One of the main complaints about the charging of cases by the District Attorney’s Office in Yolo County is that the DA overuses the gang enhancement charge. There are times when we believe non-gang members or questionably gang members are given extended sentences or charges by the DA’s office. But there is another interesting set of cases, where the individuals are actually gang members, they commit a crime, but the crime should not be enhanced with a gang enhancement.
In March of 2009, the victim was walking to the store when he ran across a friend along with Angel Sanchez. The victim did not know Mr. Sanchez prior to this date but was introduced by their mutual friend. Together they walked back to Mr. Sanchez’s apartment and decided to start drinking alcohol. In total there were individuals inside the apartment drinking.
Angel Sanchez apparently jumped into the assault, although Jesse Sanchez complained that “Angel needed to jump in faster next time.”
The brothers were arrested and charged with assault by means likely to produce great bodily injury (GBI), an enhancement for gang activity, an enhancement for infliction of GBI, and a violation of section 186.22(a)(1), active participation in criminal street gang, it’s own stand alone felony.
One of the contentions in this case was the extent to which the brothers actually committed, rather than intended great bodily injury. As the defense of one of the brothers argues, “though the nature of the attack was vicious it was an offensive touching, there were no injuries to the victim to raise this offense to a battery with serious bodily injury.”
The victim was described to have had cuts and bruising, but no permanent injuries.
The jury split on the charges. They convicted Angel Sanchez of assault by means likely to produce GBI and they found the infliction of GBI true. Jesse Sanchez was found guilty of a lesser included charge of assault, a misdemeanor and they did not find the enhancement for GBI true.
For our purposes in this case however, is the gang charges. In an unusual move, both brothers testified and admitted to the fact that they were gang members.
Gang experts Ken Fellows came in and testified. He testified to the fact that Nortenos are a criminal street gang with identifying colors and symbols. He rendered an opinion that Angel Sanchez was a Norteno gang member. He based his opinion on the tattoos that Angel Sanchez has, that he had been contacted by officers and was found in possession of red clothing or symbolism clothing depicting that defendant is a Norteno, as well as defendant’s self-admission.
One of the interesting things about the gang testimony is the fact that the gang experts come, and show examples of gang activity, the worst offenses, that have nothing to do with the trial or facts of the trial at hand. They are basically attempting to prejudice or influence the jury.
A 2006 article (http://www.streetgangs.com/topics/2006/070906harsh.html) points out, ‘Aside from the concrete results of the gang enhancement — misdemeanors become felonies, bail gets higher, sentences get tougher — the allegation has intangible effects on a trial. It allows prosecutors to introduce frightening evidence and images about the gang, making it more difficult for the accused to get a fair trial on the underlying charges, defense attorneys say.”
What is of particular interest in this case, is that while the DA threw everything they had into convincing the jury that these individuals were dangerous gang members, including on the stand testimony from the defendants themselves admitting to it, the jury did not convict them of the gang charges.
Both brothers had their gang enhancement charges found “not true” and both brother were acquitted of a violation of California Penal Code section 186.22 (A)(1) “active participation in a criminal street gang.”
How can that be? Because while they clearly attacked and beat up the victim in this case, they clearly did it randomly and for unknown reasons. As the description goes, Jesse Sanchez basically without premeditation or purpose, jumped the victim and began hitting him and his brother jumped in and continued the fight.
In this case, despite the best efforts of the DA’s office, the jury correctly interpreted the actual law which places no additional penalty for merely being a gang member. It is not unlawful to be a gang member, it is unlawful as Section 186.22(a) states to participate in a gang in order to commit a crime. “Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
In this case, the jury found and are supported by the facts, that the brothers acted on their own and not in concert with or in furtherance of criminal street gang activity.
Under the state gang enhancement law, California Penal Code, Section 186.22, prosecutors have the power to seek harsher penalties if a defendant is a gang member — if they prove a crime was committed for the benefit of, under the direction of or in association with a gang. If the gang allegation is found true by a judge or a jury, the defendant can receive as many as an additional five to 10 years in prison.
Section 186.22(b)(1) clearly states, “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted.”
The key to this enhancement is that the felony must be committed “for the benefit of, at the direction of, or in association with any criminal street gang” with the specific intent to “promote, further, or assist in any criminal conduct by gang members.” Merely being a gang member should not be sufficient to achieve a “true” finding for the enhancement.
In Section 186.22(a) it states, “Any person who actively participates in any criminal
street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
What happened in the Sanchez brothers case is actually fairly commonplace according to those attorneys who work in Yolo County, and in fact, is fairly common outside of Yolo County as well. The gang enhancement gives prosecutors fairly wide discretion, but they are often abused and misapplied.
