A 24-year-old San Leandro man has been ordered by a judge to face charges in the murder case against him for a fatal shooting in Berkeley last year.
According to evidence presented by authorities this month in the case against Krishna Ferreira, the victim had been a member of the West Side Berkeley gang who had fallen out of favor with his comrades — and been “green lit” for punishment — when he failed to comply with the gang’s rules while he was incarcerated at Santa Rita Jail in 2012.
The victim, 24-year-old Dustin Bynum of Berkeley, was shot to death outside Bing’s Liquors in West Berkeley in August 2013.
This month, beginning Nov. 4, Alameda County Superior Court Judge Vernon Nakahara considered the case against Ferreira to determine whether the district attorney’s office had enough evidence against him for the prosecution to move forward to trial. The preliminary hearing — where authorities present their evidence and the defense has a chance to question it — ended Tuesday afternoon with a ruling from Nakahara in favor of the prosecution.
Berkeley Police Officer Stephanie Polizziani — an area coordinator, former jailer and one of the department’s two gang experts — testified over the past week that Ferreira is an active member of the West Side Berkeley gang, which is affiliated with, and answers to, the Norteño prison gang. According to Polizziani, the Norteños have handed down orders to its affiliates to “take care of their trash” — in reference to former gang members who had been “jumped out” or dropped out of active gang activities.
Polizziani said Bynum — who was known as “phatboy” on the streets — fell into this category after he failed to comply with the gang’s rules while locked up at Santa Rita Jail in Dublin in 2012. Three members of the gang attacked him, and “jumped him out” of the gang. He was then removed from the housing area where other Norteños are incarcerated and moved into an area where those seeking protective custody or who are cooperating with law enforcement are placed. He was also, according to Polizziani, put on the gang’s “bad news list,” or BNL.
She testified that the “bad news list” is a way for the gang to keep track of its former members who are now considered “no good,” or in bad standing with the gang. (Others have said the “BNL” stands for “Banned Norteño List.”) Other gang members have permission to beat, harm or shun people placed on the list. Gang members who take those actions have the opportunity to increase their standing with the gang, she said.
And authorities argued that this is what Ferreira aimed to do when he came across Bynum outside Bing’s Liquors, at San Pablo Avenue and Delaware Street, shortly after 9 p.m. on the night of Aug. 1, 2013.
Surveillance video showed a man identified as Ferreira pacing around outside Bing’s prior to the shooting, and witnesses told police they saw Ferreira with a man — identified by police as Bynum — outside Bing’s just prior to the shooting. Witnesses said they heard the gunshots and saw the man identified as Ferreira running from the scene, though no one said they saw the actual shooting. Police said neither the firearm used, nor any shell casings, have been recovered.
In addition to the surveillance footage, Ferreira’s own text messages placed him in the area before and after the shooting. Ferreira is deaf, and used text messages as a primary form of communication with friends.
Just before 9 p.m., according to evidence presented in court, he texted one friend that he had just seen “phatboy” at Delaware and San Pablo. Just after the shooting, he sent increasingly frantic texts asking for someone to pick him up, writing, “i really need a ride bluhd, i’m hot.… Not tryna say nothin more on here, feel me.” Ferreira — who goes by the street moniker “mute” — also wrote that he was hiding at Cedar Rose Park, about half a mile away, and that he needed “a ride real fast.”
Police arrested him more than a month later, and said they found “gang writings” in his room during a search warrant served at his San Leandro apartment where he lived with his mother. During his incarceration, police also searched Ferreira’s jail cell where they said they found additional “gang writings.”
According to Berkeley Police Sgt. Peter Hong, who testified earlier this month, officers confiscated rap lyrics found in a suitcase in Ferreira’s bedroom that referenced the shooting: “they call me mute da goer / a park boy wit dat burner / committing a murder / cause i aint carry bullshit on my shoulder / best believe me when i touch down / i be breakin niggaz down / 50 cal and 30 rounds / they aint shit but a clown / they talkin but they aint bout / what they be talkin bout.”
During their searches, police found additional writings with references to the West Side Berkeley gang and the Norteños, including an “RIP” list of gang members who have been killed, and a separate list of others who are currently incarcerated. Hong testified that, in Ferreira’s Santa Rita jail cell, officers also found more than five gang “kites,” which were described as “micro-writings” used by the Norteño gang to pass instructions among inmates in jail.
Next to Ferreira’s bunk, authorities said they found “WSB XIV” carved into the wall. (WSB is a reference to West Side Berkeley, and XIV — a reference to “N” as the 14th letter of the alphabet — is a common reference to the Norteño gang, authorities said.)
There were also references to “KHG,” which Polizziani said stands for the “Killa Ho Gangsta” clique of WSB members in their 20s. (Different “generations” — or age brackets — of the gang use those terms on social media and in graffiti “to identify themselves within the hierarchy of the WSB gang,” she said, noting that one older generation had called itself the “hotbois.”)
