Sentence Enhancements and Prosecutor Discretion

The just punishment for a crime depends primarily on two factors: what the defendant did and what he has done before. The first step is determining what crime the defendant committed. One problem is that the crimes defined by statutes typically cover a broad range of conduct, and two defendants convicted of the same crime may have very different levels of culpability. Dividing crimes into degrees helps, but only up to a point. Another problem is that nearly everyone agrees that repeat criminals should be punished more severely than first offenders.

This is where sentence enhancements come in. They are essential parts of California’s current sentencing law to make the punishment fit the offense and the offender.

Newly elected Los Angeles DA George Gascón has directed all deputy DAs to never charge sentence enhancements under any circumstances. Is that legal? Can anything be done about it?

Generally speaking, the district attorney has broad discretion to decide what charges to bring. Generally, the decision not to bring a charge is unreviewable. But there are exceptions.

The Unique Three Strikes Law

California’s Three Strikes Law has a provision requiring the district attorney to plead and prove each “serious or violent felony conviction.” The prosecutor can then ask the judge to strike the allegation in furtherance of justice, but that is the judge’s call to make.

Is this statute constitutional? A California Court of Appeal decision shortly after the Three Strikes Law was passed said it is. See People v. Kilborn, 41 Cal. App. 4th 1325, 1332 (1996):

The three strikes law requires the prosecutor to plead and prove all prior serious and violent felony convictions. (§ 1170.12, subd. (d)(1), (2).) Appellant argues that this statutory command violates the constitutional principle of separation of powers. (Cal. Const., art. I, § 3.) It does so, he argues, because the requirement that the prosecutor plead and prove all qualifying prior convictions usurps the discretion of prosecutors to decide what to prosecute, an executive function that cannot be limited by statute.

The validity of appellant’s argument is dependent on the proposition that the charging discretion of prosecutors cannot be limited by law. Appellant cites no authority for that proposition, and we have found none. Former article XI, section 1, subdivision (b) of the California Constitution provided that the “Legislature shall provide for . . . an elected district attorney” and other specified officers. Section 5 of the same article provided that the “Legislature, by general and uniform laws, . . . shall prescribe their duties.”

This case is from the Second District, which includes Los Angeles, although that fact does not matter as much in California as it does in most jurisdictions. Absent a split of authority, all Court of Appeal decisions are binding precedent in Superior Courts statewide.

In 2012, the Three Strikes Law was modified to make it less severe. The original law provided that any felony could be the third strike that results in a life sentence. After it passed, it was applied in cases where petty theft with a prior conviction was the third felony, resulting in some very doubtful sentences. The modification provided, with some exceptions, that the third “strike” must also be from the “serious” or “violent” lists.

Yet the ballot measure to moderate the law did not change the mandatory charging provision. The ballot argument supporting the measure emphasized that it would “make the punishment fit the crime.” Further, the “pro” argument assured the people that “[t]he Three Strikes law will continue to punish dangerous career criminals who commit serious violent crimes—keeping them off the streets for 25 years to life.” This argument was signed by, among others, George Gascón.

Remedies

Mr. Gascón now says that this law is unconstitutional. If he chooses to ignore it, who is going to stop him?

The trial judge might, and this could result in a writ proceeding in the Court of Appeal. The trial judge is normally only a nominal party in a writ proceeding, but in this unusual circumstance we might actually have an appearance by counsel for the court.

If the judge does not enforce the statute, can anyone else?

In Dix v. Superior Court, 53 Cal. 3d 442 (1991), the California Supreme Court shot down an attempt by a crime victim to oppose the resentencing of the person who had shot him in the head. The DA was willing to cut a deal for testimony against an even worse gangster. The victim had no standing to get an order from the Court of Appeal halting the resentencing, the Supreme Court said in emphatic language.

The Victims’ Bill of Rights, Article I § 28 of the California Constitution, was amended after Dix to give crime victims certain additional rights and standing to enforce them, but challenging charging decisions was not among them. The victim certainly has the right to be heard in the trial court, but if the judge hears the objection and rules the other way there is no right to take it to a higher court.

At this point, it appears that the ball is in the court of the Los Angeles Superior Court. If that court makes a county-wide rule to enforce Three Strikes as written and to keep the decision to “strike strikes” in the discretion of the judge and not the prosecutor, the correctness of the Kilborn decision may be headed to the California Supreme Court.

Other Enhancements

Other sentence enhancement laws, though, do not have this mandatory charging provision. For example, there are many crimes that do not have great bodily injury as an element. Yet nearly everyone who is not a fanatic agrees that a person who commits, say, assault and grievously injures a person deserves more punishment than one who violates the same statute yet causes no physical harm at all. Only a fanatic would establish a policy against the use of the “GBI” enhancement.

Eric Leonard of the NBC affiliate in LA reports:

LA County District Attorney George Gascon said Tuesday no exceptions would be made to his new rule that bans prosecutors from filing sentencing enhancements in criminal cases, no matter how terrible the crime.

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Since he was sworn in Dec. 7, many families of murder victims have told NBC4 they received calls from the District Attorney’s Office advising them that the enhancements would be dismissed, prosecutors would no longer seek sentences of life in prison without parole or death, and it was probable that the person charged with their loved one’s death would spend much less time in prison if convicted.

“It’s like he has no heart for the victims and their family,” Lodie Pollard told the I-Team Tuesday.

Her son, Michael Pollard, Jr., was one of two men burned to death in a deliberately-set fire at a recording studio on Cahuenga Boulevard in Studio City in 2018. The man being prosecuted was a longtime friend of Pollard Jr., and security video shows the crime being committed, police have said.

“It was brutal and horrific, and it still hurts every day. And my heart hurts more today of what Gascon is doing and taking away,” she said.

A fanatic is exactly what LA has right now.

Can anything be done? I will address that in the next post.