LA Co. Judge Reinstates Sentencing Charges After Victims Object

There has been a significant development in the victims’ revolt against LA DA George Gascón’s reckless policies.

Judge Rob Villeza of the East Judicial District of LA Superior Court, in Pomona, initially dismissed special circumstance allegations against Raymond Gonzalez, who is charged with two counts of murder and carjacking. The dismissal was based on a motion by the District Attorney’s Office under the DA’s special directives to never charge special circumstances and to dismiss any pending special circumstance allegations. But then the victims’ families sought reconsideration.

“Special circumstances” came into California homicide law in the 1970s turmoil that followed a temporary judicial abolition of capital punishment. Under the new law, enacted to conform to U.S. Supreme Court mandates, a special circumstance is one separating the crime from the minimum elements of first-degree murder, making the case eligible to be considered for the death penalty. But the circumstance, if found, does more. Even if the death penalty is not imposed, the special circumstance makes the defendant ineligible for parole.

But do murder victims’ families have standing to make motions in a criminal case? Generally not, as stated by the California Supreme Court in People v. Dix (1991) 53 Cal.3d 442. However, subsequent to Dix, the people enacted Marcy’s Law, which wrote some enforceable rights for victims into the California Constitution. One of them is a right to be heard about sentencing matters.

Judge Villeza, in obedience to Dix, “declines to rule on the [victims’] motion for reconsideration” and then proceeds to reconsider on his own motion. Courts can, sometimes, take actions without being asked to, a step generally designated by the Latin term sua sponte.

While the District Attorney generally has sole discretion as to what charging allegations to make initially (with limited exceptions), dismissing a charge after it is made is ultimately up to the court. Judge Villeza decided that he was excessively deferential to the DA in dismissing initially. The court must decide if dismissal is “in the interests of justice” under the controlling statute (Cal. Pen. Code § 1385), and there is no justice in dismissal on the facts of this case.

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.

The order is here.

So if victims can’t move for reconsideration, what can they do? They certainly have a right to make their views known. That is in the Constitution in black and white. (Art. I § 28(b)(8).) There are some areas of law where someone can suggest an action to a court even if one can’t make a motion for it.

That used to be the case for rehearing en banc in a federal court of appeals, i.e., to have a case heard by all the judges instead of a three-judge panel. At one time, parties could not move for that action; only the court could order it on its own motion. So the practice developed, and became routine, that parties made motions for rehearing by the panel accompanied by a “suggestion for rehearing en banc.” Eventually the rules were amended to dispense with this charade.

So where do we stand now? I believe the landscape looks something like this:

1. Where there is a sentencing allegation pending, and the either party moves to dismiss it, the victims are constitutionally entitled to notice of the proceeding and to be heard at it. The judge, not the DA, decides if dismissal is in the interests of justice.

2. Where the dismissal has already happened but no final judgment has been entered, the court can reconsider sua sponte and the victims can suggest such an action.

3. For new cases where there is no statutory mandate to file sentencing allegation (as there is in the Three Strikes Law), the DA retains discretion not to file them.

Regrettably, that means there is only a limited window where anything can be done. So long as George Gascón is District Attorney, there will be wholesale miscarriages of justice in new cases.