It was hard to watch a grown man like Noe Chang Sr. break down. He sobbed loudly while the judge and lawyers in the SLO County courtroom remained stone-faced. His wife joined him soon after, and the couple watched as two of their sons were handcuffed and led away from them as they wept.
The two brothers, 24-year-old Noe Chang Leon Jr. and 20-year-old Javier Chang, had just been found guilty of brutally beating a 24-year-old Allan Hancock College student in January 2015. According to police, the brothers and two other men attacked the student, hitting, kicking, and smashing him on the head with a beer bottle in the middle of Oakglen Avenue, a residential street in Nipomo.
Convicted but awaiting sentencing in late October, the brothers face at least a decade each in prison. But their sentences could be even longer that that, because both Chang and Leon pleaded guilty to gang enhancement charges, essentially admitting that the beating was committed “for the benefit of, at the direction of, or in association with” a criminal street gang.
While Chang and Leon were led out of the courtroom to the sounds of their parents’ grief, a third young man, 20-year-old Francisco Mendoza, walked into the arms of his relieved-looking mother and father. Mendoza was put on trial alongside the brothers, accused of participating in the attack, despite his insistence that he was never there, a claim backed up by a lack of strong evidence and an alibi from his mother. The jury believed him, and found him not guilty on all charges.
Like Chang and Leon, Mendoza was also facing gang enhancement charges in addition to felonies related to the assault. The enhancements were tacked on after the SLO County Sheriff’s Gang Task Force investigated the assault. During the trial, prosecutors never introduced the evidence that they believed linked the three young men to an active local South County street gang called Nipomo 13. A judge ruled that a separate trial on the gang enhancements would only occur if any of the three were convicted, but evidence and testimony presented in a grand jury hearing prior to the trial shows that Mendoza was hit with those serious gang charges based on a single piece of evidence: a black New York Yankees baseball cap.
The expert
Tony Verdugo, a deputy probation officer assigned to the Sheriff’s Gang Task Force, knows all about SLO County’s gang woes. Over his 20-year career, Verdugo has had 300 contacts with juvenile and adult members and their associates, and has been involved with at least 50 gang-related investigations as part of the county’s task force, according to his own testimony. When he wasn’t out pounding the pavement, gathering intelligence, and investigating gang-related crime in the county, Verdugo visited schools and civic organizations, speaking and training them on gang culture and intervention, or providing testimony in gang-related cases.
This is exactly what he was called to do in late April of 2015. Verdugo testified to a grand jury tasked with deciding if there was enough evidence to validate the assault and gang charges against Chang, Leon, Mendoza, and a fourth man, Federico “Freddie” Lazaro, and bring them to trial. Verdugo’s testimony to the grand jury, obtained by the Sun via court transcripts, was a crash course in the history, operations, and culture of SLO County’s gangs, a window into the complex intelligence gathering investigators must undertake to monitor and decode an ever-shifting landscape of gang affiliation and membership, usually communicated through graffiti, tattoos, and, of course, clothing. All of them, according to Verdugo, are symbols used to broadcast a gang member’s identity to the world: “This is who I am. This is the gang I represent,” Verdugo said in his testimony. “This is the gang I belong to.”
In his testimony, Verdugo said he believed that all four men were either members of or associated with the Nipomo 13 street gang. He laid out his arguments for each of the then-suspects. Lazaro, who skipped bail and was never put on trial, had numerous interactions with the task force in the past. In some of those instances, he reportedly admitted he was a Nipomo 13 gang member. Probation officers also found gang-related graffiti in Lazaro’s home and gang-related symbols carved into a baseball bat found in his truck.
Verdugo used similar evidence to finger Chang and Leon as Nipomo 13 gang members or, at the very least, gang associates. Sheriff’s deputies found gang-related graffiti in and around the home where they lived with their siblings and parents. The victim of the January 2015 assault said one of the men beating him had made gestures that appeared to be gang signs and yelled out “this is Nipas homie!” a term investigators said was a reference to the gang.
When asked about Mendoza, there was far less to point to. Investigators didn’t find any blood on his clothes or shoes, he wasn’t captured in any of the cellphone photos the victim took of his attackers shortly after the assault. When Sheriff’s deputies served a search warrant in Mendoza’s home, they found no graffiti. The only thing they found was a hat. It was black with the New York Yankees’ iconic “NY” logo in white. A photo showed it hanging as part of a larger collection of caps on a stand below posters of Bob Marley in Mendoza’s room.
It was enough for investigators to tie the young man to the N-13 gang. According to Verdugo, members of the gang choose Yankees hats and clothing because the “NY” stands for “Nipomo Youth” or “Nipomo Youngsters,” both nicknames for the gang. Often they would order the hats in colors other than the Yankees’ traditional blue, to show their allegiance to the letters and therefore the gang, according to task force investigators.
“It’s obvious that they are not wearing it because they are New York Yankees fans,” Verdugo said.
