by Alex Clark
Special to the Vanguard –
On July 30th, the Vanguard reported on a case that originated out of Davis. On May 5th, 2010 law enforcement officers executed a search warrant at a home located on the 1500 block of Cypress Lane in Davis. The search produced multiple bags of marijuana, scales and US currency. Consequently, one resident, a minor, was arrested.
In the course of their duties, law enforcement intercepted a text message sent to the minor from “Chico,” a moniker law enforcement recognized as being associated with an individual by the name of Israel Covarrubias. Mr. Covarrubias, a defendant in the aforementioned case, had allegedly offered marijuana for sale. Law enforcement, unbeknownst to Mr Covarrubias, arranged a meeting between himself and the minor in which the former would sell one ounce of marijuana. Mr. Covarrubias is alleged to have agreed to meet the minor for this purpose.
A vehicle containing four occupants arrived on the scene. Mr. Morales, an occupant of the vehicle, retrieved a bag from the trunk and gave it to Mr. Fiero who had also exited the vehicle. Mr. Fiero, said to be a known member of the Norteno criminal street gang, then proceeded to take the one-ounce bag of marijuana to the home on Cypress Lane and knocked on the front door, at which point all suspects were confronted and presumably detained by law enforcement. Found in the vehicle was an additional one ounce bag of marijuana and one small bag that law enforcement determined was for personal use.
Co-defendants Amaris Rodriguez and Israel Covarrubias remained in the vehicle during the incident. Ms. Rodriguez was the driver of the vehicle and Mr. Covarrubias was positioned in the rear right passenger seat. Mr. Covarrubias is considered a known Norteno gang member and Ms. Rodriguez an associate of the gang. Both were on probation.
A search of Ms. Rodriquez’s purse produced a digital scale, commonly used by drug dealers to weigh the illicit product, which contained residue that tested positive for marijuana. Mr. Covarrubias was found to be in possession of a bag of marijuana weighing 2.9 grams. An additional bag of marijuana containing roughly one ounce was found on the vehicle’s floorboard.
Davis Police Department Officer Kierith Briesenick, a gang-expert, testified in a preliminary hearing that Mr. Covarrubias and Mr. Fiero are both “validated” members of the Norteno criminal street gang. Ms. Rodriguez, Covarrubias’ co-defendant and girlfriend, was determined to be a Norteno associate.
Many law enforcement agencies use the California Department of Justice CalGang system’s criteria to determine (i.e. “validate”) gang membership. Gang intelligence gathered and entered by law enforcement is kept in a “Central Database.” The CalGang system is intended to “provide users with sources of information upon which official action may be taken.” Further, “The fact that a record exists cannot be used to provide probable cause for an arrest or be documented in an affidavit for a search warrant.”
The CalGang system, for its purposes, defines a criminal street gang as “a group of three or more persons who have a common identifying sign, symbol or name, and whose members individually or collectively engage in or have engaged in a pattern of definable criminal activity creating an atmosphere of fear and intimidation within the community.”
An individual can be entered into the CalGang database if they meet two of the following criteria:
Additionally, there are criteria for gang “affiliation” submissions. Moreover, the “affiliate information is entered for the purpose of providing further identification, through an established relationship, of an existing gang member. There are two mandatory separate submission criteria established for entry of affiliates into a gang member’s record.”
It is not clear at this point what specific criteria are used by law enforcement to determine gang association. However, In re Daniel C. (2011) 195 Cal.App.4th 1350 it would seem the Court makes a distinction between gang associates and affiliates. It can be assumed that a criterion is spending time in the company of validated gang members.
What follows is based largely on the legal analyses of the First District Appellate Project (FDAP) and gang-related legislation conveniently compiled here.
The FDAP is a non-profit law firm whose “mission is to ensure quality representation of indigent appellants in criminal, juvenile, dependency and mental health appeals in the First District Court of Appeal.”
Defense attorney Rod Beede is paraphrased by the Vanguard as arguing that the gang in this case is neither the Mafia nor an organized crime syndicate. This may be, but the statute clearly states that a criminal street gang is “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25)…having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22. subd.(f))
Mr. Beede is also mentioned in the Vanguard article as stating that the “Penal Code 186.22(b) statute requires a specific intent, ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.'”
