One day after his 18th birthday, Jesus Arias got a visit from the Yolo County Gang Task Force. By now, many are familiar with Sargent Dale Johnson, along with Hernan Oviedo and Hector Bautista. They did a probation search on Mr. Arias’ residence that he shared with his mother and sister. They asked him if he had any weapons and he pointed to a rifle in the closet of the room he and his mother shared.
His probation had express conditions against either being in possession or near a firearm. Things got worse from there. The weapon turned out to have been stolen two and a half months before. While the Gang Task Force never bothered to take fingerprints to connect him directly to the weapon, they arrested him for violation of probation and possession of a stolen gun. To that charge they tacked on a gang enhancement.
As usual, the nexus for a gang enhancement is the tricky charge. They found on Mr. Arias’ myspace page some evidence of gang involvement, including a pledge that in part read, “Click Click Bang Bang…kill a Norteno, win a prize… kill a Sureno and your whole family dies…” Moreover they had numerous contacts with Mr. Arias, in which he had admitted being a Sureno of the VRT subset (Vario Rbuckle Trece).
However, as people who read this site often know, just being a gang member is not sufficient to prove that the crime took place for the benefit of the criminal street gang, as the California Penal Code 186.22 details.
The defense pointed out that when the gang task force did the search, they found no evidence of gang activity or materials. The gun was in an open closet in plain view and Mr. Arias directed the task force to the gun. Mr. Arias knew of the weapon but claims that he did not know it was stolen.
His defense attorney claimed that he had done gang emblems and claimed to be a proud Sureno to a police officer, as a drunken 16-year-old. He made a bunch of boastful statements at that time, but defense claimed they were the ramblings of a drunk dimwit and punk, rather than serious statements made by a gang member.
The room where the rifle was, was in fact his mother’s. However, the room was clearly in use by him, as well. The task force found paperwork addressed to him and clothes, and he admitted he used the room and slept there when his mother was gone.
He claimed the rifle to be his brother’s, but the prosecutors were able to prove that to be false. His brother was in prison when the gun would have been stolen.
To prove the gang charge, they relied heavily on the myspace page along with a number of other contacts. There was a video from a prior incident that involved a “beer run” where Mr. Arias ran into a convenience store and stole beer and then got into a fight with six other individuals. It was a fist fight, no weapon, and a bunch of pushing and shoving.
The myspace page, in addition to the pledge, featured four photos of Arias “throwing gang signs” and some of him just drinking beer and smoking.
Detective Oviedo claimed they checked the myspace page because sometimes gang members will post photos of the stolen property on their page as a means of bragging. However, they found no photos of the gun. In fact, there was no evidence at all to link Mr. Arias to the gun other than where it was placed. No one reported seeing him with the gun. They never collected fingerprints from the gun to show that he possessed the gun. They simply relied on the fact that it was in the room he shared, and the brother could not have stolen the gun.
Deputy Richard Bowen, of the Colusa County Sheriff’s Department, talked about an incident on August 1, 2008 when Mr. Arias was 16. At that time he said he was a Sureno, he had been “beaten in” three months prior. He talked tough, but there was no arrest and he called his mother to pick him up. When she could not, they transported him to his sister’s residence.
In another contact, Sheriff’s Deputy Fortis of the Colusa County Sheriff’s Department responded to a fight near a bar. He saw Mr. Arias running and followed him. Mr. Arias claimed that people back there wanted to fight him and he feared for his life.
He was heavily intoxicated. He said he was a proud Sureno gang member. He was looking forward to “putting in work” and working his way up to be an “OG” which was an “original gangster.”
On cross, it was pointed out that it was Halloween, he had been partying with girls, and he had been drinking. They did not arrest him. He called his mother to come pick him up.
Now, under the 186.22 statute on gang enhancements, they have to show “predicate offenses,” which are used to show the statutorily-required “pattern of criminal gang activity.” The offenses do not necessarily have to be gang crimes, but they do have to have been perpetrated by gang members. The prosecution must establish that the group has “a primary activity of commission of one or more of the predicate crimes listed in the statute. Proof that a “group’s members consistently and repeatedly have committed criminal activity listed in the gang statute” is sufficient to establish the gang’s primary activity.
This is fairly important because, in this case, the predicate offenses occurred in Woodland, not Dunnigan where Mr. Arias resided. And while they were purportedly done by Surenos, they were not done by Mr. Arias or his VRT sect. Is that sufficient? The jury found it to be. The prosecution described a driveby shooting at Campbell Park where Gonzalo/Valencia and Ramiro Leon (Surenos) shot at a crowd of people, rival gang members (a case we covered and found the evidence that Mr. Leon was involved to be questionable at best). The second offense was Garcia/Reyes, Jose Vidales and Philipe Reyes, who, in Jan 2009, robbed an individual walking home from the Woodland theater. They were convicted of robbery with gang enhancement.
