DA Frequently Shown to Give No Prison Time in Exchange For Gang Admissions –
DA Frequently Shown to Give No Prison Time in Exchange For Gang Admissions – From our perspective, however, this is going to be an increasingly tough case to make. While the DA can point to events and incidents that involve alleged gang members, often upon further scrutiny these cases fall apart.
Even that becomes questionable. He accepted a plea in that case which included a gang enhancement, but as he said on the stand, “I took the plea, because of the People’s promise to not send me to prison if I accepted it.”
And who wouldn’t take that plea?
On Monday, one of the scores of police officers from West Sacramento took the stand and described a case involving William McFadden, another named defendant in the Gang Injunction case. This was a case from 2002 again. Mr. McFadden was contacted in a consensual stop and found to be carrying a knife – a seven and a quarter inch knife that he claimed was for protection. Eventually Mr. McFadden pled to a misdemeanor PC 12028, carrying a concealed weapon, and took a gang enhancement, and for that he avoided prison time. Another case where the DA insisted that the condition of no prison time was taking the gang enhancement?
Yesterday, there was another case that actually went to trial. This man was convicted of a number of felonies and enhancements for prior prison on a variety of charges including PC 12021(A)(1), 12031(A)(1)(2)(a) and 12316(B)(1). In fact he received seven years in prison. However, he was also charged with at least four gang enhancements for each of the felonies he was convicted on, but he was acquitted on each of those enhancements.
What does that mean? It means he committed these crimes, at least in the eyes of the jury, but he did not do them in furtherance of a criminal street gang.
This is a problem for the plaintiffs in this case. You have an alleged nuisance, but most of the crimes are not being found to be committed in furtherance of a criminal street gang. And while the plaintiffs will argue that according to the Acuna decision, which is one of the main authorities on Gang Injunctions, they do not have to show that crimes are done in furtherance of criminal street gangs in order to demonstrate a nuisance, realistically they have to show some sort of nexus.
Last week, during the preliminary hearing on the Memorial Park Event, Officer Labin Wilson, a key witness for the plaintiffs, this time testified as an expert witness on gangs. He was asked, while being established as a gang expert, how many gang crimes he had been involved in the investigation of. He immediately responded, clarifying that his response was for “186.22-specific crimes…,” thus demonstrating a clear difference between gang crimes, and any other crimes that are simply committed by gang members.
As we have pointed out, California Penal Code specifically defines gang crimes as those “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.”
And it is here, as we presented last week, that the plaintiffs run into a problem. They just do not have many convictions in West Sacramento. While the plaintiffs are going back as far as 2000 in showing a pattern of criminal behavior, Judge Kathleen White has already indicated that it is critical to show there is a continuing nuisance presented by the alleged Broderick Boys Gang in the safety zone.
Our data is not sophisticated enough to separate safety zone from non-safety zone, so this constitutes citywide data. From 2005 until March 2010, as we reported last week, there have been a total of 98 individuals charged with gang enhancements, either 186.22(A) or 186.22(B)(1). Of those 98 defendants, 75 were convicted of some crime. But only 35 were convicted of a gang crime, either 186.22(A) or 186.22(B)(1).
We can now report that of those cases, just six of those defendants were convicted of criminal gang charges in a case that went to trial. That means that 29 of 35 gang enhancement charges were handed down in plea agreements in which the prosecutors chose the terms. Want something more remarkable? Of the 22 cases that went to trial, 20 of them resulted in convictions but only six of the convictions included gang enhancement charge convictions.
This information becomes even more relevant in light of the plea agreements reached last week in the Memorial Park incident. As we reported on Tuesday, four of the defendants were given plea offers in which they would receive no time in prison in exchange for admitting to being gang members.
Only Alexander Valadez, who had been charged with two counts of assault with great bodily injury, conspiracy to commit a crime, intimidation of a witness and threatening to commit a crime will serve time in prison, assuming the three out-of-custody defendants take the deal (which seems a foregone conclusion). Mr. Valadez pled to one count of PC 245 (A)(1) Assault with means likely to produce Great Bodily Injury (GBI), which is a “serious felony” under PC 1192.7. And he admitted to one count of gang enhancement. He will received 9 years in prison.
The others, including Jesus Sanchez who witnesses saw involved in the fighting, will get no time in prison in what turned into a brutal attack on James and Reese Hopkins by a large group of youths.
The DA undoubtedly will play up these acknowledgments of evidence of gang members taking part in criminal activities in or just outside of the safety zone in this case. However, the evidence of a vast nuisance increasingly looks weak. Acknowledgment of gang affiliation and 186.22 convictions look more like forced contrition than voluntary acknowledgments.
