On June 11, the Yolo County District Attorney’s Office informed lawyers fight against the implementation of a permanent Gang Injunction in West Sacramento that they will be using the testimony of Angel Sanchez and Jesse Sanchez in the gang injunction trial which is set to begin in just two weeks on July 12, 2010.
Specifically they will use the fact that Angel Sanchez testified that he was a gang member, specifically a member of the Broderick Boys and that they have engaged in a pattern of criminal activity for years. We covered this case a few weeks ago.
The Vanguard has long believed that the DA’s Office has overused and misused gang enhancement charges. 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 now there is another interesting set of cases, where the individuals are actually gang members or purported by the DA’s office to be gang members, they commit a crime, but the crime should not be enhanced with a gang enhancement.
We note that in the last week the DA has issued press releases about gang members being convicted for crimes. In one case it was Steven Martinez, who we will have a more in depth story on later this week, who was convicted for punching someone in the face on Picnic Day 2009 in Davis. They describe him as “a known Sureno gang associate.” And yet this was not a gang crime.
We also have the case of Jesse Garcia who was convicted of five crimes relating to a domestic violence incident. They report, “Garcia, 26, of West Sacramento is a validated Broderick Boy and was on probation for a gang beating at the time of the domestic violence offense.” But again this was no gang crime.
The District Attorney’s case for the gang injunction is going to rest on the testimony of experts – experts who will testify about vague gang crimes and example of gang members committing crimes.
However, the DA will attempt to blur the lines between crimes committed by people that they claim have gang affiliations and crimes that would actually fall under the auspice of Penal Code 186.22.
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(a) makes it unlawful 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.”
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 defense in the Gang Injunction case is moving to “exclude all evidence of alleged public nuisance activity as irrelevant unduly prejudicial and an undue consumption of time where there is no evidence from which it could reasonably be inferred that a defendant’s conduct constituted “participating in or acting in concert with” the alleged criminal street gang.”
Instead they believe, “The People will attempt to meet their burden by unloading evidence of numerous alleged crimes (or public nuisance activity) on the Court and hoping that the cumulative effed will paint a picture, different from the reality “on the ground,” of a war zone. As the Court of Appeal in Englebrecht made clear, in order to apply an injunction to an individual, the plaintiff must demonstrate that the defendant is an “active gang member” by proving that the person “participates in or acts in concert with” a criminal street gang in a manner that is more than nominal, passive, inactive or purely technical.”
The defense continues, “The People may also meet the “active gang member” element by presenting evidence that “it was the gang itself, acting through its membership, which was responsible for the public nuisance.” In either scenario, the individual’s alleged nuisance conduct must demonstrate more than a nominal connection to the gang or the conduct must establish that it was the gang, as opposed to the unrelated criminal conduct of the individual acting on his own and apart from the alleged criminal street gang that caused the alleged public nuisance.”
In short, “The Plaintiff will seek to introduce evidence of conduct that bears nothing more than a nominal connection to the alleged criminal street gang.”
Looking at the sum total of incidents, there is not a clear pattern of gang violence or crime, but rather a pattern of individuals who might have a loose or even questionable connection to a criminal street gang who are also committing crimes. That is not what the gang injunction is intended to resolve. As their motion argues, “A sampling of these incidents include nine incidents of pure domestic violence, six incidents of public intoxication, driving under the influence, and/or having an open container, nine incidents of simple possession of narcotics without any evidence of attempted sales, and other equally non-gang affiliated activity such as such as petty robberies, auto thefts, burglary or shoplifting. And, although there are fervent claims by plaintiff that the Broderick Boys are turf-oriented and they use violence to hold their turf in order to sell narcotics, the only actual arrest made where a defendant was caught selling drugs, involved him selling drugs out of his house. There is no evidence whatsoever to indicate anything more than a nominal connection to the Broderick Boys in that incident and there was no evidence that it was the gang acting through the defendant.”
As we have seen with the ramped up press release effort, the DA’s office is clearly trying the guilt by association approach with their use of gang enhancements and now through trying to implement the gang injunction in West Sacramento on a permanent basis.
