Metropolitan News-Enterprise


Wednesday, January 20, 2021


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D.A. Gascón Disclaims Duty, Under Statutes, to Allege Priors

Contradicting Previous Assertions That Three Strikes Law Mandates Pleading of Prior Serious or Violent Felonies, And That Such a Command Is Unconstitutional, He Now Says the Statutes Erect No Binding Requirements


By a MetNews Staff Writer


Los Angeles County District Attorney George Gascón, battling to stave off the humiliation of a court decision proclaiming unlawful his edict on Day One of his administration that no prior convictions are to be alleged under the Three Strikes Law, has contended in opposition to the Association of Deputy District Attorneys’ application for a preliminary injunction that the word “shall” in the relevant statutes does not create a mandatory duty.

“[T]here is no mandatory duty to allege every single eligible prior conviction in the charging instrument,” Gascón declared in his opposition, filed on Friday, adding:

“The prosecutor has discretion to choose how many—if any—prior convictions to allege.”

Gascón previously took the stance that the Legislature acted unconstitutionally in mandating, in Penal Code §§ 667 and 1170.12, that prosecutors allege every prior conviction for a serious or violent felony, so as to boost the sentence, under the Three Strikes Law, for a new offense, insisting that the statutes transgress the separation of powers doctrine. But in the opposition, he said that these statutes do not have the effect he previously ascribed to them, saying they are permissive, only.

The opposition questions the standing of the ADDA, a union, to challenge the district attorney’s policies and asserts that a preliminary injunction, which he said would disturb rather than preserve the status quo, would be inappropriate, for that and other reasons.

Statutes, Case Law

Neither the two statutes in issue nor case law requires the alleging of priors, Gascón maintained, in an opposition memorandum signed by Robert E. Dugdale of the Century City law firm of Kendall Brill & Kelly, LLP.

Penal Code §667(f) provides in ¶(1) that “[t]he prosecuting attorney shall plead and prove each prior serious or violent felony conviction” except as set forth in ¶(2); that paragraph says that the prosecutor “may move to dismiss or strike a prior serious 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 or violent felony conviction.”

Sec. 1170.12 contains identical language in subd. (d), ¶(1) and ¶(2).

A judge may permit the withdrawal of enhancement allegations, under §1385, upon a finding that it would be in “furtherance of justice.”

Dec. 7 Directives

Gascón, who was sworn in on Dec. 7, issued nine “special directives” that day, the most controversial of which is No. 20-08, ordering:

“[S]entence 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.”

It instructs:

“At the first court hearing after this policy takes effect. DDAs are instructed to orally amend the charging document to dismiss or withdraw any enhancement or allegation outlined in this document.”

Special Directive 20-14, of the same date, announces that the office will “join in the Defendant’s motion to strike all alleged sentence enhancements” or will itself “move to dismiss all alleged sentence enhancement(s) named in the information for all counts.”

Changes Made

On Dec. 15, Gascón issued a “Clarification of Special Directive 20-08.” It provides a script for deputies to follow in moving for the elimination of enhancement allegations, which includes this language:

 “The California Constitution and State Supreme Court precedent…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.”

Where a judge denies a motion under §1385, deputies are told by the Dec. 15 directive to seek to file an amended pleading, and if that is disallowed, a report is to be made to the head deputy. One judge who did not adhere to Gascón’s policies was targeted for a blanket “papering”—being the subject of a peremptory challenges in every case—but a widespread adverse reaction prompted Gascón to back down on what was seen as a planned quest to intimidate bench officers to gain their compliance with his program.

Special Directive 20-08 was amended on Dec. 18. Gascón acquiesced to the extent of authorizing some enhancements to be alleged—“in cases involving the most vulnerable victims and in specified extraordinary circumstances”—while specifying that “this Office will not pursue prior strike enhancements, gang enhancements, special circumstances enhancements, out on bail/O.R. enhancements,” or use-of-gun enhancements.

ADDA’s Petition

The ADDA on Dec. 30 filed a petition for a writ or prohibition or mandate and for declaratory and injunctive relief. A hearing on the application for a preliminary injunction is slated for Feb. 2.