That one hat, in Verdugo’s judgment, meant Mendoza was “at the very least” an associate of the gang. But he followed up with a comment that he reserved for none of the other suspects in the case.
“Out of all these subjects, he’s the one who had the least amount of gang criterias.”
Despite the evidence being only a single hat, the grand jury sided with Verdugo and the arguments of the SLO County District Attorney’s Office, finding that there was cause to tack on the gang enhancement charges to Mendoza along with the other suspects.
Not a gang member
Mendoza’s then-lawyer pushed back on the narrative set by Verdugo and other task force officers’ grand jury testimony. As the case moved toward trial, San Luis Obispo-based attorney Guy Galambos filed a motion to dismiss the assault and gang charges against his client. In addition to noting that there was little to no evidence to tie Mendoza to the assault—including the fact none of the victim’s blood or DNA was found on his clothes and an alibi from Mendoza’s mother that he was home at the time the attack occurred—there was even less evidence, he argued, that his client was a gang member or an associate of a gang.
Mendoza had a clean record, and the testimony of another task force deputy to the grand jury indicated he didn’t come up in the department’s computer search as a gang member or a gang associate.
“[Mendoza] has never been arrested, charged, or convicted of any crime before his arrest in this case,” Galambos wrote. “The grand jury was not informed of Mendoza’s lack of a criminal record.”
Galambos’ filing also lambasted the presentation of the Yankees hat as evidence of association with a criminal street gang, especially in light of the fact that there was little other evidence to tie his client to Nipomo 13. He noted that the Yankees hat was one of 14 hats that Mendoza owned and insisted that prosecutors didn’t give the grand jury the full picture.
“Law enforcement ‘cherry picked’ this evidence without disclosing the context that the hat was found in,” the motion stated. “The evidence appears to have greater meaning to the grand jury when they were led to believe that Mendoza had only one hat, and it happened to be the one linked to Nipomo 13. The grand jury was also not told that the New York Yankees is the most popular team in the country and that the hat and jerseys are the most popular teams sold by Major League Baseball.”
Despite Galambos’ protestations, the charges against his client remained, which meant that, on the day of the trial, Mendoza found himself sitting next to Leon and Chang while a SLO County jury determined his fate.
When the trial came to an end, Mendoza was found not guilty of all the charges levied against him. He was free to walk out of the courtroom while Leon and Chang were shackled and led away to their cells to await sentencing. Lazaro, who skipped bail prior to the trial, is still wanted by authorities.
Because Mendoza was not convicted of the assault charges, the jury would never get to hear about the hat or listen to investigators from the gang task force accuse him of associating with a criminal street gang like N-13. Mendoza is, in the eyes of the law, free and clear of those allegations.
CalGang
As Mendoza’s situation shows, identifying, investigating, and prosecuting gang activity isn’t always an exact science, and units like SLO County’s task force have a variety of tools at their disposal to tackle the problem. Some come down to old-fashioned police work—hitting the streets and talking to informants, victims, witnesses, and even suspected gang members themselves. Other tools are technology based, including a vast computer database launched in 1997 that is now one of the most utilized programs in the state.
It’s called CalGang. It’s a massive criminal intelligence database that allows California’s participating law enforcement agencies to identify, catalog, and track suspected gang members and their affiliates, and to share that information, allowing agencies to collaborate when investigating gang-related crime. At last count, there were more than 150,000 suspected gang members and gang associates listed in the database. In a statewide survey of California law enforcement agencies, 92 percent of the respondents said they used CalGang. According to a recent state audit, Santa Barbara County has 766 individuals listed in CalGang, and SLO County has 697 individuals listed as either gang members or associates.
Getting listed in the database isn’t hard. Because it’s classified as an intelligence system, a conviction of a gang-related crime isn’t required for entry. Instead CalGang policy requires a user agency to identify two “documented criteria” to enter someone into the database. Some of that criteria seems fairly obvious. Admitting gang membership to police, having gang tattoos, and being identified by police informants as a gang member are all qualifying criteria.
But other criteria are more nebulous. Frequenting “gang areas,” “displaying gang symbols or hand signs,” and being seen “associating” with documented gang members can count toward the criteria necessary for entry in CalGang. Even being observed wearing “gang dress” can count toward the two documented criteria necessary to place an individual’s name in the database.
The SLO County Sheriff’s Office said Mendoza was never entered into CalGang as part of their investigation.
While getting your name in the database is fairly easy, getting out is far more difficult.
Once an individual’s name is in the database, it will likely be years before they get the chance to be removed. CalGang policy, which mirrors state and federal privacy law, requires individuals’ records be purged five years after their date of entry unless the law enforcement agencies using the database enter subsequent criteria, which resets the five-year period.
The SLO County Sheriff’s Office confirmed the policy in a written response to questions from the Sun.
“A person remains in the CalGang system for five years unless contacted again within that time period, at which time the five-year time limit is reset,” the statement read. “Regional administrators monitor the CalGang database and send us purge lists on a frequent and regular basis. At which time, we purge those names from the database.”
