After DA’s Hollow Gang Conviction Exposed by Probation Department’s Recommended Sentence –
When we reported on Jesus Arias back in mid-August it seemed likely he was facing prison time, and probably lengthy prison time, after being convicted of a violation of probation for having a rifle in the closet of the room he and his mother shared. Furthermore, he was convicted of possessing the stolen weapon, and a gang enhancement.
The weapon was discovered when the Gang Task Force of Sargent Dale Johnson, along with Hernan Oviedo and Hector Bautista – the same trio involved in the shooting of Luis Gutierrez in 2009 – conducted a probation search of Mr. Arias’ home 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.
Detective Bautista said, “a gang member without a gun is like a carpenter going to work without a hammer.” That nexus proved enough for the jury to find him guilty of a gang enhancement. However, the probation report downplayed the significance of the crime and recommended no prison, only probation.
That is when things got even stranger. On Friday, the parties assembled in Department 7 and Judge David Rosenberg, who had presided over the trial as well, noted that he had read the recommendation of the probation report.
Judge Rosenberg noted that there was a motion to continue the sentencing, by the defense. He said that the gist of the motion was that the sentencing in this case was connected to a new case that has been filed against Mr Arias, and thus the sentencing should be continued till the hearing of the other case.
It turns out that Mr. Arias was found in possession of pruno – which is a form of “prison wine” or a homemade alcohol. Several individuals in the jail where Mr. Arias is being held waiting for sentencing were found in possession of pruno, yet only Mr. Arias has been charged with the crime. More on that in a moment.
DDA Ryan Couzens stood and stated that the defense motion’s claim that the two cases are connected is “just not true.” He said that the motion contained “some griping about the new case.” He said that since Mr Arias has already been convicted in the previous case, that it is not at all connected to the new case.
However, as soon as those words left his mouth, he then unbelievably went on to say that he has made Mr. Arias an offer that he would “dismiss the other case with a Harvey waiver if Mr. Arias is willing to go to prison in this one.”
Deputy Public Defender Dan Hutchinson, who had a look of suppressed revulsion through the hearing, responded that Mr. Couzens’ comments to the court demonstrate that the two cases are very related. He said that his client Mr. Arias “is alleged to be in possession of pruno in jail. Multiple inmates were found with it and the district attorney has elected to charge only this one.” He said that this new charge was being used as a “bargaining instrument” to force Mr. Arias into prison. He said that the probation report recommends that Mr. Arias be released on probation.
Judge Rosenberg called the attorneys to approach and had an off-the-record discussion. At the end of it, he stated that the defense motion to continue was granted. He asked Mr Hutchinson, “May we consider this to be an arraignment on that complaint?” Mr Hutchinson responded “Yes, your honor,” in quiet disbelief. He stated that his client enters a “not guilty” plea and denies the strike enhancement.
Some reading this may not understand just how unusual it is for an individual to be charged with the possession of pruno. Public Defender Tracie Olson told the Vanguard that she had never heard of pruno prosecution in this county before. “I can’t recall a single case,” she told the Vanguard on Friday.
What has happened here is that Deputy DA Ryan Couzens is angry that his case had a probation recommendation rather than prison, as he must have been expecting. However, from the start, he overhyped the case. Gang Expert Detective Bautista’s statement to the jury about gang members and the use of guns clearly worked to help convict Mr. Arias of a gang enhancement, but the truth of the matter is that the case boiled down to the possession of a weapon that they could never prove he actually possessed, there is no evidence that he had actually used or taken it into public, and from that they projected a public danger and exploited the fears of the jury.
The Probation Department’s report is a crucial part of a sentencing hearing. The judge relies on it heavily to make his decision on sentencing, and it is based on a thorough investigation and lengthy interview with the defendant. The probation department perhaps knows better than anyone, and has experience in the reality of, how inmates are likely to behave once they are out of custody, rather than the DA who seems worried only about what they have to show on paper.
One could argue that perhaps probation is making a big mistake and that DDA Couzens is trying to correct that mistake. But the Probation Department’s recommendations are cautious and conservative in the other cases we have seen, and perhaps overly so. Here in the Arias case, they definitely disagreed with what the DA represented in trial about the danger level of this person and perhaps his gang motive, or the lack of it.
