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S.C. Denies Review in Challenge to Order by Judge Reinstating Sentence Allegations
Declines to Decide If Motion by Prosecution Is Requisite for Reconsidering Order Dismissing
Special Circumstances Allegations and Enhancements, As Asserted by Gascón
By a MetNews Staff Writer
The California Supreme Court yesterday denied review in a case raising the issue of whether a judge properly reinstated special circumstances allegations and enhancements on his own motion or whether, as Los Angeles County District Attorney George Gascón asserts, such an action can be taken only if the prosecution moves for reconsideration.
Los Angeles Superior Court Judge Rob B. Villeza initially acceded in January, 2021 to a request by a deputy district attorney, pursuant to a special directive to deputies issued by Gascón the previous month, on the day he took office, to drop all special circumstances and sentencing-enhancement allegations in cases filed under the former district attorney, Jackie Lacey (and not to include such allegations in future filings). The request was granted in the case of Raymond Gonzalez, charged with two counts of murder.
On March 21, 2021, a motion for reconsideration was made by former Los Angeles County District Attorney Steve Cooley, former Deputy District Attorney Kathleen Cady, and Long Beach attorney Brentford Ferreira, representing the families of the victims. The family members, Villeza held on May 24, 2021, lacked standing to make such a motion, but acted sua sponte, reinstating the allegations.
Villeza’s Explanation
Villeza explained that he was initially persuaded by Gascón’s position that under separation of powers, it’s the sole prerogative of the district attorney to decide what it is to be charged. But, he said, on reflection, he accepted the position set forth by the victims’ rights lawyers that under Penal Code §1385, the court may only order dismissal if it is able to make a finding that this is “in furtherance of justice.”
He said:
“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.”
High Court’s Direction
Gonzales filed a writ petition which Div. Five summarily denied on Aug. 6, 2021. The California Supreme Court on Oct. 13 granted review and retransferred the case to Div. Five “with directions to vacate its order denying mandate and to issue an order directing the respondent superior court to show cause why the relief sought in the petition should not be granted.”
Rather than following the instructions, Div. Five on April 7 denied the writ, explaining in an opinion by Justice Lamar Baker that Gonzales has an adequate remedy in the form of an appeal if he’s convicted. Baker said:
“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.”
Gascón’s Postition
In resolving the matter without reaching the merits, the court rejected the position taken by Gascón, expressed in a letter to the panel. The district attorney 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 urged that Div. Five “remand the matter to the trial court and order that the trial court reinstate its original order dismissing the sentencing allegations here.”
In light of yesterday’s denial of review, Villeza’s order stands; however, under a June 2 Court of Appeal decision by Justice John L. Segal of this district’s Div. Eight, the “decision whether to ‘prove’ a prior strike allegation…is discretionary.”
Segal’s opinion in Association of Deputy District Attorneys v. Gascón affirms a preliminary injunction barring enforcement of Gascón’s directive not to plead prior convictions (and other aspects of the order) but says that, notwithstanding the command of Penal Code §667(f)(1) to “prove” the priors, the “Legislature cannot require a prosecutor to prove anything in the abstract or, for that matter, anything at all.”
Copyright 2022, Metropolitan News Company