Then it comes down to the luck of the draw. There are juries that will see evidence of gang activity, evidence of gang membership and convict on all charges regardless of the facts. This is actually part of the strategy of the prosecution, as we saw in this case, where they add fear of gangs and the crimes they commit to stun the judge and the jury into making an instinctive decision rather than a measured one.
In this case, even with the fear-tactic testimony of a gang expert and even with the fearsome gang members themselves sitting before the jury, the jury found the gang charges unreasonable. Instead, the jury apparently carefully weighed the evidence and made the determination that these crimes were actually not gang related despite the fact that the perpetrators were in fact avowed gang members.
—David M. Greenwald reporting
Is it possible that the DA felt there was evidence this assault was in furtherance of gang activity bc the two could give no reason why they did it, that it was completely unprovoked – an indication it was a gang ritual? Just a thought. Problem is, as in many cases, these sorts of things are hard to prove. The DA has to go with what they have got, imperfect as it may be – and let the jury sort it out, which the jury did. Additionally, the DA may know some things you don’t, that were not admissable at trial.
As far as the general gang evidence goes, judges have the discretion to keep out any evidence in which the prejudicial effect would far outweigh its probative value. If you are objecting to general evidence of gang murders to frighten the jury into convicting – blame the judge.
I’m sure Judges are to blame as well. Here’s an example from the article cited above, “In trials where the defendant is an alleged member of the Colonia Chiques gang, prosecutors often play a gangster-rap music video produced by the gang. The video is an assault of crude, violent language and images of tattooed and shaven-headed Latino men flashing gang signs — which can inflame the fears and prejudices of jurors, defense attorneys say. “
How much information about the specific gang is necessary and considered in bounds? After all, if you claim someone is a Norteno, shouldn’t the jury have the right to know what a Norteno means and what they do? On the other hand, doesn’t that prejudice the jury? It seems that the Judges err on the other side, towards more info.
In terms of your first question – “Is it possible that the DA felt there was evidence this assault was in furtherance of gang activity bc the two could give no reason why they did it, that it was completely unprovoked – an indication it was a gang ritual?”
The description of the case reads like a random act of violence and then they allege that the men are gang members. The lawyers I have spoken with say that often that is all the enhancement charges are, not evidence that the action was done in furtherance, but evidence that they are gang members. Just look at the Vasquez trial, another example and another example of the jury not upholding most of the enhancements.
Again this is not just a Yolo County problem, it’s just that we happen to be tracking Yolo County cases.
From the article cited:
“Critics of the law, including Lopez’s lawyer, John Pinnell, argue that prosecutors and police in Ventura County often apply the gang enhancement to people with tenuous or outdated connections to a gang.”
More:
“Sorting out who is a gang member should be a tough task. Lewis Yablonsky, a professor of sociology and criminology at California State University, Northridge, said there are true gang members; wannabe gang members; gangster groupies and young persons who have merely grown up around gang members.
“There are hard-core individuals and marginal individuals,” he said. Law enforcement — and many jurors — often don’t make those kinds of distinctions, Yablonsky said. “Prosecutors and police, generally, perceive a gang member is a gang member is a gang member,” he said.”
In fact, when I spoke to Landy Black about wannabes, he said:
“I need to say that “wannabe” isn’t really a term that means anything officially. My perspective, and I think I share it with a lot of other law enforcement folks, is that the term “wannabe” is something of a community cop-out. Communities and individuals in a state of denial about the fact that they have gang activity in their midst attempt to soften things by thinking and saying things like, “Oh, we don’t have a gang problem, these kids are just ‘wannabes’.”
I love the picture up top of the Backstreet Boys.
I-stock’s gang image.
[img]http://mishamayblaise.files.wordpress.com/2010/04/new-boy-band.jpg[/img]
My understanding is that Mr. Reisig is prosecuting this street gang under a wardrobe enhancement.
Gang members with satin pants? [eye roll] What group is this? I don’t know enough pop culture to identify these guys.
“There are times when we believe non-gang members or questionably gang members are given extended sentences or charges by the DA’s office.”
The DA doesn’t hand down sentences, the judge does. Also, I don’t believe a defendant’s gang membership must be determined or confirmed for the gang enhancement(s) to be charged against him or her.
So what is the problem here? Is it the law itself, DA’s carelessly pursuing gang enhancements, stipulations of the gang grants(must increase arrests, charges and convictions), what goes on in the preliminary hearings, tainted or biased jurors…? A little of each?
