Joshua Herrera May be Facing Life in Prison Because of an Unevaluated Gang Enhancement Law
On the steps of the Main Jail, Rebecca Rivera called out to God and her son at the same time. She asked that God save her son from a life in prison, and that her son hear her prayer. 24-year-old Joshua Herrera, housed on the fourth floor of that jail, did in fact hear his mother and the 200 or so supporters who chanted and cheered through Rebecca’s impromptu speech, many of whom also had sons, uncles, nephews somewhere in that building. And from the fourth floor, it must have been quite a sight, an unlikely movement that Rivera has pieced together since Joshua was convicted of home invasion robbery with gang enhancements in 2006. Marching alongside the Herrera family were young Chicano men who also have been labeled as gang members themselves, college students sporting their banners, firefighters who met Joshua, and about 50 leather-clad bikers sitting on Harleys that roared like they had jet engines inside them.
No History of Violence, Despite Lengthy Sentence
With no history of violence, nor a record of felonies or even misdemeanors, and a promising future as a fire fighter, Joshua Herrera is facing a life sentence in a level four prison—not because of the conviction, but because of an enhancement due to California’s anti-gang laws. Herrera’s case is emblematic of the fallout of a tough-on-crime ethic in California that is resulting in sentences critics say are disproportionate to the alleged crime, and based on a politically charged and curiously legally undefined term: gang member.
In 2003, just five months after Joshua Herrera returned to San Jose after completing an emergency medical technician program in Florida, he drove three friends to the home of Thomas Martinez, a boyfriend of one of the young men’s mother. According to the defense, the men wanted to confront Martinez, who had been physically abusive to the mother, and retrieve her belongings. Herrera stayed in the car while the co-defendants entered the home. Martinez claimed that the group had a gun, although none was found, fled the scene, and remained unharmed from the incident. Police detectives, though, were already doing surveillance on one of the young men in the car, Alex Diaz. When arrested, the police found a safe, which the defense alleges belonged to the mother, and the prosecutor also claimed that drugs were taken from Martinez, although Martinez denied that he had drugs at the home.
During Herrera’s trial, San Jose Police department gang expert Greg Limbardo testified to Herrera’s affiliation to a Norteno gang, using evidence from their field investigation such as red t-shirts found in the family home from his high school days and pictures of him with self-admitted gang members. According to Joshua Herrera, the prosecutor, Deputy District Attorney David Ezgar, painted Herrera as a dangerous hardcore gangster. “It went from associate, to member, to ‘hardened’ gang member. I remembering thinking, man, he changed that fast.”
In 2006, Herrera, along with his co-defendants were found guilty of home invasion with a 186.22—a penal code that gives extra time for its connection to gang activity. Herrera has been in jail ever since, will be sentenced on March 20th, and although sentences for home invasion carries a maximum of nine years, is facing a life sentence due to the gang enhancements.
The Origins of Gang Enhancement Law
Gang enhancement laws are the outcome of legislation called the Street Terrorism Enforcement and Protection Act, passed in 1988. At the time, California was experiencing a spike in violent crime, and the act was a political reaction to a perceived “state of crisis…caused by violent street gangs,” and intended to “seek the eradication of criminal activity by street gangs.” Since the time of its inception, it 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 enhancement, which is at the discretion of the prosecutor, two standards must be proven. One is that the criminal street gang exists, meaning there is, “three or more persons having as one of its primary activities the commission of one or more of the twenty five enumerated crimes, having a common name, and whose members engage in a pattern of criminal gang activity.” 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 times not sufficiently proven, despite climbing conviction rates, due to the emotionally weighted term “gang member” and a common tactic by police gang experts to bypass the qualification. As Michael Kresser, Executive Director of the Sixth District Appellate Program says, “Prosecutors are bringing in gang experts who say that any criminal activity increases the reputation of the gang, thus meeting the ‘benefit’ standard. 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 peoples who are appealing their convictions and sentences, has seen a steady flow of 186.22 clients over the years. “The district attorney’s office and police have been enthusiastic about this,” says Kresser and reports 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 establish some limits to the law through a California Supreme Court decision, Kresser says the law is still being used without proper discretion. “Where it becomes unjust is when they are trying to increase the sentence of someone who they say is a gang member for any crime in the book, and not consider whether it is for the benefit of the gang. It is overbroad, and the police testimony can be unreasonable.” Herrera’s case typifies Kresser’s critique. The motivation of the home invasion charge was rooted in personal issues revolving around one of the young men’s mother, rather than gang issues. Kresser says that actually one doesn’t even have to be a gang member to get a gang enhancement. “The fact that the term ‘gang member’ is not defined in the penal code doesn’t matter. If you are found to have committed a crime to further a gang, your penalties will be elevated.”
He says that from his experience, the gang enhancement law has had a wide impact in Santa Clara County in that it “turns misdemeanors into felonies, and drastically increases sentences especially for people who otherwise wouldn’t get such extended penalties.” This is also how someone like Herrera, who has no history of criminal violence, can face a life sentence as if he did. While police investigators do distinguish the different levels of gang participation such as “wannabe,” “member,” “associate,” and “hardened,” nowhere in the S.T.E.P law are these differences identified for purposes of sentencing. Ironically, despite the intention of the law to “eradicate” gangs, gang violence has reportedly been on the rise in Santa Clara County. Of San Jose’s 36 homicide victims of 2007, a ten-year high, 16 were gang slayings, and violent gang crime rose 44 percent.
Herrera’s Road to the Fire Fighter Academy
Herrera’s personal story, one his mother (who has become a Cindy Sheehan-type figure of this movement) has shared at churches, high school classrooms, and political forums, is the kind that has built support to her claim that a life sentence is unfair. The Herrera family themselves have a storied legacy with the Latino San Jose community. Joshua’s uncles include a popular school board trustee, a renowned criminal defense attorney, and a charismatic minister at a large church. Having been named “Familia of the Year” at one point, they are sort of the Kennedy’s of the Eastside—a role model of how a working class family with immigrant roots can reach the upper echelons of civic life.
Joshua Herrera himself encapsulates this story of success built through struggle. He was raised in a working class, mainly Latino, neighborhood off of Story and Capitol in East San Jose. Back then, Rivera, a single mother, was working a full-time job and going to school at night studying business management. Joshua would spend his summers and spring breaks working at the law firms that his mother worked at. He finished his high school years in Florida, living with his father, and enrolled in an emergency medical technician program. After completing the program, he decided to become a firefighter, moved back to San Jose and enrolled in Mission College’s Fire Fighter Academy. The car Joshua drove the day of the incident was the same car the family had bought for him just weeks prior to transport his firefighter gear to and from school.
It is this fuller picture of Joshua Herrera that his family has used to gain political support, having received supportive letters from the offices of State Assemblyman Joe Coto and Councilman David Cortese. Cortese’s wife, Patti Cortese, even visited Herrera in jail. On the verge of tears, she 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.
“Adaptable”
Asking people to visit Joshua is one of Rebecca Rivera’s most effective strategies to build her movement. As she tells people at most public speeches, “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 seems to never disappoint. A tall, lanky young man, he is easy to imagine in a firefighter uniform. As promised, Herrera is personable, without pretension, and smiles more than one would think his situation would allow for. He has made a certain temporary peace with his potential sentence, but by no means is resigned. When asked about his case, Herrera seems to carry no venom towards those involved in his prosecution. His reflection of the case is more disbelief than malice. He peppers, “what the” statements while shrugging his shoulders when he deconstructs the prosecution’s claim that he is a danger to society. The stories that his mother points to that get people infuriated or heartbroken, such as the fact that he was arrested just two weeks away from finishing his first semester in the fire fighter academy, Herrera just attributes to the absurdity of his situation. When asked how he is spending his time while incarcerated, he sharply answers the underlying question: How are you bearing under the reality that you are 24 years old and are facing life in prison? “I don’t know how I’m doing it, but I’m doing it.” It is clear that the positive affect is not a lack of appreciation of his situation; it is a purposeful strategy to take some control over the circumstances. Each time Herrera explains his case, he invariably brings it beyond himself, and couches it in a broader context of the gang enhancement laws. When telling his story he often downplays the points supporters on the outside use 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, then we’d just be doing the same thing that we’re accusing the law is doing to us: stereotyping.” Reflecting back, he says the main lesson he learned throughout this whole ordeal is that he is, if nothing else, “adaptable.”
