How Do You Define a Gang Member?

Laws across the country are being used to target young men who fit the description for gang affiliation. But what if they aren’t what they seem?

By DANIEL ALARCÓN, NYT, MAY 27, 2015

On a rainy day last December, in a courtroom in downtown Modesto, Calif., a 24-year-old white man named Jesse Sebourn, along with five co-defendants, sat accused of second-degree murder. The victim, Erick Gomez, was only 20 when he was shot to death. He was a reputed Norteño gang member who had lived just a few minutes’ drive from the working-class Modesto neighborhood where Sebourn was raised. The police estimate that there are as many as 10,000 gang members in Stanislaus County, where Modesto is, most either Norteños and Sureños, two of California’s most notorious Latino street gangs. The feud between them often turns deadly, and according to Thomas Brennan, the district attorney, this was one such instance: Sebourn and his co-defendants were Sureño gang members hunting for rivals on Valentine’s Day in 2013, when they found Gomez, out on a walk with his girlfriend.

Brennan was not saying that Sebourn had fired the gun; in fact, the accused shooter, Giovanni Barocio, had evaded arrest and is believed to be in Mexico, while witnesses and time-stamped 911 calls made it difficult to believe Sebourn had even been present at the scene when Gomez was killed. But according to the prosecution, Sebourn had set the entire chain of events in motion a few hours before the shooting, when he and two of his co-defendants tagged a mural eulogizing dead Norteños in an alley behind the building where Gomez lived. Sebourn and the others were caught in the act and beaten by Norteños, though they got away with little more than scrapes and bruises. But the prosecution argued that spray-painting over a rival’s mural was an aggressive act intended to incite violence — the equivalent of firing a shot. By this interpretation of events, the afternoon scuffle led directly to that evening’s murder: tagging, fisticuffs and finally, hours later, homicidal retaliation, each escalation following logically and inevitably from the previous. “Ask yourself,” Brennan said to the jury in his opening statement, “what are the natural and probable consequences of a gang fight?”

California law gives the prosecution the chance to increase the penalty in cases like these, in the form of a sentencing tool called a gang enhancement. If Brennan could convince the jury that Gomez had been murdered, as he put it, “for the benefit of, at the direction of, or in association with the Sureño criminal street gang,” then Sebourn and his co-defendants could be facing 50 years to life in prison. According to the penal code, without the gang enhancement, the sentence could be as little as 15 years. But Greg Bentley, Sebourn’s lawyer, told me that his client couldn’t have been charged with murder without it. He said, “The only way a jury is ever going to be able to connect something as minor as spray painting over a wall to a murder conviction is by adding a gang enhancement.”

(More here.)