Indeed, subdivision (b) of 186.22 (i.e. “gang enhancement”) reads, “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…”
There are several elements to 186.22(b), which raise critical points in this case. First, it applies in the absence of gang participation, past or present. (In re Ramon T. (1997) 57 Cal.App.4th 201, 207.) Second, gang membership is not required. (People v. Bragg (2008) 161 Cal.App.4th 1385.)
“for the benefit of, at the direction of, or in association with any criminal street gang…“
For the enhancement to apply, the offense must be gang-related; however not all crimes committed by gang members are gang-related offenses.
According to the FDAP, the Court found that the following offenses were gang-related, as they were committed in association with gang members and for the benefit of the gang.
Sexual assaults committed by two brothers and a cousin in their home were committed in association with their gang where they “not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other’s cooperation in committing these crimes and that they would benefit from committing them together. They relied on the gang’s internal code to ensure that none of them would cooperate with the police and on the gang’s reputation to ensure that the victim did not contact the police.” (Albillar, 51 Cal.4th at 61-62.)
“Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of … a[] criminal street gang’ within the meaning of section 186.22(b)(1).” (Id.at 63.)
DPD Officer Briesenick testified that not only did the transaction benefit the gang monetarily, but it also served to build security through the trust that the transaction between gang members and associates would remain secured. Therefore, the drug transaction is ensured to remain secret and develops trust amongst gang members and associates. When questioned, Officer Briesenick affirmed that Norteno gang members sell drugs to non-gang members as well.
The Vanguard paraphrased Officer Briesenick’s testimony in which she said that recipients of the drugs “continue to be intimating and instilling fear in the neighborhood.” How the transaction between the gang members and associates both benefits the gang, due to the ensured secrecy of the transaction, and also results in the cultivation and perpetuation of fear in the neighborhood by the drug purchasers is not discussed in the story. It’s not specified as to how the gang would benefit from the fear allegedly caused by the drug purchasers in the reporting.
Nowhere is it mentioned whether the prosecution contended that the felonious criminal conduct was committed “in association with a criminal street gang.”
“specific intent to promote, further, or assist in any criminal conduct by gang members…“
The intent may relate to “any criminal conduct,” which can include the conduct that underlies the charged offenses.
It is only necessary that the intent relate to the promotion of conduct by gang members. Moreover, prosecutors do not need to show that intent to promote a gang was present. The FDAP cites, “There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.” (Albillar, 51 Cal.4th at 67.)
It was concluded (FDAP characterizes it as “broadly-worded”) in Albillar that “if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (Id. at 68.)
In the case covered by the Vanguard, the specific intent element was passionately debated at the preliminary hearing. Defense attorney Rod Beede characterized the prosecution’s claims that such intent exists as “lunacy.” Mr. Beede and Ms. Sequeira’s words, as printed and paraphrased in the Vanguard, appear to focus more so on the specific intent to promote a gang or gang lifestyle. However, the case law states that the specific intent needn’t promote a gang, but rather the “criminal conduct by gang members.” Here, the criminal conduct is the transportation of and intent to sell marijuana that the prosecution contends involved validated gang members.
In addition to the sentencing enhancements, both defendants are charged with a stand-alone substantive offense (§ 186.22. subd.(a)) which penalizes committing, aiding or abetting a felony while being an active participant in a gang.
§ 186.22. subd.(a): “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…”
“Active Participation”
According to the FDAP, both case law and statute have established the breadth of “active participation.”
- The participation must be more than nominal or passive. “Active participation” means taking part in something and “in a manner that is not passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.) The participant must also have knowledge of the gang’s pattern of criminal activity. (In re Jose P. (2003) 106 Cal.App.4th 458.)
- The prosecution is not required to show that the participant held a leadership role in the gang. (Castenada, 23 Cal.4th at 750.)
- “[I]t is not necessary for the prosecution to prove that the person devotes all, or a substantial part, of his or her time or efforts to the criminal street gang.” (§186.22, subd. (i).)
- The prosecution is not required to show that the individual is a gang member. (§ 186.22, subd. (i) (“nor is it necessary to prove that the person is a member of the criminal street gang”)); see also In re Jose P. (2003) 106 Cal.App.4th 458, 466; People v. Valdez (1997) 58 Cal.App.4th 494, 505.)
- The person’s participation needs to be near or at the time of the crime. “It is not enough that a defendant have actively participated in a criminal street gang at any point in time, however. A defendant’s active participation must be shown at or reasonably near the time of the crime.” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.)