While it has been an effective tool in battling the state’s gang problems, a recent report is raising questions about the database’s accuracy and its impact on civil rights.
According to an audit of the CalGang database by the California State Auditor released in August, user error and bad programming of the database’s software could be keeping many individuals in the database for far longer than required, possibly violating their privacy rights under federal law.
The audit focused on four California law enforcement agencies: the Los Angeles Police Department, the Santa Ana Police Department, the Santa Clara County Sheriff ’s Office, and the Sonoma County Sheriff ’s Office. The audit of those four agencies alone produced troubling results. According to the report, auditors found more than 600 individuals entered into CalGang had purge dates scheduled far beyond the five-year limit.
“Flaws in CalGang’s controls caused many individuals to remain in the system longer than federal regulations allow,” the audit report stated. “In fact, some individuals are currently scheduled to remain in CalGang for hundreds of years.”
The report also noted that the agencies lacked a robust review process, and instead relied on the CalGang software’s automatic purge function. However, the audit discovered that a programing error led to the software’s overlooking three individuals who should have been purged from CalGang, and their names and records remained in the system from between seven and 13 years beyond when they should have been taken out of the database.
The report pointed to concerns over CalGang beyond the issues with the purge dates, calling for large systematic reforms of the database, its oversight, and how it’s used.
For example, CalGang is state funded, but its oversight is left to an executive board and advisory committee of local law enforcement agencies. Neither the board nor committee has any state authority and operates independently from the state itself. The report characterized the current oversight structure as “weak” and noted that it lacked transparency and mechanisms for public engagement.
“Because of its potential to enhance public safety, CalGang needs an oversight structure that better ensures that the information entered into it is reliable and that its users adhere to requirements that protect individuals’ rights,” the report stated, later adding, “Ultimately, California’s law enforcement agencies must balance
the need to protect individuals’ rights with the need to protect the public from crime caused by gangs.”
The results of the audit were confirmation of the grave concerns that many civil rights advocates, like the Southern California chapter of the ACLU (American Civil Liberties Union), had raised for years about databases like CalGang.
“The poor oversight, errors, and inconsistent standards have a real impact on people’s lives when law enforcement relies on such a flawed system for judgments about prosecutions, employment, and even deportation,” Peter Bibring, director of police practices of the ACLU of California, said in a written statement issued shortly after the audit was released.
When asked if the report had prompted any changes in the way it used CalGang, the SLO County Sheriff’s Office indicated it was still studying the audit’s findings.
“We don’t have a comment at this time because we are still reviewing and analyzing the information contained in the report,” a statement from the department read.
Reform
While the audit laid out numerous red flags about the current operation of CalGang, efforts to reform it and protect the rights of individuals in the system were already underway.
In late September, just one month after the audit was released, Gov. Jerry Brown signed AB 2298 into law. The legislation, sponsored by Assemblywoman Shirley Weber (D-San Diego), lays out a number of changes to the database.
“The CalGang database serves a very important role in dealing with gang activity in California,” Brown said in statement issued after he signed the bill into law. “That said, in light of the recent findings by the California State Auditor, I believe that substantive improvements are clearly in order.”
Those improvements not only included requiring that shared databases like CalGang abide by federal privacy and accuracy laws, but also require local law enforcement agencies to notify any individual who gets entered into the database in writing, something previously only required for juveniles. In addition, the law will require the purging of anyone in the database who has not been convicted of a gang-related crime within three years of being placed on the list.
Finally, the law sets up a framework for individuals entered in the database to challenge their placement on the list. According to the new law, a person who receives notice that they are in the database can submit written documentation to the respective law enforcement agency contesting their designation as a gang member or associate. If the administrative challenge fails, the new law allows for individuals to challenge their designation in superior court.
“To be an effective and cost-effective law enforcement tool, this database needs to be accurate and transparent,” Weber said in a written statement to the Sun. “This bill is an important first step toward making sure that those put on the CalGang should be there, and that those who should not be on the database have the opportunity to have their names cleared.”
Not everyone is praising the bill’s reforms. The California Sheriff’s Association opposed the bill’s passage, claiming that the law would force them to notify active street gang members that they were part of ongoing criminal investigations.
“This measure undermines public safety by informing gang members that they are subject to investigations,” a statement against the bill provided to state lawmakers read. “In addition, this measure creates unfunded costs by requiring administrative hearings to adjudicate determinations of gang affiliation.”
While some law enforcement officials worry that the new law will compromise investigations and public safety, it offers citizens an avenue to challenge and clear their name from the database. Just how long that could take and if such efforts will be successful remain to be seen. The new law takes effect in January 2017.
New Times Staff Writer Chris McGuinness, from the Sun’s sister paper to the north, can be reached at cmcguinness@newtimesslo.com, or on Twitter at @CWMcGuinness.
This article appears in Nov 10-17, 2016.