Dispute Grows Over Tough Gang-Related Sentencing

“I do admit that a few of my good friends are involved with gangs. But does that automatically make me a part of the gang life?”

--Michael Duc Ta in letter to judge

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With no previous criminal record, Michael Duc Ta stood before a judge in Pomona and was handed a sentence of 35 years to life.

The El Monte teenager with a gift for poetry received a stiffer prison term than some convicts get for premeditated murder--although no one was killed or even seriously injured in the crime he committed at age 16.

Why? Jurors agreed that Ta was guilty of attempted murder for driving a car from which shots were fired at two youths. But more significant in terms of his sentence, they found that Ta’s crime was gang-related--a charge he has always denied.

Without the gang allegation, he would have faced seven years in prison for attempted murder. A gun use allegation would have added a year.

But under new, tougher laws to punish gang crimes, he received 15 years for attempted murder. And the gun charge added 20 years.

“When they first came to me with this case I couldn’t believe it,” said defense attorney Mark Geragos, who has been hired by Ta’s family to appeal the sentence.

His argument: Prosecutors never proved Ta was a gang member, let alone that he committed a crime on behalf of a gang.

Ta’s case illustrates what many defense attorneys and juvenile justice advocates see as the cruel reality of ever-tougher gang sentencing laws in California.

In Los Angeles County, widely recognized as the nation’s gang capital, efforts to crack down on gang violence have brought about unrealistically tough sentences, they say, particularly in cases in which there is scant evidence that a defendant is a gang member or committed a crime to benefit a gang.

“The flat-out truth is that there is such prejudice against gangs in this town that some people cannot distinguish between a hard-core gang member . . . and somebody like Michael,” said Sister Janet Harris, the longtime chaplain at Central Juvenile Hall.

“I think these young people need to be held accountable. But it has gone beyond what is reasonable,” said Harris, who has worked with juvenile offenders for three decades. “To me, it is obscene.”

Authorities say they do not file gang allegations without cause.

“The gang enhancement is a tool that prosecutors can use, but we can only use it in cases where it applies,” said Deputy Dist. Atty. David Demerjian, a longtime gang prosecutor and former head of the office’s hard-core gang unit.

In recent years, statistics show, the district attorney’s office has dramatically increased the use of gang enhancements. Last year, prosecutors countywide filed gang charges in 862 felony cases, 200 more than in 1999 and four times as many as in 1998.

Countywide, about one in 30 felony cases filed last year included gang enhancements. This year, the number of gang enhancement filings is likely to jump again to more than 1,000, Demerjian said.

The dramatic spike is in large part the result of stiffer sanctions imposed by lawmakers and voters, Demerjian said.

Before 1998, he said, a gang charge added three years to a sentence--an enhancement many prosecutors did not see as reason to pursue gang allegations.

But under new laws, prosecutors who prove that certain crimes are gang-related can win additional time on prison sentences of 10 years, 20 years or even 25 years to life, depending on the crime.

When the penalties increased, so did the number of gang cases. “For our purposes, that was when the genie was out of the bottle,” Demerjian said.

Last year’s Proposition 21 further increased the number of cases eligible for gang enhancements, making it easier for prosecutors to try juveniles as adults and increasing sentences for other gang-related crimes.

The increase in prosecutions, said Assistant Public Defender Robert Kalunian, worries defense attorneys, especially when their clients are charged with crimes that are not obviously gang motivated.

Fear Leads to Plea-Bargaining

“The allegations of gang membership are devastating to the defense because people are so afraid of gangs,” Kalunian said.

“There are certainly cases where gang enhancement is appropriate,” he said. “On the other hand, the mere fact the gang enhancement is being alleged influences a jury.”

Gang enhancements can be such a powerful prosecutorial tool that defendants often feel forced to plea-bargain to avoid the risk of long sentences, said Pomona defense attorney Tony Bestard.

“It is used more and more frequently in order to squeeze out a plea,” Bestard said. “It is used . . . as a hammer.”

Last month, Bestard said, one client, an 18-year-old with a single arrest as a juvenile, was sentenced to seven years in prison for assaulting and robbing another teenager.

Though his client was not a gang member, Bestard said, the accomplice in the assault was. So, he said, his client accepted a plea bargain rather than risk the possibility that prosecutors would seek a gang-enhanced sentence that could mean 33 years in prison.

“You don’t go to trial with that,” Bestard said. “It’s too dicey.”

Without discussing specific cases, prosecutor Demerjian said the rule for applying the gang enhancement is clear: A crime must be committed to further the power or reputation of a gang.

“A defendant doesn’t have to be a gang member to be subject to the enhancements,” he said. “If the crime was to benefit the gang, then he’s liable for the statute.”

