Metropolitan News-Enterprise


Tuesday, February 9, 2021


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Judge Determines Some of Gascón’s Edicts Are ‘Unlawful’

In Ordering Issuance of a Preliminary Injunction, Chalfant Grants ADDA Most of the Relief It Seeks, Declares District Attorney’s Policy Against Alleging Strikes Contravenes Two Statutes, Five Courts of Appeal Opinions


By a MetNews Staff Writer


Los Angeles Superior Court Judge James Chalfant yesterday declared that the Association of Deputy District Attorneys’ bid for a preliminary injunction to block implementation of certain “special directives” issued by District Attorney George Gascón “is granted in large part,” finding some of the policies are “unlawful.”

The judge ruled that that Gascón’s fiat on Dec. 7, his first day in office, that no priors are to be alleged for purpose of the Three Strikes Law violates the command of two Penal Code sections that all strikes are to be “pled and proved,” a requirement that has been upheld, he noted, in five Court of Appeal decisions. He also held that Gascón’s edict that deputies are to move to vacate all strike allegations and other allegations aimed at sentence-boosting, pled while Jackie Lacey was district attorney, is invalid where there is no legal cause to do so.

Spurning the embattled chief prosecutor’s contention that a court cannot tell a public official how to carry out the duties of office, Chalfant said in his 46-page decision:

“The District Attorney’s disregard of the Three Strikes ‘plead and prove’ requirement is unlawful, as is requiring deputy district attorneys to seek dismissal of pending sentencing enhancements without a lawful basis. An injunction against a public official’s unlawful actions cannot, by definition, interfere with the lawful exercise of the official’s duties.”

Deputies cannot validly be ordered to move for an order striking existing strike allegation where neither requisite of Penal Code §1385—that it be in “furtherance of justice” or the strike can’t be proven—is met, Chalfant said.

“[A] deputy district attorney may not move to strike an existing prior based on Office policy and must have a legal ground to do so,” he set forth.

Wording of Decision

Chalfant said in his decision:

“On December 7, 2020, when Gascón assumed the Office, he attempted to uproot the long-standing system of sentencing enhancements, including the Three Strikes law for prior convictions. Legislating by fiat, Respondent Gascón issued a series of special directives that all but repealed California’s sentencing enhancement laws and commanded his employees—Los Angeles County…prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law.”

He elaborated:

“Portions of the Special Directives prohibit deputy district attorneys from complying with their ministerial prosecutorial duties in violation of the law, their oaths of office, and their ethical responsibilities as officers of the court….The unlawful conduct includes barring deputy district attorneys from charging enhancements they statutorily are obligated to charge, barring deputy district attorneys from complying with their ministerial duty to exercise case-by-case discretion to maintain or move to dismiss charges, mandating that deputy district attorneys move to dismiss special circumstance allegations that cannot be dismissed by law, and mandating that deputy district attorneys attempt to unilaterally abandon a prosecution where a judge denied a motion to dismiss….Deputy district attorneys risk contempt of court or discipline by the State Bar each time they undertake this conduct.”

Other Sentencing Allegations

Gascón’s Dec. 7 decree on what to allege in pleadings forbade not only the mention of strikes, but barred the inclusion of any “sentence enhancements or other sentencing allegations.” Faced with a backlash, the district attorney on Dec. 18 relented, to an extent, announcing that while “this Office will not pursue prior strike enhancements, gang enhancements, special circumstances enhancements, out on bail/O.R. enhancements, or [firearms] enhancements,” he would “allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances.”

To the extent a blanket policy was still in effect, which precluded case-by-case charging decisions, the ADDA sought an order barring enforcement of that policy. However, Chalfant declined to oblige, at the present time, saying:

“At the preliminary injunction stage, the court is unwilling to conclude that a blanket policy against sentencing enhancements is not an exercise of discretion because that discretion must be made on a case-by-case basis.”

One prosecutor commented:

“As for new filings, it looks like as of now, Gascon can file cases without the special circ allegations, and without the [great bodily injury], gun, gang and other enhancements. This will decrease the number and types of convictions that will qualify as future strike priors.”

The prosecutor that, for example, “if a defendant breaks a spouse’s bones” and a charge is filed under Penal Code §273.5 alleging a corporal injury of a spouse or cohabitant, but there is no allegation under §12022.7 of a great bodily injury—which would require an additional three-year sentence—“that conviction will not qualify as a strike prior in the future.”

A strike, under Penal Code §667(e), is a “prior serious or violent felony conviction.”