We saw an example of this in the Sanchez Brother’s case. The DA in that case attempted to introduce evidence that had little to do with the brothers themselves and more to do with gangs in general. Gang experts Ken Fellows testified during the Sanchez Brothers trial 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.
We again cite a 2006 article that shows that this is a pattern across the state – the abuse of the PC 186.22 gang enhancement law.
The article argues that that felony enhancements can and are abused by prosecutors. According to the article, “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.”
For instance, “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. “
“The DA likes to add the gang enhancement because it strengthens the case,” said Ventura defense attorney Victor Salas. “The connection might be a little light, but they still like to do it.
“There is a gang problem, but that doesn’t mean putting every kid who gets a shaved head on a (gang) list,” Salas added.
The Yolo County District Attorney is going to try to make their case for the gang injunction by using these loose connections. We have talked a little bit about the rather subjective gang validation process, on which basis, people are validated as gang members. Some jurisdictions are in fact revising those very subjective standards which in most jurisdictions require as few as two or three points of identification on a eleven-point scale. But not Yolo County. And so loose affiliations combined with questionable tattoos can often lead to validations which are then used to attempt to enhance the penalties on crimes.
Now the DA’s office is going to use the same loose criteria to try to enjoin people from otherwise lawful activities without the due process of law. In the next few weeks, the Vanguard will have a series of articles which attacks the very premise of these efforts.
—David M. Greenwald reporting
“hoping that the cumulative effed will paint a picture, different from the reality “on the ground,” of a war zone.”
Whose reality? Maybe your reality is different than mine. Of course I see the reality of gangs everyday from the graffiti around town to kids shooting kids over bags of marijuana, drug debts, conflicts on a school bus or school yard, or not getting into a party.
Really, how many shootings do you know of in Yolo County? I mean countywide our homicide rate is less than ten per year. To me, that’s not a pressing crisis and what is instead happening is that the DA is using gang laws to prosecute people for whom the laws were not intended.
DMG: “To me, that’s not a pressing crisis and what is instead happening is that the DA is using gang laws to prosecute people for whom the laws were not intended.”
Not to be flip, but says who?
Not to be flip back, but I clearly started the comment by using the phrase, “to me.” That said based on six months of observation, most of the people I have seen getting charged with gang enhancements are very questionably gang members and even less of the crimes are gang crimes as defined by the Penal Code which specifically states that they must be for “committed for the benefit of, under the direction of or in association with a gang.” You’re a lawyer, the DA is lawyer, they have to stick to the law. A guy beating up his girlfriend in his car, no matter how bad that crime is, is not committing a crime that falls under 186.22.
Actually I know too many people who have been shot in the past few years. I knew several who have been murdered. Every reference in my post was in relation to a shooting that was gang related. So instead of being flip I’m stuck on glib. While you fight to protect the moat around Davis people in the DA’s office are trying to keep the rest of the County safe from serious violence. They may not be perfect but at least they are trying.
“people in the DA’s office are trying to keep the rest of the County safe from serious violence. They may not be perfect but at least they are trying. “
In my view, the problem is that they are attempting to extend the use of the gang enhancement to cases where it does not and should apply. The gang enhancement is questionable to me to begin with because if someone is shot and killed, having it be the result of gang violence does not make them more or less dead. A crime is a crime.
Be that as it may, PC 186.22 is on the books and as long as it is, it applies to a very specific class of cases which require the crimes to actually be gang crimes. That does not mean crimes committed by people who are merely validated using very subjective and questionable means. That does not mean crimes committed by individuals who are hispanic with tattoos and baggy pants. That does not even mean crimes committed by individuals who admit to being gang members. But rather it specifically applies only to those crimes “committed for the benefit of, under the direction of or in association with a gang.” And in the last six months, I have not seen much evidence that leads me to believe there are a whole host of such crimes. Instead, what I see is what borders on abuse of discretion where the DA applies 186.22 to almost any case that they can make a claim that the perpetrator is a gang member. That was not the intent of the law.