Moreover, Sheriff’s Sgt. Wes McBride, a 28-year veteran of that department’s gang detail, said experience shows that someone does not have to have years of history with a gang to be part of it.

“You can join a gang in 10 seconds,” McBride said. “Once you commit a gang crime, and you are with known gang members, that is two criteria, right there, for being considered a gang member.”

Still, McBride said, law enforcement officers do not take the matter of gang allegations lightly. They know they hurt their goal of reducing gang crime if they matter-of-factly identify offenders as gang members, he said.

“Even the hardest-core gang cop in [the] Jordan Downs [housing project] knows the vast majority of kids are not gang members. And we preach that all the time,” McBride said.

Deputy Public Defender Eric Zucker says that message is not always followed.

“I have no doubt that gang enhancements are being sought against minors who would not meet the threshold of actually being gang members,” said Zucker, who heads the public defender’s office at Eastlake Juvenile Courthouse.

Just last week, Zucker said, his office was handed back the case of a 16-year-old who, under Proposition 21, was charged as an adult in a shooting death last year. A jury convicted the teenager of murder but found him not guilty of the gang allegations, so the case will be sent back to Juvenile Court for a decision on sentencing.

While that youth awaits sentencing, Ta, already in state prison in Kern County, awaits word on whether his sentence will be reconsidered.

For another month, that decision rests with Superior Court Judge Charles E. Horan, who presided over Ta’s trial and still has the authority to cut the sentence. If he does not, Ta’s attorney Geragos will appeal to a higher court.

In court papers, Geragos argues that Ta’s sentence should be reduced “in the interests of justice” because there is no proof that he belonged to a gang or that his crime was gang-related.

If the court does not agree, Geragos says, it should still strike the sentence because 35 years to life would be “cruel and unusual punishment” given the crime.

Court records show that before his arrest in May 1999, Ta’s only contact with police was as the victim of a beating inflicted by his father when he was 14.

Placed in protective custody, Ta lived with relatives before returning home where, court records show, continuing conflicts with his father over school grades and other matters led the boy to attempt suicide in early 1998.

One year later, he was arrested on a charge of attempted murder.

Evidence Presented

At his trial last October, authorities alleged that Ta was driving a car with two reputed members of the Asian Boyz gang when one of them shot at two teenagers from another gang.

Though Ta was not accused of firing the gun, one of the youths who were targeted said he saw Ta attempt to shoot the weapon during the chase. Neither of the intended victims was wounded, and the chase ended with their car being hit by the one Ta was driving before he sped away.

In seeking gang enhancements, authorities presented limited evidence that Ta was a gang member.

One witness, a former El Monte police officer, testified that Ta had confided to her years earlier that he was being pressured to join a gang called Wah Ching. That conversation, the officer said, occurred when she interviewed Ta after he was beaten by his father.

Another detective said he was told by one of the intended victims that Ta claimed to be a member of both the Wah Ching and the rival Asian Boyz. The same detective said Ta denied being in a gang.

In her closing arguments, Deputy Dist. Atty. May Chung insisted that the shooting was clearly gang-related. The fact that Ta drove a car in a shooting with two reputed gang members, she said, was enough evidence to convict him.

“If you are not a member of Asian Boyz or associating with them, what are you doing driving around in a car looking to jump victims who you know are rivals of Asian Boyz?” she asked jurors.

The defense countered that authorities failed to prove any record of gang involvement by Ta. Indeed, defense attorney Charles Stoddard argued, his client had no arrests for gang activity, no previous gang stops by police, no gang tattoos, not even a gang nickname.

Further, he argued, it would have been illogical and dangerous for Ta to take part in an Asian Boyz shooting if he had earlier been connected, as authorities alleged, to the Wah Ching gang.

In the gang world, he said, “you don’t help your enemies.”

The argument did not convince jurors. Ta and his co-defendants were convicted, and each was sentenced to 35 years to life.

Since the sentencing, more than two dozen family members, friends, former teachers and others have petitioned the court to reduce Ta’s sentence, noting his progress in education and particularly his writings while in custody at Central Juvenile Hall.

Author Mark Salzman, a two-time Pulitzer Prize nominee who teaches a writing course at Juvenile Hall, wrote that Ta “became, by a wide margin, the most hard-working student I have had in the three years I have taught.”

“It would be a travesty to sentence this boy to a life” in prison, added film documentarian Leslie Neale, who with her husband has offered to take in Ta and put him through college if his sentence is commuted. “This is a good kid, your honor,” she wrote.

Said Geragos: “This kid is a poster boy for everything that can go wrong with juveniles and gang enhancements.”