Defense attorneys for the four defendants last week rightly rejected the DA’s offer of extortion – 3.8 years in prison in a case where the jury has hung twice and there was a third mistrial. It was three and a half years ago that we went through a similar exercise when the DA’s office ultimately declined to file for a fourth trial against the Galvan brothers.
The Galvan brothers, Ernesto and Fermin, had several advantages that the four defendants in this case did not have. It was a high profile case. The brothers were facing fairly minor charges that would not have resulted in additional time in custody, but they had been brutally beaten by West Sacramento Police. The public outcry was growing and the case was falling apart on the DA.
Still, the case in which four young men, Justin Gonzalez, Jose Jimenez, Juan Fuentes and Anthony Ozuna, are accused of assaulting and robbing a victim back in June of 2013 is troubling.
Two full trials have produced only a single major felony conviction on a non-gang charge, and that was on Juan Fuentes (he also received a conviction for resisting/obstructing a peace officer). Mr. Fuentes was previously, in the first trial, convicted of a misdemeanor evading police, and now robbery with gang enhancements (and the resisting/obstructing), but none of the other defendants were convicted of anything other than a gang charge, as the jury hung on the robbery and assault charges for them.
It is by no means clear that the charges should be allowed to stay as they are. How can a jury find the men guilty of a violation of PC §186.22(a) with no underlying criminal charge to form the basis?
Under that section, “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
The key thing to remember here, however, is that being a gang member is not a crime unto itself. In order for that to be a crime they have to be engaged in “felonious criminal conduct” above and beyond simply being a gang member. Without a baseline charge that the jury convicts on, it is questionable whether the conviction itself can hold.
Deputy DA Robin Johnson last week reportedly told Judge Rosenberg, ”I think we can get a verdict your honor, we had a 10 to 2 split.”
Judge Rosenberg is more skeptical. He said, “So I am concerned, we’ve had three mistrials.”
It is understandable that Robin Johnson thinks with a 10-2 split, that they can get a conviction. But history has proven otherwise.
The Galvan brothers were twice hung on 11-1 splits for guilt, and each time a single juror held out, disbelieving the evidence. But the case did not improve for the DA, as the inconsistent statements by the police officers involved in the case eventually led to the defense attorneys beginning to expose the case.
As the judge and attorneys met behind closed doors, Judge Tim Fall, who heard the Galvan case through all three trials, asked the DA why they were continuing to pursue the case. The Deputy DA in that case, Carolyn Palumbo, told the judge that the plaintiffs were suing the West Sacramento Police Department, to which Judge Fall reportedly responded, “Do you work for the West Sac Police Department or the people of Yolo County?”
In this case, troubling were comments made by one of the jurors in the last case.
The juror told Vanguard reporter Antoinnette Borbon, “I was never convinced by the prosecution of anything more than the four kids were possible gang members but that was about it.”
He said, “But I did feel some of the witnesses were lying. I felt some of the jury panel was biased because the boys may have appeared to be gang members but it never changed my mind of innocence or guilt.”
He continued that he felt jurors were tired and did not understand the law in deciding on a verdict correctly.
He told the Vanguard, “I feel bad for the young boys and was convinced, through the video and evidence presented, they were in fact innocent.”
If anything, it sounds like the DA had a very sympathetic jury and still could not get a conviction. Naturally, one wants to believe that, with further trials, they can get jury consensus, but it doesn’t always work that way. We learned with the Galvan case that, as testimony piles up, statements become more and more inconsistent and a jury hearing contradictory evidence is less likely to convict.
Even if a jury does convict here, it will be interesting to see how the appellate court handles the fact that a jury convicted the rest of the defendants of only the stand-alone gang charge – without underlying felony conduct to bolster it.
Just once, I would like to see a judge use his or her discretion and throw a case out.
—David M. Greenwald reporting