Lawyer for Family of Murder Victim Points to Memo From District Attorney’s Office’s Division Saying Prosecutors Are Powerless to Block Transfer to Adult Court Where Court of Appeal Has Ordered Transfer Hearing
By a MetNews Staff Writer
A Los Angeles Superior Court commissioner will be asked at a hearing today to reconsider his order that a new dispositional hearing regarding an adult, who committed a killing when he was 16 and was convicted of second degree murder six years later, not be transferred to the criminal court, that request being based on a memorandum from a District Attorney Office unit which casts doubt on the validity of the order.
The memo indicates that where—as in the case in which the motion will be heard this morning in East Los Angeles—the Court of Appeal has ordered that a transfer hearing be conducted, a bench officer may not fail to abide by that direction simply based on the prosecution’s current position that the matter should stay in the Juvenile Court. Retention of the case there would, under current law, mean almost certain release of the killer.
Commissioner Benjamin Campos made his order on March 3, basing it on the prosecution’s withdrawal of the request for transfer that was made before George Gascón took office as Los Angeles County district attorney on Dec. 7. Under a “special directive” issued that day, no juveniles are to be tried as adults.
That was not one of the directives of which enforcement was barred by a preliminary injunction issued Feb. 8 by Los Angeles Superior Court Judge James Chalfant in response to an application by the Association of Deputy District Attorneys.
The Dordulian Law Group, representing the family of Sergio Guzman—slain in 2010 by Joseph Salazar, then 16, but 22 at the time of his trial and sentencing—has moved for reconsideration, pointing to the Writ and Appeals Division’s memo. That memo, dated March 2, was obtained by the family’s lawyers on March 12, the motion sets forth.
Salazar was charged by prosecutors in the criminal court, found guilty, and sentenced to 40 years to life in prison. The conviction was upheld by Div. Four of the Court of Appeal for this district on April 30, 2018, although there was a remand for the sole purpose of determining whether to strike a firearm allegation.
Orders were made in the Superior Court and appealed. The same Court of Appeal panel on Oct. 18, 2019, took cognizance of the California Supreme Court’s Feb. 1, 2018 decision in People v. Lara which holds retroactive the bar which Proposition 57—the “Public Safety and Rehabilitation Act of 2016”—places on juveniles being charged directly in adult court.
It requires, instead, that a judge sitting in the Juvenile Court be the person who shunts any such cases there.
The dispositional paragraph of the opinion, by Justice Thomas L. Willhite Jr., reads:
“The conviction and sentence are conditionally reversed and the matter is remanded to the juvenile court with directions to conduct a juvenile transfer hearing. If the juvenile court determines that it would have transferred appellant to a court of criminal (adult) jurisdiction, his conviction and sentence are to be reinstated. If the juvenile court finds that it would not have transferred appellant to a court of criminal jurisdiction, it shall treat his conviction as a juvenile adjudication and impose an appropriate disposition.”
If the sentencing disposition comes in the Juvenile Court, Salazar will in all probability be ordered released because the jurisdiction of that court ends when a person it has adjudged to be a delinquent reaches age 25, as Salazar has. There is a narrow exception, under Welfare and Institutions Code §1800, seemingly inapplicable to Salazar, where the inmate “would be physically dangerous to the public because of the person’s mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior.”
March 2 Memo
Writing in connection with the unrelated case of Jesse Silva, convicted of murder and attempted murder, the Writ and Appeals Division said:
“[I]t appears that the scope of the remittitur in this case was limited to conducting a transfer hearing. Because the remainder of the superior Court’s judgment remains in effect, it would appear that the only avenue for the case to remain in juvenile court would be for the juvenile court to hold the transfer hearing and find that the matter should remain in juvenile court for disposition.”
The request for reconsideration was drafted by Kathleen Cady of Glendale’s Dordulian Law Group. It includes this assertion (with the bold face appearing in the original):
“DA Gascon and his interim Chief Deputy’s unlawful conduct is appalling, unethical and violates crime victims’ rights. Unfortunately, this is just another example of their outrageous conduct. Their conduct is in direct contradiction to the primary duty of the prosecutor which is to ‘seek justice within the bounds of the law...The prosecutor should avoid an appearance of impropriety in performing the prosecution function.’ American Bar Association Standard 3-1.2 Functions and Duties of the Prosecutor.
“Instead of showing ethical and moral leadership. Gascon appears hell bent on dismantling the criminal justice system regardless of the legality of his policies, Gascon has shown that he will not change his policies unless directed to do so by a court.”
Cady’s Further Comments
Cady told the METNEWS:
“Gascon continues to flaunt his ethical obligation to seek justice. Although he swore an oath to represent the People of the State of California, he appears to only be interested in representing the accused and convicted people in the state of California, as he ignores victims and their constitutional rights. Gascon’s history of disregarding the sage advice of the exceptional career prosecutors who have experience and expertise in remittiturs is reprehensible.
“As stated in the LADA Writs and Appeals March 2, 2021 Memorandum, Gascon’s mandate that prosecutors ask the court to not follow the language of the remittitur is unlawful. Unfortunately it appears that Gascon will only change his policies when ordered to by a judge as has already occurred when Judge Chalfant found some of policies were unlawful.
“Prosecutors should never have to choose between following the law and exposing themselves to potential job retaliation or following the DA’s policy and violating the law.”
The motion by the family was originally set to be heard last Wednesday but was put over that day to today because the line prosecutor had not received a copy of the March 2 memo through official channels.
The case is People v. Salazar, FJ57052.
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