It is this notion of a full human being, not just a one-dimensional street predator, which juries rarely hear when deliberating on gang enhancement cases, according to Alex Alfonso, a gang expert who has testified in over 100 cases. “Prosecutors often over charge suspects because they know it is difficult to go to trial; but by having the label ‘gang’ in the charges, it scares the jury and makes the case easier to sell.” Alfonso, who testifies mainly in Southern California courts, has been consulting in the court system for eight years. He compares gang enhancement law to hate crime laws, in that they both necessitate juries to “know the mindset” of the alleged perpetrator. “That can be a difficult thing, but in the gang enhancements, prosecutors will often times pursue the gang enhancement because of the identities of the defendant.” Alfonso suggests the best way for the courts to move forward in prosecution of all crime is to “treat all offenses equally, based on the crime itself.” He offers this policy shift as he says 186.22 cases are on the rise throughout the state. “I received more consultation requests in 2007 than any previous year, and 2008 seems like it will be even more than last year,” says Alfonso. Santa Clara County’s District Attorney’s office mirrors Alfonso’s observation of climbing numbers. In 2006, there were 36 new gang enhancement cases; and in 2007, there were 45 new gang enhancement cases. Nick Muyo, a spokesperson for the District Attorney’s office, says that their determination of pursuing gang enhancements is, “…based upon whether or not available evidence is likely to support a conviction or true finding beyond a reasonable doubt.”
Alfonso says that political realities would only point to a growth of gang enhancement in the future. “The law is a knee jerk reaction to the heightened crime periods…so constituents can feel their politicians are doing something for their safety; yet, there is no real measure of success.” Alfonso says that despite being law for two decades now, there has been no significant evaluation of its implementation. “Plus, politicians need to be hard on crime so it is unlikely that there will be any further examination of it—that’s why it’s here to stay.”
On March 20, 2008, Judge Bocanegra will be determining the sentences of Joshua Herrera and his co-defendants in the Superior Court in San Jose. Herrera’s attorney, Tom Kelly, will be putting forth a sentencing motion to exclude various terms of the law that calls for life in prison, and be calling for a determinant sentence. If approved, it can reduce Herrera’s time in prison to 11 years. Herrera though, who told his mom that when he gets out he wants to fight for people like her, is making plans for well before 11 years, and will be appealing the case once sentencing is over.
Rebecca Rivera plans on packing the courtroom the day of sentencing with all the family, friends, and believers who she has been culling since the time of Herrera’s conviction. Between the marches, the presentations, and the letter gathering, Joshua Herrera’s court date may be the first time in years Rivera will allow herself to sit still, but it is sure to be a temporary lull in the hurricane of activity she has proven to be. Plus, as she says while painting a “No Life Sentence” placard, “Joshua knows his mom will do whatever it takes, for however long it takes, to get him justice.”
Raj Jayadev is the Executive Director of Silicon Valley De-Bug, a San Jose based non-profit organization that initiates organizing campaigns with Silicon Valley’s least served communities. De-Bug also produces a bi-lingual magazine, a weekly radio show, a website and runs media workshops in schools and youth centers around the South Bay.
What is the world coming to when a young adult can be convicted of gang-related crime just for being part of a gang of four men who invaded a man’s home with the intention of overpowering him and taking what they pleased? What was the jury thinking? Didn’t they realize that the young man sitting before them had taken a fire science course and was related to successful people?
I will admit this right here: If I ever have to flee my home in fear to escape a gang of armed men, it will be a great relief to learn that one of them, even if its only the getaway driver, has dreamed of being a fireman. I will chalk that blessing right up there with the joy the parents of Ted Bundy’s victims must have felt when they learned he’d been active in the Republican party.
One wonders why the public has been invited to this little party so late in the game? After all, hasn’t Herrera already been tried and convicted—by a jury of local citizens who were privileged to hear both sides of the story? Oh, wait, perhaps the defendant’s attorney was a dud, one of that growing fraternity of incompetent defense attorneys the ACLU is always complaining about. But, no, that couldn’t be it. Surely a member of the Familia of the Year wouldn’t leave the fate of one of its own to an inept attorney.
Mr Jayadev, in your piece you’ve questioned the integrity of the crime victim, the law, the DA, and the police, all for treating young Mr Herrera as if he were as dangerous a criminal as the incident in which he was involved suggests. But what of the jury? Have you no criticism of them? Are we to assume they were duped by the cops and the DA, too stupid to weigh the evidence, or shall we conclude that the prospect of this young man’s fate being determined by people besides his mother and the small mob she’s assembled is what you find so objectionable.
Why Joshua Herrera decided to do what he did on the day of the crime is not for us to know, or excuse. But by exercising his free will that day he took his fate out of his own hands and put it into the hands of the sentencing judge—not his mommy’s. And for that he deserves to endure the consequences.
This is worse than hate crime legislation. It’s profiling after the fact. They see a Latino male with a red shirt and declare that anything he does is gang activity? What a fine society.
Reading this snivelling bullshit about another convicted felon whose only crime according to his defenders was being Latino just made my blood boil, so I went to lunch. Ask everyone in Corcoran, Soledad, Pelican Bay, San Quentin….and 90% of them at least will tell you they’re not guilty, they were framed, they were profiled because of their race, etc.
Jack, Tom, John, who let this guy Jayadev on? Who is he? What’s his relationship to the poor victimized felon?
I had all these thoughts before lunch. Then I returned and found FinFan had said it much better than I ever could.
Mr. Jayadev wrote:“According to the defense, the men wanted to confront Martinez…” So even the defense admits that the purpose of the trip was to CONFRONT Mr. Martinez. And our hearts are supposed to bleed for Mr. Herrera???
And Nam Turk, how did you know he was a norteno?
This column is just shocking to me. I haven’t heard one word about the victim or that victim’s family. What happened to them? I may not know this young man, or anything about this crime other than what is written above, but I have to agree with Frustrated Finfan and JMO on this one.
I have a friend who’s daughter is still afraid to leave her room, 14 years after her fiancé was shot and killed in front of her, and their child in their drive way, by her ex. When this murder went to trial, his attorney got the case delayed for years and almost got him off because the victim’s families wore a pin with the dead mans picture on it during the trial. Thank God, after wasting thousands of taxpayers dollars, and his mother crying about what a good boy he really is, and bringing her own group of misguided friends, and family members in and out of court, the court found in favor of the victim, and their families, and the murder was sentenced appropriately.
I work with victims and I am sick and tired of this kind of re-victimization. Do you realize that victims serve time right along with these perpetrators? Their lives will never be the same even if, like most of their victimizers they “Find God!” Or doesn’t that matter to you?
Raj Jayadev, this is not about race, this is about a group of his peers finding him guilty as charged. This is about punishment for a crime he helped perpetrate. This is about a victim we have yet to hear from, and probably never will. I don’t know what kind of mother this young man has but my parents told me you better be careful choosing your friends because “you are judged by the company you keep.”
Clearly this young man that you are portraying as a victim here, is hanging around the wrong crowd and using zero common sense in making a choice to drive his friends to the scene of a horrific crime. If he was unfairly treated and the punishment doesn’t fit the crime, fine, but he did commit a crime and no amount of justification on your part will change that. The victim’s rights here and his family’s need to be respected, honored, and put first.
If this young man is such an upstanding citizen, what was he doing with these guys and driving the car to the scene of a crime, and why did a jury find him guilty as charged?
It’s a shame that the same neocon devil’s advocates can’t put down their flags long enough to realize that nobody’s proclaiming innocence here. The guy may get life in prison for B&E, but all you guys see is some kind of movement to acquit the kid entirely.
JMOC and FF are essentially bunching all crimes into one. There’s only one sentence that every criminal should get in their minds. I guess reckless drivers should be treated as murderers and rapists.
I think everyone understands that this Herrera kid was unwise to associate with the people he did, as he did lead him to apparently break the law. That is what should be assessed, though, not some speculation as to what kind of person (good or bad) he is. Laws should be concrete, not abstract.
#5- I don’t think you understand the point here. If the writer had written an objective, unbiased column about the way well intentioned laws have harmed people and gave us references and gave us examples that would be one thing, but that is not what he did. What he did was write a column about some poor misled young man who we should feel sorry for. That just doesn’t work for me. No one should be punished unjustly, or have a punishment that does not fit the crime, I agree, but I don’t hear anything in this column that shows one bit of compassion or acknowledgement toward the victim, or explains WHY the DA’s Office has had to resort to using laws like this to stop this outrageous behavior in our community.
If this mother was so abused by this Martinez guy, it is about dialing 911, and saying, “Help, I’ve been assaulted.” It’s called dialing 311 and saying, “ Hello Officer, I need to retrieve my belongings from my abusers home, may I request an Officer to do a Civil Stand By for me?” It is not about having a gang mentality and violence.
