Court Strikes Blow Against Prosecutors in Gang War

In an opinion issued today, a California Court of Appeal ruled that Orange County prosecutors overstepped their authority to seek tough penalties against hoodlums who violate court-imposed anti-gang injunctions.

In January 2007, Sixto Moreno and Anthony Lopez—two Santa Nita gang members—drank beer in a vehicle parked in a residential driveway after 10 p.m. and in an area of Santa Ana supposedly controlled by a court order that limits gang activity. Police arrested the men for violating the injunction.

Violation of a court order is commonly considered a misdemeanor, but District Attorney Tony Rackauckas' deputies convinced a grand jury to indict Moreno, 28, and Lopez, 42, on three felony counts for the conduct. The key to his logic? The public demands stiffer penalties against violent gang members. If found guilty, the pair could have faced years in prison.

The felony charges "voice the intent of the people that gang-related crimes receive enhanced punishment," Rackauckas' office argued in front of Presiding Justice David G. Sills and Justices William F. Rylaarsdam and Kathleen O'Leary.

But it was Orange County Assistant Public Defender Martin F. Schwarz who won the day. He got the court to issue a pretrial ruling that concludes the DA had "criminalized" what the justices said were "otherwise innocuous acts": sitting in a lawfully parked car while consuming alcoholic beverages. The impact of the opinion written by Sills? Prosecutors can only file misdemeanor charges against gang members accused of being in contempt of a court's injunction.

"This is a huge blow to law enforcement," one veteran cop told the Weekly. "It knocks the teeth out of our ability to keep gangsters from dominating certain high-crime-rate areas."

In July 2006, Rackauckas, area politicians and local police gang units celebrated the injunction, issued by Superior Court Judge Daniel Didier, as a necessary tool to restore order where Santa Nita ruled over residents with fear and violence. The order named 137 gangsters (many of them teenagers) and called for mandatory neighborhood curfews, prohibitions against gang associations or violent activities, and a ban on gang-related clothing. The injunction zone is Harbor Boulevard to the Santa Ana River, and from Trask Avenue in Garden Grove to West McFadden Street in Santa Ana.

At the time of Didier's order, Deputy Alternate Defender Tony Ufland predicted that "it enjoins people from doing things that are completely legal . . . things like wearing certain colors, drinking in places where it is legal to drink, associating with people of your choosing. They are looking for a brass ring and going well beyond what the law says is constitutional in this injunction."

Ufland: candidate for soothsayer of the year?

But happy gangsters, don't order that new tattoo or fire your Glocks into the sky yet. Rackauckas, a gangster as a teen, isn't accepting the decision as final. "We're definitely asking the Supreme Court to review this," he said.

(See Anthony Lopez v The Superior Court of Orange County, G03925.)

—R. Scott Moxley / OC Weekly

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