Now Mr. Toad, if you want to discuss specific cases that you are referring to, why don’t you give us details on either the perpetrator or the victim and then we can evaluate whether these are truly gang cases or more of what I have witnessed in court the last six months.
Toad-
Just because you happen to be aquatinted with some of the victims doesn’t mean that gun/gang violence in Yolo County is exceptionally high (for its size and demographics) or on the rise, does it?
I’m sorry that you have been affected by the criminal acts of others, but what you cite is purely anecdotal. Unfortunately, it seems much of what the public bases their opinions of crime in their community’s on anecdotal evidence (sensational media stories, law enforcement press releases, what happened to their neighbors and so forth), which is not always an accurate portrayal of the community’s criminal statistics or safety.
Also, I think a common misconception of the public is that all or most graffiti is in some way gang related.
Some of the costs of this tough on crime, lock em up and throw away the key mindset…….
San Quentin prison was designed for 3,300 inmates but has 5,200, and costs $184 million annually to operate. California State prison Sacramento was designed for 2031 inmates has a population of 3250 and costs $187 million annually to run.
The courts have ordered the state to reduce prison overcrowding by 40,000 inmates. AB 900 will spend $7.7 billion to construct up to 32,000 new prison beds. According to the LAO that money will only build half the number of beds. If the original $7.7 billion will only build half of the needed beds, you will need at least another $7 billion to get anywhere close to the 40,000 number of beds required. Given that it costs $371 billion to operate 8450 prison beds, it will cost approx $1.5 billion in operating expenses for the additional 32,000 beds. Toss in the cumulative effect of longer and longer sentences for gang enhancement, 3 strikes, and all of the Megan’s/Suzie’s/Angie’s laws and you get enormous costs.
As Senator Webb from Virginia recently said about our criminal justice system, either we have the largest concentration of evil in the world, or we are doing something terribly wrong.
“Whose reality? Maybe your reality is different than mine. Of course I see the reality of gangs everyday from the graffiti around town to kids shooting kids over bags of marijuana, drug debts, conflicts on a school bus or school yard, or not getting into a party.”
Graffiti, drug debts, conflicts on a school bus/ school yard, and not getting into a party are not evidence of gang activity.
wesley506: “As Senator Webb from Virginia recently said about our criminal justice system, either we have the largest concentration of evil in the world, or we are doing something terribly wrong.”
Countries like China execute their criminals. Some Arab countries cut off the hands of theives. One could argue our country mollycoddles criminals. I’m honestly not sure what the problem is. My thought has always been prevention – get at kids while they are young, and try and steer them in the right direction. But today, marriage and the family unit has broken down so badly, that I suspect a lot of troubled kids come from unstable backgrounds. Then children are being exposed to enormous amounts of sex and violence on computers, television, in magazines and the movies. Teachers have their hands tied when it comes to discipline. And then there is the huge proliferation of drug and alcohol use/abuse. Hmmmmmmmmmm…..wish I knew how to explain the proliferation of prisons/prisoners… but my guess is it has a lot to do with the breakdown of ethics/morals in our society today. Just a thought…
” One could argue our country mollycoddles criminals.”
This is again a question I have, what does this mean? Are you suggesting because we have a justice system that purports to a presumption of a innocence, rights of the accused? Or are you suggesting because we don’t treat our criminals like Arab countries or East Asian? Are you saying that we sentence to short? I need to know what that means before I can really respond further.
My personal thoughts on some of the reasons why we have so many people locked up is this. From a very early age we are taught that “I have a right….” and the list of rights is endless. What people never teach their children or even never seem to believe themselves in this country is that with every right comes an even greater responsibility. I think if you asked the average person on the street what sort of responsibility they had to their community, they would probably look at you like you were from another planet.
I see it very differently. I see a large number of people from broken homes, racked by drugs and abuse, and a lot of them just get in over their head and never had a chance. I don’t see a lot of people thinking they have a right and more who just never had guidance, or stability.
I hate to be the one that brings the bad news to you but “leave it to Beaver” was only a TV show. I can assure you it was not reality. We all come from dysfunctional families to some degree.
