Appeal filed for Jesús Aguirre, the Buena Park teenager serving life in Pelican Bay.


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So, how the hell does a 16-year old kid like Jesús Aguirre end up getting a LIFE SENTENCE in horrendous PELICAN BAY PRISON, for allegedly handing his buddy a pellet gun filled with BIRDSHOT, a little before that buddy unexpectedly fired the pellet gun (from “two cars’ length away”) at an another kid’s shoulder and leg, resulting only in skin injuries that quickly healed?

I’m glad you asked.  Picture it like four ladders unsteadily balanced on each other, and with just the right luck those ladders can get the D.A., judge and jury where they want to get – locking up somebody, anybody, as long as possible, as long as he was (allegedly) a gang member.  Each of these ladders represents either a dubiously constitutional “tool” of law enforcement approved by frightened voters or legislators in recent decades, or a stretching of the facts by a prosecutor hungry for a young Latino scalp.  I apologize that there are only three ladders in this illustration, I couldn’t find a picture of four ladders balanced on each other:

This-all happened three years ago, in a gang neighborhood of Buena Park in March of 2010 – Ramón “Knuckles” Magaña of Anaheim Barrio Pobre was hit twice with birdshot by a member of a friendly gang, Eastside Buena Park.  He healed quickly, declined to press charges, and testified that Jesús was not the one who shot him.  The prosecutor, Brett Brian, has also admitted Jesús was not the shooter.  Jesús was apparently present however, and had handed the shooter the pellet gun earlier.  The identity of the shooter, who’s still free, is an open secret in the neighborhood, but law enforcement doesn’t seem to care about it any more now that they’ve locked someone away, and nobody is dying to turn him in.

Jesús was arrested the following day and has been incarcerated ever since.  He’d had no prior criminal record, making it difficult for the authorities to throw the book at him as they desired.  And so, local law enforcement, in the person of the brutal BP gang Detective James Woo #1066, quickly threw one together out of a couple of previous small brushes with the law:  a “graffiti” incident at age 14 which was actually CHALKING on the SIDEWALK;  and going along on a “joyride” at age 15 with some other kids he didn’t realize had “borrowed” the car without permission – cases that were originally DISMISSED.  Add in bicycle tickets for riding on the wrong side of the street, not wearing a helmet, letting someone ride on his handlebars, and having a lighter in his pocket (yes, you can get a ticket for that in Buena Park if you’re the right color) and there was a whopping list of SIX offenses!  Such was the substance of the “criminal record” that allowed the prosecution to terrify the jury, obtain gang enhancements, and try him as an adult.

Jesús’ cousin, who sports the exact same tattoos of “Eastside” and “Buena Park” on his forearms, tells me that neither he nor his cousin “ran [or run] with a gang,” and their tats just show their pride of their neighborhood – everyone has ‘em!  But whether or not Jesús was an official member of a gang, that’s just common and normal in a poor Latino neighborhood, even if you and I might disapprove.  Most of these gang members commit no serious crimes, and go on to live productive lives in society.  [By the way, if this story starts to get comments like "serves him right for being in a gang" or "he would have eventually killed someone anyway" or "I hope he becomes someone's bitch in prison," I'll delete them - you can do all your hating over at the OC Weekly or Register.]

I’ll be the first to grant that this fellow, 16 years old or not, should NOT have been wandering around Buena Park with a possibly deadly weapon tucked in his pants – at close range birdshot (like the birdshot Vice President Cheney accidentally “peppered” his lawyer’s face with) CAN be lethal.   It’s also unclear exactly WHY he handed it to his friend (nicknamed “Youngster” or “Lil Frosty”) when he did, or what he thought Youngster was planning to do with it if anything.  I’d go so far as to say he may have deserved a year or two in jail for all that, to teach him a lesson – but, come on,  LIFE IN PRISON?  Well, he’s already served three years now, having been incarcerated since March 2010, and in Pelican Bay for nearly a year now on what he expects to be a life sentence.  It’s time for Jesús to go free, and start a new life!

*****

We do know that this ADHD-afflicted kid had no desire or intent or expectation that Magaña would be shot by Youngster, let alone killed.  We know this from the very same surreptitious jailhouse recording in which he admitted handing the gun to “Youngster.”  This non-fatal shooting, in retrospect, was most certainly over a romantic matter between the shooter and the victim’s sister Maggie of which Jesús was evidently unaware.  Yet on the tape, secretly recorded eleven days later, poor clueless Jesús laments to a friend what he took to be the mistaken shooting of a member of a friendly gang.  This cluelessness is innocence, legal innocence of intent to hurt Magaña at least:

“We got into a pickle and it was too late, and I recognized him but it was already too late.  When we called him we saw him (‘hey, come here’) and then they just popped out of nowhere … stupid, puff, puff, puff,… he fell like that.  I was gonna tell Little Frosty, but it was too late.

“I don’t know, but we fucked up, we shouldn’t have done that shit.  When I left remember I left then to Ninth Street I took off I should have just kept on going.  That shit was just not meant to be…

“Hey, I should have been at my pad and I shouldn’t have gone out that day.  I wasn’t even gonna come out on Saturday.”

