Policy changes herald sea change in LA criminal justice system

As the new year begins, criminal law practitioners in Los Angeles county are beginning to adapt to massive changes brought about by both changes in state law and by the incoming George Gascón administration at the district attorney's office. Taken together, these changes are expected to have wide-ranging impacts on the prospects of criminal defendants charged with everything from simple misdemeanors to the most serious violent felonies.

Additionally, Assembly Bill 3234, recently signed by Gov. Gavin Newsom, enacted new Penal Code Section 1001.95, et seq. Section 1001.95 expands a trial court's discretion to grant diversion in misdemeanor cases. Under prior law, diversion was available in a relatively narrow category of cases such as those involving drug possession, mental health issues, issues affecting military veterans, etc. Some of these diversion programs required defendants to enter a guilty or no contest plea prior to taking advantage of the diversion, which could potentially create negative collateral consequences for immigration, professional licensure, or other processes in which entry of a plea, even if not ultimately resulting in imposition of sentence, is considered disqualifying.

Under Section 1001.95 the judge, even over the prosecutor's objection, may grant diversion in any misdemeanor case except those involving domestic violence, stalking, or sex crimes which would be subject to sex-offender registry under Penal Code Section 290. The judge may continue the case for up to 24 months and impose any set of conditions he or she deems appropriate to the defendant's particular situation. If the defendant complies with these conditions, pays restitution, and suffers no new arrests, the case will be dismissed without the defendant ever having entered a guilty or no contest plea. Even though restitution is a requirement for successful completion, the defendant's inability to pay on its own cannot be used as a reason to deny diversion or deem diversion incomplete. We expect many misdemeanor defendants to move for imposition of diversion under this new procedure, to keep their records clean and be able to productive members in society without the stain of criminal conduct.

Similarly, the special directives issued by the new Gascón administration have created substantial benefits for criminal defendants. The new district attorney has explained his focus on criminal justice reform, in that rehabilitation is preferred to lengthy incarceration terms. These changes are policy preferences of the new district attorney and do not have the force of law. In fact, many of the other elected district attorneys, in neighboring counties, have opposed these wide-ranging reforms. Also, the L.A. district attorney Union has filed a civil complaint seeking to stay many of these policies from being followed by trial prosecutors, which is currently pending with a February hearing date.

Under the new L.A. policies, the DA's office now supports presumptive pretrial release without bail in almost every case. This is known as "own recognizance," release. A defendant on "O.R." is released simply on his or her promise to return to court as required. O.R. can include conditions such as electronic monitoring, home confinement, among others. The new policies, however, dictate that conditions of O.R. will only be considered in order from least restrictive to most restrictive and requested only after each less restrictive condition has been found to be inadequate.

Bail can be requested by a deputy DA only where clear and convincing evidence shows a substantial likelihood that the defendant's release would result in great bodily injury or death to someone or that the defendant would flee. Further, the policy states prosecutors are prohibited from seeking bail in any misdemeanor, non-serious felony, or non-violent felony case. In cases where a bail request is permitted under the new policies, it must be "aligned" with the defendant's ability to pay. These changes to bail policy are dramatic, as the DA's office position in almost every case prior to the new directive was to seek bail consistent with the county bail schedule, if not higher, resulting in most cases in a high cash bail for all felony defendants and even many misdemeanor defendants. In actual practice, our law firm has observed trial prosecutors still seeking high bail in cases involving sex crime allegations, and other strike offenses, without ability to pay inquiries.

The policy changes in the area of misdemeanor court prosecutions are also significant. Absent extraordinary circumstances which must be justified in writing and approved by a supervisor, deputy DAs are now required to reject all cases involving trespass, disturbing the peace, driving without a license, driving on a suspended license, criminal threats, simple drug possession, minor in possession of alcohol, public intoxication and being under the influence of drugs in public, loitering, loitering to commit prostitution, and resisting arrest.

For those misdemeanor cases which will actually be prosecuted in court under the new regime, deputy Das are required to offer the following conviction alternatives sequentially: (1) informal office hearing; (2) pre-plea diversion (such as under new Section 1001.95, discussed above); and (3) post-plea diversion. This policy applies to all misdemeanors except for domestic violence and driving under the influence.

A diversion settlement is very beneficial to clients, as it results in someone not having a conviction and having the case fully dismissed. Notably, the diversion offer may not be conditioned on the waiver of statutory rights such as requesting discovery or moving to suppress. This will likely end the longstanding policy of "arraignment-only" offers or making an offer which expires on the filing of a motion. This will open up opportunities for search and seizure, Miranda or other constitutional rights issues for defendants seeking to have their case dismissed due to law enforcement violations, without losing the opportunity for diversion.

The area of policy change which has received the most media attention, and the most pushback from victim's groups, law enforcement, and others, is the new DA special directive eliminating the use of sentencing enhancements and special allegations. California criminal law contains numerous enhancements for use of firearms, gang affiliation, etc. which can dramatically increase the prison exposure for a defendant. The Gascón administration has stated that these statutes are counterproductive and initially pledged to completely abolish their use with no exceptions. After pushback from the community, Gascón did agree to some changes issuing a revised directive, which allows deputy prosecutors to continue using enhancements on a case-by-case basis in prosecutions involving hate crimes, child sexual abuse, elder abuse, some high-loss amount white collar conduct, and others. Despite this amendment, these policy changes are extensive and will provide significant benefits to defendants who were previously facing decades-long prison sentences due largely to the effect of enhancements and special allegations.

In many instances, the new policies will help first-time offender who can benefit from addiction and mental health treatment, to get their life back on track. Our law firm has represented numerous individuals who risked decades-long sentences, who never received the treatment they needed. Hopefully the new prosecution approach will help address a client's rehabilitation before automatically sending them for prison for decades. 