Ass'n of Deputy Dist. Attorneys for L. A. Cnty. v. Gascón, B310845

CourtCalifornia Court of Appeals
Writing for the CourtSEGAL, J.
Citation79 Cal.App.5th 503,295 Cal.Rptr.3d 1
Parties The ASSOCIATION OF DEPUTY DISTRICT ATTORNEYS FOR LOS ANGELES COUNTY, Plaintiff and Respondent, v. George GASCÓN, as District Attorney, etc., et al. Respondents and Appellants.
Docket NumberB310845
Decision Date02 June 2022

79 Cal.App.5th 503
295 Cal.Rptr.3d 1

The ASSOCIATION OF DEPUTY DISTRICT ATTORNEYS FOR LOS ANGELES COUNTY, Plaintiff and Respondent,
v.
George GASCÓN, as District Attorney, etc., et al.
Respondents and Appellants.

B310845

Court of Appeal, Second District, Division 7, California.

Filed June 2, 2022


Hogan Lovells, Stephanie Yonekura, Los Angeles, Neal Kumar Katyal, Jo-Ann Tamila Sagar, and Danielle Desaulniers Stempel ; Rodrigo A. Castro-Silva, County Counsel, Adrian G. Gragas, Assistant County Counsel, and Jonathan C. McCaverty, Deputy County Counsel; Kendall Brill & Kelly, Robert E. Dugdale and Laura W. Brill for Respondents and Appellants.

Michael Romano, San Francisco, Erwin Chemerinsky, Culver City, and Miriam Krinsky, Los Angeles, for 67 Current and Former Elected Prosecutors and Attorneys General as Amicus Curiae on behalf of Respondents and Appellants.

Ricardo D. García, Public Defender (Los Angeles County), Albert J. Menaster, Head Deputy Public Defender, and Mark Harvis, Deputy Public Defender as Amicus Curiae on behalf of Respondents and Appellants.

Summer Lacey, Los Angeles, and Tiffany M. Bailey for American Civil Liberties Union Foundation of Southern California as Amicus Curiae on behalf of Respondents and Appellants.

Browne George Ross O'Brien Annaguey & Ellis, Eric M. George, Los Angeles, Thomas P. O'Brien, South Lake Tahoe, Chistopher Landau, Nathan J. Hochman, Los Angeles, David J. Carroll, Orange, and Matthew O. Kussman for Petitioner and Respondent.

Greg D. Totten ; Robert P. Brown, Chief Deputy District Attorney (San Bernardino) for California District Attorneys Association as Amicus Curiae on behalf of Petitioner and Respondent.

SEGAL, J.

79 Cal.App.5th 514

INTRODUCTION

This appeal raises two questions concerning the scope of prosecutorial discretion. The first is: Can the voters, through the initiative process, or the Legislature, through legislation, require prosecutors to plead and prove prior convictions to qualify a defendant for the alternative sentencing scheme prescribed by the three strikes law? Our answer: Yes for pleading, no for proving. The second question is: Can courts require prosecutors, when moving to eliminate (by dismissal or amendment) from a charging document allegations of prior strikes and sentence enhancements, to base the motion on individualized factors concerning the defendant or the alleged crime? Our answer: No, but courts do not have to grant those motions. (See Nazir v. People (June 2, 2022, B310806) 79 Cal.App.5th 478, 294 Cal.Rptr.3d 681 ( Nazir ).)

295 Cal.Rptr.3d 11

These questions arise out of the decision on November 3, 2020 by the voters of Los Angeles County to elect George Gascón as their district attorney. In December 2020 the new district attorney adopted several "Special Directives" concerning sentencing, sentence enhancements, and resentencing that made significant changes to the policies of his predecessor. In essence, the Special Directives prohibited deputy district attorneys in most cases from alleging prior serious or violent felony convictions (commonly referred to as "strikes") under the three strikes law or sentence enhancements and required deputy district attorneys in pending cases to move to dismiss or seek leave to remove from the charging document allegations of strikes and sentence enhancements. The Special Directives’ stated objectives, through these policies, were to promote the "interests of justice and public safety" by reducing "long sentences" that "do little" to deter crime.

The Association of Deputy District Attorneys for Los Angeles County (ADDA) is the certified exclusive bargaining representative for Bargaining Unit 801, which consists of approximately 800 deputy district attorneys in Los Angeles County. ADDA sought a writ of mandate and a preliminary injunction to prevent the district attorney from enforcing the Special Directives, arguing they violated a prosecutor's duties to "plead and prove" prior strikes under the three strikes law ( Pen. Code, §§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d) );1 to exercise prosecutorial discretion in alleging and moving to dismiss under section 1385 prior strikes and sentence enhancements on a

79 Cal.App.5th 515

case-by-case basis; to continue to prosecute alleged strikes and sentence enhancements after a court denies a motion to dismiss under section 1385; and to prosecute certain special circumstances allegations. The trial court largely agreed with ADDA and issued a preliminary injunction enjoining the district attorney from enforcing certain aspects of the Special Directives.

In this appeal the district attorney argues that ADDA lacks standing to seek mandamus relief on behalf of its members, that he does not have a ministerial duty to comply with the legal duties ADDA alleges he violated, that the trial court's preliminary injunction violates the doctrine of separation of powers, and that the balance of the harms does not support preliminary injunctive relief. The district attorney did not challenge in the trial court, and does not challenge on appeal, the preliminary injunction's application to special circumstances allegations.

