Justice achieved in 3-strikes case in Gascón era

In a recent case in the Los Angeles County Superior Court, we achieved a five-year negotiated prison sentence for a defendant who initially faced multiple counts of 25-years-to-life in California state prison. The client, who was alleged to be a member of a violent street gang, had been previously convicted of a crime punishable under California’s three-strikes law, which provides lifetime prison sentences for offenders convicted of certain serious or violent felony offenses. The client had also previously served a prison term. In the most recent case, he was alleged to have extorted a local business owner after an ongoing dispute over ownership of a dog.

The case facts are dramatic and demonstrate that in the criminal justice system truth is often stranger than fiction. The client allegedly confronted the business owners, alleged extortion victims, in a parking lot resulting in a shootout involving multiple individuals in which the client was struck by a bullet and seriously wounded. They shot at the client multiple times, causing him to almost die from their assault. Despite this evidence, the client was charged as a third striker with multiple counts of extortion, criminal threats, and assault likely to produce great bodily injury, all felonies. The defense argued the actual shooters should have been charged, and the DA contemplated providing them immunity to testify about the client’s extortion efforts.

In mitigation, there was evidence that the client and one of the alleged extortion victims had been in a love triangle involving the client’s girlfriend. The defense argued the alleged extortion victims had further endangered the community by shooting with high powered rifles in a parking lot, causing a major street to be like a war zone, thankfully avoiding killing any bystanders, which supported our argument for their own potential criminal liability. The negotiations involving the unique set of facts went on for over a year, during most of which time the district attorney’s office intended to pursue all the applicable special allegations and sentencing enhancements.

These facts about the client’s prior criminal history and gang affiliation have a potentially massive impact on sentencing under California’s scheme of special allegations and sentencing enhancements. Under the three-strikes scheme, set forth in Penal Code Sections 667(d), (e) and 1170.12(a), (c), a second “strike” conviction automatically doubles the punishment faced by the defendant. As the baseball analogy in the scheme’s name implies, a third “strike” conviction means that the defendant is “out,” i.e. sentenced to life in prison. Under Penal Code Section 667(a)(1), a consecutive five-year prison enhancement applies to a defendant convicted of a serious felony after previously being convicted of another serious felony. Under Penal Code Section 667.5, where the new felony is a violent felony, an additional consecutive three-year prison term will be imposed. Finally, where the prosecutor proves that a felony offense is committed for the benefit of a street gang, an additional and consecutive prison term of between two and ten years, depending on the severity of the offense, will be imposed.

Los Angeles District Attorney George Gascón was elected in the November 2020 election on a platform aimed at criminal justice reform. One of his major initiatives was to cease the use of all special allegations and sentencing enhancements, including three-strikes allegations. Gascón articulated his policies in a series of special directives, which were made available to the public. Special Directive 20-08, issued December 7, 2020, specifically addressed California’s bevy of enhancements, including those described above involving prior convictions and gang affiliation. Gascón argued that base sentencing ranges for felony crimes, without enhancements, constitute sufficient punishment and that social science had suggested that longer periods of incarceration due to enhancements actually have the counterproductive effect of increasing recidivism. He directed that his deputies not file any new enhancements and immediately move to dismiss or withdraw enhancements in pending cases.

The backlash to these policy changes was swift. Along with several others, the enhancement policy prompted a civil lawsuit against Gascón by the union representing deputy district attorneys. On Feb. 8, Judge James Chalfant issued a preliminary injunction against enforcement of many aspects of Gascón’s policies. The decision was a partial win for Gascón, and a partial win for his critics, as Gascón’s authority to prohibit the filing of enhancements other than Three-Strikes enhancements and special circumstances allegations (relevant only in murder cases) was confirmed. Gascón was enjoined, however, from requiring his deputies to dismiss enhancements in pending cases where the facts did not warrant such a dismissal. While the lawsuit was pending, Gascón also amended his policy in response to outcry from community groups to continue to use of enhancements protecting vulnerable groups, such as enhancements for hate crimes and elder abuse.

The benefit to the client of the Gascón policies, which were honored notwithstanding the lawsuit, cannot be overstated. Where he previously faced 25 years to life due to three-strikes and other enhancements, extensive negotiations with the district attorney assigned to the case as well as his supervisors resulted in a negotiated sentence of five years in state prison. Because of the presence of both prior felony convictions and gang affiliation, the client was able to benefit from the removal of sentencing enhancements and special allegations while also having his mitigation evidence considered.

The client had already been punished by having been shot multiple times, and receiving a life sentence or a negotiated offer 15-20 years in prison did not serve the interests of justice. The settlement of this serious case reflects that Gascón policies fairly addressed the case facts and the client’s criminal history. 