It seems that DDA Couzens really managed to pull the wool over the jury’s eyes with the help of Det. Bautista. Detective Bautista said that the way he sees it, this person does not have this gun for the purpose of hunting. He keeps it ready and can use it to commit a crime, and then dispose of it without the worry of having it connected to him, since it was a stolen weapon.
He said that gang members prefer to use stolen weapons for this reason. He said that for gang members, a gun is like a hammer for a carpenter. He also admitted that at the arrest of Arias in this case, though they found the gun, they found no gang clothing, no gang graffiti, no gang haircut, nothing to indicate that Arias was in a gang at that point – their reports also noted no gang-related objects of any kind.
The Colusa Sheriff Deputy, who encountered a drunk and boastful 16-year-old Jesus Arias, saying he was a proud Sureno and he was looking forward to putting in work for his gang, and was intending to commit criminal violent acts to build his reputation and move up the ranks, was dealt with by the Deputy with a phone call to his mother to come and pick up the boy.
The jury heard the rhyme from the MySpace page at the beginning, middle and end of the trial. The rhyme was used to emphasize the importance of guns for gangs and stated “Click click, bang, bang… kill a Nor puto win a prize, Kill a Sureno and your whole family dies… ” Despite all that fear-mongering, probation wants to let him out. Perhaps they were told about the erased “gang” tattoo, unlike the jury who was prevented from hearing such evidence.
The bottom line is that, as I always believed, this was a thin case, based on little evidence and a lot of speculation on the level of danger that Mr. Arias represented to the community. The probation department agrees with that assessment and has recommended probation, despite the fact that Mr. Arias technically violated probation by knowingly being in the vicinity of the weapon.
In order to coerce Mr. Arias into prison time, Mr. Couzens has vindictively trumped up charges of pruno possession that, according to the Public Defender, is never charged in this county. The other individuals caught with the substance, all of whom are in the same position as Mr. Arias, awaiting sentencing, were not charged.
Mr. Arias should not go to prison based on possession of prison wine and Mr. Couzens needs to stop trying to waste court time and taxpayer money by pursuing this.
—David M. Greenwald reporting
dmg: “The bottom line is that, as I always believed, this was a thin case, based on little evidence and a lot of speculation on the level of danger that Mr. Arias represented to the community. The probation department agrees with that assessment and has recommended probation, despite the fact that Mr. Arias technically violated probation by knowingly being in the vicinity of the weapon.
In order to coerce Mr. Arias into prison time, Mr. Couzens has vindictively trumped up charges of pruno possession that, according to the Public Defender, is never charged in this county. The other individuals caught with the substance, all of whom are in the same position as Mr. Arias, awaiting sentencing, were not charged.”
Note that “Mr. Arias technically violated probation by knowingly being in the vicinity of the weapon…” and “a drunk and boastful 16-year-old Jesus Arias, saying he was a proud Sureno and he was looking forward to putting in work for his gang, and was intending to commit criminal violent acts to build his reputation and move up the ranks” and “Mr. Arias “is alleged to be in possession of pruno in jail…”. Doesn’t sound like a harmless kid to me, but a dangerous punk who needs an attitude adjustment…
It should also be remembered our jails are horrendously overcrowded, and we are going to see more and more offenders that would normally get jail time being let out on on the streets…
It should also be remembered our jails are horrendously overcrowded, and we are going to see more and more offenders that would normally get jail time being let out on on the streets…
The reason why the jails are overcrowded is that the US is the Worlds Leading Jailer – how can anyone call that “normal”? We are spending far too much money on supporting a misguided Justice System. The case described above demonstrates how how the politics of promoting the DA’s Success has upsurped the greater goal of Justice.
Alphonso: “The reason why the jails are overcrowded is that the US is the Worlds Leading Jailer – how can anyone call that “normal”? We are spending far too much money on supporting a misguided Justice System. The case described above demonstrates how how the politics of promoting the DA’s Success has upsurped the greater goal of Justice.”
You missed my point – I guess I was too subtle. The Probation Dept may have decided to put this kid on probation not bc they thought he didn’t deserve jail time, but bc of the practical realities there is no more room to house this type of low level offender in jail.