“Any Felonious Criminal Conduct”
Any felony is sufficient and the offense does not need to be gang-related.
Aider or Abettor: “[A] person who violates section 186.22(a) has also aided and abetted a separate felony offense committed by gang members.” (People v. Castenada (2000) 23 Cal.4th 743, 749-750.)
Direct perpetrator who is aided by a gang member: the “felonious criminal conduct” element can be met when the defendant is the aider and abettor or when they are the direct perpetrator of the offense. (People v. Ngoun (2001) 88 Cal.App.4th 432, 436; see also People v. Sanchez (2009) 179 Cal.App.4th 1297, 1305-1308.)
Direct perpetrator who is not aided by a gang member: According to the FDAP, there is a split as to whether the direct perpetrator, when acting alone or with other non-gang members, meets the “felonious criminal conduct” element. Moreover, in “In People v. Salcido (2007) 149 Cal.App.4th 356, 367-368, the Fifth Appellate District held that the felonious criminal conduct element is satisfied where the defendant is a gang member acting as the sole perpetrator, without any involvement of other gang members.” Conversely, “in a 2-1 decision the Third Appellate District held that the felonious criminal conduct element is not satisfied by a gang member acting alone.” (People v. Rodriguez (2010) No.C060227, filed Sept. 20, 2010 188 Cal.App.4th 722, rev. gr. Jan. 12, 2011, No. S187680.)
According to the FDAP, the substantive gang offense (186.22(a)) is a “wobbler” that is punishable “by up to a year in county jail or 16 months or 2 years or three years in state prison.” The gang enhancement (186.22(a)) statute reads, “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, be punished by an additional term of two, three, or four years at the court’s discretion…”
An arraignment on the information will take place in the upcoming weeks. At this hearing, defendants are held to answer to the charges brought against them.
Very impressive summation of the facts and case/statute analysis. It will be interesting to see what the outcome of this case is, altho I very much doubt the jury will take into account this type of meticulous legal analysis (or even have all this information in front of them), but will go more on “gut instinct” and jury instructions.
It is also interesting to sort through the legal analysis of what constitutes criminal activity in furtherance of a gang. Clearly much of it is loosey-goosey, as happens in other areas of the law. It reminds me of the obscenity law – paraphrasing a Supreme Court Justice, he said something like “I’ll know it when I see it”.
From wikipedia:
[quote]I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [Emphasis added.]”
— Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.
This expression became “one of the most famous phrases in the entire history” of the Supreme Court.
Stewart’s “I know it when I see it” standard was praised as an example of “candor”[2] and “realistic and gallant”, though it has been criticized for its lack of concreteness.[/quote]
A couple of points to weigh in on.
First its easy to throw up your hands and well thats the law. But each gang enhancement adds two to three years.
Second defense attorneys often point to lack of gang crime as defined in the 186.22 language. Alexs language suggests that is irrelevant based on the caselaw.
To me it just shows what i believed gang laws are extrenely draconian and probably unconst.
[quote]First its easy to throw up your hands and well thats the law. But each gang enhancement adds two to three years. [/quote]
Who is doing that?
[quote]Second defense attorneys often point to lack of gang crime as defined in the 186.22 language.[/quote]
Of course defense lawyers do…
[quote]To me it just shows what i believed gang laws are extrenely draconian and probably unconst.[/quote]
Who is challenging the case and statutory law wrt gangs as unconstitutional?
According to the FDAP, the substantive gang offense (186.22(a)) is a “wobbler” that is punishable “by up to a year in county jail or 16 months or 2 years or three years in state prison.”
The gang enhancement (186.22(a)) statute reads, “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, be punished by an additional term of two, three, or four years at the court’s discretion…”
I believe the enhancement is sub section (b) (1).
[quote]Very impressive summation of the facts and case/statute analysis.[/quote]
I appreciate that.
[quote]“It will be interesting to see what the outcome of this case is, altho I very much doubt the jury will take into account this type of meticulous legal analysis (or even have all this information in front of them), but will go more on “gut instinct” and jury instructions.”[/quote]
I look forward to reading about what unfolds too. I’m curious, why do you doubt the jury will take into consideration similar legal analysis? Do you think they will rely more so on what they believe is a gang, etc.?