 The petition quotes the Sept. 6, 2001 Court of Appeal opinion from this district’s Div. Five in People v. Roman as saying that the Three Strikes Law “requires the prosecutor to plead and prove each prior serious felony conviction.” For that proposition, the court cited §1170.12(d)(2), which uses the word “shall.”

The ADDA said:

“Accordingly, prosecutors have a ministerial duty to allege all prior convictions under the Three Strikes Law.”

In his opposition to the issuance of a preliminary injunction, Gascón also addressed the requested writ relief, and in the course of that discussion, took his new position that the statutes do not command a charging of all strikes. He argued that charging decisions are necessarily discretionary, reciting that a writ of mandate will only issue to command the performance of a ministerial duty.

The district attorney portrayed the ADDA as claiming “that the Three Strikes Law creates an exception to this general rule, and it imposes a ministerial duty on District Attorneys’ offices to plead each prior-serious-felony ‘strike’ as a sentencing enhancement every time the District Attorney’s office brings a prosecution where the Three Strikes Law might apply.” It scoffed: “The Union is wrong.”

He insisted:

“The Penal Code must be construed against the Constitutional importance of the separation of powers and the backdrop of statutes—including many which use the word ‘shall’—that preserve prosecutorial discretion. The word ‘shall’ does not, in and of itself, make a duty ministerial….

“Indeed, courts have consistently held that various criminal statutes that use the word ‘shall’ do not impose on prosecutors a mandatory duty to charge a particular crime.”

No Cases

The district attorney added:

“Critically, no published decision has ever concluded the Three Strikes Law imposes purely ‘ministerial’ duties on prosecutors to ‘plead and prove’ every single potentially available prior felony conviction as a sentencing enhancement.”

Without delineating what limits there are to his power to seek the vacating of enhancement allegations, he observed that cases which found boundaries to prosecutorial discretion relating to strikes entail circumstances where the decision to include allegations had already been made. Gascón said that Roman, cited by the ADDA, did not analyze “the effect of the Three Strikes Law on the ability of a prosecutor to opt to plead sentencing enhancements in the first place.”

In Roman, a man who had been sentenced under the Three Strikes Law while Gil Garcetti was Los Angeles County district attorney, appealed from the denial of a writ of habeas corpus by which he claimed entitlement to the benefit of the liberalized charging policy of the new district attorney, Steve Cooley.

Jan. 8 Opinion

Gascón also noted the not-yet-final Jan. 8 Court of Appeal decision by this district’s Court of Appeal Div. One in People v. Laanui. The majority, in an opinion by Justice Helen I. Bendix, said that Los Angeles Superior Court Judge Edmund Willcox Clarke Jr. properly doubled the sentence of the appellant on a count although a strike had not been alleged as to that count where it had been alleged as to other counts.

The majority and the concurring and dissenting justice, Victoria Chaney, were in agreement that charging all priors is obligatory. As Chaney put it: “[A] prosecutor has no discretion to not plead Three Strikes enhancements.”

In his opposition, Gascón remarked that the court in Laanui “noted that the Three Strikes Law could be read to imply conclusions about procedure once a sentencing enhancement was pled, but it said nothing about the prosecutor’s discretion to choose to allege a strike as a sentencing enhancement in the first place.”

1996 Decision

The case primarily relied on by the ADDA is People v. Kilborn. Yesterday marked 25 years since it was decided by Div. Four of this district’s Court of Appeal.

Then-Presiding Justice Norman Epstein (now retired) wrote:

“The three strikes law requires the prosecutor to plead and prove all prior serious and violent felony convictions….Appellant argues that this statutory command violates the constitutional principle of separation of powers….It does so, he argues, because the requirement that the prosecutor plead and prove all qualifying prior convictions usurps the discretion of prosecutors to decide what to prosecute, an executive function that cannot be limited by statute.

“The validity of appellant’s argument is dependent on the proposition that the charging discretion of prosecutors cannot be limited by law. Appellant cites no authority for that proposition, and we have found none.”

Epstein went on to say:

“The district attorney acts as a state officer when prosecuting crimes….The authority of the office derives from statute….