Here’s a link to hate crime info-
http://en.wikipedia.org/wiki/Hate_crime#United_States
Nam Turk,
If there was something in my post that suggested I misread the issue as one of Herrera’s guilt or innocence, please point it out to me. Trust me, I recognized the issue for what it was immediately, Plan-B: an emotion-based, fact-distorting campaign to influence, through public pressure, the decision-making processes of a Superior Court judge. Furthermore, the reason that Herrera’s guilt or innocence is not the issue at hand has nothing to do with the reasonableness of his sympathizers—or their commitment to law and order, it is because that issue was already settled in a court of law (back when Plan-A failed and he was convicted by a jury).
Read your own, pathetic post:
“I think everyone understands that this Herrera kid was unwise to associate with the people he did, as he did lead him to apparently break the law.”
“Unwise”—Hardly. Unwise is when a young man has one beer too many; blows his paycheck in one night; flirts with his girlfriend’s sister. If one were charitable enough to remove all criminal intent from Herrera’s actions that day (something contradicted by the evidence), then it might be said that what he did was monumentally stupid.
“Apparently break the law”—Please! Are we to suppose that the victim “apparently” fled his home in fear; that there was an “apparent” firearm seen; that an “apparent” safe was removed from his home? What part of convicted don’t you understand?
As for the criteria that should be properly used to assess the young man, I would think the judge doesn’t need any coaching—or any political interference. He will weigh the evidence, good and bad, and issue his sentence according to the facts in the record and the laws on the books.
Lastly, remember this when reading about the young man’s great plans for the future: when he was free to associate with the people of his choice, he associated with gang members. In prison it will take real effort to avoid gang members, so don’t be surprised if he doesn’t spend much time with the chess club.
“…50 leather-clad bikers sitting on Harleys that roared like they had jet engines inside them”
These are the real criminals. When are we going to start enforcing the noise laws we already have?
#9,
they should put a gang enhancement on the noise the harleys and low riders make. and put the vermin away!
“Raj’s column on San Jose Inside is a breakthrough…”
What kind of breakthrough would that be?
– it’s SJI’s first step towards meeting quotas set
down by San Jose’s human rights commission?
– we have our very first blog by a self described ‘activist journalist’? BTW isn’t ‘activist journalist’ redundant?
– it’s the longest blog in the history of SJI?
– that Raj is living proof that Jack was able to clone himself?
Good grief.
6: I was not defending the writer’s pity for this Herrera character. I was addressing finfan’s and O’Connor’s adherence to the opposite extreme. One’s pathos is another’s vindictive hate. Nobody here sees things from a middle ground anymore, I guess. If somebody wants Herrera freed, then anyone who disagrees wants him in prison for life. The typical sentence does not apply at San Jose Inside because we’re dealing with a guy that owns a red shirt.
8: I don’t agree with all-out forgiveness for the accused, nor do I agree with your petty criticisms of my post. “Unwise” is hardly inapplicable here. If you want me to call his actions stupid, then okay. They were. As for the word “apparently,” I suggest you look it up. Something apparent is obvious, clear, etc. That’s hardly ambiguous. If all you can do is critique my word usage in childish anger, I recommend just not posting at all.
Raj’s column on San Jose Inside is a breakthrough that I hope will be welcomed by readers. The broadening of the diversity of contributors to SJI will help it become a more important institution in the local media mix.
He doesn’t fit the profile of prior writers, who, let’s face it, were heavily weighted towards white males that were at least in their 30s (I’m being diplomatic here).
Raj is a young, activist journalist whose writing presents compelling and thoughtful insights — even if one does not agree with his conclusions.
A medium gains credibility by welcoming a spectrum of opinions and perspectives. I hope that provocative arguments from fresh points of view will help make SJI an even more vibrant place for the discussion of issues in our community.
I want to congratulate Jack, Tom and the other founders of SJI for being open to expanding to include non-establishment views, as well as commend Raj for agreeing to participate in a forum in which he’ll no doubt be the recipient of some lively, er, comments.
Nam Turk #5: Attitudes like your perpetuate the gang infestation of the East Side.
I agree with Kathleen #6. This polemic that Raj Jayadev wrote is preaching only to the choir of knee jerk liberals who try to throw race into everything as the sole reason for the way some poor misunderstood felon is being treated by the system. EVEN HIS LAWYER admited Mr. Herrera went there with his homies to do some damage.
Is the “prominent criminal lawyer” mentioned in the article Esau Herrera? If so, I’ll have to speak with him about it. I had lunch with him the other day, and he didn’t bring it up, so maybe it’s another attorney named Herrera. Non-lawyers’ assessment of legal issues is usually too skewed by TV to be accurate. Esau and I agree on many issues regarding race and how it sometimes plays out in the system, and disagree on others; but we do speak the same language.
In #3 I asked who let this guy on? I should have guessed it was Pulcrano—stooopid me!
Interestingly, Ms. Rivera’s post seems more balanced that Mr. Jayadev’s.
I’d like more info. on Mr. Herrera’s homies, as well. The first one to roll on the others probably gets the lightest sentence.
#11- Rebecca Rivera, my deepest sympathy is with you because I have worked with many parents like you who are also victims of crimes committed by their children. You are victims in that you must bare the loss of your child to a jail, or prison and in some ways that is worse than loosing them to death. You have to hear people say things that are hurtful, and painful about your child and feel helpless to do anything about it. And I know you cry many tears in private, and yes, even blame yourselves for their actions.
Having said that, I personally do not think that anyone should have to pay with their life for a crime either, unless they rape a child, murder someone, is a serial rapist, has long know ties to gangs that have harmed innocent people, etc. Regardless, of what a beast this victim may have or may not have been, the actions your son and his friends took were illegal, and go beyond poor decision-making. It is a gang, thug mentality to take the law into your own hands, and it a mentality that is far too prevalent in our youth and our society today. We have trained Police Officers, a DA’s Office, and a court system for that. When citizens, regardless of their age, start becoming judge and jury and go after someone then they must pay the price. And sadly, your son is.
To refer to those of us who are appalled by your son and his friend’s actions, “It’s people like this who support this throw-away mentality,” is grossly unfair and is untrue. It is inconceivable to some of us that anyone regardless of their reasons would do what your son and his friends did.
I work with youthful offenders and have for 7 years now. I in no way want to see any child, or even a 24-year-old man like your son spend the rest of his life behind bars, but clearly enough evidence was presented in court that had a jury convinced that your son deserved that sentence. Your son is entitled to due process, and the appeals process. I wish you and your family success in that endeavor. If he deserves lenience in his sentence than I hope he receives it as soon as possible.
Wow, throw that “gang” term into the mix and watch how it clouds people’s vision.
I think the main point of R. Jayadev’s piece was to expose the injustice of the gang-enhancement laws. I didn’t know anything about these laws before this but if they sprang from something called the Street Terrorism Enforcement and Protection Act it doesn’t surprise me that they’re being misused.
“Terrorism” as we’ve seen in the last 7 years, is the bogey-man that’s supposed to scare us into allowing all sorts of abuses.
Sticking a label on a young person like Mr. Herrerra and locking him away for life really doesn’t do society any good. As his mother says, it’s a question of what is the appropriate sentence.
I can’t be there tomorrow for the sentencing in Judge Bocanegra’s court but I am with Rebecca Rivera in spirit.
Ms. Rivera,
When your son agreed to participate in what was clearly a situation in which force, or at least a very real threat of force, was to be used to enter and intimidate a man into surrendering the control of property in his possession, I doubt that he first cleared it with you. Yet, you were at the time of the crime as much his mother as you are now at the time of the consequences. What I take from that is simple: your adult son made a decision that he knew contradicted your values, was against the law, and had the potential to have deadly consequences (as all home invasions do). You say he was on his way to making changes in his life, and I don’t question that he might’ve given you reason to hope, but what is clear is that outside of your purview he was doing things and making decisions inconsistent with pointing his life in a new direction.
You claim that some people believe your son, “who never hurt anyone in his life,” should spend his life in prison, yet neither you nor Mr. Jayadev, in his post, identified those “some people” by name. If the “some people” to whom you referred are police and prosecutors doing their jobs, then referring to them as “some people” is misleading and incorrect, for they are obligated to apply the laws and rules on the books in carrying out their duties. What I suspect, and what the disingenuous nature of Mr. Jayadev’s post suggests, is that it serves your purposes to create in the minds of others the idea that your son is a victim, a decent young man brutally condemned by heartless and hateful people.
With all due respect, from my seat it appears that the only evil involved in this case existed in the minds of your son and his friends when they decided to engage in armed thuggery. Your son is not a victim and his sentence is not for you to decide.
There will be some people who will read my response to you and cringe that I would challenge a mother grieving for her son. But it is not your grief that I challenge, it is your methods and the convenience of your logic. One one hand, you decry a court system that would dare brand your son a dangerous criminal and punish him for overpowering a man and violating the sanctity of his home, while on the other you all but cheer over the life sentence the same judicial system meted out to a man who overpowered a woman violated the sanctity of her body.
