By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
By Charles Lam
If there is a living poster face for the extraordinarily steep cost of California gang life, it's Orange County's Jesus Aguirre Jr. At the age of 16, Aguirre—a deceptively baby-faced but low-level member of the Eastside Buena Park gang—participated in the hunting down of a man and an incredibly stupid, non-fatal, shotgun shooting. Following a 2012 jury trial that found him guilty of street terrorism, assault with a firearm and attempted murder, plus five felony enhancements, the young man more concerned with achieving gangster status than focusing on 10th grade learned too late there are consequences to bad life choices.
Displaying no malice and citing the mandatory-sentencing law requirements, Superior Court Judge William R. Froeberg gave Aguirre, who was already on probation at the time of the March 2010 shooting, life in prison, plus an additional, consecutive term of 25 years to life. Having lost his freedom four years ago at his arrest, the now-20-year-old convict calls home one of the most inhospitable and dangerous spots on Earth: Pelican Bay State Prison, a 275-acre hellhole that bills itself fit for "the worst of the worst" criminals.
"It doesn't give me any great pleasure to impose this sentence on this young man," a solemn Froeberg stated to Aguirre, who showed no emotion, and his family, which was hysterical, at the sentencing hearing I was the lone journalist to attend. "Gang activity is a no-win activity. Society won't tolerate it, and I won't tolerate it."
Aguirre's gang membership—as evidenced, in part, by three tattoos, personal associations, a gang moniker, and an incriminating, surreptitious jail-cell recording—was certainly misguided. Before the shooting, police caught him with other hoodlums 26 times. But the incidents either didn't involve criminal conduct or were relatively minor offenses. For example, he was caught tagging for his gang in La Palma and, on another occasion, riding in a stolen vehicle.
Adopting the attitude of Aguirre's outraged family that hired him in the wake of the sentencing, defense lawyer William Kopeny is arguing the Buena Park case represents a mockery of justice in an aggressive, 18,900-word appeal. He's calling on the California Court of Appeal in Santa Ana to reverse the conviction and free the inmate from serving an "unconstitutionally harsh" punishment.
As with most judges in the state, the conservative-dominated appellate justices in Orange County rarely show sympathy for gangsters. They didn't originate the sentiment. In response to public outrage over gang violence, state legislatures substantially increased punishment for these offenders. A violent felony committed for the benefit of a gang is punishable by an enhancement that adds at least 10 years to a sentence that would ordinarily be imposed. If Kopeny is right, Aguirre is an unintended victim of this anti-gang backlash.
Consider, for example, from my own files, the case of Samantha Elizabeth Rothwell, who fatally stabbed an 18-year-old musician in the jugular vein without provocation at a Huntington Beach party in August 2006. As blood sprayed from her helpless victim's neck, Rothwell told shocked onlookers, "Fuck you, get over it." The then-20-year-old woman then drove to a McDonald's drive-thru and ordered two double cheeseburgers (no onions).
In contrast, nobody died in Aguirre's case. Ramon Magana, the victim—a member of a different gang—didn't press charges. Magana suffered wounds to his chest and a thigh from a shotgun firing birdshot. Though he bled and fell unconscious immediately after the shooting, he didn't need surgery. Even police acknowledge Aguirre wasn't the shooter.
Rothwell viciously killed an innocent person and got 16 years in prison.
Aguirre didn't kill anyone and may have lost his freedom forever.
"[Aguirre] was sentenced to life in prison despite the fact that the offense, personally committed by someone who was not apprehended or charged, was not even reported by the victim and despite the circumstances of the offense and [my client's] youth and relative un-involvement," a dubious Kopeny told the appellate court, even though he knows a person who actively aids and abets a would-be killer, as Aguirre did, is hardly uninvolved.
In every case, appellate justices give great weight to a jury's decision, so Kopeny concocted a strategy that offers a long-shot route to overturn the case without belittling the work of the citizens' panel. After studying the trial, Kopeny thinks he found the offending parties to this "tragedy." Of course, it's not Aguirre. He blames veteran gang prosecutor Brett Brian for misapplying the law and Froeberg for permitting the alleged errors to go uncorrected.
There is no dispute that Eastside Buena Park gangsters thought they'd been disrespected on their turf by a member of a different gang at the Walden Glen apartment complex on Knott Avenue. In response, Aguirre retrieved a loaded shotgun and handed it to the eventual shooter, and the two hooded men called for Magana, who was visiting his mother inside her apartment, to exit. When the man walked out, he was shot twice before the assailants fled.
Because Magana belonged to the Anaheim Barrio Pobre gang and that group was, at the time, on friendly terms with the Eastside Buena Park gang, Kopeny alleges his client and the shooter mistook the victim for an enemy Varrio Los Coyotes gangster. This point is key to the appeal. He says the prosecutor acknowledged the shooting was a case of mistaken identity and incorrectly applied what is known as "transferred intent" theory. In other words, Aguirre was in pursuit of an imaginary Coyotes gangster, so he had no intent to kill Magana, according to Kopeny.