“Doesn’t sound like a harmless kid to me, but a dangerous punk who needs an attitude adjustment… “
This comment by Musser illustrates the problem that we have in this case and in general, that a comment when written out in a report or repeated by another person can be made to have an intent very different from the original. What Musser left out of her quote, and deliberately I think, was how the Officer dealt with this “dangerous punk” after he boasted of being a proud Sureno and committing violent acts to move up the ranks of the gang. The Officer called Arias’ mother and asked her to come and pick her boy up. It speaks for itself.
As has been stated by DMG, there was never any information presented to explain how the gun got to the closet where it was seen by the Officers. There was never any evidence that Arias had ever touched the gun, but yes, being knowingly in the vicinity of a firearm was a violation of the rules of his probation. Though how you go from that to “dangerous punk” is beyond me.
The probation department, who interviewed Arias as a part of preparing their recommendation to the court. Given all their experience dealing with devious, evil, “dangerous punks,” they were convinced that Arias was not one. But what does that matter? What does the context of his statements matter, right? Let’s just throw him away because he needs an “attitude check.” He’s not a human after all, so it’s not worth being careful about it, right Musser?
I don’t think he missed your point Elaine, I just think your trying to make an excuse. I’ve seen this probation department recommend jail/ prison in cases where drug offenders who were non-violent violated their probation, it would be very odd to see them fail to recommend jail/ prison in this case if they thought for a second Arias was a danger to the community.
You questioned my legal knowledge a few weeks ago, but now I wonder if you understand how the probation department really works and what their function is in the legal system.
Ryan C is only doing DA Reisig’s work. Dep DA’s evaluations are based on court appearances, convictions and sentences. If you don’t go to court and get convictions and sentencing then your evaluation will suffer. It is this policy, that was started when DA Reisig took over, that causes justice to take a back seat for job security.
The probation department does not care how full prisons are, that is a state issue, it is not considered at all in completing a probation report and recommendation. Any one saying this is either uninformed or is trying to throw up smoke and mirrors for the DA.
I am happy to see that the probation department is willing to look at this case independently of what the DA’s office says and that they made their own decision in this case.
I have to disagree with the comment in the article that the probation department is conservative. In the Ajay Dev case, Ajay got 378 years for a crime that had no physical evidence. In fact, the only evidence was that the accuser said it happened. This is far from conservative. Because Ajay Dev maintained his innocence to the probation department and to the judge, they “through the book” at him.
To Fight Against Injustice: I think “conservative” in the article means that they are conservative when it comes to taking risk in letting people out. I don’t think it was meant to mean that they are conservative in the prison time they recommend. It essentially is in agreement with your point about the Dev case.
” Doesn’t sound like a harmless kid to me, but a dangerous punk who needs an attitude adjustment… “
Since when does an attitude adjustment mean jail time?
Dark Ages: Thank you for clearing that up for me. I re-read the “conservative” part again, and I agree with your assessment.
Alphonso–I don’t know if the increase in jailed criminals (convicted of crimes, remember) has as much to do with increasingly strenuous sentences as it does simply to increases in the number of people that are performing crimes–perhaps it correlates well with the number of fatherless children (as I understand it a high proportion of violent criminals are brought up by single mothers, with no stable father presence); unfortunately rather than a father laying down the law to adolescent children when they cross certain lines; the first time the law is laid down to many such kids (mainly males) is when they are arrested and thrown in jail.
Part of the reason there is a higher % of population in prison in the USA is simply that a higher % of the population commits serious crimes. In addition to fatherlessness, I propose that a major part of this is that we have a winner-take-all type of economic system, and that people are valued and respected in proportion to their acquisitions, more so in the USA than in other western countries. In addition, in the USA we promote personal identification based on race, gender, and sexual preference, and promote conflict and social/economic competition between these identity groups. Thus “Get Rich or Die Trying” is not such a far stretch for a personal philosophy.
That said, from what I have heard (3rd and 4th hand) prison life is more horrendous than it need be, and prisons have low success in rehabilitating people (although I guess some criminals ‘wake up’ after being in jail a spell, and abandon their former criminal enterprises upon release)
Wish there was an easy way to improve things; it seems there is no easy way.
The problem with that theory Jim is that prison population has exploded since the mid 90s whereas the crime rate peaked about 1980 and has actually decreased steadily since then. The prison population increase corresponds not with any kind of increase in criminal activity, but as a result of the crackdown on drug use, the incarceration of thousands for simple possession of drugs (and the disproportionate sentencing of crack to powder cocaine), the institution of mandatory sentencing laws, and things like three strikes.