Personally I hope that the judge has the information he needs to arrive at what he considers the right sentence. But you, you seem to want to have it both ways…
which I guess explains the mob.
The article mentions:
“…San Jose Police department gang expert Greg Limbardo testified to Herrera’s affiliation to a Norteno gang…”
Could one of Mr. Herrera’s supporters comment if this is true? I have read nothing so far refuting this claim and assume the jury believed Mr. Limbardo’s testimony.
#12-Nam Turk in Eastside, thank you for the clarification. Seeing things from the middle of the road in cases like this very hard. I remember several years ago, a mother shot and killed the man who molested her child because he kept grinning and mocking her in court. It drove her to do something she normally never would. (My apologies I can’t think of her name right now.) What I will never forget is her willingness to take full responsibility for her actions. She did not use the molestation as a justification for cold-blooded murder. She admitted she was wrong, refused to try and get out of it. She had cancer and served time for her crime. Now to me, she did the right thing. Killing someone like she did, even though I might be driven to do the same if someone hurt my child like that for all those years, was dead wrong. But did she deserve leniency, absolutely.
#13- Dan, having new writers participate on SJI is a wonderful thing. This blog is however a conversational blog encouraging the honest open exchange of ideas, and that includes challenging the writer on his or her comments. Unlike the Metro or Mercury News that edits or gets to pick and chose what viewers get to say or read, SJI prints all opinions unedited.
If Ms. Rivera is correct and Martinez was put under a Witness Protection Program, then that would lead me to believe that authorities thought that her son and his friends were dangerous enough that this type of drastic action needed to be taken. Secondly, she describes Martinez as a criminal and a brutal rapist who used this home invasion crime to escape being prosecuted for the rape of several women. I have never heard of anything like this, and if someone out there knows of rapist’s getting out of a trial behind a home invasion crime against them, please speak up because I am having a hard time believing that. If that really did happen that is beyond acceptable, and is outrageous.
If Ms. Rivera is right about what a horrific criminal Martinez is, then she is very lucky this man did not kill her son and his friends when they perpetrated this crime against him.
Also, would supporters please tell us about the status of Mr. Herrera’s partners in this crime. Have they been convicted? If so, what sentence did they receive? Did they receive a gang enhancement? Are they members of the Norteno gang?
The “activist journalist” has failed to present a balanced view of all the facts that would help us debate this issue intelligently.
JMO, I had barely started reading the post from Jayadev before concluding that this item had to have landed here via the new SJI-Metro relationship. There seems to be a connection between Metro articles being posted here at SJI and the “Mashup” page that the Metro has started running in each issue. I’ve seen you, me, Kathleen and finfan reprinted there, among others.
Perhaps the application of the STEPA to Herrera’s accessory role strikes some people as a bit much but I think finfan has the right take on this. The parents of those three who were at the SF Zoo on Xmas day think their kids are/were perfect angels too, yet police records suggest something quite different.
#22 Mark T
You are correct. Raj Jayadev was introduced to us by the Metro. He will be contributing a regular SJI column from now on.
The Metro chooses some of the best SJI comments of the week to publish in their “Mashup” section. In return, we post selected Metro material on SJI that we believe will be of interest to our readers and conducive to blogging. It’s all part of our new content and information sharing network.
Jack,
their “Mashup” section
Where on their web-page is the “Mashup” section?
Joshua made poor choices and must suffer the consequences. IT’S NOT ABOUT RACE, ITS ABOUT FOLLOWING THE LAW. What most of us would have given to have uncles and such that were prominent in the community. Instead we were blessed with Tio’s and Tia’s who maybe didn’t have a lot of education but who sure taught us to have common sense. DEAL WITH IT. I HOPE HE GET’S LIFE!!!!!!
O great, now we have serial rapists in witness protection. What a perversion of justice.
Has anyone verified that claim of Ms. Rivera?
#24 Not a Novice
I believe the “Mashup” is only in the print edition of the Metro. It begins on page 21 in the issue that came out today. I think you can download the paper as a pdf file from their site.
http://www.metroactive.com/the_papers/
Jack,
I don’t recall SJI notifying its readers that their comments are going to be republished in the Metro. I think you need to be a bit more upfront so that new readers/commenters know what is going on.
Is there any way for commenters to “opt-out” of this arrangement?
#22- Mark T, “The parents of those three who were at the SF Zoo on Xmas day think their kids are/were perfect angels too, yet police records suggest something quite different.” Absolutely true! Unfortunately parents only want to see the good in their children, and that is a big part of the problem. Too many times I’ve sat with parents whose children have badly victimized someone only to hear, “But he is always such a good boy/girl.” Try holding down your lunch when you’ve just met with a sexual assault victim and the mother of the boy who assaulted her tries to tell you what a good kind boy her son is. YIKES!
#23- Jack, while I do read the Metro to find out about events their reporting of things can be a bit suspect. I understand you had to make a trade off of sorts but I really hope SJI doesn’t turn into the Metro, or some other blogs who shall go nameless. I like SJI because it is actually credible, and it’s past and pre Metro writers have done a great job. I hope SJI will be selective in what the Metro wants you to post~
Looks like Mr. Jayadev left out a few important details about Mr. Herrera’s accomplice:
“Two weeks earlier, the same accomplice, Alex Diaz, had fired a shotgun blast that killed 15-year-old Christian Jimenez at San Jose’s Olinder Park, after mistakenly concluding the boy was a rival gang member. Herrera was not implicated in the murder, but while Diaz and several others were tried separately for the slaying, the two cases were intertwined: Detectives investigating the murder were following Diaz as he rode with Herrera to Martinez’s apartment.”
Link: http://www.mercurynews.com/ci_8148895
#28 Steve
It is important to remember that this is an open public conversation. Anything said here may be quoted elsewhere. Indeed, since we started in 2005, many SJI comments have been quoted on other sites, TV, radio and in the print media, mostly without our knowledge. It’s the nature of the beast. Everyone should definitely keep that in mind when they post here.
“The Metro chooses some of the best SJI comments of the week to publish in their “Mashup” section.”
Excuse me? I don’t recall reading that disclosure anywhere. Where is this information posted on the SJI web page?
Let me begin by thanking the many supporters my family has that go far beyond a small mob of people. Many community organizations and local politicians have offered their support as well.
I am surprised to find that so many people have an interest in my son’s story to such a degree that you wrote something about it.
Many of your comments are disheartening but none the less do not discourage me. It’s people like this who support this throw-away mentality.
Our culture, would like to preserve our youth—not destroy them.
My son was well on his way to making changes in his life. And giving someone a ride and never even getting out of the car is not conducive with a life sentence in a case where no one was hurt. In particular for a young man with no criminal record or history of violence.
My son has never hurt anyone in his life, but yet some people believe he should spend his life in prison.
There is no doubt that my son must pay for his absolute lack of judgment that regretful day. What is at issue here is what is the appropriate sentence.
Youth, are prone to making mistakes at his age, remember he was only weeks away from leaving his teens. They are not mature enough to always make the right decisions. Joshua most definitely displayed maturity when he became a nationally registered EMT and then became a student in the Fire Science Program at Mission College. He was well on his way to becoming a firefighter.
Where Joshua clearly displayed a lack of maturity was in this incident when he clearly made a poor decision.
Did he make a mistake in giving this ride, absolutely? Should he pay with his life for it—absolutely not!
Many of you have asked about the victim, I’ll provide you with this information. The alleged victim raped, brutally raped, three women. One of them was a young girl selling an item for her school that he dragged in his home, beat and raped repeatedly.
This victim has a long extensive criminal record.
At the trial, each rape committed by the alleged victim was graphically described.
But sticking to the home invasion robbery story help put him put in the Witness Protection Program where all of his back rent and bills were paid at the tax payer’s expense.
This was not a crime against the general public. Joshua drove a car for his buddies to confront a criminal.
The alleged victim suffered virtually no injuries in this alleged home invasion robbery, which is far less than he did to his victims.
In fact, the alleged victim is now severing a life sentence himself because while in the Witness Protection Program, he attacked his fourth victim.
I can tell you that the women who were the victims of these rapes, don’t feel sorry for him one bit. They feel sorry for the young men who are going to lose their freedom for him including my son.
This rapist received multiple opportunities to prove to society that he can become a contributing member of society. I am only asking for one opportunity for my son.
My family strongly supports the efforts of the San Jose Police and the District Attorney’s Office. They have a tough job, and we are deeply appreciative that we live in one of the safest cities.
Again, what is at issue here is the appropriate sentence.
