http://www.mercurynews.com/ci_13797368?source=most_viewed

By Howard Mintz

They are not old enough to vote, have full driving privileges, join the military or buy a beer. Yet, three reputed teen gang members charged in San Jose’s Halloween night attack on a pair of young trick-or-treaters face the very real prospect of spending the rest of their lives in prison.

Locked up in the Santa Clara County Jail, these 15- and 16-year-old boys now find themselves a portrait of the ongoing debate over imprisoning violent juvenile offenders for life. That is the potential sentence if these high-school-age defendants are convicted of the most serious charges against them, including the attempted murders of the 12- and 13-year-old victims.

The San Jose case, which has sparked a community outcry, is hitting the local courts at a time when there is renewed public and legal scrutiny nationally on the tension between dealing with rampant youth violence with harsh sentences and the age-old presumption that juvenile offenders should have a shot at reform.

The same debate may arise in the fatal stabbing case of a 15-year-old Santa Teresa High School student. Two juveniles — ages 15 and 16 — were arrested late last week in that attack, and prosecutors have yet to say whether they will be tried as adults.

Last week, the U.S. Supreme Court heard arguments in a closely watched case that will decide whether it is constitutional to sentence juveniles to life without the possibility of parole for crimes short of murder.

The high court is reviewing the cases of two Florida juveniles, one 13 and the other 17 at the time of their crimes, who have received life without parole. One is a repeat offender sent away for an armed robbery; the other was convicted of burglary and sexual assault of an elderly woman.

Experts say the Supreme Court’s ruling could have ramifications for the broader question of sentencing juveniles to life in prison for any crimes.

Kent Scheidegger, executive director of the law-and-order Criminal Justice Legal Foundation, notes that the legal attack on life-without-parole sentences gained momentum after the Supreme Court struck down the death penalty for juveniles four years ago.

“The ink was barely dry on the opinion and there was an effort to apply the same rules to life without the possibility of parole,” he said.

In the Halloween attacks, 15-year-old Hugo Torres, and two 16-year-olds, Erik Diaz and Diego Gutierrez, all face potential life prison terms if convicted, which often equates to life without parole in California’s strict parole system. All three are being tried as adults for the attempted murder of the two young trick-or-treaters, one of whom is still clinging to life in a hospital with gunshot wounds. A fourth defendant — Eduardo Cristobal of Milpitas, who is 18 and therefore considered an adult — is also charged in the attacks.

Under California law, a judge can impose a life-without-parole sentence for a juvenile who is at least 16, although younger defendants can get life with parole. A stark example is James Ortega, a 14-year-old sentenced two years ago to 36 years to life for the gang-related murders of two 17-year-olds at a San Jose Jack in the Box. He would be well into middle age before having even a remote chance at release.

California is one of only a few states that permit sentences of life without parole for juveniles convicted of non-homicides, but there are now only four such inmates in the state’s prisons, according to state Department of Corrections figures. Overall, there are 263 inmates who were juveniles at the time of their crimes now serving life-without-parole sentences in California, four of them from Santa Clara County. Far more are serving potential life-with-parole sentences.

Critics of throwing away the key for juvenile offenders say it is cruel and unusual to sentence a young teenager to life, imposing an adult punishment on a youth without a fully formed brain or sense of morality. Most juvenile offenders convicted in the juvenile courts are released from prison in early adulthood, even for serious crimes.

But the stakes are much higher for juveniles put into the adult justice system. Paul Bocanegra, 17 at the time of his participation in a drive-by gang shooting in San Jose in 1992, is now serving life without parole — a sentence that still haunts his defense lawyer, current county Public Defender Mary Greenwood.

Bocanegra was not the shooter, but was in a car when a co-defendant shot and killed an 18-year-old man in an ambush.

“I’ve been a defense lawyer for nearly 30 years, and it’s the one time I’ve cried in court,” Greenwood said. “He was 17, and he was gone. There are options that are really serious that are short of that.”

But there has been public support for getting tougher on juvenile crime, particularly in response to gang violence — which spurred voters to approve Proposition 21 in 2000, making it easier for prosecutors to try juveniles as adults and expose them to life prison terms.

Through a spokeswoman, District Attorney Dolores Carr declined to comment on the potential sentences for the Halloween attackers. But Deputy District Attorney Daniel Carr, who prosecuted the Bocanegra case, calls the arguments against life terms for violent gang members “hollow.”

“These kids are well aware of what the consequences are, and yet they choose to do it anyway,” Daniel Carr said. “It’s because the crime is so bad, they don’t deserve another chance.”

Despite high-profile examples of gang violence that shock communities, the debate still rages over whether gang members scarcely old enough to shave deserve a chance to prove they can be redeemed as adults.

“Nobody is arguing against long sentences” in some of these cases,” said Barry Krisberg, president of the National Council on Crime and Delinquency. “But at a very young age, simply giving up, it makes no sense. What social purpose other than revenge does it satisfy?”