I think many have a preconceived idea of what constitutes a gang and gang activity (i.e. Mr. Beede’s assertion that this gang is not the Mafia, etc.). David mentioned in the comment section of the original story that this gang and these alleged gang members and associates are not like the larger, more violent and organized criminal street gangs based out of the LA area.
No doubt, these gangs were on the minds of lawmakers, “The Legislature also finds that in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 have increased 80 percent over 1986.” (186.21 of the Street Terrorism Enforcement and Prevention ACT-STEP ACT)
However, when one reads through the STEP Act it could be inferred that the legislative intent was to rid the streets of smaller, less organized criminal street gangs and their not-so-prominent members as well.
I think what rubs some the wrong way is that the STEP Act can penalize defendants heavily, when applicable, for seemingly “minor” offenses, such as selling one ounce of marijuana. Whether or not that’s “right” I suppose is debatable. Lawmakers likely believed deterrence was a vital component to the STEP Act, which would prevent further gang violence and membership. It would be interesting to see the gang-related criminal statistics over the past twenty years. The STEP Act was enacted in 1988.
[quote]It is also interesting to sort through the legal analysis of what constitutes criminal activity in furtherance of a gang. Clearly much of it is loosey-goosey[/quote]
It most certainly is not black and white in many areas.
[quote]I believe the enhancement is sub section (b) (1).[/quote]
An oversight on my part. Thank you for the correction.
Alex, it’s so helpful to have a better idea of the law that is applied to the cases we read about here. I have to admit my knowhow re. gang law has come from David’s write-ups (that always carry the the defense attorneys’ opening/closing arguments and “inside scoop” interviews).
What we’ve been short on here is the law that sets the stage for the trials. When David thinks something is “wrong,” it’s indistinguishable whether it’s because he against the existing law or against the way the law is being applied or that he’s convinced that the defendant is innocent.
In addition to providing a different way to analyze trials, your writeup provides perspective on the many stories that are so critical of our criminal justice system “forcing” criminals to admit their gang affiliation as part of a plea bargain.[quote]”First its easy to throw up your hands and well thats the law. But each gang enhancement adds two to three years.”[/quote]I don’t understand what you mean here. But, it would help the [u]Vanguard[/u] reports if you’d keep the issues straight.
Lobbying for changes in laws you think are draconian is an honorable undertaking. Writing as though the DA or law enforcement are behaving badly because they are enforcing the law is not; it’s just rabble-rousing.
It appears I’ve been way too conservative in evaluating what is required to qualify as “gang enhancement” or whether an individual can be entered in the CalGang database. Do you feel the same way?
Some of the conditions, including associate qualifications, do seem vague at first glance. I’d guess that most of those who end up with this tag qualify with more than two conditions. Another consideration is that these folks need to be found guilty of crime(s) before any enhancement affects the case.
Alex, who are you and what are your qualifications for providing this information as fact. Anyway, thanks.
[quote]Alex, it’s so helpful to have a better idea of the law that is applied to the cases we read about here. I have to admit my knowhow re. gang law has come from David’s write-ups (that always carry the the defense attorneys’ opening/closing arguments and “inside scoop” interviews).
What we’ve been short on here is the law that sets the stage for the trials. When David thinks something is “wrong,” it’s indistinguishable whether it’s because he against the existing law or against the way the law is being applied or that he’s convinced that the defendant is innocent.
[/quote]
Thank you for your comment and I’m glad you found this helpful. My intention was just to build upon the existing reporting and discuss the legal components a little further.
Say what you will about David’s reporting, but what he has done here is created a public discussion about the criminal justice system. From what I have observed, whatever you think of his approach to covering these issues, there’s a consistently spirited discussion on this site on matters related to the criminal justice system. There is value in that.
[quote]your writeup provides perspective on the many stories that are so critical of our criminal justice system “forcing” [/quote]
Can you elaborate on what you mean by “’forcing’ criminals to admit their gang affiliation as part of a plea bargain” as it relates to what I wrote?
[quote]I’d guess that most of those who end up with this tag qualify with more than two conditions[/quote]
It would be interesting to find out. According to the policies and procedures of the CalGang system, “End Node user agencies” have the option to implement “more restrictive policies and procedures for their agency.” They cannot implement less restrictive ones. It’s not clear, but I think this means they can choose to increase the minimum criteria for an entry into the database from two to say three. They must first consult the California Gang Node Advisory Committee (C.G.N.A.C.), who oversees the CalGang system.