Joshua created consequences for himself with his misguided adolescent choices, but the facts of the case argue for measured justice and even mercy, given Joshua’s lack of prior criminal history, his widely acknowledged nonviolence, and his inner and outer resources for total rehabilitation.
Thank you again for those supporters who have rallied behind me in my quest to seek an appropriate sentence for my son.
With great respect
Rebecca Rivera
Mother of Joshua Herrera
#39 JohnMichael
We aim to provide as many views as possible here on SJI, including ones you may or may not like. If you don’t like Mr. Jayadev’s columns, you are free to ignore them or tell everyone what you think about them and then flip over to another thread and comment there. SJI isn’t about those of us who write columns here. We express our opinions on matters we think are of interest to the community in order to start an open public discussion and collect a range of perspectives, including yours which we are always happy to have whether we agree with them or not. Unlike Fox News and the rest of the broadcast news industry (there is where you will find the real “drivel”), it’s the multiplicity of views that we are after. I know that I learn a lot here every day and have even changed my mind on issues a few times due to ideas and information posted on SJI.
#37 Steve
Thanks for bringing these questions up. I will be happy to address this matter in a separate short column later today so things are clear to everyone who posts here.
#26- JMO- I couldn’t find anything to substantiate the claims made by Ms. Rivera’s statement about the victim. In fairness to her though, it would be a bit difficult to find something about him if nothing other than the article Steve posted, was ever written about him.
#30- Steve, thank you for posting this article. The article is pretty shocking to say the least. It certainly paints a very different picture than his mother, and Mr. Jayadev did here on SJI.
Jack: Metro has a large readership, and for good reason. I never fail to read it. So why does SJI have to regurgitate some of it on SJI?
Steve (#30),
Thank you for posting that link. The information contained in the story reveals much about the true background of young Joshua Herrera, as well as Raj Jayadev’s disturbing disregard for the truth.
First of all, we’ve now learned that Herrera did not have a clean record, and had at least two significant contacts with the police prior to his arrest in the home invasion case. One arrest was for carrying a concealed knife (he was wearing gang colors at the time), and the other occurred when he and another teen were involved in a crowbar attack of a rival’s car (classic gang-banger retaliation). These incidents, the everyday kind of intimidating acts that bring fear into neighborhoods, are even more persuasive in identifying Herrera as a gang member than were his previously mentioned possession of gang clothing and gang photos. Plus, in assessing his record, let us not forget that Herrera’s opportunity to participate in gang life here was interrupted by his years in Florida with his father.
In light of this new information I seriously doubt that Joshua Herrera could ever have passed a background check for a firefighter’s job anywhere. There is a lot of competition for those positions, so absent an affirmative action program for Nortenos, young Mr. Herrera had no realistic chance of ever seeing the inside of a station house. Thus, because of his own deplorable behavior, he doesn’t deserve to be included amongst the many fine young people who might legitimately be thought of as aspiring firefighters.
But back to the new details. The “three friends” that Herrera drove to the scene of the crime were friends the likes of which none of us have ever had. They were friends fresh off the cold-blooded murder of an innocent teenager; friends so deep into thug life that they had cops tailing them; friends who were armed with a shotgun they fully intended to use. These were rotten, dangerous criminals of a kind that innocent people have nothing to do with, no matter what the situation. The murder of Christian Jimenez was about as terrible a murder as has ever been committed by a local gang member.
Just three days after young Jimenez was murdered for being a decent, defenseless Mexican-American without gang ties, Joshua Herrera was transporting the cowardly murderers and, in all likelihood, the murder weapon itself to the scene of a new crime. Of course, his supporters would ask us to believe that he didn’t know anything about the Jimenez killing, despite the fact that the murder was a major news story, the victim was uniquely innocent, and the crime was committed for the sole purpose of enhancing the killer’s and the area’s reputation as hardcore Norteno. But before we ever allow his supporters to offer up any more excuses, we must remind ourselves that one of them, Mr. Raj Jayadev, reported this about the victim:
“Martinez claimed that the group had a gun, although none was found…”
This was as close to an outright lie as one can get. Surely Jayadev knew of the connection to the Jimenez murder; surely he knew that a shotgun was used in the killing and reportedly seen by the victim during the home invasion; surely he was aware that Martinez had jumped from a balcony in fear; surely he realized that about the perpetrators being armed there was no reason at all to question the victim’s account.
Nice opening act here at SJI, Mr. Jayadev. I wonder, did it state on your invitation that blowing smoke was encouraged?
Folks, let’s get real here: Joshua Herrera is facing the gang enhancement clause because he is a gang member. There are no holes in his Norteno resume. He wears the clothes and the colors meant to intimidate and challenge; he carries weapons; he participates in attacks; he runs with cold-blooded killers; and he’s willing to help take down an enemy any time, any place. And the fact of the matter is, were it not for the agility of his last, terrified victim, his charge for driving his “three friends” to the scene of the crime would’ve been murder.
The flaming tongues of lockem-up authoritarian types sure get wild when someone says “gang” or “racism”.
Prisons, police, and policies inspired by the “tough on crime” rhetoric of the mainstream (like gang enhancement and three strikes) are where the national debates on race now take place. With legal recognition that there ought to be equality in employment and housing and the legislative and judicial wins of the civil rights movement, what do people of color have to complain about? Right?
I mean Josh Herrera had the right to attend an EMT class regardless of his race, right? And he had the right to pursue a firefighting certification without any negative impact on him for being Latino, right? And then when the D.A. sought to charge him with home invasion robbery (for his aiding and abetting) he suffered no undue burden for his appearance, surname, or ethnicity, right? Well, actually no, that is neither necessarily true nor is it to be expected since the D.A. tacked on a gang enhancement which is almost never applied to white people in our system even though white people often travel in groups of 3 or more people who consciously dress alike, look alike, and conspire to commit crimes together for mutual benefit (a gang, no?).
When white gang enhancements begin to catch up to those of people of color, I suppose that might be a tiny bit less racist, but it will not be justice. The jails and prisons of this country hold more than 2.3 million people, putting us in first place world wide, well ahead of China at 1.5 million, thought they have 4 times our population. http://en.wikipedia.org/wiki/Prisons_in_the_United_States
There is no way we will be able to incarcerate our way out of an unjust economic and judicial system where poor people and people of color are horrifically overrepresented in our jails.
Reinvesting in our communities and their schools, job training programs, and helping people fight for dignity and justice for themselves, their families, and their communities is what would make a solid step towards real justice.
#38- Nam Turk, ” Haha, I love these “important details” about people that aren’t Josh Herrera. Just follow the chain and everyone is a gang member.”
Ms. Rivera said in her own words, “Joshua drove a car for his buddies to confront a criminal.” One of those “buddies,” was the man who shot an innocent 15-year-old boy, Christian Jimenez to death. Now I seriously don’t think that Joshua knew nothing about this when he jumped in the car and drove these “buddies,” to confront a criminal. Ms. Rivera goes on to say that Martinez was a violent brutal rapist. Now I do not know a single law abiding citizen who would, one, hang out with someone who blew a way an innocent 15 year old child, or two, drive to a brutal rapists home, with the man who committed murder and didn’t get that that was a very bad choice to make.
Every one of the victims that I mentioned above where murdered, stabbed, or shot by a GANG member. And every one of their victims was of color. I am deeply concerned about what is happening in our world today and especially here in California in relation to gangs. If you actually researched how bad gang crime is on the rise it would scare the living crap out of you.
Jack, I love having new points of view on here. I think these kinds of discussions are vital. To tell you the truth I think too many people are living in a cocoon. We all think we’re so safe, we don’t think past our own neighborhoods, our own families, our own friends, but the world out there is changing and if we don’t keep up with who is moving our cheese, or how it is being moved, well I think we’ll be trapped by it when we least expect it.
Having said that, I agree with Steve. Our safety on this blog needs to be addressed. When you write a newspaper to submit a letter to the Editor, they have you give your name, address, etc, so they can verify your are the sender of the letter. You are also making a choice to have your words read, and are aware it will be edited. That is not the case here. People seem understandably angry that their comments are being taken from SJI and plopped into the “Mash Up,” section. It is only fair to address that, and to find a way for them to opt out. Steve and the rest of SJI have a legitimate concern about retaliation.
$41 JohnMichael
We select material from the Metro that we think our users might like to discuss on SJI. (There is no blogging facility on the Metro site.) This allows us to easily increase lead content from professional writers and gives us the ability to cover more issues.
If you would like to write a lead guest column on something you think is important to the community that we aren’t covering, please send it to me and we’ll consider it. You and I might rarely see eye-to-eye but that doesn’t stop me from welcoming your views on this forum. We are very glad to have you here.