The number of 186.22 convictions is only 35 to begin with for a period of over five years, which amounts to less than seven per year. The fact, that almost all were obtained via plea agreement, and in a lot of cases were plea agreements that amounted to no prison time, is rather remarkable.
It will be interesting to see what Judge White ultimately rules here. There is little doubt that gang members in many parts of this state represent a serious threat to public safety. However, increasingly this appears to be an effort by the District Attorney’s office to gain power and perhaps grant money, rather than an effort to protect the public from a widespread threat to public safety.
—David M. Greenwald reporting
David: I am a bit confused by the numbers. Can you please let me know if these are correct:
1. 98 individuals were charged of gang crimes in the past five years.
2. There have been only 35 gang convictions over the past five years.
3. 29 of these gang convictions were part of a plea bargain.
Do I have this straight?
It would be interesting to know how many of the 98 individuals were charged by police and how many were based on charges added by the DA.
dmg: “Even that becomes questionable. He accepted a plea in that case which included a gang enhancement, but as he said on the stand, “I took the plea, because of the People’s promise to not send me to prison if I accepted it.””
Note the defendant did not say he was not in a gang…
The problem I have with the tenor of the article is you don’t know why the defendants in question agreed to the gang enhancement. On the one hand you are insisting they all lied to stay out of jail; but we are to believe them implicitly when they say after the fact they were not in a gang? Isn’t it POSSIBLE they were in a gang, and that is the reason they agreed with the gang enhancement?
I know where you are coming from, in terms of being uncomfortable with the plea-bargaining system. But I’m not convinced by the logic you are using here…
[quote]It would be interesting to know how many of the 98 individuals were charged by police and how many were based on charges added by the DA. [/quote]
It would also be interesting to know how many crimes were presented to the DA for charging by police that were NOT charged in any complaint.
[quote]Note the defendant did not say he was not in a gang…
The problem I have with the tenor of the article is you don’t know why the defendants in question agreed to the gang enhancement. On the one hand you are insisting they all lied to stay out of jail; but we are to believe them implicitly when they say after the fact they were not in a gang? Isn’t it POSSIBLE they were in a gang, and that is the reason they agreed with the gang enhancement?
I know where you are coming from, in terms of being uncomfortable with the plea-bargaining system. But I’m not convinced by the logic you are using here… [/quote]
ERM, well put.
“On the one hand you are insisting they all lied to stay out of jail”
It is a strech to say they lied, since they never testified when they accepted the plea. Those deals are presented under extreme coercion and the defendants never take the Stand.
“It would also be interesting to know how many crimes were presented to the DA for charging by police that were NOT charged in any complaint.”
Yes it would and it would be interesting to take that ratio and compare it to the same ratio in the average for Bay Area counties or even the average for the State.
ERM and Primoris: You keep missing the point of the article.
Why is getting gang member admission such a high priority for the DA?
What is his motivation?
[quote]What is his motivation? [/quote]
The DA gets money, he gets gang positions for investigators and attorneys, he gets Fed Grants, he gets state grants from the AG, he gets to coerce plea bargains which enables him to make press releases on how high is conviction rate is, he gets to brag about how bad his little pond is to the other 57 DAs in the state, and many other reasons.
Political pure and simple and this is costing the tax payers thousands of dollars and yet there are lots of people that just want to believe that the DA could never be this low and politically dirty to do something this. No way a DA could not care about justice and not care if innocent people go to jail or that he gets people to agree to bad plea bargains.
“It just can’t happen and I won’t believe it.” This is the attitude that gives Mr. Reisig his power to do just this.
[quote]Roger: “No way a DA could not care about justice and not care if innocent people go to jail or that he gets people to agree to bad plea bargains. “It just can’t happen and I won’t believe it.” This is the attitude that gives Mr. Reisig his power to do just this.”[/quote] I’m not in denial. I just want to see some proof that the DA is guilty of all these charges. Way too much innuendo, speculation, mind-reading and coincidence-connecting–and not enough evidence–for me to buy it at this point.
Roger Rabbit: “The DA gets money, he gets gang positions for investigators and attorneys, he gets Fed Grants, he gets state grants from the AG, he gets to coerce plea bargains which enables him to make press releases on how high is conviction rate is, he gets to brag about how bad his little pond is to the other 57 DAs in the state, and many other reasons.
Political pure and simple and this is costing the tax payers thousands of dollars and yet there are lots of people that just want to believe that the DA could never be this low and politically dirty to do something this.”
Wow! That answers my question on what’s the DA’s motivation.