Remember, he’s confiding this to a friend, unaware that he is being recorded.  These are not the words of someone who intended for Magaña to be killed, so the charge of attempted murder as accessory is unfounded.  Another part of the tape tends to confirm the numerous supportive letters from friends and relatives attesting to his “good nature and averse attitude toward violence generally.”  Here, he has been told by his “friend” Julio Aparicio that Magaña (“Knuckles”) had named him as the shooter.  We know that Detective Woo had visited Julio the day before the recording, so maybe Julio had agreed to try to trap Jesús into making a violent threat that the prosecution could use, or MAYBE BOTH Julio and Jesús were misinformed and unaware they were being recorded…. either way Jesús does not rise to the bait:

Julio:  And blast that guy Knuckles.  Kill him fool.
Jesús:  Fuck no, Homie.
Julio:  Fuck him.
Jesús:  If I ever see him in the street fool…
Julio:  Kill him.
Jesús:  If I ever see him in the street fool I’m just gonna ignore him like I’ll pass by that guy and just fucking like no I don’t know nothing fool.
Julio:  What the fuck?

And this is the dangerous criminal we need to lock away for the rest of his life for our protection?

A Lifetime of Harassment by Detective Woo

WOO. BIG MAN. BIG MAN WOO. (With apologies to “Deadwood.”)

Ask around the neighborhood about Detective James Woo – not a young Latino lacks a story of being harassed and often brutalized by him.  The consensus is he must have been picked on a lot in high school and needs to take it out on everyone else.  He had a particular “hard-on” for Jesús Aguirre, nobody really seems to know why.  His cousin theorizes it’s because Jesús was generally the smallest kid around, hence making him irresistible to a bully like Woo, who according to numerous sources “beat him up” when he was 14, before he’d ever been in trouble for anything.

And the family has witnesses to the fact that, after engineering the secret jailhouse recording, Woo vowed that he would “make sure [Jesús] either spends the rest of his life in jail or is killed.”  After which he went to work making sure it looked like the kid had a criminal, gang history, before the prosecution felt comfortable finally going to trial two years later.

(See Woo’s “contribution” to YouTube here, along with the ordinary Buena Park citizenry’s opinion of him as expressed in the comments.)

If you remember reading about this case last year, it was probably in this piece by the OC Weekly‘s star “journalist” R. Scott Moxley.  Equal parts lachrymose and judgmental, the article betrays Scotty’s reverence for the law enforcement sources who keep him swimming in salacious scoops.  He swoons over “accomplished veteran prosecutor” Brett Brian, while lamenting the inflexible severity of the law – but in fact Brian did NOT HAVE to try Jesús as an adult, OR include gang enhancements, OR charge him with attempted murder.

One thing Scott wrote that particularly irked Jesús Senior (the Spanish-speaking businessman father who’s been a tireless advocate for his son) was the claim that Jesús “rejected Brian’s generous pre-trial guilty plea offer.”  Hello, Scott?  TWENTY YEARS is NOT a “generous offer,” especially when you believe you’re innocent.

For a parade of hatred and vicious intolerance, be sure to check out the 185 comments to Scott’s story.  One name that will keep popping up is “Buttercup.”  Hey – look! – she was a juror in the case, and can’t get enough of celebrating the outcome and rubbing it in to anyone who doesn’t like it.  We know who she is.  She shouldn’t have posted those comments.  She will be hearing from the family’s lawyers soon enough.

And speaking of lawyers:  Mr Aguirre FINALLY has an honest, competent one in the person of William J. Kopeny, after being taken for a ride by FIVE lawyers who did nothing or next to nothing – five lawyers whom I’ll do the courtesy of not naming for now, but Mr Aguirre will be wanting his money back from some of them.  Anyway, Mr. Kopeny has filed an appeal for acquittal or re-trial on the following grounds, and we hope for a positive response for the Court soon:

  • The case was tried on a “transferred intent” theory, arguing that the shooting of the victim was a case of “mistaken identity” and that the intent was to kill someone of a rival gang.  But transferred intent is a concept that will allow the prosecution to obtain a conviction of an accessory in a case of a completed murder or homicide, BUT NOT IN AN ATTEMPTED HOMICIDE IN WHICH THERE IS NO DEATH.
  • The People had the burden of proving that Jesús (not the shooter) had the intent to murder (or at least kill) Ramon Magaña, and they failed to prove that, and instead virtually conceded that he did NOT have that intent.  There is insufficient evidence that Jesus intended that Magaña be killed.  Merely giving the shooter a gun filled with bird shot does not establish that Jesús had any intent to kill the victim.  Nothing Jesús did shows an intent to kill which could be viewed as evidence that HE harbored a “definite and unambiguous intent to kill.”
  • The jury was improperly instructed, in both of the above.  (And no thanks to defense counsel.)
  • The Court also failed to instruct on possibility of lesser offense of attempted voluntary manslaughter.
  • And finally, the sentence is cruel/unusual, given Jesús’ age and lack of criminal record.

The contrast between the impunity trigger-happy cops get in this County under DA Rackauckas with this spectacle of draconian punishment is not lost on the people.  On that note, there will be a PRESS CONFERENCE AND RALLY TOMORROW MORNING on both this case and the recent controversial officer acquittals, at 10AM (Tuesday 10/26) at the corner of McFadden and Harbor, near the Mariscos Zamora Restaurant.

Meanwhile Jesús tries to keep his spirits up, and is working toward his G.E.D. in case we succeed in freeing him. I’ve written him to let him know a lot of us out here are supporting him; if you’d like to write him as well, e-mail me for his address…and see you tomorrow!

 


About Vern Nelson

Greatest pianist in Orange County. Performs regularly with his savage-jazz quintet The Vern Nelson Problem, and at regular concerts at the Huntington Beach Central Library.