Is it really easy to tie any criminal act committed by a “gang member” to be for the benefit of, under the direction of or in association with a criminal street gang? Maybe more so, when money and drugs are involved? I am interested in hearing how prosecutors tie what seem like isolated(not gang related) incidents to be for the betterment of a gang-what’s the strategy? Did it seem like the Yolo County DA’s Office put on a show much like that which is described in the cited article?
I have a problem with the loose association between defining someone as a gang member and then presenting to the jury images and examples of what terrible acts a gang and its members are capable of, as if to suggest that the defendant too is capable of such unspeakable acts, despite him or her not being on trial for those crimes. It sounds like this is not exaclty uncommon, maybe I’m wrong.
“another example and another example of the jury not upholding most of the enhancements.”
So, does the DA’s Office have a throw it all at the wall and see what sticks approach to gang enhancements? How do you think the DA’s press releases, which are often focused on gang-crime convictions, influence the public’s(potential jurors) opinions of “gang members,” the “gang problem”, their “behavior” and what should be done with them(reasonable doubt be damned)? Do you think that affects them at all?
[i]”What group is this? I don’t know enough pop culture to identify these guys.”[/i]
The Fabulous Occidentals.
[img]http://www.hollow-hill.com/sabina/images/fabulous-dude.jpg[/img]
“So what is the problem here? Is it the law itself, DA’s carelessly pursuing gang enhancements, stipulations of the gang grants(must increase arrests, charges and convictions), what goes on in the preliminary hearings, tainted or biased jurors…? A little of each? “
I will have a much better idea after we finish analyzing 1000 gang enhancement cases, but I suspect that the DA office makes liberal use of enhancements and while we focus on enhancements, they use all sorts, I think there are times when gang members are just committing a crime and because they are a gang member they enhance the charges, also I think at times people who are questionably gang members – tenuous or outdated ties, are charged with gang enhancements.
Motivation: hard to know, he’s made a name on being tough on gangs, there is some grant money, he has the gang injunction.
“So, does the DA’s Office have a throw it all at the wall and see what sticks approach to gang enhancements?”
That seems to imply a randomness, I think they charge heavily and assume that either someone will cop a plea and a lot of charges will go away or they will put someone in jail for 38 years and can brag about it. Occasionally they lose.
“How do you think the DA’s press releases, which are often focused on gang-crime convictions, influence the public’s(potential jurors) opinions of “gang members,” the “gang problem”, their “behavior” and what should be done with them(reasonable doubt be damned)? Do you think that affects them at all? “
That I’m less sure about. I think the DA is intentionally creating the belief that there is a serious gang problem. A lot of the gang members though in this county are more punk than true threat. Do their press releases impact jurors, that would be interesting to find out.
How did you select those 1,000 cases? That’s 1,000 cases right, not 1,000 individual gang enhancements? What is the time span for which these cases fall within?
Even if it can be proven that the DA’s Office is making liberal use of the gang enhancement law, what can we expect will follow? If it is within their discretion, what’s the problem, that’s hard ball isn’t it? I am curious nonetheless.
Is the law such that the preliminary hearing does little to weed out the weak and baseless gang enhancement charges? Exactly how difficult is it to have these gang enhancements chucked out?
I wonder what percentage of the DA press releases are in some way associated with gangs. Do other convictions and arrests of major concern to the public given the same attention?
We requested all cases since 2005 charged with a gang enhancement.
Abuse of discretion is nearly impossible to prove for a DA, so obviously the question isn’t whether they can, but rather whether they should, especially with the budget in shambles.
DMG: “A lot of the gang members though in this county are more punk than true threat.”
How do you know this?
DMG: “Abuse of discretion is nearly impossible to prove for a DA, so obviously the question isn’t whether they can, but rather whether they should, especially with the budget in shambles.”
The DA makes the strongest case possible, THAT IS HIS JOB. It is up to the judge and jury to sort it out.
“Abuse of discretion” is a legal term, and I very much doubt the Yolo County DA’s modus operandi would be considered “abuse of discretion”. So therefore it is a judgment call. Why should we substitute your judgment for that of the DA, who was elected by the citizens, ran unopposed, and knows the cases a lot better than you? I’m not trying to be difficult or accusatory, but the Monday morning quartering-backing going on here is very subjective, IMHO, rather than trying to be objective.
Doesn’t mean to say there aren’t abuse of discretion cases by DAs. Certainly there have been some troubling cases/situations in Yolo.
DMG: “In fact, when I spoke to Landy Black about wannabes, he said:
“I need to say that “wannabe” isn’t really a term that means anything officially. My perspective, and I think I share it with a lot of other law enforcement folks, is that the term “wannabe” is something of a community cop-out. Communities and individuals in a state of denial about the fact that they have gang activity in their midst attempt to soften things by thinking and saying things like, “Oh, we don’t have a gang problem, these kids are just ‘wannabes’.””
