Superior Court Judge Dorothy Reyes Grants Motion to Vacate Two Strike Allegations in Felony Complaint Over Prosecutor’s Protest That Paring Potential Sentence of Sex Offender Would Not Be ‘in Furtherance of Justice’
By a MetNews Staff Writer
A Los Angeles deputy district attorney expressed exasperation yesterday over having been forced by virtue of a special directive by District Attorney George Gascón to move that morning for the striking of priors in the case of a parolee/probationer caught in possession of child pornography, bemoaning the granting of the motion by Los Angeles Superior Court Judge Dorothy Reyes despite her request that it be denied.
The prosecutor, Angela D. Brunson, is assigned to the Cyber Crime Division. She’s handling the case of People v. Marcus Lauderdale.
She recited that Lauderdale—whom she termed a “poster child for recidivism”—was sentenced to prison in 2012 after pleading guilty in San Bernardino Superior Court to three counts: lewd and lascivious act upon a child under 14, continuous sexual assault on a minor, and possession of child pornography. The first two counts, the deputy noted, are felonies entailing violence and qualify as strikes for purpose of the Three Strikes Law.
After being released on parole, Brunson said, Lauderdale was convicted of failure to maintain a current registration as a sex offender and was placed on probation.
The current charge, she noted, stems from his having been found near a park with his cellphone loaded with child pornography. He was charged under Penal Code §311.11(b) which provides that a person who possesses such matter and was previously convicted of possessing child pornography “is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years.”
Lauderdale’s possession of such matter is of particular significance because the 2012 convictions stemmed from his having, regularly, forced his step-daughter, over a six-year period, to orally copulate him while he was viewing child pornography, the prosecutor remarked.
In court yesterday, Brunson said, she read the script Gascón has mandated be reeled off in moving for the vacating of strike allegations, which includes the assertion that two Penal Code sections—1170.12(d)(2) and 667(f)(1)—which condition the abandonment of strike allegations on judicial approval, are unconstitutional. (It was apparently intended that §667(f)(2) be referenced.)
Contrary Authority Cited
In obedience to her duty not to mislead the court, Brunson said, she cited case authority contradicting the assertion of unconstitutionality and told the judge:
“[A]t the risk of subjecting myself to office discipline, it is my belief that dismissing would not be in the interest of justice.”
Under Penal Code §1385(a), a judge may strike the allegation of a prior “in furtherance of justice.”
She advised Reyes that if the strikes were not stricken, she would seek to amend the complaint to eliminate the allegations, and that if an amending of the pleading were disallowed, she would be obliged to report the matter to her head deputy. (Such reports could trigger a policy of blanket affidaviting of a judge—which occurred as to Los Angeles Superior Court Judge Shellie L. Samuels, though the blacklisting of her was short-lived.)
The text of Brunson’s remarks appears below.
Reyes, without comment, granted the motion, Brunson said.
“I’m saddened and frustrated,” she related.
The career prosecutor—she’s been on the job since October 1997—pointed out that the maximum sentence for Lauderdale, now, is six years, but that it would have been twice that, had the strikes not been stricken. As it stands, Brunson said, there is a presumption in favor of probation—limited to two years—and for her to seek prison time would require office permission, entailing the preparation of a memo.
She said she will write the memo.
Brunson said of Lauderdale’s sexual abuse of his step-daughter from the ages of eight to 14, it’s now “like that never happened.”
She is in favor of efforts at rehabilitation, she commented, and has argued in the past for leniency in cases. The deputy observed that Lauderdale, however, “has not been reformed” and “clearly has a liking for naked children.”
If 10 years from now, it is found that Lauderdale has molested more children, Brunson said, “I would be filled with regret about what I had to do today.”
A deputy district attorney was quoted in yesterday’s issue of the METNEWS as saying there are “probably 10 people in the office” who approve of Gascón’s policies. Brunson said:
“I would be surprised if there were 10.”
She noted that there is apprehension among deputies, who are careful about what they say in private conversations because they don’t know if persons in the office seeking advancement might be “little tattle tales.”
Her office, she said, is on the Tenth Floor of the Clara Shortridge Foltz Criminal Justice Center and the administrative offices are on the Twelfth Floor. Interim Chief Deputy Joseph Iniguez and special assistant Mario Trujillo tend to “wander around” on the Tenth Floor, seemingly to overhear conversations, Brunson advised.
“There is a sense of distrust,” she reported.
Brunson said that once a recall petition is available—it can’t be circulated until Gascón has been in office 90 days—she’ll sign it. She had not been a member of the Association of Deputy District Attorneys (“ADDA”), Brunson said, but joined it as soon as she realized the “magnitude” of Gascon’s special directives. He issued nine of them right after being sworn in on Dec. 7.
Gascón on Dec. 18 amended one directive to permit some specified enhancement allegations but reiterated that “this Office will not pursue prior strike enhancements.”
Brunson applauded the action of the ADDA in seeking an injunction and other relief to block implementation of some of the policies, such as not alleging priors for the purpose of the Three Strikes Law. A hearing on a preliminary injunction is slated for Feb. 2.
Text of Brunson’s Remarks
(Below is the text of remarks yesterday by Los Angeles County Deputy District Attorney Angela D. Brunson before Los Angeles Superior Court Judge Dorothy Reyes in the case of People v. Lauderdale, BA491132.)
Your Honor, pursuant to SPECIAL DIRECTIVE 20-08.1 which was issued by DA George Gascon on December 15, 2020, I am required to make the following motion:
“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.”
However, according to California State Bar Rules of Professional Conduct Rule 3.3,1 am not permitted to knowingly make a false statement of fact or law to a court. This same rule further requires me to disclose to you any legal authority in the controlling jurisdiction known to me. Therefore, I would like to cite the following sections of the California Penal Code:
PC969: All known previous convictions, whether in this State or elsewhere, must be charged.
PC1170.12(d)(l) and PC667(f)(l): The prosecuting attorney shall plead and prove each prior serious or violent felony conviction.
And I would also like to cite the case of People v. Kilborn (1996) 41 Cal.App.4th 1325 which held that the Three Strikes law is constitutional.
Your Honor, pursuant to PC1385, you are permitted to dismiss the strike allegations if there is insufficient evidence to prove the prior conviction, or if doing so would be in the interest of justice. In this case, there is sufficient evidence to prove the strike allegation and at the risk of subjecting myself to office discipline, it is my belief that dismissing would not be in the interest of justice.
Furthermore, so that this court is fully aware of my predicament, I feel I must tell you that Special Directive 20-08.1 further instructs me as follows: if you refuse to dismiss the prior strike allegations or other enhancements/allegations based on the People’s oral request, I am required to file an amended charging document pursuant to PC1009 which will not allege any strikes, enhancements or allegations. If this court further refuses to accept the amended charging document, I must report the case number, hearing date, your name, and reason for your denial of this motion to my head deputy.
Lastly, District Attorney George Gascon has been asked to submit a written response to a pending request for a Writ of Mandate in a pending civil action to attempt to justify his reasons for subjecting DDAs such as myself to his Special Directives which conflict with the above-mentioned sections and case law. The hearing has been calendared for February 2, 2021.
Thank you for allowing me the opportunity to make a record of this untenable situation.
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