David Hernandez, one of the 40 alleged gang members named on Oakland’s proposed injunction against the Fruitvale Norteños, was arrested at the May First Cinco de Mayo parade in Fruitvale. Hernandez, 21, wears a GPS device around his ankle as part of his conditions of probation: he is also barred from interacting with gang members.
Hernandez’s crime? According to the police report and his attorney, Jeff Wozniak, he greeted co-defendant Salvador Avalos, while out enjoying the sun and crowd on Sunday afternoon. Undercover OPD officers Mario Bonilla and Eric Barangan tailed Hernandez through the packed streets of International Boulevard near the Fruitvale BART stop.
Officer Bonilla’s report states that Hernandez approached several young men and women wearing red, one of whom was Salvador Avaloz. Here is the crucial passage that led to Hernandez’s arrest:
“[Hernandez] apporahced a group of about 5-6 male and female hispanics…they were all wearing articles of clothing with red. I know based on my training and experience the Norteno gang uses the color red in order to identify themselves. Hernandez then shook hands with a male Hispanic male who I immediately recognized as Avalos, Salvador…I know Avalos from prior contacts and arrests. Avalos is a known Norteno gang member. At the time I was standing right next to them.
Hernandez and the group began to walk together [west-bound] on International Boulevard. As Hernandez saw uniformed officers standing on the north sideawlk of the 3300 block of International Boulevard, Hernandez quickly tapped Avalos and told him, “let’s go this way.” Based on Hernandez’s actions I believe he was aware that he was in violation of his probation. Also, Hernandez has been arrested for violating his probation in the past by associating with known Norteno gang members.”
Hernandez is currently being held in the Glenn Dyer Jail in Downtown Oakland.
Javier Quintero, another defendant, was arrested in the courtroom of Alameda County Superior Judge Robert Freedman during a March 22 hearing. Quintero allegedly violated his parole by accepting a ride home from co-defendant and longtime friend David Pelayo, a “known gang member.” Quintero challenged the account of his Parole Officer, Joey Moreno, and was cited for having red t-shirts in his closet. He will be released by the end of the week.
Hernandez’s attorney, Jeff Wozniak, said OPD’s arrest of Hernandez is tantamount to harassment. “It’s clear to me that they’re targeting these guys,” he said. The defense attorney believes Hernandez’s arrest on a probation violation demonstrates there are already adequate provisions in the criminal justice system that give OPD leeway to target people individually – gang injunctions merely duplicate these measures.
[UPDATE 5/10/2011: On the morning of Friday, May 6, before the afternoon's closing arguments on the Fruitvale injunction, attorneys for the city filed affidavits with Judge Robert Freedman from three officers who had participated in Hernandez's arrest.
An affidavit from Officer Timothy De La Vega also documents contact with defendant Alex Curiel, whom they also stopped and questioned during the Cinco de Mayo celebration on May 1. Undercover officers requested Curiel be stopped because he and his friends were "walking through the crowd throwing up gang signs." OPD officers told Curiel to leave the area, and he walked away
A short time later, De La Vega and other officers spotted Curiel again and decided to detain and search him under the clauses of his parole for a firearms offense. The following passage is of interest:
"As we were searching Curiel he began to shout to anyone in the area, drawing attention to himself, that he was being targeted because he was on the injunction. Curiel then said that it was a "mouse and cat game" and "I'm used to it. I'm going to win it." Curiel then said "you're never going to find me and serve me," and "this is my neighborhood and we've been here before you were ever born." Knowing that Curiel is younger than Officer Pereda and I, we believed that Curiel was referring to the Norteno gang which he belongs to."
No contraband was found on Curiel during the search, and he was released by OPD.]