Gascón urges state high court to review defense appeal

In an unusual move, Los Angeles County District Attorney George Gascón asked the California Supreme Court to grant a defense attorney's petition for review after a superior court judge rejected a prosecutor's amended complaint that omitted enhancement charges filed under the previous district attorney.

The DA argued in his response to the high court's request for additional briefing that elected prosecutors cannot do their jobs "if they are forced to charge enhancements and seek penalties that, in the elected prosecutor's judgment, do not advance public safety or serve the interests of justice."

Defense Attorney Bruce A. Zucker of Kravis, Graham, & Zucker LLP, whose client Rehan Nazir, a former Torrance police officer accused of carjacking, kidnapping, criminal threats, extortion and enhancements alleging he used a firearm, said it's the first time an elected DA has supported one of his appeals.

But, "this is an unusual situation," he said Thursday. In his petition, Zucker wrote that the case presents an issue that has never been addressed by a California appellate court. Nazir v. Superior Court of Los Angeles County, (People) S267713.

"The DA made the motion in superior court to dismiss enhancements pursuant to the DA's new policy, and the court rejected it," Zucker said in an email. "Because Mr. Nazir was obviously negatively impacted by the court's ruling, he pushed the appeal forward."

He said the question before the high court is whether Superior Court Judge Lee W. Tsao, a former deputy public defender, abused his judicial discretion by denying the DA's motion and, as a result, interfered with Gascón's prosecutorial discretion.

Former District Attorney Jackie Lacey charged Nazir in 2019 with dozens of criminal counts, alleging he used his position as the owner of a bail bonds business to make criminal threats and extort clients, sometimes with a firearm.

But four days after he took office in December, Gascón moved to dismiss the firearm enhancement charges. The DA argued the current statutory sentences for criminal offenses without enhancements are sufficient to hold people accountable and protect public safety. He also argued the California Supreme Court and the California Constitution have both vested elected DAs with the "sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek."

Tsao denied the motion but granted Gascón time to amend the complaint, saying, "the people may file an amended information omitting the enhancements that are at issue here, and if they do that, we can proceed," according to a transcript quoted in Gascón's answer brief.

However, when Deputy District Attorney Monique Preoteasa returned a week later with a new complaint without the firearm enhancements, the judge rejected it, along with a subsequent written motion to dismiss them, saying the move wasn't in the interest of justice.

According to a transcript, Tsao said it was within the scope of the DA's discretion to decide what charges to file, however, he said, "once charges are filed, amendments to those charges are subject to judicial supervision."

Tsao told prosecutors they had two remedies regarding his rejection: they could dismiss the case and refile without the enhancements, or they could appeal his denial of their motion.

In March, Zucker filed a petition for a writ of mandate in the high court after the 2nd District Court of Appeal summarily denied his challenge. His petition argues Tsao's decision "is contrary to law and an abuse of the trial court's discretion." Zucker argues that although Tsao has the power to rule on motions seeking dismissal of enhancements under Penal Code section 1385 when in the interest of justice, that power is "by no means absolute."

Gascón argues the court's ruling "raises fundamental separation of powers questions between the executive and judicial branches of government, improperly infringes on the People's authority to file an amended charging document under Penal Code section 1009 and amounts to an abuse of discretion."

The unusual request to review Tsao's decision comes as Gascón is locked in an appellate battle with the union that represents many of his line prosecutors over several of his special directives that were enjoined in January. In that case, Superior Court Judge James Chalfant held that policy that forces prosecutors to seek dismissal of sentence enhancements in every case is "unlawful" and puts prosecutors in a position where they have to violate the law, their oaths of office and their ethical and professional obligations.

On Thursday, Gascón's request gained the support of nearly 70 current and former elected prosecutors and attorneys general, including Contra Costa County District Attorney Diana Becton and San Francisco County District Attorney Chesa Boudin. In a letter to the high court, the prosecutors argue Tsao improperly infringed on policy decisions they say are entrusted to an elected DA and are integral to the exercise of his prosecutorial discretion.

"This case merits review so the Court can clarify the authority of elected prosecutors to implement new and lawful criminal justice policies aimed at unwilling decades of mass incarceration that have adversely impacted people of color," wrote Miriam Krinsky, a former federal prosecutor in Los Angeles, who serves as executive director of the liberal group Fair and Just Prosecution.

Krinsky wrote that if left intact, the trial court's decision to reject an amended brief which eliminated previously filed enhancement charges "will set a dangerous precedent and undermine well-settled discretion uniquely vested in our nation's elected prosecutors."

The high court's docket says the court has until July 17 to either grant or deny review.