The worst part is that more and more people are now going to prison for things like three strikes at a time when statistically speaking they are increasingly less likely to commit future crimes and the crimes they are likely to commit are less in severity.
Bottom line, we are spending millions to billions each year incarcerating a lot of people that do not represent a true threat to public safety either due to the nature of their crimes or their age.
Good points David.
I’m not as conversant with the more recent situation as I should be and would like to be, thanks for laying out some clear points.
I do agree that crackdown on drug users is highly disproportionate and that most (if not all) convicted of simple possession of small amounts of illegal drugs should receive an alternative to prison time.
And also that 3 strikes should apply only for violent felonies; and that young kids who aren’t fully hardened to a criminal lifestyle should be given lighter sentences; and not housed with hardened career criminals or the psychopathically violent (wish I knew that magic formula for rehabilitation)
I think that’s a good start.
dmg: “I don’t think he missed your point Elaine, I just think your trying to make an excuse. I’ve seen this probation department recommend jail/ prison in cases where drug offenders who were non-violent violated their probation, it would be very odd to see them fail to recommend jail/ prison in this case if they thought for a second Arias was a danger to the community.
You questioned my legal knowledge a few weeks ago, but now I wonder if you understand how the probation department really works and what their function is in the legal system.”
From the website thecenterforcriminaldefense.com:
“Prison Overcrowding has California’s Budget Locked Up
Sunday, April 11th, 2010 at 7:08 pm
A new law recently signed by Republican Governor Schwarzenegger addresses two emergencies that California faces; the budget crisis, and unconstitutional overcrowding in our state prisons. This legislation achieves both aims through actions recommended for years by independent analysts and commissions. The state spends, on average, $47,000 per year to house a prisoner; estimates suggest these changes could save $100 million in this year alone. Perhaps one of the reasons the prisons are so overcrowded is that defendants failed to get one of the best criminal defense lawyers in Los Angeles.
This legislation, approved by the Democratic-controlled State Legislature by a narrow margin, changes the current focus of many parole officers. Currently, they spend much of their time monitoring low-level offenders and sending them back to prison for technical violations of their parole. Instead, parole officers will focus on tracking serious, violent offenders. To enable this shift, hundreds of low-level offenders, released early under this legislation, not be required to be closely supervised by parole officers. Prisoners may also be released early if they complete drug and education programs. Others will have their sentences reduced because new sentencing formulas give more credit for the time each prisoner served in county jails before and after sentencing. Currently, many parolees end up back in prison after a parole violation, which is why it is so important to get a criminal defense attorney who has experience with California Criminal Law and Parole Hearings.
The state prison population in California has been a major drain on the state’s financial resources, a problem being addressed by the governor. Currently, almost $8 billion goes to the penal system annually. That sum constitutes ten percent of yearly spending, resulting in prisons and jails receiving a larger budget than public higher education in California.
dmg: “The problem with that theory Jim is that prison population has exploded since the mid 90s whereas the crime rate peaked about 1980 and has actually decreased steadily since then. The prison population increase corresponds not with any kind of increase in criminal activity, but as a result of the crackdown on drug use, the incarceration of thousands for simple possession of drugs (and the disproportionate sentencing of crack to powder cocaine), the institution of mandatory sentencing laws, and things like three strikes.
The worst part is that more and more people are now going to prison for things like three strikes at a time when statistically speaking they are increasingly less likely to commit future crimes and the crimes they are likely to commit are less in severity.
Bottom line, we are spending millions to billions each year incarcerating a lot of people that do not represent a true threat to public safety either due to the nature of their crimes or their age.”
I can’t disagree with your points. The prison system has become a “business” model that is in it for however much money they can drain from the taxpayers. The three strikes law if definitely “overkill”…
Dark Ages: “The probation department interviewed Arias as a part of preparing their recommendation to the court. Given all their experience dealing with devious, evil, “dangerous punks,” they were convinced that Arias was not one. But what does that matter? What does the context of his statements matter, right? Let’s just throw him away because he needs an “attitude adjustment.” He’s not a human after all, so it’s not worth being careful about it, right Musser?”
