Two Words That Can Get You Life in Prison

Prosecutors are labeling more people as gang members. Congress considers if it should take similar measures.

By Raj Jayadev Nov 01, 2008

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BEFORE REBECCA RIVERA ENTERED the California courtroom to hear if her son, Joshua Herrera, was going to face a life sentence in prison, she gathered with 40 or so supporters, who were bustling with nervous tension.

“I talked to Joshua last night,” she said, “and he wanted us all to know that whatever happens in there—he is coming home.” She began to weep, then collected herself and walked into court.

Rivera had done everything a mother could do to prevent her son from receiving a life sentence. She had brought his story to politicians, students, church congregations and biker clubs. She had organized marches, rallies and press conferences, and she had facilitated a letter-writing campaign. It paid off. Sort of.

In the courtroom, Judge Arthur Bocanegra delivered Herrera’s sentence: 19 years. Rivera’s deepest fears vanished. The only time a mother can celebrate her son being sent to prison for 19 years is when it could have been for life.

With no significant criminal record, no history of violence and a promising future as a firefighter, 24-year-old Herrera had faced a life sentence in a level-four prison. The stiff sentence was based on what is called a “gang enhancement,” which was tacked onto charges against Herrera as a result of a get-tough-on-gangs law passed in Sacramento, California, in 1988.

Herrera’s case is emblematic of the deep flaws inherent in that law, the Street Terrorism Enforcement and Protection (STEP) Act. Critics say the legislation, which targets and defines people as “gang members”—a politically charged and legally ambiguous term—has resulted in sentences disproportionate to the crimes.

Since the inception of STEP in California, more than half of all states and the District of Columbia have passed similar gang laws. And Congress has recently begun introducing legislation to make gang-related crimes a federal offense. There are at least eight proposals to address gang violence pending in the House and Senate. Sen. Dianne Feinstein’s Gang Abatement and Prevention Act of 2007 (S. 456) has already passed the Senate, and the bill’s language draws heavily from that found in STEP. A similar bill—the Gang Prevention, Intervention and Suppression Act (HR 3547)—has been introduced in the House of Representatives by Rep. Adam Schiff, a Democrat from California. If voted into law, it would create federal criminal penalties for gang crimes.
In 2003, Joshua Herrera, then 19 years old, returned to his hometown of San Jose. Tall and lanky, he had grown up there with his mother, who worked a full-time job and took night courses on business management. His uncles were active in the Latino community, serving as ministers and working as school principles. Herrera spent his summers doing jobs at the law firms where his mother was employed. He finished his high school years in Florida, where he lived with his father, and then enrolled in an Emergency Medical Technician program. After finishing the program, Herrera decided to become a firefighter, moved back to San Jose and enrolled in Mission College’s firefighter academy. His family bought him a car so he could transport his firefighter gear to school and back.

Five months after his return home, Herrera was out one night with friends. He drove three of them to the home of Thomas Martinez, a boyfriend of one of the young men’s mother. The men wanted to confront Martinez, who had allegedly abused the mother, and retrieve her belongings from the house.

Herrera stayed in the car while his friends entered the home. Martinez fled the scene and later claimed that one of the defendants had a shotgun. According to court testimony, Martinez was assaulted by one of the defendants, Richard Rodriguez. According to police reports, the young men returned to the car with a safe and two ounces of methamphetamines.

After dropping off his friends, Herrera was pulled over by police three blocks from his family home. His car, it would later be revealed, had been under surveillance by detectives investigating one of Herrera’s friends. He was arrested on the spot.

Three years later, Herrera and his codefendants were found guilty of home invasion robbery. To his conviction was added a “186.22,” named for the section of California penal code that gives extra time, potentially life, for a connection to gang activity. During Herrera’s trial, San Jose Police Department gang expert Greg Limbardo testified to the young man’s affiliation with a Norteño gang.

Limbardo presented evidence that included red T-shirts found in the family home (reportedly from Herrera’s high school days) and photographs of Herrera with self-admitted gang members.

During sentencing on March 20, 2008, prosecuting attorney David Ezgar reiterated his argument that Herrera was undeniably linked to the gang with a multimedia PowerPoint presentation complete with photos, alleged drawings of gang letters by Herrera and even videos accompanied by rap songs promoting gang life.

At one point, Ezgar showed a picture of Herrera and a dozen or so other alleged gang members at a park. His pointer dropped arrows from the top of the screen identifying serious felony convictions that had been given to the young men surrounding Herrera, yet none ever dropped on Herrera specifically. He was guilty by association.
When the STEP Act was passed in 1988, California was experiencing a spike in the kind of violent crime associated by many with poor, urban neighborhoods, especially those that are communities of color. The legislation itself stated that there was a “state of crisis…caused by violent street gangs” and that lawmakers intended to “seek the eradication of criminal activity by street gangs.” Since its inception, STEP has been challenged in trials, appellate court and the California Supreme Court, which once described the Act as a “thicket of statutory construction.”

To use the gang enhancement law, which is at the discretion of the prosecutor, two standards must be proven. One is that the criminal street gang exists. This means three or more people have formed a group, and one of their primary activities is to commit one of 25 crimes identified by the state. The group also shares a common name, and their members “engage in a pattern of criminal gang activity,” according to the law. Secondly, the prosecutor has to prove that the crime was “committed for the benefit” of the gang.

It is this second standard that critics say is often not sufficiently proven, despite climbing conviction rates, due to the emotionally weighted term of “gang member” and a common tactic by police gang experts to bypass the qualification.

