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Ganged Up: Joshua Herrera May Face Life Due to Enhancement Law

New America Media, News feature, Raj Jayadev Posted: Mar 18, 2008

Editors note: Twenty-four-year-old Joshua Herrera who never had any history of violence, or a record of felonies or even misdemeanors is facing life in prison because of a "gang enhancement" law. NAM contributor Raj Jayadev follows his trial and filed this report. Jayadev is director of Silicon Valley De-Bug. Photo credits: Charisse Domingo and Abraham Menor.

SAN JOSE, Calif. -- On the steps of the Santa Clara County 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. Twenty-four-year-old-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 Rebeccas 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, or 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 of Californias anti-gang laws. Herreras 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.

protestIn 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 mens 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. Martinez fled the scene from the two-story apartment and was unharmed from the incident. Police report that the young men returned to the car, and that Joshua drove off at a usual speed. After dropping off the co-defendants, Herrera was pulled over by police on Yuerba Buena Avenue, three blocks from his family home.

Police detectives though were already doing surveillance on one of the young men in the car, Alex Diaz. When they arrested him, the police found a safe, which the defense alleged to belong to the mother, and Martinez also denied was his during the trial. Prosecutors also claimed that drugs were taken from Martinez, although Martinez also denied that he had drugs at the home.

During Herreras trial, San Jose Police Department gang expert Greg Limbardo testified to Herreras affiliation to a Norteo 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, Herrera says.

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 and will be sentenced on March 20. Although sentences for home invasion carry a maximum of nine years in prison, he is facing a life sentence due to the gang enhancements.

"Justice for Joshua Herrera"
Video by Fernando Perez, Molly Vasquez, Moses Aviles

The Origins of Gang Enhancement Law

Gang enhancement laws are the outcome of California legislation called the Street Terrorism Enforcement and Protection (STEP) 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 crisiscaused 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 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 Attorneys office and police have been enthusiastic about this, says Kresser and reports close to 30 percent of his offices 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.

Herreras case typifies Kressers critique. The motivation of the home invasion charge was rooted in personal issues revolving around one of the young mens mother, rather than gang issues. Kresser says that actually one doesnt 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 doesnt 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 wouldnt 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 Joses 36 homicide victims of 2007 - a ten-year high - 16 were gang slayings and violent gang crime rose 44 percent.

Herreras Road to the Fire Fighter Academy

Herreras personal story, one his mother (who has become a Cindy Sheehan-type figure of this movement) has shared in 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. Joshuas 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 Kennedys 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 roads 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 fire fighter, moved back to San Jose and enrolled in Mission Colleges firefighter academy. The car Joshua drove the day of the incident was the same car the family had just bought for him just weeks prior to transport his firefighter gear to school and back.

rebecaIt is this fuller picture of Joshua Herrera that his family has used to gain political support, having received supportive letters from State Assemblymember Joe Cotos and San Jose Councilmember David Corteses offices. Corteses 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 is one of Rebecca Riveras most effective strategies to build her movement. As she tells people at most public speeches, Dont 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. People who heard his mother tell his stories get infuriated and despondent, especially the story of how he was arrested just two weeks away from finishing his first semester in the firefighter academy, a fact that Herrera just attributes to the absurdity of his situation.

Thats just great, he quips, using a phrase most would when just missing their bus on the way to work.

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 dont know how Im doing it, but Im doing it. It is clear that the positive affect is not a lack of appreciation of his situation, but rather 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 dont want this to just be about me, lifting me up, and letting the other guys this is happening to go down, then wed just be doing the same thing the were accusing the law is doing to us stereotyping. 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, that juries rarely hear when deliberating on gang enhancement cases, according to Alex Alfonso, a gang expert who has testified in more than 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 Countys District Attorneys office backs Alfonsos 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 Attorneys 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 periodsso 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, thats why it's here to stay.

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 Herreras conviction. Between the marches, the presentations, and the letter gathering, Joshua Herreras 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.

On March 20, 2008 Judge Arthur Bocanegra will determine Joshua Herrera and his co-defendants' sentences in the Superior Court in San Jose. Herreras attorney Tom Kelly will put forth a sentencing motion to exclude various terms of the law that call for life in prison, and call for a determinant sentence. If approved, it can reduce Herreras 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 appeal the case once sentencing is over.

Photo credits: Charisse Domingo and Abraham Menor.

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