#35,
Thank you for informing the rest of us that the “national debates on race” are to be found wherever race-peddling liberals determine is most politically convenient. What a perfect argument you’ve got there, one that cannot be undermined by those who point to the freedoms in this country, those who hold fast to the concept of individual responsibility, those who understand that just as unfairness does not guarantee individual failure, individual failure is not evidence of unfairness.
Here is what you would have us believe: That even though Joshua Herrera was raised and educated in the same neighborhoods and schools as were the many law-abiding Mexican-American kids who’ve made a success of their lives, his failure is the fault of racism. That despite that he, unlike the majority of his peers, chose to associate and identify with known gang members, carry weapons, and participate in violent crimes, his legal problems are the result of racism.
Using your formula, as many do, all minority failure is the result of the racism of those you refer to as the “authoritarian types.” My, how convenient. The problem, of course, is that to believe such nonsense requires that, when confronted with white failure—of which there is plenty, one is left with no explanation other than individual failure. In other words, your belief system deems individual failure as something committed only by white people—a racist conclusion in anyone’s book.
With the exception of motorcycle gangs (who have historically endured harsh police scrutiny), white street gangs in California cities are all but non-existent, while Hispanic street gangs have become the major crime problem in our cities. Our laws reflect our problems. You want them to reflect your beliefs. You lose.
#35- Racism is a live and well you are correct. But racism is NOT limited to whites.
Our jails and prisons are filled with people of color, you are correct. Why is that? What is the ratio of whites to people of color here in San Jose?
“The flaming tongues of lockem-up authoritarian types sure get wild when someone says “gang” or “racism”.”
What about that poor 15-year-old shooting victim Christian Jimenez? How do you think his parents, aunts, uncles, grandparents feel when they look at his picture? Did he get to grow up and be Firemen, a Police Officer, or anything at all? No, he didn’t because a GANG member shot him to death thinking he was a rival GANG member! Don’t his rights matter, or his parents matter? Is their pain unimportant to you? Or do you think we white people don’t care about people of color? Well we do, regardless of what you think. It is not about racism for us, it is about civility and a moral and ethical way of behaving like a human beings, which is what this is about.
How many children of color have been playing the piano, or walking down the street and been shot, stabbed, or killed by a bullet meant for a GANG member? It is violence, cold blooded murder, and innocent women, men, and defenseless children who are paying the price for these GANG members who are going around trying to blow one another a way over what? A piece of turf, a COLOR, a name, a girl, a misconstrued look?
This community belongs to ALL of us. Regardless, of what color we are we are in this together. I don’t want to see one more innocent white child or child of color, innocent white woman or woman of color walking down the street, or innocent white man or man of color minding his own business get stabbed, injured, shot, or killed behind this macho bull shit any more.
If you think people of color are the only ones going without an education, jobs, and housing you either don’t know very many of us, or haven’t been reading the newspaper, or walking around downtown much lately. And if you don’t think whites get screwed through the legal system you’d be dead wrong about that. It is all about the money~
Jack,
Just so we are all clear about this new deal with the Metro, could you tell us who has access to your server logs containing the IP addresses of people accessing SJI? Does Dan Pulcrano or any of his staff members at the Metro have access?
I ask because many people who post to SJI wish to remain anonymous. IP addresses in your server logs can be queried to find geographic information or even company name that might identify the commenter. To find this information printed in the Metro’s Fly would be quite a shock to a commenter who thought he was posting anonymously.
Haha, I love these “important details” about people that aren’t Josh Herrera. Just follow the chain and everyone is a gang member. Should Herrera stand trial for a murder committed by someone else now? You people never quit.
Mr. Jayadev & Ms. Rivera also forgot to mention about her darling baby boy:“Court files indicate the prosecution displayed color photographs found in his room, showing the young man with what police identified as gang tattoos, dressed in gang colors and flashing Norteño signs alongside avowed gang members. Citing those images and other evidence, including several knives found in the young man’s room, a police gang expert testified that Herrera and his co-defendants were entrenched Norteño members.”
Judges typically bend over backwards for defendants by excluding a lot of evidence jurors would like to have heard, because it’s too prejudicial. So, we may safely assume there is even more damning evidence about Ms. Rivera’s goody-two shoes firefighter trainee by day, entrenched, gang-tatooed Norteno by night.
Thank heavens they caught him before he became a firefighter. Imagine what he might have done “under the color of authority”.
Jack: we really don’t need Mr. Jayadev’s drivel on SJI, or other nonsense from Metro. Please discuss with Tom and whomoever, and dump this alliance with Metro. I read Metro religiously, and enjoy some of it, but I don’t need to see it again on SJI.
#35 opined:“When white gang enhancements begin to catch up to those of people of color, I suppose that might be a tiny bit less racist, but it will not be justice. ” I suspect white gang enhancements will catch up with those of people of color when white gang membership catches up with gang membershiop of people of color.
Do I believe there is racism in America? You bet! But I’m sick of everyone who says people of color should get a get out of jail free card when they commit crimes.
What the was the verdict yesteday? I didn’t see any news coverage…
#40, Jack:
Upon calm reflection, I concluded that you’re absolutely right. It’s your blog to publish items as you choose. And if I don’t like it, I can just move along.
I wonder if any comparisons can be made to the dismantling of Italian-American gangs (Mafia) back east to California gangs? The race issue would be non-existent since they would be considered white. The five families that controlled NYC are either dead or in prison because of harsh sentencing and aggressive detectives and prosecutors.
Mr Gonzalez (#45),
We obviously see things very differently, something that I’m sure is beyond changing. Where you are willing to view those involved in the crime as separate individuals guilty of different degrees of law breaking, I see them as does the court—as a gang.
Of the three who were convicted of actually invading the home of the victim, we are told that one of them had a personal score to settle (something having to do with his mother’s relationship with the man). Now without knowing more about the case I can’t say a lot for certain, but I can say one thing: this guy decided that the score needed settling, but it wasn’t something he was going to try by himself.
Which leads us to the other two, neither of whom had a personal reason to do harm to the victim. Thus, a question: what made them want to go along? What made them willing to violate the law and risk imprisonment? What was it that made the three of them of like mind?
Beyond any question, the decisions and actions of these young men were far from normal, unlike anything that three typical young men would decide to do. Significantly, there is absolutely no evidence that any one of these young men possessed the physical power and courage necessary to do such a crime alone. So, if we consider both the uniqueness of what they did and the fact that it was an act that not a one of them would do on his own, it is easy to see that these three cowards were thinking as one, acting as one, and committing a felony as one—and that one is what we call a gang.
In this case, a gang whose toughness was based on numerical superiority, surprise attack, and the use of a shotgun.
But what good is a tough, deadly gang if they don’t have reliable transportation to and from the scene of the crime? Were they supposed to take the bus? No, that was out. Convincing a bus driver to idle at the curb, honk if the cops show up, and standby even if things go wrong was not going to happen. Same with a cab. They’re okay with the waiting part but a cabbie can’t be counted on to serve as backup, try to outrun the police, or keep his mouth shut afterward.
Enter Joshua Herrera. He’s got a car (the one provided to him to get back and forth to school), one unknown to both the gang cops and the victim, but just as importantly, he’s up for the robbery and even a murder, and can be trusted not to roll over and make a deal if caught. Guys like him don’t come along every day.
Joshua Herrera was part of the gang. He and his gang members did things together that they couldn’t or wouldn’t do on their own. Therein lies the justification for gang enhancement laws, to dissuade people, through punishment, from forming the criminal alliances that give them a level of destructive power over law-abiding citizens they wouldn’t otherwise have.
If they walk like a gang, talk like a gang, and act like a gang… let ‘em do time like a gang.
Eddie #49,
Alex Diaz, 80 years to life
Alex Samaro, 33 years to life
Richard Rodriguez, TBD today
Joshua Herrera, TBD today
#50 JohnMichael
We actually do agree sometimes!
J
I would like to throw in my 2cents and a couple of dollars on this issue. I find it very interesting how a person who is of a brown skin tone gets treated like a criminal and when your the son of the City of San Jose lawyer you get a misdemeanor and slap on the wrist. When your Dad is well known in political circles in San Jose your charges of Resisting arrest with force and felony robbery get reduced to misdemeanors. TO me when you forcibly resist arrest from an officer that tells me your a danger to society and do not deserve to be roaming the streets since you obviously have some issues and could possibly be prone to violence. In Mr Herrerea’s case he was drving a car. They said he was gang related according to who he associated with? Have any of you ever in your life times had a friend who did something wrong that you did not agree with? Did you disown your friend for one mistake?