The deputy remarked:

“I guess we have won a battle, but by no means have we won the war for victims.”

Required Script

The ADDA also contests Gascón’s mandate that deputies, in moving to vacate enhancement allegations, read into the record, from a script, a statement that any statutory restriction placed on a district attorney as to what to allege in a pleading is a legislative intrusion upon the prerogative of an officer of the Executive Branch. The union/professional association argued that in light of case law upholding the requirement of alleging strikes, the district attorney is ordering deputies to violate their statutory duty not to seek to mislead the court, as they would be doing, it reasons, by putting forth judicially repudiated contentions.

Chalfant partially agreed with the ADDA.

He pointed out that the California Supreme Court in its 1996 decision in People v. Superior Court (Romero), acknowledged but did not decide the separation-of-powers issue. However, the Court of Appeal for this district, in People v. Kilborn, decided earlier that year, did consider, and rejected, a challenge to the “plead and prove” requirement.

‘No Constitutional Concern’

He said that “Kilborn… adopts the question left open by Romero and held that, while prosecutorial discretion is generally unfettered, there is no constitutional concern in requiring a prosecutor to plead and prove strike priors because he or she has discretion to move to strike under section 1385.”

The judge recited that four subsequent published Court of Appeal opinions “expressly…held…that prosecutors have a duty to plead and prove strike priors under the Three Strikes law,” and two of them “held that this requirement is not an unconstitutional intrusion into prosecutorial discretion.”

However, he went on to say, that doesn’t mean that Gascón can’t require deputies to put forth the office’s position that the five cases were wrongly decided, in light of the California Supreme Court not having spoken on the constitutional issue. What Gascón may not do, he added is to order deputies to give the court only part of the relevant information, saying:

“Plainly, Kilborn and other appellate cases must be cited to the court if the constitutionality of the pleading and prove requirement of the Three Strikes law is at issue.”

ADDA’s Standing

Gascón argued that the ADDA lacks standing. Chalfant rejected the contention.

“Under the doctrine of associational standing, an association that does not have standing in its own right may bring suit on behalf of its members,” he said, explaining:

“ADDA’s challenge is not to the District Attorney’s managerial policies, but to the working conditions for its members resulting from those policies. Many or all of ADDA’s members would have individual standing to raise these issues and ADDA therefore has associational standing.”

Chalfant added that “[b]ecause ADDA is seeking to prevent the District Attorney from forcing his deputy district attorneys from violating the law…, “ADDA has public interest standing.”

He said a preliminary injunction is proper because the ADDA “has shown a probability of success” as to several of its points.

Call for Recall

Former Los Angeles County District Attorney Steve Cooley told the METNEWS:

“Judge Chalfant’s decision is to be lauded for its great attention to the fine points of the law and his sensitivity to the serious ethical problems created for Deputy DAs by Gascón’s directives. That being said, there is only one ultimate solution to the public safety threat posed by Gascón and that is Gascón’s recall. The website for the recall effort is”

 Fresno District Attorney Lisa Smittcamp issued this statement:

“Today Judge Chalfant stood up to George Gascon and his illegal directives that seek to threaten the safety of the people of Los Angeles County, and all residents of California. Gascon is not a criminal justice reformer. He is an anarchist. He is a rogue that is disguising himself as a District Attorney.

“He isn’t in office to promote public safety, to assist victims of crime, and to help keep children out of gangs. He is there to push an agenda that protects violent gang members, career criminals, and those who have a reckless disregard for human life. Today, I salute Los Angeles County Superior Court Judge Chalfant for ordering George Gascon to abide by the law.”

ADDA’s Comment

The ADDA said in a statement yesterday:

“The court ruled as we expected in holding that the District Attorney cannot order his prosecutors to ignore laws that protect the public from repeat offenders. As detailed in our reply brief, the court ruled that the District Attorney’s policy violated the law to benefit criminal defendants and ordered him to comply with the law. This ruling protects the communities which are disproportionately affected by higher crime rates and those who are victimized.

“The District Attorney, as is his right, may choose to appeal the court’s decision, and we respect that. However, as the court ruling makes clear, this decision was based on what the law is and not what an officeholder thinks it should be. We want to thank the many other elected District Attorneys that shared our concerns and strongly supported the litigation that could not be avoided. We continue to respect the District Attorney, and we look forward to working with him and his Administration in furtherance of the interests of justice and our membership.”

Gascón, as of press time, had issued no statement.


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