[quote]Alex, who are you and what are your qualifications for providing this information as fact.[/quote]
I’m interested in the criminal justice system and wanted to contribute to the discussion. As to the information provided above, I did my best to document everything.
“Who is challenging the case and statutory law wrt gangs as unconstitutional?”
Much of the caselaw that Alex cites here is the result of challenges, however, the courts have consistently expanded rather than contracted the scope of the gang laws. Needless to say, I disagree. I think the use of gang laws in this county is one of the biggest abuses of discretion. And yes it is legal under the case law, but the DA is using that caselaw to punish minor crimes very heavily. That’s a subjective view of course, but it happens to be my view.
[quote]I look forward to reading about what unfolds too. I’m curious, why do you doubt the jury will take into consideration similar legal analysis? Do you think they will rely more so on what they believe is a gang, etc.? [/quote]
Frankly, I very much doubt the jury will have in front of them anything but the statutes. They will not have before them the nuanced case law, which fleshes out in more detail the statutes themselves. The prosecution or defense may make reference to case law in some form or other during the trial, but my guess is the jurors will tend to “go w their gut” somewhat, using the statute to work from and their interpretation of it as the basic building block for the final verdict.
And in going with their gut, jurors of course will bring their own biases w them to the “bargaining table”. Bc often jury verdicts are about compromise. If enough people are in doubt about gang affiliation, for instance, then the jury verdict probably will result in a not guilty verdict on gang enhancement charges. But all may agree the defendant is guilty of the basic underlying crime. So those who believe the gang enhancement is valid will compromise and give in on that point rather than ending up w a hung jury and no conviction.
And much of what a jury bases their verdict on will be perception – of the veracity of witnesses for instance, and what each juror considers to be guilt “beyond a reasonable doubt”. Doubt itself is a nebulous term, and means different things to different people. I realize jury instructions are given about what constitutes “reasonable doubt”, but ultimately it will come down to a “gut instinct” decision based on the person’s belief system, biases, interpretation of the law, perceptions of witnesses and the importance of evidence.
[quote]Say what you will about David’s reporting, but what he has done here is created a public discussion about the criminal justice system. From what I have observed, whatever you think of his approach to covering these issues, there’s a consistently spirited discussion on this site on matters related to the criminal justice system. There is value in that. [/quote]
While that may be true, there is a danger here. By “crying wolf too many times” that the DA is crooked, shameful, overzealous, or whatever pejorative have been used, it damages the credibility of the Vanguard when it comes to good investigative reporting. Many start turning a deaf ear to the pro-defense rants on YJW. Then when there is actual wrongdoing, the Vanguard will be a much less effective vehicle in uncovering it, bc people will have dismissed the Vanguard as a pro-defense blog.
Secondly, YJW may be actually undermining the jury system, if the DA is asking questions of prospective jurors as to whether they have commented on the Vanguard, and uses peremptory challenges to remove such jurors.
Thirdly, this particular series of articles has violated just about every journalistic ethic that exists, ad nauseum. YJW has also confused the law and how it works, with the personal viewpoint of the author who listens to courthouse gossip and sucks it up as gospel if it comes from the defense side. This has misled readers as to how our justice system works – with vast conspiracy theories blamed on the local DA, whereas the problems have more to do with the justice system as a whole.
One person even assumed these series of articles was written by a lawyer. It is one thing to have spirited dialogue, and advocate strongly held opinions. It is another to pass opinions, hunches, and gossip off as if they were fact.
[b]Elaine[/b], I hadn’t thought about the jury system “undermining”–partly because of the low odds that a potential juror would be a [u]Vanguard[/u] reader.
With one reader making her/his first post–reporting that that the [u]Vanguard[/u] question came up during that person’s recent juror questioning–and David’s recent humorous writeup on the topic, guess I’m changing my mind.
David appreciated the DA’s attention and didn’t uncover a reasonable justification, in my opinion. A look at his coverage of this case makes it clear to me, however. If even a single juror follows his “coverage”–full of outrageous statements of law/fact/motivation/”obvious innocence”/etc. that person enters the jury box fully contaminated and able to waste our tax dollars during an 11-1 trial.
