YAKIMA, Wash. — Troy Clements, a Yakima County deputy prosecutor, is worried the courts are starting to water down new legislation designed to combat gang crime.

In September, an appeals court in Spokane overturned Jesse Moreno’s 36½-year sentence for a 2009 drive-by shooting in Yakima on the grounds there was insufficient evidence supporting a sentencing factor known as a gang aggravator that allows judges to go above the standard range.

Gang aggravators are a key part of a relatively new and untested 2008 state law that, among other things, boost prison time for violent crimes, such as drive-by shootings, designed to raise the profile of street gangs.

The Yakima County Prosecuting Attorney’s Office was already appealing that decision when the same appeals court last week struck down Raul Alvarez’s 88-year prison sentence for a 2010 drive-by in Sunnyside on the same grounds.

In both cases, the Division III Court of Appeals said the prosecution failed to present enough evidence supporting gang aggravators and that juries were wrong to go along with it.

That worries Clements, who heads up his office’s gang unit. He said the appellate court used an old, more narrow aggravating factor in its analysis and seems to be discounting the value of circumstantial evidence in gang cases and testimony by police officers who are experts on gangs.

“It’s kind of disconcerting to hear an appellate court say the jury can’t rely on law enforcement to explain why a seemingly random shooting isn’t random,” he said.

Also concerned is state Rep. Charles Ross, R-Naches, who co-sponsored the legislation allowing gang aggravators.

Although the intent was to give longer sentences for crimes based on gang motivations, Ross said resistance on the part of some lawmakers to sentencing enhancements that carry mandatory minimums led to the softer, more discretionary aggravator designation.

“This is a consequence of allowing judicial discretion,” he said. “The only other alternative is mandatory minimums, which is very difficult to do in Olympia.”

In both rulings, the appellate court warned against guilt by association and said that while it was clear the defendants and the victims were members of or associated with rival gangs, neither prosecutors nor police presented enough evidence that proved the attacks were gang-motivated.

That view was shared by Mitch Harrison, a Seattle attorney who represented Alvarez on appeal.

Harrison said motive cannot be assumed and that police and prosecutors need to work a little harder to establish the specific underlying dispute behind a shooting or other violent gang crime. He also noted that nobody was injured in the shooting.

“A lot of effort goes into proving the crime,” he said of prosecutors, “but not the aggravator.”

Clements, however, said there was plenty of evidence of gang tension in both cases. He was particularly upset with the court’s ruling in the other case, that of Jesse Moreno.

Moreno got 36½ years for an October 2009 attack in which shots were fired at a man walking home from a basketball game on Yakima’s McKinley Avenue. Trial testimony showed that a gang warning known as a callout was shouted moments before shots rang out. The victim was not hit, and police said he was not a gang member.

“What else do you need? A sign on your head?” Clements said, adding, “If a callout’s not good enough, what is?”

Ross, meanwhile, said he shared the frustrations of Clements and his colleagues, and wondered whether it would be helpful now that election season is over to schedule a joint fact-finding hearing with Senate Democrats.

“I’m curious whether other communities are experiencing the same thing,” he said, adding, “We’ll have to work on this.”

• Chris Bristol can be reached at 509-577-7748 or cbristol@yakimaherald.com.