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Harsher penalties for gangs fuel debate
Felony enhancements can be abused, critics say
By Raul Hernandez, rhernandez@VenturaCountyStar.com
July 9, 2006
Twenty-seven-year-old Gerardo Lopez of Oxnard has some regrets. For instance, when he bought beer for someone two years ago, and the guy stiffed him, Lopez shouldn't have punched the offender.
When police arrested Lopez for that and ordered him to lift his shirt, an even older mistake came back to haunt him: the Colonia Chiques gang tattoo on his stomach, which he got when he was 16.
"I didn't know better," Lopez said.
The auto mechanic told police that he left the gang life behind many years ago.
That didn't seem to matter. Instead of charging him with battery, a misdemeanor, prosecutors added a felony gang enhancement. He was facing as many as four years in prison; his bail was set at $107,000, Lopez said.
Under the state's Gang-Enhancement Law, prosecutors have the power to seek harsher penalties if a defendant is a gang member — if they prove a crime was committed for the benefit of, under the direction of or in association with a gang. If the gang allegation is found true by a judge or a jury, the defendant can receive as many as an additional five to 10 years in prison.
Critics of the law, including Lopez's lawyer, John Pinnell, argue that prosecutors and police in Ventura County often apply the gang enhancement to people with tenuous or outdated connections to a gang.
Senior Deputy District Attorney Karen Wold, who prosecutes gang cases, scoffs at that characterization. She said criminal charges are evaluated by prosecutors and police case by case to determine whether they should be prosecuted as gang-related.
District Attorney Greg Totten stressed that his office properly charges gang-related crimes as authorized by law.
"We don't always go and file what law enforcement presents to us. We tend to be cautious in filing," Totten said.
Statistics on the use of the 1994 law are hard to come by. Though the state attorney general prepares a report on organized crime in California that includes information about gang activity, analysis and trends, the report doesn't track how often the gang-enhancement law is used, either statewide or by county, according to a spokeswoman for the Attorney General's Office.
In Ventura County, Totten said, his office had 187 gang-related felony assaults last year, a 58 percent increase from 2004.
Misdemeanors become felonies
Aside from the concrete results of the gang enhancement — misdemeanors become felonies, bail gets higher, sentences get tougher — the allegation has intangible effects on a trial. It allows prosecutors to introduce frightening evidence and images about the gang, making it more difficult for the accused to get a fair trial on the underlying charges, defense attorneys say.
"When the gang card is out there, it is difficult for jurors — and it's only human nature — to not be predisposed to want to remove these persons from our society," Pinnell said. "If he is a gang member, he is a bad guy already. So of course, (he) is more likely to have committed the crime. So we can't get an even shot."
In trials where the defendant is an alleged member of the Colonia Chiques gang, prosecutors often play a gangster-rap music video produced by the gang. The video is an assault of crude, violent language and images of tattooed and shaven-headed Latino men flashing gang signs — which can inflame the fears and prejudices of jurors, defense attorneys say.
"The DA likes to add the gang enhancement because it strengthens the case," said Ventura defense attorney Victor Salas. "The connection might be a little light, but they still like to do it.
"There is a gang problem, but that doesn't mean putting every kid who gets a shaved head on a (gang) list," Salas added.
Totten denies defense attorneys' allegations that his office uses the gang-enhancement law as leverage.
"If they believe we do, it is their ethical responsibility to challenge it," he said.
Attorney David Hirsch of the Ventura County Public Defender's Office is critical of the use of the gang-enhancement law during a trial involving three suspects — John Anthony Madrigal, 25, and 21-year-old twin brothers Albert and Alex Albillar. They were found guilty of forcible rape in concert, forcible digital penetration in concert and street terrorism as gang members.
Hirsch, who represented Alex Albillar, said his client didn't get a fair trial because the gang allegations overshadowed the crime.
Alex Albillar of Thousand Oaks had been a member of Southside Chiques, another Oxnard gang, but had left the gang years ago, Hirsch said. But after jurors saw a blown-up photo of his client's gang tattoos, Hirsch said, it was impossible for them to "come to an appropriate decision" on the rape allegation.
Hirsch notes that the police gang expert — testifying on behalf of the prosecution — said most Hispanic gangs deal harshly with members who commit sex crimes. Despite that apparent contradiction, jurors found his client guilty of both the crimes and the gang enhancement.
Hard to sort out gang members
Sorting out who is a gang member should be a tough task. Lewis Yablonsky, a professor of sociology and criminology at California State University, Northridge, said there are true gang members; wannabe gang members; gangster groupies and young persons who have merely grown up around gang members.
"There are hard-core individuals and marginal individuals," he said.
Law enforcement — and many jurors — often don't make those kinds of distinctions, Yablonsky said.
"Prosecutors and police, generally, perceive a gang member is a gang member is a gang member," he said.
