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Court of Appeal:
Gascón’s Special Directives Are Partially Unenforceable
Segal Says Prosecution May Be Compelled to Plead Priors, but Not to Prove Them; Rejects Contention by District Attorney That He Has Unfettered Discretion in Determining What to Charge or Not
By a MetNews Staff Writer
The Court of Appeal for this district yesterday upheld portions of a preliminary injunction barring enforcement of some of the special directives issued by Los Angeles County District Attorney George Gascón on Dec. 7, 2000, the day he was sworn into office.
Penal Code §667’s command that the prosecution “plead and prove each prior serious or violent felony” unless an allegation is dismissed “in furtherance of justice” is valid insofar as it requires a pleading, Div. Seven declared in an opinion by Justice John L. Segal—finding Gascón’s contrary directive to be unenforceable—but said that the prosecution cannot be compelled to “prove” the allegations.
“The district attorney’s blanket policy not to plead prior strikes except in limited circumstances ‘completely frustrate[s]’ the purpose and mandate of the three strikes law,” he said. But Segal went on to find that “the decision whether to ‘prove’ a prior strike allegation or move to dismiss or strike it is discretionary.”
The dispositional paragraph reads:
“The portion of the preliminary injunction enjoining the district attorney’s direction to deputy district attorneys not to plead prior serious or violent felony convictions under the three strikes law is affirmed. The portion of the preliminary injunction enjoining the district attorney’s direction to deputy district attorneys to move to dismiss or withdraw special circumstances allegations that, if proven, would result in a sentence of life without the possibility of parole, as well as the direction not to use proven special circumstances for sentencing, is also affirmed. The other portions of the preliminary injunction are reversed. The trial court is directed to enter a new order limited to this preliminary relief.”
Not ‘Sovereign’
Rejecting Gascón’s position that he has absolute discretion to decide what to charge or not charge, not subject to being countermanded by the courts, Segal said:
“The district attorney overstates his authority. He is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion.”
In a separate opinion, Div. Seven held that that a judge, in ruling on a motion to dismiss enhancements “in furtherance of justice” under Penal Code §1385, must consider, but need not defer to, Gascón’s policy mandating such motions. In granting a petition for a writ of mandate sought by former Torrance police officer Rehan Nazir, who is charged with kidnapping, false imprisonment, and grand theft, Segal said:
“We agree with Nazir and the People that the trial court misunderstood the scope of its discretion under section 1385 when it refused to consider the district attorney’s new policy, but we disagree with the People that the trial court lacked discretion to deny a motion by the People to dismiss enhancements pursuant to that policy.”
ADDA Suit
The action to block enforcement of some of the special directives was brought by the Association of Deputy District Attorneys (“ADDA”), a hybrid union/professional association. Segal said the ADDA has “associational standing to seek relief on behalf of its members,” rejecting Gascón’s contrary contention.
Addressing the merits, Segal said:
“[W]e conclude the voters and the Legislature created a duty, enforceable in mandamus, that requires prosecutors to plead prior serious or violent felony convictions to ensure the alternative sentencing scheme created by the three strikes law applies to repeat offenders. This duty does not violate the separation of powers doctrine by materially infringing on a prosecutors charging discretion; to the contrary, the duty affirms the voters’ and the Legislature’s authority to prescribe more severe punishment for certain recidivists. But we also conclude neither the voters nor the Legislature can create a duty enforceable in mandamus to require a prosecutor to prove allegations of prior serious or violent felony convictions, an inherently and immanently discretionary act.” The justice continued: “Nor, we conclude, is mandamus available to compel a prosecutor to exercise his or her discretion in a particular way when moving to dismiss allegations of prior strikes or sentence enhancements under section 1385 or when seeking leave to amend a charging document.”
Eric Siddall, vice president of the ADDA, commented:
“Today, the judiciary affirmed the rule of law. Mr. Gascon’s authority is not absolute. He must follow the rules. While we are heartened by the Court’s ruling, we continue to be disappointed that Los Angeles’s chief prosecutor forced his own employees to take him to court to stop him from breaking the law.”
The case is The Association of Deputy District Attorneys for Los Angeles County v. Gascón, B310845.
Firearms Enhancements
In Nazir’s case, Segal said:
“[W]e conclude section 1385 does not preclude a trial court from considering a district attorney’s policy in ruling on a motion to dismiss a firearm enhancement under section 12022.5 or 12022.53 in furtherance of justice.
Sec. 1385 provides that “the court shall dismiss an enhancement if it is in the furtherance of justice to do so.” §12022.5(c), pertaining specifically to firearms allegations, says that “[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section” and §12022.53(h) repeats that language.
Gascón’s Special Directive 20 08 says that “sentence enhancements or other sentencing allegations...shall not be filed in any cases and shall be withdrawn in pending matters.”
Los Angeles Superior Court Judge Lee W. Tsao declined to consider Gascón’s special directive in denying Nazir’s motion and, a week later, denying permission to replead.
Discretion Misunderstood
Finding error, Segal wrote:
“The trial court misunderstood the scope of its discretion when it refused to consider Special Directive 20-08 in determining whether to grant the motion to dismiss the firearm enhancements alleged against Nazir. Special Directive 20-08 states that the district attorney’s new policy was based on research showing that existing sentence enhancements do not deter crime or reduce recidivism, which are objectives of the criminal justice system a court may consider in determining whether to impose a firearm enhancement under section 12022.5 or 12022.53, and thus are relevant to determining whether to dismiss an enhancement.”
He added, however:
“Contrary to the position of the district attorney, however, a prosecutor’s motion to dismiss an enhancement under section 1385 is not ‘a constitutionally protected exercise of prosecutorial discretion,’ and the trial court may deny such a motion….[O]nce a district attorney files charges and invokes the court’s jurisdiction, only the court, not the district attorney, can dismiss an action or enhancement under section 1385.”
The Superior Court was ordered to conduct a new hearing to determine if the firearms enhancements should be stricken, specifying that “[i]n so doing, the court must consider Special Directive 20-08, among other factors, in determining whether dismissing the firearm enhancements is in furtherance of justice.”
The case is Nazir v. Superior Court, 2022 S.O.S. 2375.
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