On the issue of standing, we conclude ADDA has associational standing to seek relief on behalf of its members. On the merits, we conclude the voters and the Legislature created a duty, enforceable in mandamus, that requires prosecutors to plead prior serious or violent felony convictions to ensure the alternative sentencing scheme created by the three strikes law applies to repeat offenders. This duty does not violate the separation of powers doctrine by materially infringing on a prosecutor's charging discretion; to the contrary, the duty affirms the voters’ and the Legislature's authority to prescribe more severe punishment for certain recidivists. But we also conclude neither the voters nor the Legislature can create a duty enforceable in mandamus to require a prosecutor to prove allegations of prior serious or violent felony convictions, an inherently and immanently discretionary act. Nor, we conclude, is mandamus available to compel a prosecutor to exercise his or her discretion in a particular way when moving to dismiss

295 Cal.Rptr.3d 12

allegations of prior strikes or sentence enhancements under section 1385 or when seeking leave to amend a charging document. Therefore, we affirm the trial court's order in part and reverse it in part.

FACTUAL AND PROCEDURAL BACKGROUND

A. The New District Attorney Adopts Special Directives Regarding Sentencing and Sentence Enhancements

Shortly after his election in November 2020, the new district attorney for Los Angeles County adopted several Special Directives to amend the Legal Policies Manual. They included:

Special Directive 20-08 . On December 7, 2020 the district attorney issued Special Directive 20-08, which stated that "sentence enhancements or other

79 Cal.App.5th 516

sentencing allegations, including under the Three Strikes law, shall not be filed in any cases and shall be withdrawn in pending matters." Special Directive 20-08 stated it applied to "[a]ny prior-strike enhancements" under the three strikes law, sections 667, subdivisions (d) and (e), and 1170.12 ;2 "[a]ny [Proposition] 8 or ‘5 year prior’ enhancements" under section 667, subdivision (a)(1) ; " ‘3 year prior’ enhancements" under section 667.5 ; "STEP Act enhancements (‘gang enhancements’)" under section 186.22 et. seq. ; "Special Circumstances allegations resulting in" a sentence of life without the possibility of parole under sections 190.1 to 190.5 ; and "[v]iolations of bail or [own recognizance] release" under section 12022.1. Special Directive 20-08 further stated: "The specified allegations/enhancements identified in this policy directive are not an exhaustive list of all allegations/enhancements that will no longer be pursued by this office; however, these are the most commonly used allegations/enhancements."

Special Directive 20-08 stated the district attorney's view that "the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety" and that "studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit." An appendix to Special Directive 20-08 stated that there was no compelling evidence the over 100 sentence enhancements in California improved public safety, that such enhancements contributed to prison overcrowding, and that they "exacerbate[d] racial disparities in the justice system." The appendix also stated "long sentences do little" to deter crime.

Special Directive 20-14 . Also on December 7, 2020 the district attorney issued Special Directive 20-14 as the "new Resentencing Policy." Among other things, Special Directive 20-14 required the deputy district attorney in charge of an open and pending case to "join in the Defendant's motion to strike all alleged sentence enhancement(s)" or to "move to dismiss all alleged sentence enhancement(s) named in the information for all...

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3 practice notes
  • People v. Dorado, D078342
    • United States
    • California Court of Appeals
    • October 11, 2022
    ...was not making a sentencing promise as part of a plea bargain. (Cf. The Assn. of Deputy Dist. Attorneys etc. v. Gascon (2022) 79 Cal.App.5th 503, 553 [prosecutors have discretion in deciding what arguments to present in seeking leave to amend a charging document]; People v. Clark (1992) 7 C......
  • Ass'n of Deputy Dist. Attorneys for L. A. Cnty. v. Gascon, S275478
    • United States
    • United States State Supreme Court (California)
    • August 31, 2022
    ...rule 9.40(a).)The petition for review is granted.Pending review, the opinion of the Court of Appeal, which is currently published at 79 Cal.App.5th 503, 295 Cal.Rptr.3d 1 (2022), may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence ......
  • Ass'n of Deputy Dist. Attorneys for L. A. Cnty. v. Gascon, S275478
    • United States
    • United States State Supreme Court (California)
    • August 31, 2022
    ...rule 9.40(a).)The petition for review is granted.Pending review, the opinion of the Court of Appeal, which is currently published at 79 Cal.App.5th 503, 295 Cal.Rptr.3d 1 (2022), may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence ......
3 cases
  • People v. Dorado, D078342
    • United States
    • California Court of Appeals
    • October 11, 2022
    ...was not making a sentencing promise as part of a plea bargain. (Cf. The Assn. of Deputy Dist. Attorneys etc. v. Gascon (2022) 79 Cal.App.5th 503, 553 [prosecutors have discretion in deciding what arguments to present in seeking leave to amend a charging document]; People v. Clark (1992) 7 C......
  • Ass'n of Deputy Dist. Attorneys for L. A. Cnty. v. Gascon, S275478
    • United States
    • United States State Supreme Court (California)
    • August 31, 2022
    ...rule 9.40(a).)The petition for review is granted.Pending review, the opinion of the Court of Appeal, which is currently published at 79 Cal.App.5th 503, 295 Cal.Rptr.3d 1 (2022), may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence ......
  • Ass'n of Deputy Dist. Attorneys for L. A. Cnty. v. Gascon, S275478
    • United States
    • United States State Supreme Court (California)
    • August 31, 2022
    ...rule 9.40(a).)The petition for review is granted.Pending review, the opinion of the Court of Appeal, which is currently published at 79 Cal.App.5th 503, 295 Cal.Rptr.3d 1 (2022), may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence ......

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