Can we find out:
1. How much money the DA receives. Fed grants and state grants.
2. How many gang positions for investigators and prosecutors this
perpetuates.
3. David has uncovered some of the plea bargaining–at least with the
gang enhancements, but it would be nice to see more.
4. We know the DA press releases are printed verbatim by the local
papers. The Daily Democrat editor explained that there is no
money for investigation to fact check these press releases.
5. I don’t think we can check on the bragging rights.
If some of these things you have outlined are happening, the public needs to know. Someone should check these things out. I think the public would be interested.
FAI writes: [quote]Why is getting gang member admission such a high priority for the DA?[/quote]
No point missed arguing against one however.
Ah, yes conjecture and this conclusion was determined after Greenwald spoke to the DA concerning said priorities on what date again? Or did you speak to the DA and address the department’s priorities? Please share.
FAI,
“1. How much money the DA receives. Fed grants and state grants.”
You can check out their revenue sources for the 2009-2010 budget, which are broken down for the public, by clicking on this link: http://www.yolocounty.org/Index.aspx?page=1688 and following that you will need to scroll down and then select “Law and Justice.”
The local agencies and departments also highlight the details of their budgets and the allocation thereof.
“2. How many gang positions for investigators and prosecutors this perpetuates.”
Full-time? As far as I know, the DA’s office has a DDA whose job it is to vertically prosecute gang crimes. However, I don’t know to what extent this position is funded by any “gang grant.” Other than that, I don’t think there is a DA employee whose position is that of solely investigating, enforcing or prosecuting criminal street gang activity. There is most likely DA personnel who work in conjunction or meet with the YCGTF. Believe it or not, law enforcement does not always work exclusively in one area of investigation and enforcement.
Other state and federal grants do fund or partially fund other positions.
For what it’s worth, according to the above link, the DA’s office has left 4 investigators, 1 lieutenant, 1 enforcement officer and 2 deputy district attorney positions “vacant and unfounded.” I doubt they have the personnel or funds to dedicate their energy and resources to this issue, which is most likely explains why DA Reisig handed the oversight of the YCGTF over to the Yolo County Sheriff’s Department.
What’s interesting, although slighlty off-topic, is that (about one year ago) according to the County’s flow chart of the DA’s office, it (DA’s office) is in part comprised of: a chief, four lieutenants, six investigators and six enforcement officers. Lieutenants make around 100K per year and they are overseeing (see “supervising”) three people each, when averaged. That doesn’t make a whole lot of sense to me.
“3. David has uncovered some of the plea bargaining–at least with the gang enhancements, but it would be nice to see more.”
I too am a bit perplexed by these plea deals. I can’t see the incentive from DA’s perspective or how this is in the interest of keeping the streets safeguarded from the alleged criminal street gang terrorizing West Sacramento.
“4. We know the DA press releases are printed verbatim by the local papers. The Daily Democrat editor explained that there is no money for investigation to fact check these press releases.”
Sure seems like it, doesn’t it? I say, to the editor, fine, I sympathize with the dire situation his or her newspaper finds itself in. But, why don’t they just indicate in the headline or byline that what is to follow is word for word the DA’s press release and characterization of the events and individuals involved. Seems simple enough to me.
By the way, FAI, that function chart outlines which grants receive what monies.
“you will need to scroll down and then select “Law and Justice.” “
Check out page 313 – I would like to understand what that roughly $800K of grant money is – what exactly is that supposed to be used for.
Alphonso,
“Check out page 313 – I would like to understand what that roughly $800K of grant money is – what exactly is that supposed to be used for.”
If you look at the corresponding “Functional Charts,” which can be found on the same page as the 2009-10 County Budget (provided link above), the use and allocation of grant monies is outlined.
The word gang is not mentioned anywhere, for what it’s worth.
BTW, that which you seek can be found under ‘Criminal Prosecution Grants.’
Thanks, I see it. If anyone else want to look – see page 35 within the “Functional Charts” PDF file
[quote]Note the defendant did not say he was not in a gang… [/quote]
Note nothing, I simply did not quote him when he actually said he wasn’t in a gang because that was not the point of this article.
[quote]On the one hand you are insisting they all lied to stay out of jail; but we are to believe them implicitly when they say after the fact they were not in a gang?[/quote]
The terms of the plea agreement are that they acknowledge that they are either guilty or the jury is likely to find them guilty based on the facts available in the case. The DA when Cedillo took the stand tried to claim that he was perjurying himself but the judge ruled clearly that he was not given the actual wording in the agreement.
fai: “ERM and Primoris: You keep missing the point of the article.
Why is getting gang member admission such a high priority for the DA?”
