Orders Deputies to Report Judges Who Won’t Scratch Out Enhancement Allegations or Allow Amended Pleadings
By Roger M. Grace, Editor
Los Angeles County District Attorney George Gascón has ordered deputies in his office to report any judge who will not go along with his no-enhancements policy, evoking cries by judges that he is defying the need for judicial independence and misconstruing applicable statutes.
In a directive issued late Tuesday, Gascón provided a script for deputies to use in moving to withdraw enhancements that were alleged under the prior district attorney, Jackie Lacey (defeated by Gascón in the Nov. 3 election), and to tattle on any judge who neither grants the motion nor permits an amending of the information or indictment. He instructed:
“[I]f a court refuses to dismiss the prior strike allegations or other enhancements allegations based on the People’s oral request, the DDA shall seek leave of the court to file an amended charging document pursuant to Penal Code section 1009.
“If a court further refuses to accept an amended charging document pursuant to Penal Code section 1009. the DDA shall provide the following information to their head deputy: Case number, date of hearing, name of the bench officer and the courts justification for denying the motion (if any). The DDA shall stipulate to any stay of proceedings if requested by the defense.”
One Los Angeles Superior Court judge commented yesterday:
“There is an appeals process available to any litigant who disagrees with a court’s ruling. In bypassing this, and opting to blacklist judges who are not following his policies, he is threatening the independence of the judiciary.”
Another judge remarked:
“These type of orders do not respect the independence of the Judiciary. if the district attorney truly believes he has the legal power to implement his directives, seek a writ against the Judges who do not comply with his policies. The fact that he is not doing this suggests he knows he has a losing legal position and would not be upheld by the Appellate courts.”
Gascón on Dec. 7—the day he was sworn in—issued nine special directives, one of them saying 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or other sentencing allegations, including under the Three Strikes law, shall not be filed in any cases and shall be withdrawn in pending matters.” Many deputies have balked at moving under Penal Code §1385 to withdraw enhancement allegations “in furtherance of justice” because, they say, where the facts do not warrant leniency, they are being required to lie to the court.
In the face of resistance by deputies and judges to his policy, Gascón issued Tuesday’s special directive which, he said, was to “further supplement” the earlier one. The initial directive did not make mention of seeking to amend the pleading under §1009, which provides, in part:
“The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings.”
A judge offered this analysis:
“Under Penal Code section 1009, at any stage of the criminal proceedings, a court may permit an amendment to an Indictment or an Information or permit the filing of an amended complaint due to any defect or insufficiency. (People v. Leonard (2014) 228 Cal.App.4th 465, 477.) However, this section requires the existence of a defect or insufficiency on the original charging document.
“Is the desire of the District Attorney’s Office, as a matter of policy, to request leave to remove an enhancement or special allegation which has already been filed, and which is factually true, a ‘defect or insufficiency’ of the original charging document? I think not.
“Judges cannot act as a matter of policy. We are required to follow the applicable law.”
“It’s that simple.”
Div. One of the Fourth District Court of Appeal said in Leonard:
“Following a defendant’s plea, leave of court is normally required before an information may be amended….As this court recently explained, ‘the Supreme Court made it clear that a trial court must approve the filing of the amended charging document, and that it is within the trial court’s discretion to deny leave to amend.’”
Script for Prosecutors
Tuesday’s directive requires that each deputy district attorney, in moving to withdraw an enhancement allegation, read into the record these words:
“‘The People move to dismiss and withdraw any strike prior (or other enhancement) in this case. We submit that punishment provided within the sentencing triad of the substantive charge(s) in this case are sufficient to protect public safety and serve justice. Penal Code section 1385 authorizes the People to seek dismissal of all strike prior(s) (or other enhancements) when in the interests of justice. Supreme Court authority directs this Court to determine those interests by balancing the rights of the defendant and those of society ‘as represented by the People.’ 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. Additional punishment provided by sentencing enhancements or special allegations provide no deterrent effect or public safety benefit of incapacitation—in fact, the opposite may be true, wasting critical financial state and local resources.”
The directive quotes the California Supreme Court’s 1996 opinion in People v. Superior Court (Romero) as saying (with the emphasis being in the original):
“[T]he language of [section 1385], ‘furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.”
Sec. 1170.12(d)(2) provides:
“The prosecuting attorney may move to dismiss or strike a prior serious and/or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385 , or if there is insufficient evidence to prove the prior serious and/or violent conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious and/or violent felony conviction, the court may dismiss or strike the allegation. Nothing in this section shall be read to alter a court’s authority under Section 1385.”
