Tuesday, December 15, 2020
By a MetNews Staff Writer
The following complaint to the State Bar concerning Robert Sherwood, head deputy of the District Attorney’s Office Antelope Valley branch, is set to be filed today.
On December 7, 2020, newly elected District Attorney Gascón ordered all of his attorneys, via Special Directive 20-08, that “Any prior-strike enhancements (Penal Code § 667(d), 667(e); 1170.12(a) and 1170.12 (c)) will not be used for sentencing and shall be dismissed or withdrawn from the charging document. This includes second strikes and any strikes arising from a juvenile adjudication.”
This policy violates Penal Code section 1170.12(d)(1), which states “Notwithstanding any other law, this section shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in this section. The prosecuting attorney shall plead and prove each prior serious or violent felony conviction except as provided in paragraph (2).” There are multiple appellate cases that clearly state that the prosecutor has no discretion when it comes to strike priors. They shall be plead and proved. Nor can a prosecutor unilaterally strike such a prior conviction. See People v. Roman, 92 Cal.App.4th 141 (2001); People v. Gray, 66 Cal.App.4th 973 (1998); People v. Kilborn, 41 Cal.App.4th 1325 (1996).
Instead of resisting this unlawful order, Head Deputy Robert Sherwood enforced the order over the past week. First, he required a junior DDA to follow the directives, the employee refused to follow the directives in court, and she was summarily commanded to report downtown to receive discipline. Later, Head Deputy Robert Sherwood insisted all other Deputy District Attorneys were required to follow the directive, despite the unlawful nature of the directives.
Head Deputy Sherwood’s actions violate Rule 1.2.1 Advising or Assisting the Violation of Law and Business and Professions code 6068(a). This is a violation of Rule 5.1 Responsibilities of Managerial and Supervisory Lawyers subsection (a). Aside from the violation of his ethical responsibility, it also demonstrates ineffective leadership in a crisis.
The magnitude of the violation of the special directive is immense. The District Attorney of Los Angeles supervises over 800 Deputy District Attorneys who prosecute over 71,000 felony cases per year.
No head deputy should advise any DDA to violate the law.
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