In June 2010, Buena Park mobile-home resident Andrew Cervantes (a.k.a. “Tank”) aged four years in an instant when–at the age of 14 and in the eighth grade–he paused a Santa Ana bicycle ride to buy candy to ask another teenage hoodlum, Manuel Orozco, a gang-world question: “Where you from?”
Cervantes must have really not liked the answer because he voluntarily surrendered decades of his life in freedom because of it.
A mad-dogging contest ensued, and Cervantes pulled out a handgun from his waistband, killed the unarmed Orozco (a.k.a. “Downer”)–a member of the 18th Street gang, and pedaled away.
Prosecutors inside the Orange County district attorney's office elevated Cervantes to adult status to charge him with murder, a 2011 jury convicted him and veteran Superior Court Judge William R. Froeberg sentenced him to a whopping term of 40 years to life.
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Lawyers for Cervantes appealed, claiming, among other things, that Froeberg shouldn't have allowed jurors to see a photograph of the defendant posing with gangsters in the Darkside criminal street gang; the jury should have been instructed better on the right to self-defense; the gang prosecutor–Mark Geller–was unfairly disrespectful to the taxpayer-funded, defense lawyer; and the punishment levied constituted “cruel and unusual punishment.”
Justices at the California Court of Appeal considered the merits of Cervantes' claims and on Feb. 28 gave him his bad news.
Though they cited a recent state Supreme Court ruling to overturn the active gang participation conviction, they noted that people can't use self-defense as an excuse to use force after provoking a fight. They also voiced displeasure with a few portions of the prosecutor's closing argument, but they determined the defendant's rights hadn't been trampled.
On Cervantes' last complaint–the lengthy punishment–the appellate justices also had no sympathy.
“Cervantes committed a gang-related murder with a firearm,” wrote Justice David A. Thompson for himself and justices William F. Rylaarsdam and William W. Bedsworth. “Not only was he carrying the gun, [but also] he used it simply because a rival gang member engaged with him in a verbal confrontation. Cervantes had an opportunity to ignore Orozco and continue riding his bicycle or limit his use of force to words or fists. Instead, he opted to shoot Orozco after what can at best be described as minimally provocative conduct.”
Upshot: Cervantes–whose older brother is a gangster and whose father was deported from the U.S. for illegal immigration–will continue to serve his punishment at the California Youth Authority.
He'll get a state-funded present on his 18th birthday: He'll be bussed to one of our state's notorious adult prisons to serve the remainder of his punishment.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.
