd Avenue and International Boulevard just after 10:30 a.m.
The preliminary hearing, where a judge decides whether sufficient evidence has been presented for a case to proceed to trial, took place Monday and Tuesday at the René C. Davidson Courthouse in Oakland for defendants Tyrone Terrell Jr., Derrick McFadden and Aoderi Samad II, all of Berkeley, as well as Anthony Wilson Jr. of Vallejo and Kermit Tanner of Richmond. The standard of proof in a preliminary hearing is essentially that an ordinary person would be left with a “strong suspicion of guilt” based on the evidence presented in court.
Police investigators previously identified all five men — Terrell, 24, McFadden, 21, Samad, 24, Wilson, 26, and Tanner, 21 — as members of the 5 Finga Mafia. The group has been described by the San Francisco Chronicle as “an infamous Berkeley street gang that also operates in North Oakland and West Oakland and is known for street robberies.”
Alameda County deputy district attorney Chris Cavagnaro said the men arrived early on the block to prepare for the attack. He played video surveillance footage in court that he said showed their arrival, as well as the subsequent killing. He said all the men came to a memorial that day armed with guns. Some acted as lookouts, while others surrounded Stevens in his vehicle. Cavagnaro said Terrell approached victim Stevens, who was sitting in the passenger seat of a car. Terrell then opened Stevens’s door (an “inherently threatening action”) while Wilson peered into the vehicle from the driver’s side.
Cavagnaro said Stevens got out of the car holding a gun and tried to flee as Wilson opened fire on him. Cavagnaro said co-defendant Terrell “fired multiple shots from close range” at Stevens as he tried to escape. Meanwhile, Cavagnaro said, McFadden, Samad and Tanner had set up down the block, around the corner, to cut off Stevens’s escape route. The prosecutor said McFadden and Samad shot at Stevens from the front as he ran from the pair behind him. The fifth co-defendant, Tanner, reportedly did not fire a weapon.
Black-and-white surveillance footage played in court showed Stevens on his stomach on the ground behind a parked car after he had been shot numerous times. In one video still, he had the strength to hold himself up with his arms. In another, he had fully collapsed. A shiny black blotch on the right side of his back, Cavagnaro said, showed where gunfire — possibly from Samad — had struck him.
The four young men “unleashed a hail of bullets” that caught Stevens in a “pincer attack” that left him with “nowhere to run,” Cavagnaro told Judge Horner on Tuesday. (The phrase “pincer” attack is a military term that involves flanking both sides of the target at once.)
“They essentially surrounded him and shot him from all sides,” Cavagnaro said. There was no discussion Tuesday as to what may have motivated the killing.
“All four who shot were ready to shoot,” Cavagnaro said. “They were all ready to shoot because this was all part of some type of a plan. They hit the victim multiple times, and that killed him.”
All five defense attorneys said the burden of proof had not been met, and that their clients — if they were even there — had acted in self-defense, or at least out of surprise.
Ernesto Castillo said only speculation and assumptions identified one of the shooters as his client, Tyrone Terrell Jr. He also said the group of men only began shooting after Stevens got out of the vehicle with a gun. Castillo acknowledged it was not smart to open Stevens’s car door, but said the “eruption of gunfire” that happened next was “definitely a reaction” to Stevens getting out of the car armed.
According to police testimony Monday, there was no evidence Stevens ever fired his weapon.
Similarly, Darryl Stallworth said his client, Anthony Wilson Jr., only drew his weapon after Stevens got out of the vehicle with a gun. Stallworth said there was no evidence of a plan to kill Stevens, such as incriminating text messages or phone calls. He also said there were no eyewitnesses to the crime. The video footage of the attack was really the only evidence of it, he said, arguing for a self-defense or manslaughter finding rather than a holding order for a murder charge.
Judge Horner said Stallworth’s assertion that there were “no eyewitnesses” to the crime was simply not true.
“There is an eyewitness, and his name is Mr. Tanner,” Horner said. “He has identified all four [defendants] as being shooters.… That’s eyewitness testimony corroborated by video surveillance. There was an eyewitness who saw the entire series of events.”
Tuesday’s proceedings — which involved only closing arguments by the attorneys, as well as a recitation of facts by the judge — had been delayed in the morning when Tanner refused to enter the courtroom. He ultimately, through his attorney Darryl Billups, waived his appearance. Billups said his client “indicated he does not want to be present,” he told the judge. “He has some concerns.”
