Metropolitan News-Enterprise


Monday, December 28, 2020


Page 1


Gascón Told by Staff That Policies Don’t Comport With Law:

Appellate Division Says Appeals Courts Would Not Agree With D.A. That a Judge Is Obliged to Grant Motion of Prosecution To Delete Enhancement Allegations; Notes Possibility of Lawsuit Over Three-Strikes Policy


By a MetNews Staff Writer


District Attorney George Gascón has been told by his office’s Appellate Division that the appeals courts would find no merit in his contention that a judge is obliged to blot out a strike allegation whenever a prosecutor requests it, and has been warned that his effort to thwart the Three-Strikes Law by ordering that no enhancements be sought based on prior strikes could be subject to a challenge in a taxpayer’s action, internal documents show.

The advice came in two memos, one on Dec. 9—two days after he took office and immediately proceeded to issue nine “special directives”—and one the following day. One of his orders, Special Directive 20-08, mandated that “sentence enhancements or other sentencing allegations, including under the Three Strikes law, shall not be filed in any cases and shall be withdrawn in pending matters.”

On Dec. 18, Gascón backed down to the extent of permitting enhancement allegations to be alleged, and not seeking to withdraw those previously made under the administration of his predecessor, Jackie Lacey, “in cases involving the most vulnerable victims”—such as cases where physical or sexual abuse of children or the elderly is alleged—“and in specified extraordinary circumstances.” However, he stuck with his position that his office “will not pursue prior strike enhancements” or certain other enhancements.

Statutory Compulsion

A Dec. 9 unsigned Appellate Division memo to Kellyjean Chun, director of the office’s Bureau of Prosecution Support Operations, sets forth that, “by their plain terms,” two Penal Code provisions—§1170.12(d)(1) and §667(f)(1)—“require the prosecution to plead and prove all known strike priors.” It notes the prospect of a deputy district attorney subsequently moving, pursuant to Penal Code §1385, to scrap the allegation “in the furtherance of justice” or because it can’t be proven.

The memo cites a Jan. 19, 1996 opinion by then-Acting Presiding Justice Norman Epstein of this district’s Div. Four (later presiding justice, now retired) in People v. Kilborn which holds constitutional the limitations on a district attorney’s charging discretion.”

“Thus, absent a legislative change or intervening case law, the prosecutor must charge all known strikes,” the memo says, observing:

“The district attorney’s office has no legitimate interest in having a policy directly contrary to law.”

Taxpayer Action

Pointing to the prospect of a taxpayer’s action to enjoin implementation of that policy, it acknowledges that the California Supreme Court, in its 1991 decision in Dix v. Superior Court, reversed a Court of Appeal determination that a crime victim had standing to oppose a resentencing petition by his assaulter, saying, in an opinion by then-Justice Marvin Baxter (now retired):

“Neither a crime victim nor any other member of the public has general standing to intervene in an ongoing criminal proceeding against another person.”

However, the memo also notes the Aug. 12 Court of Appeal opinion in People for Ethical Operation of Prosecutors & Law Enforcement v. Spitzer, by Justice Raymond J. Ikola of the Fourth District’s Div. Three, which declares:

“Plaintiffs allege that defendants have systematically employed unconstitutional methods of investigating crimes. An injunction against unlawful investigative methods cannot, by definition, interfere with the lawful exercise of defendants’ duties.”

The memo concludes that because Gascón’s policy “is a blanket policy, it is not the kind of ‘intervention’ in a criminal case that was found improper in Dix.” It says that although “the present situation involves crime charging, which is more closely connected to the prosecutorial function than the investigative methods at issue” in the Fourth District case, “it is at least plausible that the office would have to defend its policy in a civil case.”

Judge’s Authority

In a memo supplied on Dec. 10 to Joseph Iniguez, who has been designated by Gascón as his interim chief deputy, Deputy District Attorney Matthew A. Brown disputed the district attorney’s assertion that it’s up to him to determine what is charged and that judges are powerless to defy his determination that strikes not be alleged.

Brown wrote:

“The court has the ultimate power to dismiss a strike allegation under Penal Code section 1385. That power is not conditioned on the consent of the prosecutor. Similarly, if the prosecutor moves for the court to dismiss a strike allegation, the court is not bound to grant the motion.

“It is true that in considering whether to grant or deny the motion, the court must consider the interest of ‘the People,’ but this is not limited to the prosecutor’s opinion. While the prosecutor acts in the name of ‘the People’ as sovereign in all criminal actions, ‘the People’ also enacted the Three Strikes law, and within it constrained the discretion of the prosecutor and the court. Thus, from the court’s perspective, it makes no difference whether the prosecutor is the one moving to dismiss, or whether it is considering such action on its own motion—its decision to grant or deny the motion must be based on a valid judicial reason within the limits of the Three Strikes law.

“In light of this, the prosecutor’s general belief that the Three Strikes law should not be enforced would probably not provide a valid judicial reason to strike a strike.”


Chances on Appeal

Turning to the prospect of appellate review, Brown said that if a judge denied a motion to dismiss an enhancement allegation, “that decision is likely not reviewable at all, but even if it were, it would be reviewed under a deferential abuse-of-discretion standard.”

He prognosticated:

“We would not be able to prevail under that standard solely by citing our disagreement with the current law.”

The memo adds:

“Absent intervening case law holding that these mandatory plead-and-prove aspects of the Three Strikes law are invalid, any change must come from the Legislature or the voters.”

Notwithstanding that advice, Gascón on Dec. 15 issued an “amendment” to Special Directive 20-08 containing a script for deputies to read when moving to have enhancement allegations deleted from charging pleadings. It includes this assertion:

“The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution. It is the position of this office that Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional and infringe on this authority.”

There was widespread concern among deputies that if they complied with the directive, they would be violating the command in Business and Profession Code § 6068(d) not to lie to the court. They would be doing so, they discerned, if they represented that the facts warrant leniency, where they did not believe this to be so, and that case law establishes sole discretion in the prosecuting office as to whether enhancements are to be alleged.

Memo on Ethics

In a memo of Dec. 18 to Iniguez, Brown noted that the Dec. 15 directive “does not mention cases that are directly contrary to this position,” pointing to Epstein’s opinion Kilborn. He reminded Iniguez that California Rules of Professional Conduct, rule 3.3, “requires attorneys to cite any known, adverse authority.”

While it is consistent with the rule to argue that Kilborn was incorrectly decided, Brown wrote, “deputies that are aware of Kilborn may, indeed must, cite it to the superior court if the constitutionality of the Three Strike law is at issue.”

He acknowledged that Rule 3.3 does permit “a good faith argument for an extension, modification, or reversal of the existing law,” but noted that any Superior Court judge would be bound by Kilborn and that redress would have to be made to the Court of Appeal in pursuit of a contrary holding.


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