Suddenly, Detective Bautista read an opinion of the 3rd district court of appeal which the prosecutor had handed to him that morning. The case was about Jose Kelly Munoz who was in Arbuckle in Aug 07, was arguing with his cousin, a firearm was discharged in the struggle and the bullet hit an object and fractioned. Mr. Munoz got a life sentence, but there was not a gang charge. Detective Bautista admitted he’d just read the opinion that very morning and had been asked to refer to it on the stand. He had only vaguely heard about the case prior to that.
The defense objected to this, arguing that it was not charged as a gang crime. However, the DA Ryan Couzens stated that, while it is accurate that it was not a gang charge, predicate offenses do not have to be gang-related to show a pattern.
The defense attorney in this case did not introduce a single witness, and did not present any contradictory evidence that might be exculpatory. Instead, he relied upon his cross-examination and closing statement. That was likely a huge mistake. At the very least, he needed some character witnesses to re-shape the image that the prosecution had presented of this young and brazen gang member. It would also have been helpful to have their own gang expert.
Instead the defense rested, and in closing argued that there was “once again, clear and convincing evidence that he was being a punk and a dimwit” but not evidence that he knew the gun was stolen, no evidence to support that claim. He argued that in this country we don’t convict people for what they might do.
The key to the case was that Ryan Couzens was able to clearly and convincingly lay out the nexus between gang member and possession of the gun to get the gang enhancement charge to stick. Detective Bautista said himself, “a gang member without a gun is like a carpenter going to work without a hammer.”
The jury was back very quickly with the verdict, guilty on all charges. Judge David Rosenberg will now have to determine whether to take the lower end, the middle term, or the upper term of the penalties for these crimes when he sentences Mr. Arias. The lower term for each gang enhancement, for instance, is 16 months, the middle is 2 years and the upper term is 3 years. So if he were to take the two upper terms for instance, Mr. Arias would get six additional years from the enhancements alone. At minimum he would get 32 additional months, or nearly three years from the enhancements.
This remains a troubling case for several reasons. First, originally the defense had contested the violation of probation charge. However, in closing, the defense attorney conceded that his client had committed a felony, clearly hoping that admitting to this would avoid the additional charges. It did not work.
It is also not completely clear that he needed to do so. Although technically knowingly being around the gun was probably sufficient to prove a violation of probation, as the agreement states being near a weapon would be sufficient, it is unclear that the violation would be as severe if it were deemed not to be his weapon.
Did he possess the weapon or steal it? We do not know. You would think the Gang Task Force would have tried to fingerprint the weapon to establish that Mr. Arias’ fingerprints were on it, but they did not. His explanation proved faulty, but there was still little direct evidence that the weapon was his. Nevertheless, a conviction of that charge seems reasonable, given the lack of the defense calling on anyone to refute that charge.
The gang enhancement which carries an additional 16 months to three years PER charge, is unsettling in this case. The prosecutor made a great presentation to the jury. The jury appeared very conservative in their appearances, and it was going to be a tough jury for the defense from the start. Nevertheless, the actual evidence of a 186.22 charge was very thin.
To gain that charge, they needed to establish that the crime was committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Toward that end, they offered the drunk ramblings of a sixteen-year-old who claimed he wanted to put in work and become an OG. They added in the officer’s quote about the gun. And the quotes from myspace, which they were able to show he had accessed the night before his arrest.
Is that enough to show that this crime was committed for the purposes of furthering or promoting a criminal street gang? It seems a thin nexus at best, but with little evidence to the contrary from the defense, the jury bought it.
The defense was unable to get admitted into evidence the fact that Mr. Arias had some of his “gang” tattoos previously removed, or the fact that he was going back to school. When in closing he cited his status update as “excited” about going back to school, it was probably too late. A witness or two showing his efforts to get back to school might have helped.
Bottom line, as the defense points out, we punish people who have committed crimes, not who might. But unfortunately the defense never convincingly made that case to the jury.
I remain quite comfortable with Mr. Arias being punished for the stolen weapon (despite the lack of evidence) and the violation of probation. I have a bigger problem with the gang enhancements because all the prosecution really did was show he was a gang member and that is not sufficient.
—David M. Greenwald reporting
“The defense was unable to get admitted into evidence the fact that Mr. Arias had some of his “gang” tattoos previous removed or the fact that he was going back to school.”
Why would the defense be unable to get this admitted into evidence? Was there or was there not evidence that he indeed had some of his gang tatoos removed, and evidence that he had indeed applied or registered at school?
David, its good you are posting these stories and details–helps me appreciate the difficulty inherent in these types of situations (which I assume are fairly common) that law enforcement and the courts have in determining just what exactly is going on; and in determining how to prosecute and sentence appropriately–seems like an appreciable amount of uncertainty might remain at the end of the day.
