By a MetNews Staff Writer
Los Angeles County District Attorney George Gascón yesterday issued a special directive to conform office policies to the requirements set forth on Monday in a preliminary injunction, secured by the Association of Deputy District Attorneys, but capitulated on one demand by the ADDA—that deputies not be required to read a script in asking that previously alleged enhancements be vacated—on which the judge had granted only partial relief.
Gascón, in obedience to the preliminary injunction, decreed that all strikes be alleged, rather than none, as he previously ordered.
With respect to the mandated script-reading, Los Angeles Superior Court Judge James C. Chalfant ruled that deputies could be compelled, with two provisos, to abide by the requirement of a Dec. 15 special directive, 20-08.1, expressly not ordering that it be scrapped. However, Gascón declared yesterday:
“Pursuant to the preliminary injunction, Special Directive 20-08.1 is rescinded.”
The directive required that deputies, in moving pursuant to Penal Code §1385 that strikes previously alleged for purpose of the Three Strikes Law be vacated, read into the record a statement challenging the constitutionality of two statutes which require that a prosecutorial office allege all known priors that meet the statutory definition of a strike. Deputies balked at being forced to make that representation to the judge in light of Court of Appeal decisions upholding the laws.
Gascón ordered the script-reading to supplement a Dec. 7 order that in all cases where enhancements, including strikes, were previously alleged, deputies move to vacate them. Chalfant’s two provisos for requiring that the script to be read where the striking of strikes was sought were that either of the specified bases exists for a motion under §1385—that it be in “furtherance of justice” or because the strikes cannot be proven—and that the deputy but must point out countervailing case law.
The district attorney issued nine such directives on Dec. 7, the day he was sworn into office. One, which barred any sentence enhancements to be alleged, was amended by a directive on Dec. 18, SD 20-08.2, which permits alleging enhancements in cases involving the most vulnerable victims and in specified extraordinary circumstances,” but specified that in no event may deputies allege “prior strike enhancements, gang enhancements, special circumstances enhancements, out on bail/O.R. enhancements, or Penal Code section 12022.53 enhancements.”
Yesterday’s order specifies that “the preliminary injunction does not affect office policy restricting the filing of sentence enhancements in new cases” and that “deputies are still prohibited from filing any other sentence enhancements,” except as provided in the Dec. 18 amendment.
Wording of Directive
The directive says:
The following revised policies are effective immediately:
Special Circumstance Allegations
1. Deputies are prohibited from filing special circumstance allegations.
2. Pursuant to the Superior Court’s interpretation of Penal Code section 1385.1, if a special circumstance has already been found true or admitted, deputies are not required to move to dismiss the enhancement.
3. In pending cases with alleged special circumstance allegations, motions to dismiss or withdraw pursuant to Penal Code section 1385 will be based on individual case review, including but not limited to the extent of the defendant’s participation in the murder, the defendant’s prior violent record, and any other factor bearing on the defendant’s mental state.
4. Deputies shall not move to reinstate special circumstance allegations that were previously dismissed by a court, even if the dismissal was pursuant to a deputy’s motion.
These policies apply to pending cases and future cases.
1. Pursuant to the Superior Courts interpretation of the Three Strikes Law. deputies shall plead and prove strike priors pursuant to Penal Code sections 667, subdivision (f)(1) and 1170.12. subdivision (d)(1) where there is sufficient evidence to prove the prior beyond a reasonable doubt.
2. Deputies shall not move to reinstate strike priors that were previously dismissed by a court, even if the dismissal was pursuant to a deputy’s motion.
3. Pursuant to the preliminary injunction. Special Directive 20-08.1 is rescinded.
4. Motions to dismiss alleged strike priors pursuant to Penal Code section 1385 will be based on individual case review pursuant to the considerations set forth by The Committee on Revision of the Penal Code, hereafter “The Committee.” The presumption will be in favor of dismissal or withdrawal when any one of the factors apply. Head Deputy approval is not required.
Other Conduct and Status Enhancements
Except as to strike priors and special circumstance allegations, these policies apply to pending and future cases for all other conduct and status enhancements.
1. Deputies are prohibited from filing conduct and status enhancements, unless approval is obtained pursuant to SD 20-08.2.
2. In any pending case, deputies shall not move to reinstate any allegations or conduct enhancements that were previously dismissed by a court, even if the dismissal was pursuant to a deputy’s motion.
3. Pursuant to the preliminary injunction, in any pending case, deputies shall make motions to dismiss or withdraw pursuant to Penal Code section 1385 any enhancements/allegations, unless approval is obtained pursuant to SD 20-08.2, based on individual case review pursuant to the considerations set forth by The Committee. The presumption will be in favor of dismissal or withdrawal when any one of the factors apply.
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