San Francisco, CA – On February 2, 2009, Henry Hernandez, a former gang member named to the Mission gang injunction list, was convicted of violating the terms of the injunction.
The Mission gang injunction prohibits named individuals from loitering after 10:00 p.m. and associating in public with known Norteño gang members within a specified area. However, the terms of the injunction do not explain how knowledge of Norteño gang membership is determined.
Hernandez, 21, was accused of standing with four people who are not named in the gang injunction, but who prosecutors claimed were gang members. During trial, Deputy Public Defender Maria Lopez argued that Hernandez, who is not an active gang member, had no way of knowing if the people he was allegedly seen standing with were gang involved.
“There is no way for a single person to know the identity of every gang member in the Mission. How can we punish a person for standing with people he has no reason to believe he is prohibited from associating with?” said Deputy Public Defender Lopez.
Until his arrest, Hernandez was working full time, was in the process of enrolling in City College, and had begun the process of tattoo removal with the Second Chance Tattoo Removal Program.
“Henry Hernandez was doing everything right. He was going to school and working. Now, instead of receiving praise for his efforts to avoid the gang lifestyle, he might be sent to jail,” said Hernandez’s attorney, Deputy Public Defender Maria Lopez.
On December 18, 2008 at 11:35 p.m., Hernandez left the Precita Mission Neighborhood Center Safe Haven Program, located about six blocks away from his home. At approximately 11:44 p.m., he was arrested by police officers one and a half blocks away from his apartment building, situated within the gang injunction zone. He was charged with loitering after 10:00 p.m. in violation of the terms of the gang injunction.
Later the District Attorney’s Office added an additional charge of violating the injunction after police alleged that they saw Hernandez standing in a circle with six other people that night, four of who the district attorney sought to prove were gang members. The police did not recognize any of the individuals as gang members. None of the individuals had criminal convictions and none were listed on the gang injunction.
“Several jurors were visibly distraught after being required to find Henry technically guilty of violating the injunction. One of the jurors even apologized to him after the verdict was read,” said Deputy Public Defender Lopez.
The jury deliberated for two days before convicting Hernandez. This was the first gang injunction case tried by the Public Defender’s Office.
The mission of the Public Defender’s office is to provide vigorous, effective, competent and ethical legal representation to persons who are accused of crime and cannot afford to hire an attorney. Established in 1921, the San Francisco Public Defender has a long, proud history of providing top-notch representation to its clients, and championing programs that help people turn their lives around.