Jimt:
Thanks, that’s actually a big part of the goal, show the process, ask tough questions, in the end, people can decide for themselves, but at least they’ll have information to base it on.
Your question is a good one, it just requires a bit of explanation.
So at the beginning of the trial they have what they call motions in limine which are motions made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial.
So one of the motions was to not allow that evidence and it was not challenged by the defense as I understand it (my intern was covering it at the time, so I did not personally witness it).
Why? Well I think that was one of several tactical errors by the defense here.
The Hon. David Rosenberg, assured that the grand jury would NOT investigate the appointment of now Sacramento probation chief, Don L. Meyer, from Calaveras county who concealed a fabricated felony foster youth abuse investigation to include a hate crime allegation.
Rosenberg, the former county supervisor would never have gained the judicial position w/o participating in public corruption in Yolo; Rosenberg is the worst kind of criminal; a judicial impostor with unchecked power.
Earlier, presiding judge, Donna M. Petre, council, Steve Basha, & the supervisor’s, knowingly appointed Chief Meyer under the fabricated PC 832.5 allegation(s) & concealed it along with their colleagues in Calaveras.
It doesn’t get any simpler and the Guardian never investigated this fiasco connected to two qui tam suits.
District Attorney, Dave Hendersen & later, Jeff Reisig, assured that no investigation would take place. And this continues through to today.
Last week, Sacramento county personnel director, David Devine, internal services agency chief, Mark Norris, county executive, Steve Szalay, DA Jan Scully, the 2010/11 grand jury and the BOS; were asked to investigate internal affairs assistant chief, John O’Brien, for misrepresenting a PC 832.5 investigation on ACPO Suzanne Collins. Chief Meyer had his then former Sac colleague (Collins) investigate Meyer after Meyer botched the investigation on Meyer in Tuolumne county. Will the Sac county crew follow the law? Can they hold Collins, O’Brien & Meyer for a likely scheme?
The legal system with its conservative (white) jury operates in over drive in Yolo county, yet there’s not one official nor entity there that can hold another accountable. It’s the Woodland Gang, a white group of empowered ‘hard on crime’ dimwit criminals who use the offices special powers with public funds which operates like a cabal. Every base is covered, the court’s, county council, DA, police. There’s no crime in Woodland that the Gang can’t make disappear, but god forbid if your not one of them.
Now, assemblywomen, Mariko Yamada, who knowingly appointed Chief Meyer under the fabricated investigation has used the office’s powers to avoid any accountable. This included having the CHP investigate me for threats. This official, a social worker, who claimed familial oppression through Manzanar, has come full circle.
Greenberg, when are you free to vet these allegations?
jake wallace
209-470-5175
perhaps the subtle strategy was to give an “incompetent defense” for use in subsequent proceedings. Based only on David’s account, and not being an attorney nor schooled in the nuances of California law, I’d be inclined to grant a new trial..
but then, there’s the taxpayer expense…
Jake Wallace is a disgruntled former owner of a foster group home where kids were removed by the Colusa County Probation Department as inappropriate placement. He hates Don Meyer, our former Chief Probation Officer, who has now moved on to Sacramento. He also obviously hates Mariko Yamada and admits to being investigated for making threats toward her. He does not live in Yolo County. Every post of his says the same thing regardless of the topic. He should be banned from this blog.
1) Admitted gang member
2) identifies himself as a gang member to multiple officers on various occasions and says he want to “do work”
3) Gang tattoo’s
4) Committed a crime to get on probation (what was the original charge?)
5) Posts gang material om myspace
6) In possession of a stolen firearm (It looks really bad when you say the gun belongs to your convict brother when the convict brother was in prison when it was stolen, if you lie about who the gun belongs to why should we believe anything you say)
Sounds like a good gang conviction to me.
I have to wonder if Mr Arias could actually find a character witness.
To Mr. Obvious: All of those are evidence that he was in a gang, none of that speaks to the 186.22(B)(1) which requires that the prosecution prove that he commit the crime for the express purpose of furthering or benefitting a criminal street gang. Being in a gang is not sufficient and none of your evidence that you listed out points to that.
jimt: “David, its good you are posting these stories and details–helps me appreciate the difficulty inherent in these types of situations (which I assume are fairly common) that law enforcement and the courts have in determining just what exactly is going on; and in determining how to prosecute and sentence appropriately–seems like an appreciable amount of uncertainty might remain at the end of the day.”