You keep missing the point. The defendant’s may have admitted to being in a gang because it was the truth. Their credibility is destroyed when on the one hand they admit to gang membership to get out of jailtime, then later claim they lied and are now telling the truth they were never in a gang. You are assuming the DA’s motivation here (“gang enhancements for grant dollars”), but are proving it with SPECULATION as to reasons why.
dmg: “Note nothing, I simply did not quote him when he actually said he wasn’t in a gang because that was not the point of this article….The terms of the plea agreement are that they acknowledge that they are either guilty or the jury is likely to find them guilty based on the facts available in the case. The DA when Cedillo took the stand tried to claim that he was perjurying himself but the judge ruled clearly that he was not given the actual wording in the agreement.”
Not following your argument here. You still have the following contradiction – the reader is supposed to NOT believe a defendant when he takes a plea deal to get a lighter sentence and admits to gang membership; but the reader is supposed to ABSOLUTELY believe a defendant when he later recants gang membership. Your logic escapes me…
In light of the 2009-10 “Functional Chart,” can we rule out grant money as the motivating factor behind these gang admission plea deals?
Could the motivation be that these admissions will be used to build cases against these defendants sometime down the road, if and when they get in trouble again? Isn’t it totally possible that the prosecutors didn’t have much on them and tossed the admission out there to see if they would take it instead chance it at trial.
ERM is right, just because the defendants are admitting gang membership that doesn’t necessarily mean they aren’t being truthful. I think that’s a good point. Did the article indicate whether or not these defendants admitted to being in any specific gang(s) (ie Broderick Boys)?
Primoris also has a point, no one has to accept the plea offered to them by the prosecution, it’s true. I wonder if David or anyone else has heard from the defendants’ attorneys? Did the defense attorneys feel they had a strong enough case to take it to trial or was the prosecution’s case against them pretty strong, so strong that the plea, of admitting to gang membership, seemed like a lucky break?
Elaine: The plea agreement as you ought to know is not an admission, it is simply an acknowledgment that the facts of the case may end up with a guilty plea. The reader can come to whatever conclusion they choose. I have come to the conclusion that Mr. Cedillo is not now a gang member and that there is not compelling evidence that he ever was. And certainly his plea in the face of prison time for a conviction is not evidence to the contrary.
“ERM is right, just because the defendants are admitting gang membership that doesn’t necessarily mean they aren’t being truthful.”
This is correct. But it also does not mean they are being truth, especially in light of what one of the parents said in another article.
“Did the article indicate whether or not these defendants admitted to being in any specific gang(s) (ie Broderick Boys)? “
Hopefully that will be more clear at sentencing the nature of the admission.
[quote]Primoris also has a point, no one has to accept the plea offered to them by the prosecution, it’s true. I wonder if David or anyone else has heard from the defendants’ attorneys? Did the defense attorneys feel they had a strong enough case to take it to trial or was the prosecution’s case against them pretty strong, so strong that the plea, of admitting to gang membership, seemed like a lucky break? [/quote]
I haven’t specifically heard from the attorneys on this case, but the general thought among attorneys I have talked to is if they get an agreement with no prison time, in a case where they are actually facing considerable time, even if they believe they can win, they will not pursue trial. It’s too much of a crap shoot in their view.
dmg: “Elaine: The plea agreement as you ought to know is not an admission, it is simply an acknowledgment that the facts of the case may end up with a guilty plea. The reader can come to whatever conclusion they choose. I have come to the conclusion that Mr. Cedillo is not now a gang member and that there is not compelling evidence that he ever was. And certainly his plea in the face of prison time for a conviction is not evidence to the contrary.”
The point I am trying to make is that IMHO your bias against the current DA is so strong, that even without actual evidence you speculate and attribute wrongdoing to the DA when it may or may not be justified, yet seem to implicitly take the word of the defendant even when it doesn’t appear warranted. I prefer the approach of trying to step back, and take a more objective view, using logic (I’m a mathematician/attorney so logic highly appeals to me 🙂 ).
Your general sense of being uncomfortable with the plea bargaining system makes perfect sense to me from a logical point of view. But taking the word of defendants at face value is problematic at best. It would seem to me that in order to look at the issue of integrity in our local court system, the wisest course of action is to look at the motivations behind why people may do what they do/say what they say.
dmg: “I haven’t specifically heard from the attorneys on this case, but the general thought among attorneys I have talked to is if they get an agreement with no prison time, in a case where they are actually facing considerable time, even if they believe they can win, they will not pursue trial. It’s too much of a crap shoot in their view.”
Now this is an interesting statement, bc it can also be seen as self-serving on the part of defense attorneys. Defense attorneys can minimize their workload if the client pleads out, rather than going to trial. So I wouldn’t take a defense attorney’s word for things either.
