‘Kill him and take his car’: Judge orders three to stand trial for murder and armed robbery of retired police captain
‘Kill him and take his car’: Judge orders three to stand trial for murder and armed robbery of retired police captain

Oakland police investigate a fatal shooting at a gas station at the corner of Castro and 17th Streets in Oakland, Calif., on Thursday, October 21, 2021. One person was killed and former Oakland police Capt. Ersie Joyner III was shot multiple times in a robbery attempt. (Jane Tyska/Bay Area News Group)

Nate Gartrell, Bay Area News Group

OAKLAND — An Alameda County judge ordered three men to stand trial on murder and robbery charges resulting from the October 2021 shooting where a retired police captain opened fire on three men allegedly robbing him, killing one, before they shot and injured him.

Marlon King and Kemandre King — the men suspected of robbing retired Oakland police Cpt. Ersie Joyner III — were ordered to stand trial on charges of murder, attempted murder, and robbery. Joshua Hayles, the suspected driver, was held to answer on murder and robbery charges.

The court order, issued by Superior Court Judge Don C. Clay, came after a two-day preliminary hearing in which Joyner testified about the Oct. 21 incident at a gas station on Castro and 17th Streets in Oakland. Joyner was filling up his car when he was accosted by three men.

Joyner testified he heard one of the robbers say, “Let’s kill him and take his car,” prompting Joyner to pull out a gun and open fire on the robbers. He killed Desoni Djuan Lamar Gardner, 20, of Vallejo, a rapper who went by the stage name Lil Theze. Prosecutors allege that Marlon King returned fire and shot Joyner before he and Kemandre King piled into a car being driven by Hayles and got away.

The murder charge rests on the “provocative act” legal theory, which says that accomplices to a crime can be held liable for homicides that occur when a victim uses lawful self-defense.

Defense attorneys for the three men cast doubt on Joyner’s claim about the threat, calling it a convenient story that’s being used to justify shooting Gardner in the back of the head. They said the robbery was over and the three men were walking away when Joyner opened fire. Attorneys for Marlon and Kemandre King also disputed that the police had arrested the right suspects.

Clay said the evidence “clearly” meets the legal burden to advance the cast past the preliminary hearing stage, which is a lower bar than what is required for a guilty verdict in a criminal trial.

Hayles’ attorney, Annie Beles, argued that under the prosecution’s theory, Hayles was “simply sitting in the car” and had no way of knowing a shooting would result from the robbery. The prosecutor, deputy district attorney Peter McGuiness, argued that Hayles and the others circled the area multiple times before zeroing in on Joyner as a victim, and that Hayles parked his car deliberately behind a gas pump to stay out of the way because he knew there was a potential for violence.

Beles and McGuiness also argued about the significance of an “oh (expletive) look” that Joyner testified Hayles had on his face when Joyner opened fire. To Beles, that proved Hayles had no idea a shooting was to occur.

“That does not show implied malice, that shows, ‘This was not part of the program here, I’m outta here,’ ” she said.

McGuiness disagreed.

“In the people’s view that ‘Oh (expletive)’ look was based on the fact that Mr. Joyner was armed at that time and pointed a gun at (Hayles’) accomplices,” he said.

Joyner led the police department’s Ceasefire anti-violence initiative from 2013 until his retirement as a captain in 2019. That initiative worked to contact residents vulnerable to crime and violence and provide services.

Throughout his law enforcement career, Joyner fired his gun while on duty on five separate occasions. In 2012, he and Ofc. Victor Garcia were sued for shooting a man named Jason Fletcher, who police say was armed. The lawsuit, which claimed the shooting was unprovoked and police failed to render medical aid, was settled for $75,000.

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