“An appreciable amount of uncertainty” occurs in almost every trial. It is the nature of the beast…
Gang members shoot people. Gang members need a gun to shoot people. This gang member, who already said he wanted to “do work”, and added the same on his myspace page, had a stolen gun. He lied about it being his brothers and gave no other explanation as to how it was in his closet. Gang Task Force didn’t have to tie him directly to the weapon, he did it himself by pointing it out to them. If you’re probation says you can’t be around guns you can’t use the “It’s not mine” argument.
NEW FLASH FOR VANGUARD READERS: CRIMINALS LIE AND DEFENSE ATTORNEYS GET PAID TO SAY THEIR CLIENTS ARE INNOCENT
He willfully violated his probation by being in possession of a firearm. If he could prove he was hunter you MIGHT have an argument about the charging of the gang enhancement.
Sometimes it appears that unless someone yells “I’m a gang member and shooting you in the face in furtherance of a criminal street gang!” and it’s on video DG will not accept anything as a gang crime. Your incessant railing against the DA’s office would have more credibility if you would point out some cases you believe the DA’s office did a good job on. If you are “watching” you must see some.
“Beyond a reasonable doubt” is the standard we use. DG is going for 100%, with a confession, the crime was video taped, the person admits to it on the stand, and there is a non-law enforcement uninvolved independent witness to the actual crime.
Mr. Obvious: There is no doubt that he violated his probation, even his lawyer didn’t dispute that.
The question is still whether he violated 186.22 and I don’t you get there based on the evidence without making a lot of assumptions which is not part of the law. As for the conviction of a stolen weapon, I can live with a conviction on that. It’s probably about 85%, I’m not sure that’s where the law is, but it’s not unreasonable.
Mr. Obvious misses the point. Our “best of the world” legal system espouses the presumption of innocence, that punishments should fit the crime and that we don’t arrest, charge or convict people for what they might do. People do commit crimes in furtherance of gangs, which is why the law exists. However, not every action a gang member does is for the gang. People are individuals too. And I believe the point being raised in the article is that the gang enhancement is being improperly applied.
What bothers me is that every day I hear people say “innocent until proven guilty”. Yet every day I read a news article or a comment by someone who without knowing all the facts has already convicted someone. Far too many people have a lock-them-up and throw away the key mentality. These people don’t want to believe that police, DA’s and judges can make mistakes too. They are only people and fallible like the rest of us.
If you look further than the headline news people are exonerated and convictions overturned on appeal on a regular basis; some after a very long time and yet this doesn’t seem to bother anyone. What if you were one of those people? You would hope that decent people care and question. Or are you willing to throw your life in front of people who just want to lock you up and throw away the key, because the police arrested you and the DA brought charges? It is the burden of the people to prove a crime was committed. Not parade people in court in front of a jury – if anyone of the lock-them-up and throw away the key mentality are on that jury – they probably believe well this defendant won’t admit their guilty so now we have to sit here and go through the motions.
Life is more precious than that. That is why we have tough crimes for murder. Yet, when an innocent person is convicted and has to lose years of their life until someone will finally listen to them and look fairly at the evidence and they win their freedom, what is the difference? It’s institutional murder. Or maybe it is murder by apathy because you trust the system.
Everyone needs to ask all the questions and tough questions. And at the end of the day, those who are guilty are guilty. Those who are innocent are innocent. Careful consideration of the facts will point to the truth. You don’t need to be lazy and espouse rhetoric. People’s lives are at stake and they deserve to have careful consideration of all the facts.
[quote]”You don’t need to him to stand up and yet I’m a gang member, but you do need more than proof that he is a gang member or that a year before he told the officer that he is putting in work.” [/quote]
True, there needs to me more than what you posted in the article. There is predefined criteria for validating someone as a gang member. If the criteria isn’t met then you can’t call someone a gang member. Clearly that wasn’t the case here.
Mr Aria’s attorney was probably right, his client is a dimwit, but gang members aren’t usually skipping a job as a brain surgeon to play with their gang buddies.
Besides the fact that I feel the case was proven here I look at gang crimes in another way.
Gang members have a propensity for violence. A vast majority of members are “beaten in”. The become a member of a gang you have to be willing to accept violence from the first day. I would be in support of extending sentences to anyone who is a validated gang member. The membership can always be challenged in court. Probably not in Mr Arais’ case because of his mouth but in may you could.
I have never claimed to be a gang member because gang members are not good people. If you lay with dogs you will get fleas.
Part of the criminal justice system punishes people but it is also responsible for protecting the citizens from people who refuse to live by the laws. I don’t support life sentences for all gang crimes but you have to have protect the people from criminals.
Mr. Obvious: The issue is not whether or not the Mr. Arias was a gang member. The issue is that in order to prove a 186.22, the crime must be shown to have taken place for the purpose of benefiting or furthering a criminal street gang. That element in my view was not proven. That an individual was a gang member and had a gun is not enough to sustain that – even the prosecutor acknowledged that point.