“The provision in the three strikes law requiring the prosecutor to allege and prove prior serious felony offenses is not unlike other laws requiring that officer to act….It… is similar to statutory provisions restricting the discretionary authority of prosecutors (and courts) to enter plea bargains.”

Differentiating that case, Gascón’s opposition says:

Kilborn found (correctly) that the Three Strikes Law could constitutionally ‘limit’ prosecutorial discretion, but it never addressed, at all, the issue of whether the Three Strikes Law had to be interpreted as the Union urges here, to remove all prosecutorial discretion from the decision to plead Three Strikes Law sentencing enhancements in the first place.”

The opposition questions the propriety of an issuance of a preliminary injunction, asserting that the prerequisites—maintaining the status quo, preventing irreparable injury, and fostering the public interest—are absent.

Gascón charged that “a preliminary injunction would upset the status quo, since under long-standing law and practice, the District Attorney” of Los Angeles County “and other district attorneys throughout California have exercised enormous discretion in charging or not charging sentencing enhancements, including under the Three Strikes Law.” He ridiculed the ADDA’s attempt to show irreparable injury if there is not an immediate halt to implementation of the policies, spotlighting a declaration by ADDA President Michele Hanisee that some judges have “scolded” deputies for seeking a retraction of enhancement allegations where there was no basis for doing so other than adherence to Gascón’s edict, saying:

“[E]nduring such ‘scolding’ is not an irreparable injury, as judges disagreeing with positions taken by a District Attorney’s office is an ordinary circumstance of a prosecutor’s job—not a cognizable ‘irreparable’ injury.”

He added:

“A preliminary injunction further would not be in the public interest, since it would interfere with the will of the more than two million County voters who recently elected the District Attorney, and it would impose undue and unwarranted costs on the administration of justice and criminal defendants.”

Popular Will

Both sides in the dispute assert that the opposite faction is seeking to ignore the voice of the people.

The ADDA’s petition says that Gascón “may not ignore, but must enforce, California’s mandatory sentencing enhancement laws,” noting that they “were adopted by California voters or elected legislators, then signed into law by the governor, and then tested and found constitutional by the judiciary,” and commenting:

“Such democratically-enacted mandates overcome Respondent Gascon’s personally-held—and legally-irrelevant—views about the wisdom or constitutionality of California’s mandatory sentencing enhancement laws.”

Gascón’s opposition counters:

“The District Attorney campaigned as someone who, upon assuming office, would institute criminal justice reforms designed to reduce violent crime, while at the same time addressing the problems of mass incarceration and racial disparities currently present in the criminal justice system. True to the election mandate he received, the District Attorney issued several new office policies now challenged by some of his unelected subordinates….”

ADDA’s Standing

The opposition also disputes the ADDA’s standing in the matter.

“That a union may have the status of a ‘bargaining unit’ does not mean it may challenge policy determinations like the Directives,” it says. “By law, the Union’s scope of representation is limited to matters such as wages, hours, and terms and conditions of employment—not policies.”

Under the ADDA’s collective-bargaining agreement with the county, the opposition says, there is no indication that representation of duties extends to seeking to topple policy determinations by the head office.

In any event, the opposition continues, the memorandum of understanding requires “a grievance to be initiated within 10 days of occurrence,” noting that “no grievance was pursued here,” and reasoning that the ADDA’s asserted failure to exhaust administrative remedies “divests a court of its subject-matter jurisdiction.”

Also on Friday, a group of 65 former and current prosecutors from across the nation—including former Los Angeles County District Attorneys Gil Garcetti and Ira Reiner—filed an application for permission to file an amicus curiae brief in support of Gascón. Representing the prosecutors are Michael Romano, director of the Three Strikes Project at Stanford Law School, and Erwin Chemerinsky, dean of the UC Berkeley School of Law.

The proposed brief says:

“We are deeply troubled by the attempt by the Association of Deputy District Attorneys for Los Angeles County to usurp the power of the elected district attorney and use the courts to override the lawful, discretionary policy decisions of an official, chosen by the voters of Los Angeles, to transform the criminal justice system in that community.”


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