Law enforcement uses the state’s gang-enhancement law to crack down on violence, but a judge’s ruling in the Joshua Herrera case raises questions about its reach

THE moment before Rebecca Rivera entered the courtroom to hear whether or not her son Joshua Herrera was going to face a life sentence in prison, she gathered with 40 or so supporters, who were bustling around with nervous tension. “I talked to Joshua last night, 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. The potentially devastating question that was left in her wake, the one no one dared ask, was: When? Rivera had already consoled the mother of another young man involved in the case, Alex Samarro, who had been given 23-to-life the day prior, and knew the pain she saw yesterday could be hers today.

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 facilitated a letter-writing campaign. When Judge Arthur Bocanegra delivered Herrera’s sentence, Rivera’s deepest fears vanished. The only time a mother will celebrate her son being sent to prison for 19 years is when it could have been life.

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

Herrera’s case is emblematic of the deep flaws inherent in that anti-gang law, known as the Street Terrorism Enforcement and Protection (STEP) Act. Critics say the legislation, which targets those defined by the politically charged and legally ambiguous term “gang member,” has resulted in sentences disproportionate to the crimes.

Looking at Life
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 mothers. 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 fled the scene—he later claimed that one of the defendants had a shotgun. According to court testimony, Martinez was assaulted by one of the defendants, Richard Rodriguez, but still escaped.

Police report that the young men returned to the car with a safe and 2 ounces of methamphetamines. During the trial, Martinez denied ownership of the safe or the drugs.

After dropping off the co-defendants, Herrera was pulled over by police on Yuerba Buena Avenue, three blocks from his family home. His car, it would later be revealed, had been under surveillance by detectives investigating one of Hererra’s friends. He was arrested on the spot. Three years later, Herrera and his co-defendants 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 Herrera’s affiliation with a Norteño gang. Limbardo presented evidence such as red T-shirts found in the family home (reportedly from Herrera’s high school days) and photographs of him with self-admitted gang members.

During sentencing on March 20, prosecuting attorney David Ezgar reiterated his argument that Herrera was undeniably linked to the gang with a multimedia PowerPoint presentation complete with photos, 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 PowerPoint 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 himself.

In his rebuttal, Herrera’s attorney, Tom Kelly, pointed out Ezgar’s production lacked any evidence of a crime by Herrera.

It was that fact—that Herrera has no significant criminal history—that Judge Bocanegra cited as part of his reasoning to use his discretion not to impose the gang enhancement. 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 pointed to Herrera’s future prospects, his family support and the more than 100 letters the court received from the community.

Bocanegra ended up giving Herrera nine years for the home invasion. He added a 10-year gun enhancement, since the jury concluded that a gun was involved in the crime, even though Herrera himself never held the weapon.

The Origins of Gang Enhancement Law
When the STEP Act was passed in 1988, California was experiencing a spike in violent crime. The legislation 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 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 25 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.”

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 STEP 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.

Changes in California Sentencing
While the S.T.E.P 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. As By Kara Dansky Executive Director of the Stanford Criminal Justice Center, wrote, “California’s sentencing ‘system,’ such as it is, is plagued by three main failings: (1) it has no empirical basis to justify it, (2) its inherent rigidity deprives us of the opportunity to ask important questions about how to impose just sentences, and (3) its complexity makes it extremely difficult for the relevant players to understand and apply it.” She 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 in to an unnecessarily rigid approach to criminal justice policy.” 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.

The confusion Danksy points to played out during the Herrera sentencing, which lasted an unusually lengthy two days, due to confusion of how enhancements and sentencing schemes overlap.  Bocanegra, after review, even changed Samarro’s sentence from 33 to life to 23 to life within the two days after a certain rationale was vetted out, which required a call to a prosecutorial sentencing expert, Charles Nickels.

Joshua’s Story
Joshua Herrera’s personal story, one his mother has shared in churches, high school classrooms and political forums, built widespread community support for her claim that the life sentence would have been unfair. The Herreras already had a storied legacy with San Jose’s Latino community. Joshua’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. They are sort of the Kennedys of the East Side—an example 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 the mainly Latino neighborhood around Story Road and Capitol Avenue in east San Jose. While he was growing up, Rivera, a single mother, worked a full-time job and went to school at night studying business management.

Joshua spent 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, so he moved back to San Jose and enrolled in Mission College’s firefighter academy. The car Joshua drove the day of the incident was the same car the family had just bought for him to transport his firefighter gear to school and back.

It is this fuller picture of Joshua Herrera that his family has used to gain political support, having received supportive letters from state Assemblymember Joe Coto and San Jose Councilmember 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 Joshua was one of Rebecca Rivera’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 seemed to never disappoint.

A tall, lanky young man, he is easy to imagine in a firefighter uniform. He smiles more than one would think his situation would allow for. When asked about his case, his reaction is more disbelief than anger.

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 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,” 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, he hopes his case will help change the rule, setting a precedent for more families to challenge legislation that sentences individuals for the actions of a group.

It is this notion of a singular human being, not just an appendage to a criminal group, that juries rarely hear when deliberating on gang-related cases, says 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.”

Alfonso says that political realities point to the 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 points out that the STEP law has been on the books for two decades now, and there has been no significant evaluation of its implementation. “Politicians need to be 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.”