Metropolitan News-Enterprise


Friday, April 8, 2022


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C.A. Denies Gascón’s Plea to Limit Judges’ Reconsiderations

District Attorney Contends Judge Villeza Had No Power to Reinstate Sentence Allegations After Dismissing Them; Panel, Following Retransfer by S.C., Does Not Address Merits, Says Defendant Has Remedy Through Appeal


By a MetNews Staff Writer


The Court of Appeal for this district yesterday avoided the issue of whether a judge may reinstate dismissed special circumstances allegations and enhancements sua sponte, shunning a request by Los Angeles County District Attorney George Gascón to declare that no such power exists absent a motion for reconsideration by the prosecution, and despite an apparent desire by the state Supreme Court that the merits be addressed.

Gascón wrote to the court last Nov. 4 urging that the writ petition by Raymond Gonzalez, who is charged with two counts of murder, be granted.

Gonzales was charged in late 2019 while Jackie Lacey was district attorney. The information alleged as special circumstances that there were multiple murders and that the killings were committed during the perpetration of a robbery, and sought an enhancement based on gang participation.

Upon taking office as district attorney on Dec. 7, 2020, Gascón released several “special directives,” one of which compelled deputies to ask that all sentence-boosting allegations be dismissed in the interest of justice. The deputy who made the request in Gonzales’s case did not provide any information showing how justice would be served by Los Angeles Superior Court Judge Rob B. Villeza dismissing special circumstance and enhancement allegations, but the judge on Jan. 19, 2021, obliged.

On March 21, 2021, the victims’ families—represented by former Los Angeles County District Attorney Steve Cooley, former Deputy District Attorney Kathleen Cady, and Long Beach attorney Brentford Ferreira—moved for reconsideration. Villeza held that the family members had no standing, but reconsidered on his own motion, and reinstated the allegations.

Villeza’s Explanation

He explained that he erred in accepting Gascón’s position that, under the separation of powers doctrine, only the district attorney, not the court, may decide what is to be charged, and that he should have followed the command of Penal Code §1385 to determine whether, in fact, justice would be served by dismissing allegations. Villeza continued:

“If the prosecutor’s policy preferences alone were deemed sufficient to justify dismissal of an existing charge or enhancement, then section 1385 would not require the court to find that dismissal would be in furtherance of justice.

“In fact, as pointed out by the prosecutor in this case, and as established by the findings after preliminary hearing, the evidence described in the People’s motion amply supports the special circumstance and sentence enhancement allegations. The defendant is accused of shooting to death two men while they were sleeping, to steal money one of the victims collected in an insurance settlement. He then used the gun to carjack a mini-van to transport and dump the bodies in the desert. The People offer no mitigating facts or personal circumstances of the defendant to support the dismissal motion.”

Writ Relief Sought

Gonzales filed a writ petition; Div. Five of this district’s Court of Appeal summarily denied it; the defendant petitioned the California Supreme Court for review; the high court granted it and directed Div. Five to issue an order to show cause why relief should not be granted. Div. Five did so, and received briefing, including the letter from Gascón, drafted by Deputy District Attorney Tracey Whitney, and an amicus brief from the victims’ family members.

In the letter, Gascón argued:

“The trial court’s action of reviving the dismissed sentencing allegations was an act in excess of its jurisdiction that: (1) violated section [Penal Code] §1009. which grants the People, and not the courts, broad discretion to file and amend criminal charging documents; (2) violated the constitutional doctrine of separation of powers by intruding into the crime charging discretion of the prosecution…, and also (3) violated appellate case law interpreting these provisions.

He asked that the appeals court “remand the matter to the trial court and order that the trial court reinstate its original order dismissing the sentencing allegations here.”

Baker’s Opinion

Writing for Div. Five, Justice Lamar Baker said:

“Here, petitioner has not shown he lacks an adequate remedy by way of appeal, particularly because District Attorney Gascón is repeatedly on record (including in this appeal) as supporting his request for relief. We consider the two possible scenarios that would transpire if we denied relief: (1) petitioner is tried on the information, including the reinstated allegations: or (2) petitioner wishes to enter a plea of guilty (or no contest) to avoid a trial on the merits.”

He continued:

“If the case proceeds to trial, petitioner has an adequate remedy by way of appeal. The District Attorney is entrusted with authority to determine what evidence to offer during its case-in- chief, and if the District Attorney offers no evidence in support of the challenged enhancements (including by way of a stipulated facts trial or a concession that the enhancements should not be found true), they in all probability will either be stricken as a result of a defense motion at the close of the prosecution’s case or found not true by the factfinder. In the unlikely event that neither happens and the factfinder does conclude the enhancements have been proven, an appeal is still fully adequate to test either whether the trial court erred in reinstating the enhancement allegations in the first place, or whether sufficient evidence was presented to justify their imposition.”

“Turning to the scenario where petitioner wishes to enter a guilty plea, an appeal would be almost certainly unnecessary (and still provide a fully adequate remedy if required).”

Supreme Court’s Expectation

Addressing whether the Supreme Court, in retransferring the case, intended that there be a decision on the merits, Baker said:

“[W]e understand our Supreme Court’s grant and transfer order to require us to follow additional procedures to ensure we have given the matter careful consideration. That we have done. We recognize our Supreme Court always retains the prerogative to grant review and issue its own opinion, but unless and until we have such guidance, we respectfully submit our disposition of this proceeding is the correct one.”

Cooley commented yesterday:

“It is amazing how much work the system has to go through to keep Gascón from his intentional miscarriages of justice! He truly has no regard whatsoever for crime victims.”

Cady said:

“The families of Bobby Ryan and Jacob Dominguez are grateful for the Court of Appeal decision. They have been devastated by Gascón’s policies and his office joining with the defense in attempting to dismiss legally filed allegations without any legal justification. The families remain committed to getting justice for Jacob and Bobby’s murders.”

The case is Gonzalez v. Superior Court, B313730.


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