OC Gang Cops Keep Uttering Nonsense to Win Convictions—And It Usually Works

OC Gang Cops Keep Uttering Nonsense to Win Convictions—And It Usually Works
Luke McGarry

One night in June 2008, a gun-toting, 18-year-old Luis Alberto Sanchez committed horrific crimes—including a homicide during an argument at a high-school graduation party in an Anaheim back yard. Sanchez now calls Calipatria State Prison home; it's a dehumanizing, stark facility located in the desert south of the Salton Sea. Some might say good riddance, but for people who insist law-enforcement officials act ethically, his 2012 conviction and punishment for the murder of Miguel Reyes are worthy of inspection.

In California's war on crime, politicians and judges have made it easier to convict suspected gang members by weakening rules of evidence and imposing severe punishments not applied to other members of society who commit the same crimes. For example, if the government can convince a jury to believe a defendant, say, violently stole property for the benefit of a gang, that person could face an additional 10-year sentence on top of the penalty for the underlying offense. There are scenarios, such as in the Sanchez matter, however, in which the gang enhancement is even more punitive.

The Orange County district attorney's office (OCDA), in league with the Anaheim Police Department (APD), elevated the case into a special circumstances homicide by alleging it was gang-related. The result is undeniable. Sanchez, now 27, will die in prison, serving a life-without-parole sentence rather than getting a second chance after serving 25 or 35 years of incarceration. In comparison, Samantha Elizabeth Rothwell, a non-gang member responsible for a savage, 2006 Huntington Beach murder, received a 16-year term.

But the gang enhancement against Sanchez is loaded with holes: a false government declaration, bad evidence, circular logic, gobbledygook testimony and a jury willing to accept anything a cop claims.

Nobody doubts that Sanchez belonged to a small teenage group called RAW, or "Rock A Wall," that began around 2002 in Orange County and didn't kill, rob, rape, burglarize or sell narcotics. Its members spray-painted graffiti. Some of their efforts were considered artistic. They traded a black book containing their art, one page of which contained "kill," a word that the cops say proved homicidal desires.

In the game to maximize Sanchez's punishment, OCDA needed to claim that RAW had morphed into a full-fledged criminal street gang by the time of the crime (it's currently classified as such, with the newer name "Ready At War"), that the defendant was a member and that the killing benefited the organization. APD's Mike Brown fulfilled that assignment, testifying as an expert that RAW met the legal definition of a gang because, at the time, it engaged in a pattern of criminal activity: felony vandalism and aggravated assaults.

Yet, according to Sanchez appellate lawyer David M. McKinney, the violence turned out to be a lone, misdemeanor, domestic-violence incident involving an ex-member. Worse, Brown—who wasn't in the gang unit in 2008—couldn't back up his felony vandalism claim with a single report or criminal case. He just said he'd recalled seeing it somewhere while on patrol.

"Brown was permitted to testify that post-2008, he started hearing about arrests related to robberies, aggravated assaults, weapons possession of all documented RAW members," McKinney observed. "And in her closing argument, the prosecutor forcefully argued that we know what the RAW crew was in 2008, on the basis of what they are now in 2012; in other words, proof by extrapolation. . . . What [this] case stands for is that the prosecution need do nothing more than put a detective on the stand who is willing to testify he or she knows the gang in question engaged in a pattern of criminal activities. This case sets a new low standard for sufficiency of evidence and virtually assures a special circumstances finding in any instance."

There are other questions: Assuming RAW had been a full-fledged gang at the time instead of just a tagging crew, how would Sanchez killing Reyes, another RAW member, benefit the alleged gang? Police claim Sanchez shot his victim to prevent him from quitting. But exactly what transpired between the two before the shooting is unknown because the backyard party's DJ was playing loud music and witnesses could only hear fragments of statements. Isn't it possible the crime stemmed from a personal dispute that had nothing to do with RAW?

Prosecutor Colleen Crommett contributed to the mess by claiming in a court brief that the cops found a picture of a handgun in Sanchez's cellphone. In truth, OCDA could not prove who owned the phone. Nonetheless, Superior Court Judge W. Michael Hayes allowed her to show the image to the jury, who likely used the photograph to conclude the defendant harbored thug tendencies.

In October 2013, the California Court of Appeal in Santa Ana labeled the government's bad photo evidence "harmless," affirmed that RAW had been a gang in 2008 based entirely on Brown's testimony, vouched for law enforcement's assumption the killing had been gang-motivated and, after tossing a lame street terrorism conviction, rejected Sanchez's appeal as baseless.

"[Brown] provided information establishing his reliability by explaining how he knew that RAW's primary activities included felony vandalism," Justice Richard Fybel wrote in the opinion, which also called the officer's asserted 4-year-old memory "substantial evidence."

This month, U.S. District Court Judge Andre Birotte Jr., the former U.S. Attorney in Los Angeles, dismissed Sanchez's federal appeal, opining that if the jury and state appellate justices trusted Brown's stance, he would, too.

But demonstrating once again that justice is a crap shoot, the California Supreme Court—the same one that denied a petition for review in the case in early 2014—announced a major ruling on June 30: There might be constitutional problems after all with merely accepting a gang expert's testimony as the gospel without "requisite independent proof."

That ruling stems from another Orange County case, People v. Marcos Arturo Sanchez. Santa Ana Police detective David Stow testified as a gang expert for OCDA and, based on reports written by other cops, opined gang-life details about Sanchez, whom he'd never met. The defendant was convicted of drug, gang and weapons charges.

"When the gang expert testified to case-specific facts based upon out-of-court statements and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay," the high court unanimously declared.

Kamala Harris' California Attorney General's Office suggested Stow's testimony was a "harmless" error, but lost the point.

"Contrary to the Attorney General's claim, one cannot deduce, merely from the evidence, that when the defendant possessed drugs for sale in Delhi territory, he was associated with the gang," the court ruled before dismissing the gang-enhancement conviction and recommending new rules.

But tinkering with the law isn't enough when there's embedded bias. No cases better highlight how gang cops utter nonsense to win convictions than the ones involving Henry Cabrera. Santa Ana Police Department Detective Ronald Castillo assured jurors in a 2009 trial that Cabrera was in the Highland gang. In 2012, Dectective David Rondou, Castillo's gang unit colleague, testified he definitely belonged to Delhi, which would have been a feat given that Delhi and Highland are lethal rivals with a death toll in the dozens over the decades.

Brazenly contradictory police testimony didn't raise red flags. When the cases reached the state appellate court, all that mattered was Castillo and Rondou were government experts they would blindly follow. The justices' opinions unwittingly echo the stance that Cabrera was in rival gangs for crimes committed 17 days apart.


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