Three charged with murder in case involving ex-cop

Theory relying on a doctrine that ties everyone to crime

OAKLAND >> Three men have been charged with murder after they allegedly tried to rob a retired Oakland police captain, who pulled out a gun and shot their accomplice, court records show.

Marlon King, Joshua Hayles and Kemandre King face the murder charge in the death of Desoni Djuan Lamar Gardner, 20, of Vallejo, who was shot by retired Oakland police Captain Ersie Joyner during the gas station robbery. Joyner was hospitalized for weeks after he was nonfatally shot during an ensuing gunfight.

Neither Marlon nor Kemandre King entered a plea at their Tuesday morning court appearance, and a judge declined to set bail for either man, court records show. They are next due in court Dec. 17.

Hayles, who was arrested in Houston over the weekend, is awaiting extradition to California and hasn’t yet appeared in court.

A probable cause declaration filed by Oakland police alleges that Marlon and Kemandre King were both armed, and that Marlon King shot Joyner. Hayles is suspected of being the driver.

The murder charge is based upon the so-called provocative act doctrine, a part of state law that says when a crime victim uses justifiable lethal force against an assailant, the crime’s other perpetrators can be charged with murder. In other words, prosecutors want to hold the men liable for Joyner fatally shooting Gardner.

Gardner, a rapper who went by the stage name Lil Theze, was one of the four men who participated in the robbery of Joyner, according to police. Video surveillance shows Joyner pulling a gun at the end of the robbery and firing several times; at least one of the robbers fires back and wounds him.

Marlon and Kemandre King were also charged with assault with a semiautomatic firearm. Marlon King also faces a charge of attempted murder.

Joyner led the police department’s Ceasefire antiviolence 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.

In surveillance footage taken at the gas station that appears to depict at least part of the robbery, three men approach and surround Joyner, patting him down before appearing to take items from him and his vehicle.

A moment later, Joyner pulls a handgun and opens fire, fatally shooting Gardner. Seconds later, Joyner is shot while exchanging gunfire with at least one of the suspects, who managed to drive away.

Joyner fired his duty weapon on five occasions during his lengthy law enforcement career. In media interviews, he claimed only one of those shootings resulted in an internal affairs complaint or a lawsuit.

In 2012, Joyner was sued in federal court by civil attorney John Burris. The lawsuit alleged Joyner and Ofc. Victor Garcia opened fire on Fletcher Jackson and John Sloan during a “secret” federal and state operation, then failed to provide medical aid to both men, who died from gunshot wounds.

Police said at the time both men were armed with guns. The suit was settled for $75,000 in 2016.