First and foremost, allow me to express my heartfelt gratitude for taking a moment out of your day to hear my story.
My name is Lorenzo “El Heru” Fosselman, Jr. I am a California prisoner who has been incarcerated for the past twelve years due to a legal ruse perpetuated by the criminal justice system. My case is a complex example of the systematic injustices that continue to plague the court process and how the law is selectively applied to the detriment of minorities and the indigent. Contrary to popular perception and established rhetoric, justice is anything but blind. I encourage you to read along and decide what measure of justice was served in my case.
In 2002, according to the mandatory minimums set forth in the sentencing requirements of California’s notoriously punitive Three Strikes Law, I was struck out and sentenced to 70 years-to-life for a carjacking and evading a police officer charge. I was 23 years of age and only had one prior prison term. Therein lies the crux of the issue I bring before you.
In 1997, I accepted a plea agreement for Grant Theft Persons with a gang enhancement [§487 w/ §186.22(b)(1)] in exchange for a 10-month county jail sentence and probation. However, before entering the plea, neither my attorney nor the court clarified what the consequences of a gang enhancement were or how to properly challenge it. Nor was I apprised of the possibility that future legislation might retroactively change the gang enhancement into a serious felony for purposes of the Three Strikes Law. In hindsight (stemming from years of pouring over cases in the law library), I have come to realize that there was no evidence to begin with to even warrant, much less substantiate, a gang enhancement charge. At my plea hearing the presiding judge is on record affirming that if I were to violate the conditions of the agreement, I would be sentenced to state prison for a maximum of six years. So, I accepted the plea bargain under the impression that by forfeiting my right to a jury trial I would receive a reduced sentence.
In March of 2000, the California legislature passed Proposition 21, of which I was unaware. Christened The Gang Violence and Juvenile Crime Prevention Act, this new law stipulated that any felony offense constituting a violation of §186.22 (gang enhancement) would be upgraded to a serious felony under Penal Code §1192.7(c). In other words, what was not a strikeable offense in 1997, when I accepted the plea agreement, became a strike on March 8, 2000. In a perfect and unbiased judicial system this would inarguably be an open-and-shut case of an ex post facto law (one that changes the punishment and inflicts greater punishment than the law annexed to the crime when committed without the consent of or even notifying the impacted party). The state irrefutably violated the terms of its contract, and I welcome anyone to prove otherwise.
At the end of my trial in 2002, my court-appointed attorney unsuccessfully challenged the above prior on the grounds that it was not constitutionally valid for an 18-year-old to enter into and accept a plea without full knowledge of the potential consequences of the agreement.
In 2007, when I filed my first habeas corpus of right in the California Eastern District Court, my claims challenging the illegal use of the 1997 plea agreement were procedurally barred and subsequently dismissed. The reasoning of the court for this judgment was both factually and legally flawed. As stated by the court: “I should have challenged the constitutionality of the 1997 agreement while I was in custody on that sentence.” However, the facts overlooked by the court are Prop. 21 was enacted on March 8, 2000, three years after said agreement. It was this legislation that transformed the gang enhancement into a strikeable offense; and, although I did not become aware of Prop. 21 until 2002 when the state sought to strike me out, I was still in custody on the 1997 conviction by virtue of being under the supervision of parole between October 2000 and April 2002. Unfortunately, these facts to date have been conveniently ignored.
In 2009, I attempted to file a notice of appeal in the Ninth Circuit Court of Appeals, which was never heard of its merits due to a 3-day untimeliness issue. This was the result of prison officials losing and/or destroying (negligence and/or sabotage, take your pick) my legal paperwork prior to having me placed in administrative segregation due to overcrowding in California prisons, which served as a reprisal for my work as a jailhouse lawyer.
Since that time I have been arguing to have my case reopened by filing petitions for rehearings based on exceptional circumstances beyond my control; thus far to no avail. I firmly believe that because of my pro-per status (self-representation), the courts are not considering my legal briefs in the same vein as they would if I had the professional representation of a post-conviction specialist. Presently, I am in the process of exhausting all available and known resources in order to compel the court to reopen its judgment and issue a sentence modification. This is not simply a question of what I think or feel I deserve. Rather, the law supports my case as being a textbook example of bait-and-switch. Although my current conviction is considered a violent felony (no physical injuries were inflicted in the case), I remain convinced that with the proper support and attention to this miscarriage of justice, we will prevail in having the 1997 strike stricken from the record, which would remove my life sentence.
I acknowledge that in my youth I made a number of damaging and costly decisions for which I have paid a price in more ways than one. Now, with over a decade of imprisonment, my outlook on life has matured considerably. I have participated, completed and been certified in the following programs:
• Wellness training
I am also taking correspondence courses towards a criminology degree. Some of my future goals include organizing social and educational projects throughout the inner cities of America focusing on decriminalizing the thought process of our disadvantaged and at-risk youth. I am inspired to provide guidance based upon my experiences in the so-called justice system; thereby enhancing their life prospects. Call it a reawakening because it is a commitment born of conscious metamorphosis 12 years in the making, which has allowed me to see the world anew and re-envision my role and purpose in society.
In closing, I would like to thank you again for taking the time to read about my current legal predicament. My goal of composing this open letter is to gain public support and sponsorship. For this reason, I am appealing to you and anyone that you may know for correspondence, legal aid, or assistance of any kind. If it is only through referral, your advocacy will be profoundly appreciated and embraced with open arms.
May peace be with you.