Yablonsky has testified as an expert witness throughout the state in more than 160 cases involving gangs, homicide, domestic violence and business security — appearing as a defense witness "95 percent of the time," he said. He has published several criminal justice books, including "The Violent Gang," "Crime and Delinquency" and "Gangs in Court."
Oxnard Police Chief John Crombach said he's heard the criticism that law enforcement is casting too wide a net in identifying suspects as gang members. That characterization is "absolutely false" because police are very careful, "almost surgical," in identifying people as gang members, Crombach said.
"You have to be able to make your case in court," he said.
In Oxnard, police rely on such things as gang tattoos and gang clothing, including Dallas Cowboys sports apparel, to identify gang members. Colonia Chiques gang members have adopted Cowboys sports attire as their own.
Because most gangs in Oxnard are Latino, Crombach added, police are "very, very sensitive" and cautious in labeling someone a gang member, not wanting to create the perception that people are so simply because of their ethnicity — or their favorite NFL team.
"It would be a complete miscarriage of justice to label someone a gang member when, in fact, they are not," Crombach said.
Crombach and Yablonsky do agree that not all crimes committed by gang members are gang-related.
DA taking a tough approach
Wold said the District Attorney's Office is simply doing what residents want: taking a tough approach and making full use of what the law allows for gang-related crimes, including misdemeanors.
"I think the bottom line is the people of the state of California have asked that a strict approach to gang crime be taken," she said. "We do our best to appropriately file a case after a review of the totality of the circumstances."
Attorney Phil Schnayerson, a board member and past president of the California Attorneys for Criminal Justice, said the gang enhancement law tends to be used more often in counties like Riverside, San Bernardino and Ventura, where there are more conservative groups of prosecutors.
"The problem is where one district attorney uses it appropriately, there will be four or five that make it appear more gang-related than it actually is," said Schnayerson.
Wold said there is a gang-enhancement review process: A defense attorney can go to the deputy district attorney's supervisor, or even to Totten.
The issue of whether the gang-enhancement was properly charged in a crime can be raised at a preliminary hearing, Wold said. A judge must find that there is probable cause to include the charge; if there isn't, the judge can strike it, Wold said.
Defense attorneys argue there is a very low legal threshold at preliminary hearings.
Pinnell also represents murder suspect and alleged gang member Alberto Carrillo, 22, who is accused of shooting and killing Pedro "Peter" Reveles on March 5, 2005.
Given the seriousness of the charges against his client, Pinnell said, he is concerned about the prescreening of jurors for Carrillo's trial. A hearing is set for Sept. 15.
"Before jurors even come into the courtroom, before they hear a single thing about the case, they will already be viewing it as a gang case regarding the Colonia gang," Pinnell said. "The burden of proof has been shifted to us to prove that he is not a bad guy and not a gang member."
Richard Simon, the prosecutor in the Carrillo case, said there are photographs of Carrillo flashing gang signs and wearing the Dallas Cowboys gang apparel.
While he doesn't claim that Carrillo is a "shot-caller" in the gang, Simon said, the evidence is good, and it will be presented to a jury.
Pinnell said his client was mugging for the camera around girls and gang members. He said Carrillo doesn't have a criminal record.
"But he did own a Dallas Cowboy T-shirt, and one of the guys that he associates with is a member of the Colonia gang," Pinnell said.
The Dallas Cowboys practice in Oxnard; Carrillo's mother gave him the shirt, Pinnell said.
He said he plans to put more than a dozen witnesses on the stand who will testify that Carrillo isn't a gang member and never aspired to be one.
Pinnell points to Carrillo's August preliminary hearing to bolster his argument that the gang enhancement, in this case, is an example of overreaching.
When the prosecution's gang expert, Oxnard Detective Guy Gates, took the stand, among the evidence presented of Carrillo's gang involvement was the discovery of a CD in his car with the name "Frosty" written on it. Gates testified "Frosty" was Carrillo's gang moniker.
According to Pinnell, "Frosty" is the name of Carrillo's family dog.
Costly gang enhancement
Gerardo Lopez has paid dearly for both that one punch and the gang life he claims to have left behind. He said defending himself against the gang-enhanced battery charge has cost him more than $20,000 in lawyer's fees, fines, bail and other costs. He eventually pleaded guilty to misdemeanor battery; he also signed a document admitting he is a gang member. In November 2005, he was sentenced to three years' probation.
"I am not even a gang member. I go to school and work," he said. "I didn't want to do any more time, and that's why I signed," Lopez said.
Since his conviction, Lopez said, he has been continually harassed by police. He's been stopped four times; once, he had to spend 10 days in jail for violating the gang injunction's 10 p.m. curfew. His family has moved to Las Lunas, N.M., because of his problems with the law. He said he is joining them as soon as New Mexico's probation office agrees to supervise him.
"They are forcing me to leave," he said.
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