Chalfant Ordered That Deputies Not Be Prevented From Proving Enhancement Allegations; Transcript Shows Prosecutor Was Ordered to Desist From Putting on Evidence Necessary to Prove Gang Allegation
By a MetNews Staff Writer
The Office of Los Angeles County District Attorney George Gascón is skirting a Feb. 8 preliminary injunction barring enforcement of certain “special directives” that the chief prosecutor issued on Dec. 7, his first day in office, by withholding the evidence that’s needed to prove gang allegations, a transcript, obtained yesterday, shows.
One of the directives mandated motions to vacate all enhancement allegations pled under the administration of Gascón’s predecessor, Jackie Lacey. Los Angeles Superior Court Judge James Chalfant on Dec. 7 barred the district attorney from “compelling deputy district attorneys to move to dismiss… any existing sentencing enhancement in a pending case without having legal grounds as required by [Penal Code] section 1385.”
That section authorizes such motions only where facts indicate that removing the allegations would be in the “furtherance of justice” or the allegations could not be proven.
Failing to present evidence proving the allegations would constitute a de facto withdrawal of them.
Matter Before Richman
The transcript is of a Feb. 19 proceeding before Los Angeles Superior Court Judge Craig Richman in People v. Delgado. Veronica Delgado and Arturo Nava are charged with murder and other offenses, with a gang allegation which, if proven, and if the defendants are convicted, would cause an enhancement of the sentences.
Celia Villarreal, Delgado’s daughter, is charged with assault with a deadly weapon, also with a gang allegation.
It emerged at the proceeding—scheduled to be a preliminary hearing, but that was continued to April 8—that the prosecutor in the case, Deputy District Attorney Rosalba Gutierrez, was under orders of her chief deputy (John Morris) not to put on the evidence needed to prove the gang allegations. Los Angeles Superior Court Judge Jose I. Sandoval had denied a prosecution motion—heard prior to Chalfant’s decision—to vacate those allegations.
Detective Speaks Up
It was Sheriff’s Detective Joe Valencia who brought the matter up. When he was asked by Richman to take the stand, Valencia said:
“Yes, sir. May I say something on the record?”
Richman expressed bewilderment at what was going on. Valencia and Guiterrez conferred and the prosecutor explained:
“I did not anticipate that Detective Valencia would be addressing the court. I did inform defense counsel and the detective that, pursuant to instructions by my head deputy is that we are allowed to present gang evidence; however, unless ordered by the court, I cannot present predicates or the hypothetical and seek the opinion of the gang expert. I believe that’s what Detective Valencia wanted to alert the court to.”
Richman heard from Valencia who expressed his understanding that without presenting the evidence which Gutierrez was barred from putting forth, the burden under Penal Code §186.22 of proving a gang allegation could not be met, saying that “completely goes against the order” issued by Chalfant.
Guiterrez elaborated that she would present evidence that Delgado and Nava are “self-admitted gang members” but would not put the gang expert on the stand. She said he would have testified that those defendants “have numerous gang tattoos; that they did this crime, this murder, in association of that criminal street gang that they’re a part of.”
The judge commented:
“So basically, to use a metaphor, we’re going to round third and head to home but stop short?”
He went on to say:
“I’ve had other deputy district attorneys state at the beginning of the preliminary hearing that they would not be presenting gang evidence. You’re telling me that you’re going to present some gang evidence but not all of the gang evidence.”
She noted that she had not anticipated the matter coming up that day and asked for a recess so she could obtain guidance from her office. Richman permitted the break.
When court reconvened, the judge made note that the attorneys had put their materials in their brief cases, and was advised that all counsel had agreed to a continuance. Guiterrez explained that higher-ups in her office were not available.
“Because it’s Friday afternoon,” Richman observed.
Colloquy With Counsel
A discussion of another matter ensued, but then Richman returned the discussion to the matter of the gang allegation. This colloquy took place:
“THE COURT: [W]as there a motion to dismiss the gang allegation in this matter on a previous date?
“MS. GUTIERREZ: Yes. And it was not granted.
“THE COURT: That’s a polite way, or a lawyer way, of saying it was denied.
“MS. GUTIERREZ: Yes.
“THE COURT: Is that correct? So just thinking out loud, would failing to present gang evidence at that point be contempt of court?
“MS. GUTIERREZ: That is an issue that we are seeking clarification.”
Former Los Angeles County District Attorney Steve Cooley yesterday referred to the intentional failure to prove gang allegations as “game playing,” praising Richman for his resistance to it. He remarked:
“Deputy district attorneys who use those tactics would be well advised that achieving Gascón’s directions this way does not reflect well upon them.”
One senior deputy district attorney yesterday bemoaned the administration’s willingness to “use dubious methods to circumvent” the preliminary injunction.
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