David (via [u]Vanguard[/u]) appears like additional defense counsel prior to and during trials. I can’t guess whether he’s attempting to influence this or any specific case, to shame prosecutors into dropping cases, to affect jury pools, to bring down public opinion on our justice institutions, to get laws changed, whatever.
I, too, question the effectiveness that the current approach brings to the legal “watchdog” role to which the [u]Vanguard[/u] aspires. If every guilty verdict means the jury got it wrong (because of stupidity or cheating) and every not-guilty verdict means the case shouldn’t have been brought and/or the DA screwed up the case, how do people know that some injustice might have happened in any given case?
I think the Vanguard can serve an growing role for good; I know David is reasonable face-to-face; I admire his dedication and hard work. I’m assuming you do, as well, or you’d have long ago stopped helping him with your counter-point postings on so many cases. On the other hand, I’m getting tired because each story seems a cookie-cutter version of the ones that have appeared before and because David seems unwilling to acknowledge that the tiniest criticisms have any merit.
You come at these stories partly from an attorney’s point-of-view and I partly from an editor/journalist’s POV. In both arenas, Judicial Watch regularly could use significant improvement. With some changes in JW’s approach, it could end up influencing change in our systems. That’s my objective here and, of course, David’s goal.
[quote]”[i]Can you elaborate on what you mean by “’forcing’ criminals to admit their gang affiliation as part of a plea bargain” as it relates to what I wrote?”[[/i]/quote] Glad to, but David could do a better job clarifying this point. It’s my opinion that David views plea bargains that include “gang admissions” as a total miscarriage. The only plea bargain he’s ever liked is one that has not happened, and will not happen, because the DA won’t consider the defense’s concept of a negotiated resolution.
If you are correct in your analysis, the “gang label” doesn’t require driving a vehicle painted in gang colors, tattoos that could be confused with religious symbolism, screaming “long live the NorCal Nasties” while stabbing a child. There are fairly clear (though broad) designations, a lot longer list than than I’d gathered from reading the [u]Vanguard[/u] for a long time.
So, [b]Alex[/b], I only can offer this partial answer to your question. From descriptions of cases covered here, the DA routinely “forces” defendants represented by counsel to commit perjury in order to avoid facing overcharges (of which they obviously are innocent) in a notoriously corrupt trial venue.
Furthermore, the [u]Vanguard[/u] articles constantly contend that these laws weren’t intended to be used for anything beyond the massive gangs in L.A.
Would you clarify your background? Do you have legal training? Are you employed by the DA’s office or the PD’s office? A criminal justice activist? Many of us are “interested in the criminal justice system and want[s]ed[/s] to contribute to the discussion,” yet we contribute without knowing what you’ve offered up here. I’m not questioning accuracy of your presentation, just wondering the source your interest.
Elaine,
You make interesting points with respect to jury deliberations. It is strange to think in those terms, though. Jurors’ reliance on gut more so than law, but it undoubtedly happens. I think the prosecution and defense would make references to the case law, although not necessarily citing it, during the trial (as in “the law says this or that”).
I’d rather not get into a discussion as to what the function of the YJW should be or how David reports on these cases. I don’t think I’m in any position to respond.
[quote]this particular series of articles has violated just about every journalistic ethic that exists, ad nauseum.[/quote]
Are you specifically referring to what I have written or the YJW in general?
JustSaying,
[quote]Glad to, but David could do a better job clarifying this point. It’s my opinion that David views plea bargains that include “gang admissions” as a total miscarriage. The only plea bargain he’s ever liked is one that has not happened, and will not happen, because the DA won’t consider the defense’s concept of a negotiated resolution.[/quote]
You mentioned in a previous post, “I’d guess that most of those who end up with this tag qualify with more than two conditions.” If you revisit the CalGang criteria, there is one criterion, “in custody classification interview,” that alone is sufficient for an entry (i.e. gang validation).
Are these “gang admissions” classified as “in custody classification interviews?” Would the prosecution concern itself with the admission if the defendant had met the criteria (two or more on the above list) without it?
I have read the reporting on plea bargaining and “gang admissions” on the Vanguard. I do wonder what the prosecution’s rationale is. What is the purpose of, if indeed this is the case, getting the “gang admissions” in lieu of stricter penalties? According to the policies and procedures of the CalGang system, “The fact that a record exists cannot be used to provide probable cause for an arrest or be documented in an affidavit for a search warrant.”