Now as far as the race issue goes yes there is a disaparity I have personnally been affected by that disparity. I have been pulled over 12 times in one year and a half. I am Latino. I have been pulled over for such minor things as no licnesnce plate on the front of my car, a cross hanging from my rearview mirror, my brake light is dim(i said dim not that it was out), my rear license plate light is dim, my car smells like gas is leaking. Out of all these times I have been asked out of my car at least 5 times. I have been searched my car has been searched. I have been made to sit on the curb and get asked questions about everything from my social security number to what do I do for a living? to where is my job located?, What school do I go to? Have I ever been arrested or on parole? Have I broken the law anytime recently? What do I do at work? What is my phone number? Does this happen to any of you? Have you been made to feel like a criminal for no other offense than a traffic infraction?
Now of all these times and run ins I receive one ticket. Now for a background on my self I go to college part time, and work two jobs. I have never been arrested just like Mr Herrera. I have no criminal background at all.
At the same time I am being treated like a criminal by SJPD’s finest.
Now if one of my friends was to call me for a ride and I was to give it to them and they did something that I was not aware of and I happen to be wearing a colored shirt would that make me a gang banger? In this city and county yes. I could be the next Mr Herrera.
So inclosing please understand that as a Latino and person of color you are constantly being targeted as either a gang banger or a criminal. Is it right? No. Is it fair? No. But it does happen and this is the reality I live through everyday wondering what they will pull me over for next now that the infractions have been corrected. I have also recently been pulled over and was not told the reason so I am not sure what the excuse(reason ) was.
Welcome to my reality.
SJI ONLY!
#45-Hector Gonzalez,
Kids today are getting involved with gangs because we as a society are letting them down. They are getting involved with gangs because they are desperately looking for a sense of family, a place they can feel accepted, somewhere they can feel safe, and loved. It deeply saddens me that so many of our youth are heading down such a destructive path. They are growing up so fast. The world is such a different place now.
Too many young men are growing up with a single Mom. I know these women, many of my friends included, try very hard to give their kids everything, but they can never take the place of a good, loving male role model. I don’t understand why so many fathers are not even involved in their children’s lives. I work with youth offenders and 98% of the young males I work with don’t have ANY interaction with their Dads. Over HALF don’t even know who their Dad is or where he is. That is disheartening to me.
Of those boys I work with who do live with their Dads, or know and spend time with their Dads have gotten in trouble because both their parents have to work long hours, or two jobs just to pay the bills. When their parents get home they are tired, and are worried about making ends meet. Our society is a mess.
Kids who get in trouble are rarely ever rotten to the core. I think they are doing it to get attention. Much like a cry for help. We need to start listening and start putting these children first. Children are our most precious tomorrows. They grow up too fast, and we better start loving them, nurturing them, and guiding them before it is too late. As I’ve heard Gil say so many times on SJI, “It takes a village to raise a child,” and he is right. We need to stop making excuses and start doing what is best for our children, or we will lose them to gangs, drugs, alcohol, and so many other unthinkable things.
As to your question,“So you’re saying that the wannabe kid that wears red to school and throughs up gang signs in pictures- should then be sentenced to life ???” I can only say that the judge and only the judge can decide what Joshua will get based on the evidence. I feel very sorry for his family, you, and all of the people who love him because a choice he made, and he alone made has not only hurt him for the rest of his life, but all of you as well.
#52 George, pls. post verdict if you hear of it soon. I am anxious to hear the outcome. Thanks!!
#50- JMO, I hope you will continue to stay on SJI. We may not always agree on things or see eye to eye, but I do enjoy your postings. Change is not easy and I know this column was a bit tough to swallow, but the reality is that these kinds of things are taking place in our world today. We need to be open to talk about these things even if we disagree. As to having our posts put in “Mash Up,” or other media, I think Jack has been very fair and understanding about it, and has given us a way to handle that by allowing us to opt out.
Jack,
I am really concerned about gang violence. Please see this article in the Merc today.
http://www.mercurynews.com/ci_8648268
Would it be possible for you to invite someone who works with gangs to do a column on this so we can become more educated on this topic?
This city is all screwed up, starting with our D.A’s office , and Our P.D. This is noooooooo supprise to me…….another disappointment starting with our Judicial System. Once again letting our citizen’s down. Then they wonder why the have thousands of complaints on how the system is Failing our Juveniles and Adults. This is pathetic….!! I know the city of S.J can do a little better than that right?Where is the justice in the society!! We need to remove the screw ups that were voted in office!! Another day another dollar…right???
Sincerely… Yours ……………………………
None of your Damn business
Joshua Herrera is a Norteño, not a firefighter. He associates with other Norteños, not firefighters. He has gang tattoos and has been photographed displaying gang signs. He provided transportation to other Norteños and a shotgun so that a crime could be committed.
Stop saying this is some poor kid who got mixed up with the wrong crowd. His crowd is Norteño, else he wouldn’t have gone to so much trouble trying to look and act like one.
Does anyone know what it takes to get into a gang? I bet the Norteños don’t accept just anyone. You have to commit crimes to earn the trust of other gang members, to prove that you’re as hardcore as they are. The Norteños don’t have a minor league system for guys who just want to hang around until their firefighting careers get off the ground.
I’ll admit that he may not deserve a life sentence. That’s for the judge, who has more knowledge of the case than anyone else here, to decide. But Joshua Herrera is a criminal, and he should be sentenced accordingly.
Richard Rodriguez, 15 years to life
Joshua Herrera, 19 years
Alex Samaro, revised from yesterday, 23 years to life
#58- Thank you George. Do you know why the Judge gave Joshua Herrera, 19 years? What did he base his decision on do you know? May I ask, where are you getting your info?
“A judge sentenced 24-year-old Joshua Herrera to 19 years in prison today for participating in a home invasion robbery, but spared him from a potentially harsher sentence of 15 years to life in a case that sparked debate over the state’s tough sentencing law for gang-related crimes.”
http://www.mercurynews.com/breakingnews/ci_8653638
Judge rejects law on stiffer penalty for gang crimes in sentencing robber
By Brandon Bailey
Mercury News
Article Launched: 03/21/2008 01:58:49 PM PDT
A judge sentenced 24-year-old Joshua Herrera to 19 years in prison today for participating in a home invasion robbery, but spared him from a potentially harsher sentence of 15 years to life in a case that sparked debate over the state’s tough sentencing law for gang-related crimes.
CHRISTIAN
YOU CANNOT POST A COPYRIGHTED ARTICLE ON SJI. YOU MAY USE A FEW LINES AND SUPPLY A WEBLINK AND CITATION.
JACK VAN ZANDT
Absent a contrary opinion by an appellate court, I will view Judge Bocanegra’s decision to reject applying the gang enhancement finding against Herrera as his to make. Nineteen years is a heavy sentence regardless of it being less than the maximum. As for his belief that Herrera’s relatively clean record and strong family support will likely result in his turning his life around, I applaud the judge for his continuing optimism in the face of the harsh realities that confront him daily.
I would ask of anyone who might be privy to the details of this case if they could, in the interest of enlightening us all, determine whether or not Joshua Herrera was ever offered a deal in exchange for testifying against his codefendants (something that is commonly offered to getaway drivers in serious cases). I ask this because if a deal had been offered and rejected, it would reveal that Herrera possessed a level of allegiance to his Norteno co-defendants that should permanently put to rest any doubts about his commitment to the street gang. This may seem to be a moot point now that the issue has been settled, but since gang enhancement sentencing and Herrera’s gang allegiance were key points in the Raj Jayadev posting that got all this started, it would be a shame if we readers were again denied crucial information.
A Couple of points:
-Let me start with saying thank you for what I think is a needed and long overdue conversation on the S.T.E.P act, the people it impacts and the political undercurrents that it operates in.
1. to #37
“Martinez claimed that the group had a gun, although none was found…”
—The police, who were already doing surveillance on Herrera and the others, saw no gun on the drive over to Martinez’s house. They also saw none of the defendants with a gun entering Martinez’s apartment. It was only when the police went to a home where Diaz, the one who faced charged for the tragic killing of Jimenez, was that weapons were found. Herrera, at no point, was found with a gun, Bocanegra, the judge, acknowledges this.
To the “victim” issues:
While I personally don’t think that Martinez’s history of sex crimes is the reason to mitigate Herrera’s sentence, I also don’t think that Diaz’s crimes (the Jimenez killing) should impact Joshua’s sentence. Knowing Diaz is not enough to give Herrera a life sentence—guilt by association is not enough, we should all be judged by our own actions.
