LA judges reject motions made under new DA’s policies

Some Los Angeles County judges are denying prosecutors' motions to withdraw or dismiss sentence enhancement charges, such as gang membership allegations, illuminating what may be an early rift between new District Attorney George Gascón's sweeping directives and judicial authority in the nation's largest local court system.

Gascón directed his prosecutors on Monday to orally amend all charging documents at their next hearings to dismiss or withdraw virtually all sentence enhancements in pending cases or convictions that occurred since August.

"Sentencing enhancements are a legacy of California's 'tough on crime' era," Gascón wrote in his directive. "It shall be the policy of the Los Angeles County District Attorney's Office that the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety."

Since the directive went into effect Tuesday, at least three prosecutors in Gascón's domestic violence unit have had their motions denied by judges, sources familiar with the matter told the Daily Journal.

Defense attorneys have said they've observed this in courts from Norwalk to Antelope Valley to downtown Los Angeles.

"In Norwalk DA moved to amend complaint to delete strikes and enhancements per new Gascón policy," wrote one attorney in an email obtained by the Daily Journal. "Judge denied motion saying no good cause under 1385 and legislature has not amended 1385."

Judges have the authority to dismiss charges and prior convictions "in furtherance of justice" under Penal Code Section 1385. However, defense attorneys say jurists rarely exercise that discretion without the request of a prosecutor.

But with a flood of these requests now coming in, judges are also showing they have the discretion to decline them, even if they are a mandated policy in the DA's office.

Another defense attorney who observed a court proceeding Wednesday morning in downtown LA said Judge Stephen A. Marcus told the prosecutor that it's up to the court to decide whether or not to dismiss special circumstances, according to sources familiar with the matter.

Even so, Ezekiel Perlo, directing attorney for the Los Angeles County Bar Association, said he heard from dozens of attorneys on Wednesday describing what they saw as an inconsistent response to these requests by judges throughout the county.

"There doesn't seem to be any consistent policy in terms of the courts," Perlo said in an interview, adding that some judges are granting requests while others aren't.

Requests for comment sent to judges were forwarded to a spokesperson for Los Angeles County Superior Court, who declined to comment for this story.

Greg Risling, a DA spokesperson, said his office is looking into the matter but provided no further comment.

Another wrinkle in this early tension between judicial authority and Gascón's prosecutorial authority relates to his directive to end the use of cash bail in LA County.

Attorneys who were on a Zoom call with Assistant Supervising Judge Sergio C. Tapia II of the criminal division this week said the judge hinted that there is some real concern among jurists about Gason's directives, particularly as they relate to bail.

According to sources on the call, Tapia said just because prosecutors don't request bail doesn't mean he's not going to set it.

California Supreme Court Justice Tani G. Cantil-Sakauye, in a virtual call with members of the press Wednesday, pointed to Gascón's policy when asked what she thinks is going to happen with cash bail in California after voters resoundingly supported it and overturned SB 10 on the November ballot.

"I believe that the discussion about cash bail or otherwise, the use of algorithms, are only one factor that is part of a judicial officer's decision to decide whether or not to release and under what conditions to release, is a continuing conversation," she said.

"But I also want to point out that we have changed the question and the nature of the analysis of bail forever in California," she continued. "We know who cash bail falls hardest upon. We know what the voters think of algorithms and we know that we need to improve. So that, with our over 15 pretrial pilot projects that are already and have been in operation in California, you're going to see more discussion about moving this question and what Californians will tolerate and what they will accept."

Gascón's policies won't likely meet any resistance in future cases because prosecutors have the discretion to file whatever charges they want at the outset of a case. However, Perlo said where he anticipates blowback from judges is if Gascón moves into trying to undo the authorities that have been bestowed upon judges by the Legislature.

"Part of the problem is a lot of these directives indicate what he's going to do, but they all rely on judges agreeing to do it," Perlo said. "And I can see that there'll be some issues where the judge will not go along with what the DA says."