David,
“I haven’t specifically heard from the attorneys on this case, but the general thought among attorneys I have talked to is if they get an agreement with no prison time, in a case where they are actually facing considerable time, even if they believe they can win, they will not pursue trial. It’s too much of a crap shoot in their view.”
So, it seems the defense attorneys contribute to the sorry state of our criminal justice system too? Some defendants think so anyway and I think there’s some truth to that. They view public defenders as part of the system, not their “advocate.”
If the defense attorneys think they have a strong case, is it really in the best interest of their client to accept a plea that can complicate their lives and potentially assist the prosecution down the line (increased sentences a la gang enhancements), if the plea-agreeing defendant finds himself in the system again? That could lead to more prison time, couldn’t it? Is that the right thing to do?
[quote]The point I am trying to make is that IMHO your bias against the current DA is so strong, that even without actual evidence you speculate and attribute wrongdoing to the DA when it may or may not be justified, yet seem to implicitly take the word of the defendant even when it doesn’t appear warranted.[/quote]
Actually the more I watch these proceedings, the more I develop respect for some of the DDAs. However in this case I have a problem with it. As you know, I take things on a case by case basis. And while you know my feelings about Don Saylor, I’m also quite capable of acknowledging his strengths in addition to his weaknesses.
Superfluous: I had a conversation a couple of weeks ago with a Deputy Public Defender that I really respect a lot. She had a three strikes case. She thought the person was innocent. But she took a three year plea agreement where the person due to credits would only have 14 months left to serve. She said, this individual has been in prison so long, 14 months is nothing. Why role the dice on 25 years when it’s a 50-50 prospect at best even when your client is innocent? The stakes are so high in these case it does come down at times to risk management. You really want to put that on a defense attorney? I don’t get that. She did what she had to do.
dmg: “I don’t get that. She did what she had to do.”
You don’t know that – you are taking her word for it. It may or may not be true…
Elaine: What do you mean I don’t “know” that. I can surmise it. I can see her case, I’ve now watched dozens of trials, and based on that, I would be reluctant to role the dice on twenty-five years if I’m offered three. Yes, I think that’s a fair conclusion. Do you have insight to the contrary?
David,
“Actually the more I watch these proceedings, the more I develop respect for some of the DDAs”
Care to share your anecdotes?
David, “The stakes are so high in these case it does come down at times to risk management. You really want to put that on a defense attorney? I don’t get that. She did what she had to do. “
I wouldn’t put that all on them, absolutely not. However, there are often times that defense attorneys are timid and unwilling to go to trial even when they have a strong case, that’s my point. Prosecutors are often out to make a name for themselves and will take just about anything to trials, it seems anyway.
Just as you think she did what she had to do, could the same argument be made for the various attorneys prosecuting cases? For the record, I respect both sides very much, DPD’s have a tough job and make do with what they got. I am bothered by the mindset of some prosecutors though.
Are there any examples of DA offices in which you think they are doing it “right” or closer to that anyway. I know you’ve been spending all your time on YC, but I thought I ‘d ask.
Superfluous, not yet.
I do agree that defense attorneys are timid and at times unwilling to go to trial even when they have a strong case. It’s tougher for me to evaluate a lot of those cases since we don’t know a lot of the facts unless they go to trial or unless the attorneys are willing to share during the pretrial phase.
I just don’t know enough about other counties to make that determination. One thing I’m hoping to do if I can expand this project and get funding is looking at other counties to get a better perspective.
My sense is that because of the relatively low crime rate in this county, we prosecute a lot of cases that other counties never would.
Just as you, I am bothered by the mindset of some of the prosecutors here and elsewhere. There are DA’s I respect in this county and a number that I simply think are either overzealous or just poor.
A lot of the problems I see in the system overall are endemic to our state’s mindset of putting people in prison for a long period of time, but I do this DA’s office charges cases that were never intended under the statelaws.
A lot of these kids are gangmembers in name only until you look at the kinds of crimes they are committing compared to other counties. I just question whether the laws were really intended to jack up the prison time for some of these people.
It bothers me for instance that Jesse Garcia who basically committed a non-injury, misdemeanor assault would end up with prison time for it and that he would get more time for making the threat than he did for committing the actual crime. That makes no sense.
We’ll have a story next week about a kid who had a gun sitting in his mother’s closet. he was found guilty of a violation of parole (which his attorney admitted to) and possession of a stolen weapon, which is maybe true. But then they tacked on two gang enhancements, my guess is that this kid is going to spend a number of years in prison for again a fairly minor crime.