In referring to Penal Code §667(f)(1), Gascón apparently meant to reference §667(f)(2) which vests discretion in the court where priors are alleged for enhancement purposes, saying:
“If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious or violent felony conviction, the court may dismiss or strike the allegation.”
A member of the Superior Court provided this reaction:
“The new directive last night calls upon his deputies to advocate the unconstitutionality of laws that have been deemed constitutional. His position is that of a dictator. He doesn’t care about law or justice; it interferes with his political agenda.”
That judge added:
“Judicial ethics, canon 3.21, requires the court to evaluate each case on its own merits and not bow to policy. Gascón is attempting to coerce all judges in the County of Los Angeles to abandon their judicial ethics and accede to his illegal policy directives. Failure to submit will result in a challenge from a judicial candidate who will follow his illegal directives.
“Just weeks ago, the voters of the State of California rejected no cash bail. California law also requires the District Attorney to file and prove strike priors. How could Gascón’s dictatorial policies supersede and thereby override the will of the people? Democracy and our system of checks and balances are in danger.”
A fifth judge rejected Gascón’s view of the law, for the most part, saying:
“I would agree that in all prospective filings, charging even the most heinous acts, the DA has the right not to allege enhancements, and that subsequent proceeding will be conducted within the framework of those pleadings, no matter what effect that pleading (or lack thereof) may have on the victim(s) or society in general.
“In essence, Gascón is saying there are no ‘career criminals’ that society has an interest in keeping off the street as long as possible. To state the proposition is to affirm its absurdity.
“With respect to current pleadings, PC 1385 is a discretionary call by the Court, not the DA. The Court is bound by the very precedent Gascón cited, Romero, to consider ‘that which would motivate a reasonable judge’ (P. 530).
“Gascón is taking the position that all enhancements (presumably including third, fourth, or fifth violent crime prior strikes) are to be stricken under 1385 upon the bare assumption that it would benefit public policy. What ‘reasonable judge’ would automatically grant such a request? Would not the judge be required under existing law, to evaluate the case and weigh ‘the constitutional rights of the defendant and the interests of society represented by the people’ as cited by Gascón? Does he claim these two factors are one and the same? If so, why has the Supreme Court differentiated them? The defendant will claim that he/she, if charged, is entitled to the minimum charge applicable to the alleged facts. Gascón is arguing that society has the same interest. Such nonsense flies in the face of the individuality and unique circumstances of each case.”
Reference to Soros
Gascón received more than $2.5 million in campaign contributions from New York billionaire investor George Soros. A judge remarked:
“I don’t think voters appreciated the impact of his policies nor how they had also left San Francisco in a societal crisis. This lack of appreciation is one of the reasons that Soros has focused on local elections for mayors and district attorneys as those elections simply do not receive the close attention that higher offices do. While he claims that his policies are based on data, science, etc., I have not seen any disclosure of such information and think it is highly likely they are based on the Soros strategy and objective to destabilize the United States city by city. Those policies are also greatly at odds with his oath to uphold the law as a result of his one person flouting of years of policy decisions by the Legislature.”
A spokesperson for Chief Justice Tani Cantil-Sakauye said:
“Unfortunately, under the Canons of the Code of Judicial Ethics, judges and justices cannot make any public comment about a pending or impending proceeding in any court. It appears these issues are pending before the Los Angeles Superior Court and may eventually come before this court.”
Retaliation at Polls
The latest directive comes on the heels of an email disseminated Friday by Deputy Public Defender Tiffini Townend Blacknell—a member of the new DA’s transition team—to colleagues in her office and some private criminal defense lawyers in which she commented:
“The people have been voting for measure after measure to reduce the jail prison population, they have voted for a progressive prosecutor who has promised to reduce mass human caging. The only thing standing in the way of the will of the people, is the bench.
“Next up, FLIP THE BENCH! We’re keeping a list and checking it twice. It’s time to run some truly progressive judicial candidates in 2022, let’s get it!”
Blacknell asked the recipients of her email to report, on an electronic form, those judges and prosecutors who won’t comply with Gascón’s approach. That form has been removed from the Internet, and Deputy District Attorney Mario Trujillo, who has assumed a major role in the new regime, said yesterday:
“That form did not come from our administration.”
The Association of Deputy District Attorneys is reportedly readying to file a complaint against Gascón with the State Bar based upon requiring deputies to falsely represent that the facts in cases warrant removing enhancement allegations.
Gascón’s directives include ending cash bail as to most offenses, never seeking the death penalty or a life sentence without possibility of parole, and not moving for the trial of any juvenile in the criminal court.
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