“Prosecutors are bringing in gang experts who say that any criminal activity increases the reputation of the gang, thus meeting the ‘benefit’ standard,” said Michael Kresser, executive director of the Sixth District Appellate Program. “This turns any crime done by someone labeled as a gang member into a 186.22, even if the crime had nothing to do with a gang.”

Kresser, whose program represents indigent persons appealing their convictions and sentences, has seen a steady flow of 186.22 clients over the years. “The [Santa Clara] District Attorney’s office and police have been enthusiastic about this,” Kresser said, adding that close to 30 percent of his office’s caseload is now dealing with gang enhancements. While the program has won some reversals and even helped to establish some limits to the law through a California Supreme Court decision, Kresser said the law is still being used without proper discretion. This is also how a teenager like Herrera, who had no history of criminal violence, can face a life sentence.

While police investigators distinguish the different levels of gang participation as “wannabe,” “member,” “associate” and “hardened,” nowhere in the STEP law are these differences identified for purposes of sentencing. Ironically, despite the intention of the law to eradicate gangs, violence related to gangs has been on the rise. Herrera’s hometown of San Jose witnessed 36 homicides in 2007—a 10-year high—and 16 of those were gang slayings. The increasing gang violence in Santa Clara County, where San Jose is located, is consistent with numbers seen across the state, despite STEP and increased gang law enforcement by police departments. In Los Angeles, while overall crime dropped in 2007, police cited a 14 percent increase in gang-related crime. San Diego Police Department crime statistics showed a 23 percent increase in gang-related crime in the same year, and Oakland reported a growing proportion, with 38 percent of the homicides being attributed to gang-related violence.

In fact, the gang escalation statewide has spurred Gov. Arnold  Schwarzenegger and state legislators to propose a new package of gang suppression bills. In 2007, the governor introduced the California Gang Reduction, Intervention and Prevention Program (CalGRIP) initiative to “confront the dramatic increase in gangs across the state and their proliferation in suburban and rural areas.”

While the STEP Act itself has not received a tremendous amount of statewide scrutiny, California’s tough-on-crime sentences are facing legislative challenges due to pressure from research centers such as the Little Hoover Commission and the Stanford Criminal Justice Center. Kara Dansky, executive director of the Center, says that California’s sentencing problems are philosophically rooted.

“When the California legislature declared in 1976 that the purpose of imprisonment for crime is punishment, it locked itself into an unnecessarily rigid approach to criminal justice policy,” she said.

Dansky and others are calling for an independent sentencing commission that could review California sentencing laws and make determinations based on broader, long-term public policies.
Herrera’s personal story is one his mother shared in churches, high school classrooms and political forums, and used to build widespread community support for her claim that a life sentence would have been unfair. It also helped that the family already had a storied legacy with San Jose’s Latino community. Herrera’s uncles include a renowned criminal defense attorney, a charismatic minister at a large church, a well-respected former school principal and a popular school board trustee.

It was this fuller picture of Herrera’s family and of his own quest to become a firefighter that his family used to gain political support, including letters from state assembly member Joe Coto and San Jose Council member David Cortese. Cortese’s wife, Pattie Cortese, even visited Herrera in jail and, on the verge of tears, told a crowd at a press conference in front of the courthouse what a travesty it would be to send a young man she described as “kind, articulate and gentle” to life in prison.

Asking people to visit Herrera was one of his mother’s most effective strategies. In her public speeches, she’d tell her audience: “Don’t just take my word for it, go visit Joshua and decide for yourself whether or not he should go to prison for life.”

Herrera was found guilty on June 19, 2006. Two years later at the sentencing, Judge Bocanegra used his discretion to not impose the gang enhancement based on the fact that Herrera had no significant criminal history. Bocanegra also pointed to the limited role Herrera played in the crime as the driver and the fact that he did not carry a weapon. He also noted Herrera’s future prospects, his family support and the more than 100 letters the court received from the community.

The judge ended up giving Herrera nine years for the home invasion. He added a 10-year gun enhancement because the jury concluded that a gun was involved in the crime, even though Herrera himself never held the weapon. Herrera has filed an appeal through the Sixth District Appellate Project.

Talking about his case, Herrera invariably places it in the broader context of gang-enhancement laws. When telling his story, he often downplays the points supporters used for his defense, such as the fact that he was a college student at the time of his arrest and is from a prominent family.

“I don’t want this to just be about me, lifting me up and letting the other guys this is happening to go down,” he says. “Then we’d just be doing the same thing that we’re accusing the law of doing to us—stereotyping.”

Having been made a rare exception to the rule, Herrera hopes his case will help change the rules, setting a precedent for more families to challenge legislation that severely punishes people for unsubstantiated gang affiliation.

It is this fuller picture of a defendant that juries rarely see when deliberating on gang-related cases, said Alex Alfonso, a gang expert who has testified in more than 100 such cases.

“Prosecutors often overcharge suspects because they know it is difficult to go to trial,” he says. “By having the label ‘gang’ in the charges, it scares the jury and makes the case easier to sell.”

The political realities point to the growth of gang enhancements in the future. “The law is a knee-jerk reaction to the heightened crime periods,” said Alfonso, “so constituents can feel their politicians are doing something for their safety. Yet there is no real measure of success.”

The STEP law has been on the books for two decades now, Alfonso points out, and there has been no significant evaluation of its implementation. “Politicians need to be [seen as] hard on crime, so it is unlikely that there will be any further examination of it,” he says. “That’s why it’s here to stay.”

Raj Jayadev is an organizer, journalist and director of Silicon Valley De-Bug, a community organization based in San Jose, CA.