Deputies say LA DA misread appellate cases

As Los Angeles County District Attorney George Gascón prepared to defend the legality of his special directives in court next week, the union representing more than 800 of his deputies in a lawsuit seeking to enjoin of his policies argued he misinterpreted several appellate decisions he cited in his objection to their petition for a writ of mandate.

In a response brief filed late Tuesday on behalf of the Association of Deputy District Attorneys for Los Angeles County, Eric M. George of Browne George Ross O'Brien Annaguey & Ellis LLP wrote Gascón "simply misread case law" when he argued that no court has ever held prosecutors have a mandatory duty to file enhancement charges under California's Three Strikes Law.

"The court of appeal cases cited by petitioner plainly hold that the Three Strikes Law limits prosecutorial discretion by requiring that prosecutors plead and prove strikes in every case where such prior strikes exist," George wrote. "The cases do not, as respondents contend, merely address the procedure for presenting prior strikes to the court."

One of the cases the deputies say Gascón misinterpreted was the 2012 California Supreme Court decision, In re Coley, 55 Cal. 4th 524 (2012).

In Coley, the high court held, "Under California's Three Strikes Law, the sentence that is actually imposed upon a defendant in a particular case is dependent not only upon the nature and number of the defendant's prior criminal convictions and whether he or she is convicted in the current prosecution of a felony offense, but also upon the prosecutor's exercise of prosecutorial discretion in determining how many prior convictions to charge in the case."

Gascón, the former DA of San Francisco who defeated two-term incumbent Jackie Lacey in the November election on a platform of reducing incarceration levels in the nation's largest local criminal legal system, argued the Coley decision makes clear that prosecutors do not have a mandatory duty to allege prior convictions when filing new criminal charges.

But his deputies argued Tuesday his characterization ignores the context, which they say addresses the "discretionary dismissal of prior strikes, not the mandatory obligation to plead them in the first instance."

"Tellingly, Coley did not discuss, let alone overrule, the myriad Court of Appeal cases holding that pleading prior strikes is mandatory, and no court has ever cited Coley for the proposition that pleading and proving prior strikes is actually discretionary," the George's brief for the deputies states.

He also hinted that the trial court should look to the supreme courts of Washington and Arizona, which have deemed policies that limit prosecutorial discretion on a case-by-case basis unlawful and argued that is what Gascón's policies have done.

Since taking office Dec. 7, Gascón has faced an unusual amount of opposition compared to some of his progressive counterparts around the state, such as his successor in San Francisco, Chesa Boudin, who was elected in January 2020 on a similar platform. DAs in San Diego, Sacramento and Fresno have revoked jurisdiction from him in cases involving both counties, judges have scolded his prosecutors who have sought to dismiss enhancements in serious cases and now, the state DA's association is supporting his deputies in their bid to secure a court order prohibiting Gascón from carrying out his policies.

Gascón's supporters have decried this pushback, saying the laws he aims to reverse are relics of the tough on crime era that have proved to be ineffective at deterring crime and reducing recidivism.

"The open resistance and brazen hostility displayed by some judges, commissioners, and even certain factions of the DA's staff who oppose Mr. Gascón's new directives, only serves to underscore the transformational impact of these directives," the National Lawyers Guild of Los Angeles recently wrote in an open letter that was signed onto by civil rights groups including the American Civil Liberties Union. "The pushback to a progressive approach to crime and safety comes as no surprise, especially as we see the same decades old dog whistle of 'law and order' being used to undermine a less punitive and more productive approach to public safety."

The California District Attorneys Association, in an unusual move Tuesday, filed an amicus brief supporting the deputies lawsuit. The group argues Gascón, through his policies, has trampled the constitutional rights of crime victims and has forced his deputies to set aside their legal and ethical obligations to follow the laws passed by voters and the Legislature.

"No constitutional provision and no statute vests any district attorney with veto power over the law," said former Ventura County District Attorney Greg Totten, who recently stepped down from that role to become executive director of the DA association in Sacramento, in a statement Wednesday. "We are also dedicated to the ethical duties every prosecutor holds and the oath each takes to 'support and defend' and 'bear true faith and allegiance' to the California Constitution. No prosecutor -- elected or otherwise -- may disregard these solemn responsibilities nor direct his subordinates to do so."

The DAs' association had sent a letter on Jan. 12 informing the deputy DAs' union that it had "grave concerns'' about the legality of Gascón's enhancement policies. But two days before the letter was sent, one of the association's members called the move "counter productive" and warned that getting involved in their lawsuit would bring unfounded criticism that the group is "opposed to smart criminal justice reform."

The case will be heard in Los Angeles County Superior Court on Feb. 2 at 1:30 p.m. in Dept. 85.