Fresno County DA says prosecutors can file looting charges to keep theft suspects in jail

Fresno County District Attorney Lisa A. Smittcamp issued a statement in April saying the state of emergency gives her line prosecutors the power to file looting charges in theft-related cases.

"We will continue to file charges of looting in the appropriate circumstances in order to hold criminal offenders accountable for their actions," Smittcamp said.

To date, her office has filed felony looting charges in at least three cases -- alleged burglary of a closed business, alleged theft of personal items from a vehicle and an alleged theft of a work vehicle

The Judicial Council's emergency decree mandating zero bail for many crimes, exempts felony looting during a state of emergency, outlined in Penal Code section 463. Grand theft charges without looting enhancements do qualify for zero bail.

Los Angeles County District Attorney Jackie Lacey has not approved such a strategy in her office and the public defender' office said it has not noticed such a pattern being followed by prosecutors in LA. A deputy DA in the office, Michael Fern,sent an email to other prosecutors discussing the idea. "For any theft [greater] than $950, we can file, or amend to add, violations of PC 463(b)," states the email, sent on April 14.

A violation of that section of the code doesn't require proof of a link between the theft and the emergency, Fern wrote. "However, as a policy matter, we probably want to be able to articulate some connections, such as how the theft was aided by decreased vigilance due to depleted law enforcement resources, business closures, or sheltering in place."

When asked about these practices, Lacey said in an email Wednesday her office is not recommending them to line prosecutors.

A spokeswoman for the Los Angeles Public Defender's Office said Thursday defenders have not seen a pattern of deputy DAs filing looting charges to circumvent the zero bail order.

"The district attorney has assured the public defender that the decision to file a looting charge on an otherwise zero bail case would not be made without great scrutiny and would require the approval of an experienced manager," said Public Information Officer Pamela Johnson.

Lacey's challenger in the November district attorney runoff election, former San Francisco District Attorney George Gascon, also opposed such strategies.

"The reality is that when you have a declaration of a state of emergency, any theft could be considered looting," Gascon said at a campaign appearance. "So you may have people that may have committed very low level offenses, including shoplifting, that could end up being charged with looting, which will bypass the capacity to try to get zero bail."

Meanwhile, since the start of the pandemic, Lacey has been a vocal supporter of reducing inmate populations. Her office implemented a zero bail schedule weeks before the Judicial Council ordered local courts to. And she's worked with the sheriff to release more than 1,000 inmates pretrial thus far.

However, Lacey said Wednesday she would not agree to release violent criminals whose names were on lists of nearly 4,000 in-custody defendants submitted by the public defender's office and the sheriff, including convicted serial killer Michael Garguilo.

"I take my duty to seek justice and protect the public seriously," Lacey said.

As of Thursday afternoon, nearly 300 inmates in Los Angeles County jails have tested positive for the virus and more than 4,800 have been quarantined. No deaths have been reported.

This comes as Los Angeles County Sheriff Alex Villanueva played a video during a press briefing Monday allegedly showing jail inmates trying to infect themselves with the coronavirus by sharing a cup and sniffing a used mask.

Villanueva is also facing a lawsuit filed in the Central District of California by several civil rights groups alleging he is failing to protect jail inmates from the virus. Cullors et al., v. Los Angeles, et al., 2:20-cv-03760 (Cal. C.D. filed April 24, 2020).

The sheriff did not comment on the matter Wednesday but in an interview with local news outlet Good Day LA, he said he's taken the appropriate steps to reduce risk but he can't practically enforce them because "people are here in jails for a reason, because they don't conform to norms of society."

"We depopulated an entire jail system by roughly 5,300 inmates. That's the greatest depopulation in the entire nation," Villanueva said. "We created sufficient safe distance so people could practice social distancing. If the inmates choose to ignore that, it makes it harder for us."

While no inmate in the video has admitted to the accusations, Villanueva said an ongoing investigation is in place and if he can tie the intentional actions of someone to infect themselves or others with a confirmed case, he would seek assault with a deadly weapon charges with the prosecution.