What I am seeing is a greater number of “wannabes” becoming more and more aggressive at a younger age. Many youngsters in this town have been through rehab before they are even 18 years of age.
“How do you know this?”
I suspect it more than “know” in any definitive sense, but I have been observing gang cases for the past six months and have been analyzing the last five years of gang data. Look at the crime rates in Woodland and West Sac, you don’t see a huge amount of violent crime.
“The DA makes the strongest case possible, THAT IS HIS JOB. It is up to the judge and jury to sort it out.”
I question whether it is the DA’s job to charge as much as he possibly can no matter how weak the evidence. I think this gets back to the notion of “Ordinary Injustice” and Laurence Benner’s the “Presumption of Guilt.” I don’t think it’s in the people’s interest or the interest of justice to simply load up on as many charges as possible and see what sticks or whether they can force a please agreement.
“So therefore it is a judgment call. Why should we substitute your judgment for that of the DA, who was elected by the citizens, ran unopposed, and knows the cases a lot better than you?”
I don’t think you should substitute my judgment. I think my job is to look at cases and question those that that seem questionable. In a case where the jury votes to acquit, I think the judgment of the DA ought to be called into question. That does not mean that the DA is wrong and the jury is right, we can point out a number of examples where the DA was right and the jury wrong in other jurisdictions, but it does mean that we ought to question them.
I disagree with the notion of Monday morning quarterbacking, we are attending these trials and view the same evidence, if not more evidence, than the jury.
“What I am seeing is a greater number of “wannabes” becoming more and more aggressive at a younger age. Many youngsters in this town have been through rehab before they are even 18 years of age. “
Do you have data to show that? Because the crime data does not show anything of that sort.
DMG: “Do you have data to show that? Because the crime data does not show anything of that sort.”
Anecdotal evidence from people who work with kids thru Parks & Rec. and in the schools. Alcohol is rampant among teens, as is marijuana use. Had to chase a group of about 15 kids off our cul de sac yesterday, all looking to be under the age of 16, bottles of booze in their backpacks. The number “420” was spray painted on the side of a building they were leaning against. “420” refers to “smoking weed” is my understanding.
None of what you are describing is what I would call serious crime. It’s a bunch of kids, not gang members, who are getting into mischief rather than committing serious crimes.
What I am seeing is a greater number of “wannabes” becoming more and more aggressive at a younger age. Many youngsters in this town have been through rehab before they are even 18 years of age.
and
Anecdotal evidence from people who work with kids thru Parks & Rec. and in the schools….
And does this show that things are getting worse? The same as it’s always been? Maybe less than it’s been?
And were these wannabe Nortenos? wannabe Surenos? wannabes of another group?
David and wdf1, are you in a state of denial? Andrew Mockus was shoved into the side of a train not that many years ago. My son was attacked by gang members in his senior year of high school. The same gang that assaulted my son beat up a college student and put the student into the hospital. There was a known gang operating out of Lamppost Pizza in West Davis. The gang leader eventually spent time in jail. A gang member living in Davis was responsible for killing a police officer last year. As Police Chief Landy Black said”
“I need to say that “wannabe” isn’t really a term that means anything officially. My perspective, and I think I share it with a lot of other law enforcement folks, is that the term “wannabe” is something of a community cop-out. Communities and individuals in a state of denial about the fact that they have gang activity in their midst attempt to soften things by thinking and saying things like, “Oh, we don’t have a gang problem, these kids are just ‘wannabes’.”
Don’t you two believe our town’s own Chief of Police? A Chief of Police that seems to be well respected in the community. Putting your heads in the sand, and refusing to recognize what is going on is to allow problems to fester…
I felt a lot safer living in the Washington D.C. area than I do here in CA – and part of that reason is bc everyone seems to be in such denial in CA about what is going on.
Yes, you can point to some individual instances of gang violence, and yes I can point to some other killings in this county which had nothing to do with gang violence, but look at the overall crime rate, it is low, so those notable events would appear to be exceptions, rather than the rule. We just don’t have the level of violence in this county to match the money and effort spent on gang interdiction efforts.
DMG: “We just don’t have the level of violence in this county to match the money and effort spent on gang interdiction efforts.”
Says you!!! We’ll have to agree to disagree on this one 🙂 I suspect if your children had been the victim of gang violence you might feel differently…
I suspect I would not feel differently. What you are calling a gang, sounds a lot more like a group of kids bullying another kid. I agree that’s a problem, but putting someone in jail for 38 years as opposed to 10-15 is not going to make your kids or mine any safer. In fact, it may make them less safe because we will have fewer resources to deal with other problems.