In what way does this improve public safety or better assist law enforcement in their gang suppression efforts? Is it helpful for the prosecution in that it’s easier to convince a judge that probable cause exists in charged “gang cases?” Will a jury be more inclined to convict in “gang cases” when the defendants are validated gang members?
[quote]Do you have legal training? Are you employed by the DA’s office or the PD’s office?[/quote]
No.
[quote]A criminal justice activist?[/quote]
I’m not sure what that is.
[quote]In both arenas, Judicial Watch regularly could use significant improvement. [/quote]
I concur…
“Furthermore, the Vanguard articles constantly contend that these laws weren’t intended to be used for anything beyond the massive gangs in L.A. “
That is not the position that I have taken. I have simply suggested that we are using laws that were designed to deal with the gang problems in areas like Oakland and LA and applying it to much lesser situations. I think that’s a problem. You end up with a situation where individuals face 13 years in prison for attempting to sell an ounce of marijuana.
JustSaying:
I’ve read your criticisms of me. I disagree that I have been “unwilling to acknowledge that the tiniest criticisms have any merit.”
On the other hand, my approach here has generally been (A) DA’s position/ case, (B) defense position/ case and then (C) discussion and analysis. I have even eliminated for the most part (D) commentary.
Rather than deal with the abstract, I’d like to hear from you specifically what you have a problem with in the recent write up on the hit and run.
“If every guilty verdict means the jury got it wrong (because of stupidity or cheating) and every not-guilty verdict means the case shouldn’t have been brought and/or the DA screwed up the case, how do people know that some injustice might have happened in any given case?”
On the other hand, you seem to dismiss the silly nature of some of the charges that are brought forward, the overly onerous punishment for fairly minor transgressions, and the overreach and overcharging on other issues.
I’d like to understand what you think the justification is that a man serves nine years in prison at tax payer expense for a $3.99 theft of cheese and what you believe the justification that a person’s gang affiliation makes a one ounce sale of marijuana an offense worthy of 13 years?
[quote]Are you specifically referring to what I have written or the YJW in general?[/quote]
I am referring to YJW in general. Your article was frankly a breath of fresh air. I really appreciate your in depth analysis of case law as the relate to the statutes.
To dmg: Please tell me of ANY instance where you have praised the DA for “getting it right” without somehow backhandedly or frontally criticizing something the DA did/didn’t do in the case? Please refer me to the specific article, and I can almost guarantee there was at least one criticism in there. Which brings me to one of my biggest complaints about YJW. NO SYSTEM IS ALWAYS PERFECT, NEVER WILL BE, AND IT IS COMPLETELY UNREASONABLE TO EXPECT IT TO BE – which seems to be the approach YJW has taken. Much better to point out glaring problems, as in the Guitierrez killing… just my opinion.
[quote]You come at these stories partly from an attorney’s point-of-view and I partly from an editor/journalist’s POV. In both arenas, Judicial Watch regularly could use significant improvement. With some changes in JW’s approach, it could end up influencing change in our systems. That’s my objective here and, of course, David’s goal.[/quote]
And my goal as well. But also I don’t want the public misinformed either…
Elaine: There is wanting perfection and then there is Yolo County where I would settle for ethical and mediocre. This is a watchdog organization. We are not covering the court beat report. This isn’t a true crime column. We are looking for problems and cases with problems. Occasionally we stumble on an interesting case where the guy is completely guilty, the police have conducted a good investigation, and the prosecutor behaves ethically and charges reasonably. Here is one such case ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=4291:jury-convicts-man-of-attempted-rape-in-davis-stun-gun-attack&catid=74:judicial-watch&Itemid=100[/url]). There have been few of these that I have seen.
A good example is a case we covered today, where a guy shot his wife in broad daylight in front of three witnesses. Yet somehow, the case went to trial because the DA would not offer less than LWOP (which is the maximum penalty in the case) and therefore the defense had nothing to lose by going to trial. (Second degree would have been 15 to life, meaning he would go to a parole board after 15 years, where it would have been unlikely that he would be released). Aside from the waste of taxpayer money going to trial in this case, was the fact that the DA, despite the fact that this was the biggest slam dunk ever, somehow managed to get sanctioned by the judge for improper questioning and continuing to do it after several warnings.
So you say, better to point out glaring problems, but to me the glaring problems are there in most cases and they infect the entire system.