To #1-44:
2. It is this last point, that defendants should be judged based on theirown individual offense, that Herrera’s case best illustrates. No matter who he grew up with, what he wears, even repped, he still, ultimately, just drove a car. Plus, the victim was not severely injured. A previous post was correct— the Herrera family, and my piece, never said that Joshua should not face any penalty. Rather, it is about an appropriate penalty. What is at question is: is life in prison an appropriate sentence? For me, this is a political question as much as a legal one. Does this state believe in redemption? Do we believe in the capacity of a young person who has made questionable choices to redeem himself? S.T.E.P. removes the possibility of this prospect. The place where I work is made up of staff who have been labeled as gang members, had criminal histories, and have turned their lives around, and have dedicated themselves to public service. They are evidence to the possibility of transformation when given an opportunity.
3. Having just come back from the sentencing hearing, where one of Joshua’s co-defendants got the full weight, I don’t have the words to describe the sight and sound of a mother breaking down after hearing her son will spend 33 years to life in prison. After that, gang enhancements becomes less of an abstraction, and something I think we are morally compelled to wrestle with, rather then repeat entrenched positions.
—Thanks again for engaging in a conversation on gang enhancement laws and
I hope this dialogue gets us all to a better place.
Peace – Raj AKA “Drivel” AKA “Jack Clone” AKA “Smoke Blower” AKA “Plan B”
Simply stated——Three young men will be sentenced to LIFE because of a gang enhancement law… One was involved in a murder, two of them went in to the house of one of the young mans mothers ex- boyfriend (breaking and entering), and Joshua gave them a ride.
So what is it that Joshua did to deserve life again? I understand the concept of personal responsibility that many of the commenters are talking about, and that actions also have consequences. But when did it become OK to give someone- who at the most could be charged for abiding to a robbery to then be sentenced to life? Thats the matter at hand. Life!
Gangs do not exist because of themselves—gangs are a product of many factors, that are not necessarily developed because of bad choices but more because of lack of options. There are many levels of gang members such as “wanna bees”, “at risk”, “high risk”… So you’re saying that the wannabe kid that wears red to school and throughs up gang signs in pictures- should then be sentenced to life ???
Raj Jayadev: “he police, who were already doing surveillance on Herrera and the others, saw no gun on the drive over to Martinez’s house. They also saw none of the defendants with a gun entering Martinez’s apartment. It was only when the police went to a home where Diaz, the one who faced charged for the tragic killing of Jimenez, was that weapons were found. Herrera, at no point, was found with a gun, Bocanegra, the judge, acknowledges this.”
—Where can I sign up to live in the fantasy land in which Raj Jayadev resides, where just wanting to believe something renders it invincible to reality? How tightly must he squeeze his eyes closed, how many times must he repeat, “there was no gun, there was no gun” before these facts evaporate?
1. A shotgun was used by one of the gang days earlier in the cold-blooded murder of a kid.
2. The victim of the home-invasion told the cops the perpetrators had a shotgun.
3. A shotgun was recovered from the home of one of the gang members following his arrest.
4. The jury heard a tape recording of a suspect declaring that he would’ve murdered the victim if he hadn’t got away.
No matter how I try this morning, I still can’t free myself and join Jayadev in his magic world. I’m stuck with:
1. The thought that a coward who needs a shotgun to take on an unarmed, fifteen year-old boy in a public park is not about to risk breaking into a residence unarmed to take down a dangerous Meth dealer.
2. My inability to accept that the victim lied about what he saw. What, was his “they had a shotgun” just an incredibly lucky guess?
3. That the weapon recovered was a sawed-off shotgun, and thus easy to conceal—making it unremarkable that the cops, surveilling from the shadows at a distance, did not see the suspect’s weapon. (They probably also didn’t hear the suspects conversation, smell their breaths, or notice whether they were all circumcised.)
4. Finding it impossible to accept that the suspect, when referring to his intention to murder the victim, was talking about doing it with his bare hands.
I guess I’m just a prisoner of facts that are beyond a reasonable doubt.
————————
Raj Jayadev: “It is this last point, that defendants should be judged based on theirown individual offense, that Herrera’s case best illustrates. No matter who he grew up with, what he wears, even repped, he still, ultimately, just drove a car.”
—So, if I sit down in a Denny’s with a cop posing as a hit man and, over a cup of coffee, pass him ten grand to kill my wife, I should be convicted only of having bad taste in coffee?
————————
Raj Jayadev: “The place where I work is made up of staff who have been labeled as gang members, had criminal histories, and have turned their lives around, and have dedicated themselves to public service. They are evidence to the possibility of transformation when given an opportunity.”
—And our prisons are full of thugs who were once labeled as nice young boys, but they are in prison not for the labels that others once applied to them, but for their deeds. In the Herrera case, we are asked to disregard his being labeled as a gang member by the prosecution, a label that has been proved in a court of law, and instead accept the label applied to him by his mother and her supporters, a label inconsistent with his criminal conduct.
Raj Jayadev is not against all use of labels, he just wants to be the label-maker.
————————
Raj Jayadev: “Having just come back from the sentencing hearing, where one of Joshua’s co-defendants got the full weight, I don’t have the words to describe the sight and sound of a mother breaking down after hearing her son will spend 33 years to life in prison.”
—I can help with the description. It’s what BREAKING YOUR MOTHER’S HEART looks like, and if the media would send that description back to the community instead of portraying our law enforcement people as boogeymen, perhaps a few more of these self-centered morons would DO RIGHT FOR MOM instead of STANDING UP FOR THEIR HOMEBOYS.
#65
As stated in the original post; “24-year-old Joshua Herrera”
So, at least in regard to this case, your statement; “The D.A’s office need to realize the Juvenile’s need Rehabilitation” does not apply.
While I agree that a rehabilitation facility is preferable to incarceration in a prison, where one receives little, if any, rehabilitation, sometimes jail is better. However, in this particular case, solely based on what I have read on this site, and in the paper, I think even 19 years is to much.
However, I might have a different opinion if I were on the jury.
Judge Bocanegra’s decision to not enforce the gang enhancement on Herrera is a tribute to his ability to distinguish the individual from the gang. No matter how hard you squint, Josh Herrera is not Alex Diaz, and cannot carry the burden of another man’s sins. For those not in the courtroom on the day of sentencing, here are the reasons Bocanegra sited for not going with the gang enhancement:
1) Insignificant criminal record.
2) Positive future prospects, having finished an E.M.T. program.
3) No history of inflicting harm.
4) Family support & community support – referred to over 100 letters he received on behalf of Herrera, as well as the large presence of supporters in courtroom.
5) Did not enter residence.
6) Did not use or have a weapon —(Shout out to my homey Finfan on that one.)
But anyway you slice it, 19 years is still a tough sentence. And Herrera’s codefendants did get the gang enhancement. Samarro got 23 to life, Rodriguez got 15 to life.
—What was proven by Bocanegra’s ruling is that family participation can have an impact on the outcome of a case. It showed the court that a young man is supported, and will be eventually released out to a community that will be invested in his success.
—As to the deal issue, I’ll try to find out. But I’m not sure about the implication, then whether or not the implication is relevant. 1) There are many reasons to refuse a deal, the main one being that the defendant does not feel it is a just offer for the offense. 2) I don’t think anyone, including me, is disputing Herrera’s association with the gang, or specifically the individuals in the car.
Again.. The D.A’s office need to realize the Juvenile’s need Rehabilitation!! RIght People… That’s what Probation Officer’s are for that’s what the COP’s are suppost to know! Actually including the court’s. I’m sorry people… This is including the D.A’s office as well…..These Kids hang with the wrong crowd, because the get caught up.. But again, this doesn’t make them a non-obiding citizen. They need to understand by sending this kid to prision is the worst example they can ever set! What ever happened to The Ranch Or a Group Home for troubled Juveniles … Rehabilitation people…!! Prision? Damn.. This really get’s to me.. I hope the family fights this and wins, then turns around and sues………. The County of Santa Clara…For being set up Once again on a Bogus Conviction!! This is starting with the D.A’s office. Let’s get this fully investigated.!! Shall We………..
By : NOne of Your Damn Business!!
(The public Watch dog for S.J). Your’s Truly…
Always staying posted in our lovely city.
And I’m not going away eighter…….!!
#63 Raj said
“The place where I work is made up of staff who have been labeled as gang members, had criminal histories, and have turned their lives around, and have dedicated themselves to public service. They are evidence to the possibility of transformation when given an opportunity.”
My reaction: Wow – that explains your sympathy for gang bangers
THIS INDIVIDUAL IS GETTING WHAT HE DESERVES. HE WAS ASSOCIATED AND A MEMBER OF A NORTENO STREET GANG. NO EXCEPTION SHOULD BE MADE FOR HIM. HE MADE A POOR DECESION IN FRIENDS AND IS NOW PAYING THE PRICE. YOU PLAY YOU PAY!!!!! GIVE HIM THE BOOK!!