I just stated a possible motive for the Probation Dept to recommend a lighter sentence than they ordinarily would. I don’t know if it applies in this case. But I do think Arias is not as harmless as DPD would make him out to be in light of the evidence against Arias. It seems as if this kid is hell bent on doing what he wants when he wants how he wants, and damn the consequences. Not a good sign for rehabilitation…
What would I do, in sentencing Arias? I’m not sure. I don’t know enough about the reasons he was on parole in the first place, or about his character and demeanor, or what kind of home support system he has in place to dig him out of the whole he has dug for himself…
“It seems as if this kid is hell bent on doing what he wants when he wants how he wants, and damn the consequences. Not a good sign for rehabilitation… “
But based on what are you saying this? The police incident was from when the kid was 16. They weren’t allowed to say in trial that he had some of his gang tattoos removed, which is btw a big thing and potentially least in some gangs a grave if not capital offense. He’s also going back to school.
Probation is going to interview him and take everything into account before making the recommendation. You posted the article above and that talks about parole not probation. Also this type of thing, at least on the surface, isn’t the kind of violation parole would ignore, having a stolen weapon in his home.
erm: “It seems as if this kid is hell bent on doing what he wants when he wants how he wants, and damn the consequences. Not a good sign for rehabilitation… ”
dgm: “But based on what are you saying this?”
I thought I already explained: “Note that “Mr. Arias technically violated probation by knowingly being in the vicinity of the weapon…” and “a drunk and boastful 16-year-old Jesus Arias, saying he was a proud Sureno and he was looking forward to putting in work for his gang, and was intending to commit criminal violent acts to build his reputation and move up the ranks” and “Mr. Arias “is alleged to be in possession of pruno in jail…”. Doesn’t sound like a harmless kid to me, but a dangerous punk who needs an attitude adjustment…”
dmg: “You posted the article above and that talks about parole not probation.”
Note in the article “Prisoners may also be released early if they complete drug and education programs. Others will have their sentences reduced because new sentencing formulas give more credit for the time each prisoner served in county jails before and after sentencing.” Clearly the entire prison system, including probation department are trying to find ways to avoid the overcrowding.
By “prisoner” I assumed those incarcerated and awaiting trial, which probably in hindsight is not what was meant. Nevertheless, I have no doubt the probation department has been given a directive to do whatever it can to avoid the overcrowding problem in jails.
[quote]I thought I already explained: “Note that “Mr. Arias technically violated probation by knowingly being in the vicinity of the weapon…” and “a drunk and boastful 16-year-old Jesus Arias, saying he was a proud Sureno and he was looking forward to putting in work for his gang, and was intending to commit criminal violent acts to build his reputation and move up the ranks” and “Mr. Arias “is alleged to be in possession of pruno in jail…”. Doesn’t sound like a harmless kid to me, but a dangerous punk who needs an attitude adjustment…”[/quote]
You are talking about three different incidents, one in which he was drunk two years ago, one in which he had a weapon, maybe, but no one can prove he actually had the weapon, only that he was there. And the third, he among many others had pruno in jail, which according to people who used to work for the DA’s office has never been prosecuted going back at least a quarter century, it’s always been docked from good behavior credits or used as some sort of punishment. I think you are drawing a broad view on two of those incidents, the pruno and the drunkenness two years ago and not taking into account other behavior which seems to be trying to get himself in the right direction.
Contrary to your assertion, I have seen no evidence that probation is making softer recommendations based on capacity of prisons or jails, that’s not for them to decide and it’s just not happening, I was told that flat out by someone in probation who would know and tell me the truth.
PRobation unlike you, or even me, had the access to talk to the kid and do a full assessment of all facts and weigh them together and ended up with the recommendation that they did. My guess is despite the best efforts of the DA, Mr. Arias will end up on probation and get one more chance to straighten out his life and if he blows that, then he’ll deserve what he gets.
dmg: “PRobation unlike you, or even me, had the access to talk to the kid and do a full assessment of all facts and weigh them together and ended up with the recommendation that they did. My guess is despite the best efforts of the DA, Mr. Arias will end up on probation and get one more chance to straighten out his life and if he blows that, then he’ll deserve what he gets.”
If he gets probation, my hope is he straightens out, but if he doesn’t, I hope he is the only one hurt…