Billups said the case was “scary” for Tanner: “There is such a lack of evidence of wrongdoing on his part.” He said Tanner was “totally taken by surprise” to hear gunfire that day, and ran around the corner to safety. He then ran to his car when the gunfire stopped. Billups said his client is now standing trial for murder — “for what? For doing nothing.” Billups continued: “What does he have to not do in order not to be found guilty?”
Defense attorney Todd Bequette, who is representing Derrick McFadden, said the shooting was nothing more than a “complete reaction to exigent circumstances.” He said his client heard gunfire, then quickly turned to see a man — Stevens — running at him holding a gun with an extended clip. Bequette said McFadden was “surprised” to see that.
“It is not unreasonable to fire back, and that’s what he did,” Bequette said.
McFadden himself was shot in the leg during the homicide. Prosecutor Cavagnaro said that injury was caused by gunfire from one of the co-defendants.
Steven Alpers, defense attorney for Aoderi Samad II, said his client’s identification as one of the shooters was “weak” because it came from co-defendant Tanner, who said the other men were the shooters and minimized his own involvement, according to Alpers. The attorney also said it was “totally unclear” to him from the video whether the man alleged to be Samad actually fired his weapon.
“You do not see the puffs of smoke coming from my client,” Alpers said, in relation to other parts of the video where bullet impacts on surfaces could be seen.
Judge Horner said there was clear evidence Samad fired his weapon due to the “large number of shell casings” — two types — found at the corner of 92nd and International where Samad and McFadden had been standing.
“This is not a case of self-defense,” Horner said, “where these five defendants were defending themselves against the victim.”
There was evidence the men came to the scene deliberately, spent time parking their cars and choosing their locations, and then approached Stevens and opened his door, the judge said.
“Mr. Stevens fired no shots at all, not a single shot,” Horner said, describing the evidence he had heard. “All four defendants unleashed a hail of gunfire from at least three directions. That isn’t suggestive of self-defense.”
“It suggests a deliberate killing,” he continued. The self-defense theory, he added, “stretches one’s credulity to the breaking point.”
In his remarks after the attorneys rested their cases, Judge Horner observed that the burden of proof during a preliminary hearing is “considerably less” than at trial. There must be rational grounds to think a crime was committed, and that the defendant may have done it, he said. The prosecution succeeded in making that case, he said. Ultimately, Horner said, all five men must now stand trial for murder.
Wilson, Samad, McFadden and Terrell also face a clause related to having fired guns and caused great bodily injury. The firearm enhancement could add 25 years to their sentences, Bay City News reported last year. Samad, Terrell and Wilson also face another felony charge related to being convicted felons in possession of a firearm.
The judge said Tuesday there was insufficient evidence to show Tanner had or fired a weapon on the day of the killing, so he will not face any firearms-related charges. But Horner said Tanner “drove some of the shooters” to the scene, and “facilitated the escape,” and therefore must face the murder charge.
All five men were ordered to return to court Dec. 12 for the next hearing in the case. Bail is not listed for any of the defendants, who remain in custody at Santa Rita Jail in Dublin.
Oakland police initially announced arrests in the case in July 2016. Police arrested McFadden in the 1600 block of Harmon Street in Berkeley, where he lives, and the other three men were arrested in Vallejo, according to media reports: Authorities picked up Wilson, Samad and Tanner at Wilson’s home in the 200 block of Maine Street there.
At the time, police were still looking for Terrell, and asked for the public’s help to find him. According to court papers, a U.S. Marshals Service task force in Elk Grove arrested him Sept. 20, 2016. He refused to give a statement to police at that time, according to court papers.
Wilson was convicted in 2010 in Alameda County of robbery, and Samad in 2012 in San Francisco of commercial burglary, according to court papers. Those convictions resulted in probation. The next year, Samad was convicted of having a firearm while on probation, which resulted in a prison term, according to court papers.
According to the Berkeleyside archives, Samad was arrested in Berkeley in 2013 when he reportedly opened fire on another man after a case of mistaken identity. Berkeley police identified Terrell in 2011 as having been involved in a shoot-out on Sacramento Street.