District Attorney Seeks Ruling on His Contention That Lawmakers May Not Constitutionally Interfere With
Discretion of Prosecutors, As Members of Executive Branch, in Determining What Charges Are Filed
By a MetNews Staff Writer
The Association of Deputy District Attorneys on Friday lambasted District Attorney George Gascón for his action in seeking review in the California Supreme Court of a June 2 decision of the Court of Appeal for this district upholding a preliminary injunction that bars enforcement of his “special directive” that deputies plead prior convictions for purposes of bringing a defendant under the three-strikes law.
The 800-plus-member ADDA, in a statement, quoted the comment by Justice John L. Segal of Div. Seven that Gascón “is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion.” The ADDA remarked that Gascón “obviously disagrees with that basic premise.”
At issue is Gascón’s stance that Penal Code §1385—which requires that the prosecution “plead and prove” priors for three-strikes purposes—violates the separation-of-powers doctrine through a legislative interference with the prerogative of district attorneys, as executive officers, in determining what charges to bring. Segal’s opinion affirms the Feb. 8 preliminary injunction issued by Superior Court Judge James Chalfant to the extent that it blocks enforcement of the directive not to allege priors, but countermands Chalfant’s determination that the statute validly requires prosecutors to “prove” the allegations.
A petition for review was filed last Tuesday by Stephanie Yonekura, a partner in the Century City law firm of Hogan Lovells US LLP, on behalf of Gascón and the District Attorney’s Office. Gascón’s office late Thursday announced that it was “appealing the Court of Appeals ruling,” asserting that Div. Seven’s decision “sets a dangerous precedent.”
“The Court is effectively taking the charging decision out of the prosecutor’s hands—the core function of a prosecutor’s office. The decision also forces prosecutors around California to ignore important research that shows longer prison sentences do not lead to increased public safety and to ignore the unique factors of each individual case that militate against using strikes.”
The statement criticizes the three-strikes law, insisting that longer sentences do not serve the public’s interests, and asserts:
“District Attorney Gascon is now taking the fight for fairness and rationality in prosecution to the California Supreme Court. Under the California Constitution, prosecutorial power—and thus, prosecutorial discretion—belongs exclusively to the executive branch, and therefore, to the prosecutor’s office.
“The Constitution further delegates to district attorneys the power to decide whether to institute criminal proceedings within their respective jurisdictions. That discretion includes the power to determine what charges to bring, and which sentencing enhancements to allege. Courts cannot take that power away.”
The ADDA scoffed that Gascón “is convinced that the rule of law doesn’t apply to him,” arguing:
“He demands the unprecedented authority to act as both the executive and the legislative branch. He believes his election is a mandate from the voters that vests him with unlimited power to impose his personal ideology, even when doing so means disregarding the will of the voters, the legislators, and the governor who enacted the three strikes laws.
“He insists on treating first time offenders and repeat offenders the same. Yet the “science and data” on which he relies dissolves under basic scrutiny.
“The public should recall that he ran on the promise that his policies would deliver safer communities. Now he denies responsibility for the rising crime that is affecting all our communities.”
An ADDA plebiscite in February showed that 97.9 percent of the members voting—with 83.3 percent of them doing so—favored the recall of Gascón. The county Office of Registrar-Recorder is presently ascertaining if there is a sufficient number of valid signatures on petitions that have been submitted to order a recall election.
Also on Friday, the ADDA posted on its website an article by former a deputy district attorney, Kathleen Cady, slamming Gascón for a new policy under which victims are no longer informed of upcoming parole hearings for those who committed crimes against them or killed a member of their family. Cady noted that Art. I, §28(b)(15) of the California Constitution accords victims the right “to be informed of all parole procedures, to participate in the parole process, [and] to provide information to the parole authority to be considered before the parole of the offender.”
The victims’ rights lawyer pointed out:
“On December 7, 2020, Gascon issued a policy that prohibited prosecutors from attending parole hearings. The result of this policy is that no one is present at parole hearings to represent the interests of the residents of Los Angeles County. Gascon’s written policy did state, ‘this Office will continue to meet its obligation to notify and advise victims under California law, and is committed to a process of healing and restorative justice for all victims.’ ”
The decision to cease notifying victims was reflected in a July 9 email from Diana Teran, Gascón’s director of prosecution support operations, sent to Jennifer P. Shaffer, executive officer of the Board of Parole Hearings, noting the policy “not to have our prosecutors attend parole hearings” and saying that “it would be prudent to stop sending the information to our office” on the scheduling of hearings.
Cady contended that Gascón is determined “to release as many murderers, child molesters and rapists as possible from prison,” observing that “[k]eeping victims informed and protecting the people of California and victims’ rights just seems to get in the way.”
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