Thursday, April 28, 2005
David Varela was 17 when he shot a 7-11 clerk during a robbery five years ago. Prosecutors say the clerk was conceding to Varela’s demands. While she was on the ground, he kicked her in the face and ordered her to shut up.
In another incident, Varela held a woman at gunpoint, and then pistol-whipped her in front of her children during a home-invasion robbery.
Varela was one of the first Monterey County juveniles tried under Proposition 21, a law California voters enacted in 2000 which provides that juveniles as young as 14 who commit violent crimes may, without judicial review, be tried as adults. Instead, the district attorney can file the charges directly into adult court.
Last week, the California Supreme Court unanimously upheld limits on judicial authority imposed by Proposition 21. The court decided that sentencing a minor to the California Department of Corrections (CDC)—an adult institution—rather than the California Youth Authority (CYA) can be appropriate because the levels of some minors’ crimes make them ineligible for Youth Authority commitments.
The decision stems from the case of 15-year-old Alonza Thomas, who, in 2000, attempted to rob a convenience store in Kern County at gunpoint. San Diego attorney Athena Shudde represented Thomas in the appeal.
“Prop. 21 came around, and CDC scurried to figure out what they were going to do with these kids,” Shudde says. “The end result is, they did nothing. They can throw a 16-year-old in there, and they’re basically just bunking them, warehousing them. They’re not even eligible for what the adults are, the education or other programs. So they sit around doing nothing. Then at 18, that’s it; they’re mainlined right into the adult population.”
Salinas defense attorney Miguel Hernandez was David Varela’s lawyer during the first trial. In 2001, Varela was found guilty by a panel of 12 jurors and sentenced to 71 years to life in prison. In 2003, an appeals court ordered a new trial for Varela because of what it deemed the inappropriate removal of a juror by the court. Varela later pled guilty and was sentenced to 34 years and eight months in state prison.
Hernandez vehemently disagrees with voters’ and courts’ decisions to sentence juveniles to adult facilities rather than juvenile rehabilitation systems.
“A juvenile who can’t benefit from the programs available in CYA suffers,” he says. “The adult system becomes a training ground for bigger crimes.”
More than 3,600 teens and young adults, up to age 25, are housed in youth authorities around the state. They’re privy to education, delinquency programs, gang intervention, job training, life skills programs, drug programs, parenting programs and family intervention groups, among other things—and that just scratches the surface.
CDC, however, was never constructed with the juvenile in mind. “That’s not really our thing,” says a CDC spokesperson. “We do have programs and education available, but not geared for kids.”
Which is at the crux of Hernandez’ complaint: Ultimately, he says, the juveniles who land at CDC become repeat visitors.
“They just keep coming back,” Hernandez says. “They get extended and extended. They’ve never learned any other way of life. At CDC, there’s no such thing as rehabilitation. They just sit there and do their time.”
Monterey County Assistant District Attorney Terry Spitz doesn’t think sitting and doing time is such a bad thing.
“We just filed on Angel Flores, a 16-year-old,” Spitz says. “He’s charged with attempted murder, assault with a firearm, carrying a loaded and concealed firearm, being a minor in possession of a handgun, having a concealed firearm in a vehicle, and committing the crime for the benefit of a street gang. I’m unsure exactly where CYA comes into play there.”
If convicted, Flores will face 35 years to life for his alleged crimes. He is currently the only juvenile being prosecuted in Monterey County under Proposition 21.
While teens under Proposition 21 can be sentenced to adult penitentiaries if their sentences mean they’ll be incarcerated beyond age 25, the Supreme Court’s reaffirmation of that segment of the proposition means kids still aren’t exactly sharing their cells with 40-year-olds.
“A minor in CDC can’t be in contact with adults. They have to be segregated. That was the law as it existed before Prop. 21, and it continues to be the law today,” says David LaBahn, executive director for the California Association of District Attorneys, a nonprofit organization in Sacramento.
But this doesn’t go far enough to ease Hernandez’ concerns for kids’ exposure to an adult system.
Hernandez has been practicing criminal defense law since he was first admitted to the bar nearly 30 years ago. He has seen how both CDC and CYA function.
“CDC is nothing but a self-perpetuating institution,” he says. “They’re meant to house, house, house. They simply aren’t designed to help these kids. A CDC commitment is akin to throwing these kids to the dogs.”
LaBahn doesn’t dispute that notion, at least in theory.
“The distinction between the institutions is clear-cut: The mission of CYA is absolutely rehabilitation,” he says. “On the CDC side, there is not a mission of rehabilitation, even though, interestingly enough, it is called the Department of Corrections.”
The role of each individual institution hasn’t fallen on deaf ears locally, and Spitz says that despite the state of the law under Proposition 21, Monterey County has a system of checks and balances that is working. Every juvenile case eligible for direct filing goes through a review process by three of the county’s heaviest hitters on the prosecutorial side: Assistant District Attorney Spitz, Juvenile Court Supervising Deputy District Attorney Chuck Olvis, and District Attorney Dean Flippo. Flippo makes the ultimate decision.
“We consider so many things: the nature of the offense, prior record, the motivator for the crime, and perhaps, if there are mental issues that may mitigate the crime,” Spitz says. “And we pool all of those things together and decide whether or not to recommend to [Flippo] a direct file [into adult court]. If there’s any question in our minds, we go the more traditional route of leaving it to a judge to decide.”
The latter has been the case more often than not in Monterey County. But in 2000, the year voters approved Proposition 21, “We direct filed seven cases that year,” Spitz says. Ten cases were eligible for direct file.
Since 2001, there have only been four cases filed under Proposition 21. More than twice as many cases were eligible.
Varela will be around 50 when he’s released.
“These kids become the adults who still can’t function, who haven’t been shown any other way,” Hernandez says. “It didn’t have to be this way. These kids were salvageable. And instead they just become prey themselves.”
Spitz sees things differently.
“Mr. Varela holds up a clerk who isn’t resisting,” he says. “Despite that, he shoots her. Then when she’s down, he kicks her in the face. And he’s the prey? It’s getting harder and harder to tell who’s who.”
Shudde, on the other hand, says that the justice system is simply refusing to address the real problem.
“If you start out with a kid, and you never give that kid
education or assistance or rehab, and then you mainline him at
18, the things you can imagine happening are limitless,” she
says. “And they do happen. Then you let him out in a few
years, and what do we have left of that kid? It’s the absolute
perpetuation of an already existing problem we’re choosing not
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