Polizziani testified that she believes Ferreira — whom she had contacted about a dozen times over the years on Berkeley streets — is an active member of the gang. She told the court her opinion was based on the fact that he often dressed in red (a color commonly worn by Norteños), had regularly been seen with other WSB members on the gang’s turf, and that his street name, “mute,” had been known to appear in gang graffiti around Berkeley. She said she had also reached her conclusion due to the notes and writings found during the police searches, and because other Berkeley officers had identified him to her as a gang member.
Under cross-examination she also said, however, that she did not believe Ferreira had ever told authorities he was a member of the WSB gang, except for when he was asked for that information by sheriff’s deputies at Santa Rita to determine the right area in which to house him. (Inmates are separated by their affiliations such as gang membership for safety purposes.)
She also told Alameda County public defender Seth Morris she had no hard evidence to prove Ferreira knew about Bynum’s status on the “bad news list,” other than an interview with another WSB gang member on the subject. She said that interview indicated to her that all WSB members would have been familiar with the general order for gangs to “clean up their trash,” and would have known, as a member of that same network, that Bynum was considered “no good.”
Polizziani said WSB has more than 100 members who have been documented by police since the 80s, and that the gang currently has 40-50 active members. She identified its turf as West and North Berkeley, from Channing Way up to Delaware Street, and from Sixth Street east to San Pablo Avenue. Gang members have been known to frequent James Kenney and Strawberry Creek parks, and identify in particular with the 2200 block of Bonar Street, on the western border of Strawberry Creek Park, she said.
She also noted that the WSB gang is somewhat unique in that it shares territory with another Berkeley gang, the Waterfront gang, which is active in the neighborhood around Eighth and Camelia streets.
Polizziani was the final witness for the prosecution and, after she left the courtroom, defense attorney Morris tried to convince the judge to throw out her testimony due to insufficient foundation. He said she had not provided enough evidence to prove that Ferreira was actually a gang member, or knew of Bynum’s status with the gang. He also said she had based her opinion in part on “unreliable evidence,” including an interview with another WSB gang member who had not been particularly forthcoming.
Judge Nakahara ruled against Morris’ request to strike the testimony.
In his closing arguments, Morris told the court that there were “serious problems” with the case against Ferreira. He pointed out that neither of the witnesses who heard the shooting had identified his client when they saw him in court. (The prosecution countered that Ferreira had changed his hairstyle, which he had previously worn in a long ponytail and now wears buzzed close to his head.)
Morris also pointed out that one of the witnesses, who has a child with a known WSB gang member, had since changed her testimony, and said she had been in a “PTSD fog” when she spoke to police the day after the shooting. She testified in court that her first statement to police — which, unbeknownst to her had been recorded — was the flawed one. In the earlier statement, which was played in court, she identified Ferreira as the man she saw just prior to the shooting, and said she had seen him running from the scene. She denied both of those statements on the stand.
Morris also told the judge that police had found no texts or emails, despite thorough searches, directing Ferreira to harm Bynum, and called the alleged motive offered by authorities “speculation.”
“The DA’s office has no idea what happened on that corner that night,” he said, regarding the night of the shooting. “So they’ve used a police officer to fill in those gaps.”
Prosecutor Luis Marin said he believed he had proven Ferreira was in the area the night of the shooting, as evidenced by witness statements, surveillance footage and texts, and that his text messages proved he had an interest in the victim and needed a ride immediately after police say the shooting took place. Marin argued that the motive presented by Polizziani, that Bynum was a “drop out” and had been green lit for punishment by other gang members, would have been known to Ferreira.
Judge Nakahara acknowledged that there were holes in the case, but said he had no question that Ferreira was in the area the night of the shooting. He ultimately ruled that the prosecution had met the standard of proof required during a preliminary hearing, which is lower than what is required for a jury to bring back a guilty verdict.
He said Ferreira must face the murder charge against him, as well as a gang enhancement, that the murder was committed “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.” That allegation can be punishable by incarceration for life in state prison.
According to court papers, Ferreira has one prior conviction, for second-degree robbery in Alameda County in August 2012.
After the judge made his decision, Ferreira’s mother broke down in tears as she stood outside the courtroom, peering in through a small window, to try to get a last look at her son. Inmates are prohibited from communicating with courtroom attendees, but he did make the sign for “I love you” at his mother during an earlier session.
Ferreira’s mother, a social worker, was accompanied in court for most of the proceedings by numerous supporters. His father, who lives out of the area, attended one day of court.
Bynum’s family did not attend the proceedings, but a family friend was present for the majority of the sessions. She declined to comment about the victim.
A second defendant — Alex Diaz — who waived his right to a preliminary hearing and was not present for the proceedings against Ferreira, faces a conspiracy charge for allegedly giving Ferreira a ride after the fatal shooting.
Both men are set to appear in court Dec. 2 at 9 a.m. for arraignment.
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