I have worked in correctional healthcare for well over 15 years in several large county jails and several prisons and every inmate with very few exceptions has exactly the same mind set as David. “I am not responsible for the rape/murder/mayhem I did because my family was poor, I never knew my daddy, my mommy didn’t love me, and/or I was high.
I worked at Pelican Bay State Prison many years ago. It is a Super Max prison for the most evil people that you will ever meet. I once asked this guy why he was in Pelican Bay doing a life term and the reason he gave was “I come from a dysfunctional family.” Another one told me he didn’t belong in prison because it wasn’t his fault that he shot and killed the couple that ran the mom and pop store that he robbed because “if they would have just given me the money fast enough, I wouldn’t have had to shoot the motherf***ers.” These are very very typical reasons inmates will give you for why they are in prison. It is never their fault.
Many very successful people in this world (including our president) come from broken homes.
[quote]every inmate with very few exceptions has exactly the same mind set as David. “I am not responsible for the rape/murder/mayhem I did because my family was poor, I never knew my daddy, my mommy didn’t love me, and/or I was high.[/quote]
Responsible is not the word I would use. Everyone is responsible for their choices. However, and it’s not merely a matter of broken homes, it’s more than that.
There’s a group of scientists and researchers who argue that some people are predisposed to “psycopathy.” They claim that minimal activity in the orbital context (believed to be involved with ethical behavior) could explain, in part, why it is some people rape, murder, etc.
They have also looked into genetics, namely what they call the “warrior” gene, which regulates seratonin. According to this article, “Serotonin affects your mood — think Prozac — and many scientists believe that if you have a certain version of the warrior gene, your brain won’t respond to the calming effects of serotonin.”
Although one’s genetic make-up and orbital cortex activity can be indicative of psychopathic behavior, or the predisposition of said behavior, experts in this field say a third ingredient needed to make someone a psychopath, “abuse or violence in one’s childhood.”
This is all very interesting, this “neurolaw”, and defense attorneys are using it in the courtroom.
NPR Article: http://www.npr.org/templates/story/story.php?storyId=127888976&ps=rs
Wesley,
“Many very successful people in this world (including our president) come from broken homes.”
It’s not JUST that a home is broken that serves as the catalyst for or cause of psychopathic behavior. Being raised in a broken home can be difficult, but abuse seems to be what affects people the most. Having those two other ingredients may not help either, acording to the experts.
What is interesting to me is that nearly half of marriages end in divorce. That would mean that nearly half the children come from broken homes and not half of the children out there become criminals. While there are studies that say children from broken homes are more likely to become criminals it doesn’t mean they have to be. It’s a personal choice.
And if all you are looking at is broken homes in isolation from the other factors, then you’ve missed my point. I was speaking specifically to the confluence of broken homes, substance abuse, and abuse. This is the sentence: “I see a large number of people from broken homes, racked by drugs and abuse, and a lot of them just get in over their head and never had a chance.” The broken homes portion wasn’t isolated from the drugs and abuse.
Mr. Obvious wrote: “While there are studies that say children from broken homes are more likely to become criminals it doesn’t mean they have to be. It’s a personal choice”
Or is it? According to some, “psychopathy” is not a choice…it’s intrinsic. It’s is believed by some experts that certain individuals do not have a choice, rather their brains (limited/no activity in the orbital cortex-regulating ethical behavior), genes (variation of warrior gene-doesn’t feel the calming affects of serotonin) and childhood abuses shape them into the violent criminals they’ve become. These three factors create the “perfect storm”, if you will.
So, if one is born a killer and suffered extreme abuse as a child, are they to be punished so severely as one who does not have this predisposition? Did they ever have a shot at a healthy, non-violent and lawful human existence? Defense attorneys are bolstering their cases using “neurolaw” and to some level of success in the case mentioned on NPR. You can read the three-piece series here: http://www.npr.org/templates/story/story.php?storyId=128116806
As David said, the broken home in and of itself is not the catalyst. It is childhood abuse that is often the common denominator among “psychopaths.” Also, broken homes are not always bad homes and divorced parents are not necessarily bad parents.