Nazir v. Superior Court of L. A. Cnty.

• Decision Date: 02 June 2022
• Docket Number: B310806
• Parties: Rehan NAZIR, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 478

294 Cal.Rptr.3d 681

Rehan NAZIR, Petitioner,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The People, Real Party in Interest.

B310806

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

Filed June 2, 2022

Okabe & Haushalter, Mark Haushalter, Redondo Beach, and Joe Weimortz; Kravis, Graham & Zucker, Bruce Zucker, Woodland Hills, and Thomas Ian Graham for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy Attorney General as Amicus Curiae on behalf of Petitioner and Real Party in Interest.

Claudia Y. Bautista, Public Defender (Ventura), and Michael C. McMahon, Senior Deputy Public Defender for California Public Defenders Association and Claudia Y. Bautista, Public Defender, as Amicus Curiae on behalf of Petitioner.

Michael Romano, Erwin Chemerinsky, Culver City, and Miriam Krinsky, Los Angeles, for 76 Current and Former Elected Prosecutors and Attorneys General as Amicus Curiae on behalf of Petitioner.

Frederick R. Bennett, Los Angeles, for Respondent.

Browne George Ross O'Brien Annaguey & Ellis, Eric M. George, Los Angeles, Thomas P. O'Brien, Nathan J. Hochman, Los Angeles, David J. Carroll, and Matthew O. Kussman for Association of Deputy District Attorneys for Los Angeles County as Amicus Curiae on behalf of Respondent.

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

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Respondent.

George Gascón, District Attorney, Diana M. Teran, Deputy District Attorney; Hogan Lovells, Stephanie Yonekura, Los Angeles, Neal Kumar Katyal, Jo-Ann Tamila Sagar, and Danielle Desaulniers Stempel for Real Party in Interest.

SEGAL, J.

INTRODUCTION

"[T]here is a long history of dispute among the various branches of state government over the application of [Penal Code] section 1385 to sentencing allegations."¹ ( People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 521-522, 53 Cal.Rptr.2d 789, 917 P.2d 628 ( Romero ).) In this latest chapter of that history, Rehan Nazir argues the trial court abused its discretion in refusing to dismiss under section 1385 certain firearm enhancements the People alleged against him. Nazir and the People argue the trial court should have dismissed the sentence enhancements "in furtherance of justice" under section 1385 in accordance with a policy issued by the district attorney for Los Angeles County, George Gascón, upon his election. That policy directs all deputy district attorneys "to orally amend the charging document to dismiss or withdraw any [sentence] enhancement" alleged in a pending case.

Based on the district attorney's new policy, the prosecutor moved under section 1385 to dismiss firearm enhancements alleged under sections 12022.5 and 12022.53. The trial court denied the motion and refused to consider the new policy in determining whether to dismiss the enhancements under section 1385.

We agree with Nazir and the People that the trial court misunderstood the scope of its discretion under section 1385 when it refused to consider the district attorney's new policy, but we disagree with the People that the trial court lacked discretion to deny a motion by the People to dismiss enhancements pursuant to that policy. Under the relevant statutory scheme, long-standing case authority, and the rules of court governing sentencing, a trial court deciding whether to dismiss a sentence enhancement in furtherance of justice under section 12022.5 or 12022.53 must consider case-specific factors as well as general sentencing objectives. Therefore, we grant Nazir's petition for a writ of mandate and direct the trial court to vacate its December 18, 2020 order denying the People's motion to dismiss and to conduct a new hearing to reconsider the People's motion.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People Charge Nazir with 35 Counts and Allege Certain Firearm Enhancements

Nazir was a former Torrance police officer who became a bail agent. In July 2019 he was arrested for crimes allegedly committed in the course of his work, including kidnapping, false imprisonment, and grand theft of an automobile. Nazir was arraigned on July 26, 2019.

The People filed a fourth amended complaint on May 4, 2020, alleging 35 counts against Nazir. In connection with 22 of those counts, the People alleged Nazir personally used a firearm, within the meaning of section 12022.5, subdivision (a), an enhancement that could enhance Nazir's sentence by three, four, or 10 years; committed an assault with a deadly weapon or by means likely to produce great bodily injury by personally shooting a firearm from an automobile, within the meaning of section 12022.5, subdivision (d), an enhancement that could enhance Nazir's sentence by three, four, or 10 years; or personally used a firearm in the commission of a felony, within the meaning of section 12022.53, subdivision (b), an enhancement that could enhance Nazir's sentence by 10 years.

B. The New District Attorney Adopts a Policy Regarding Sentence Enhancements

On November 3, 2020 the voters of Los Angeles County elected George Gascón to replace Jackie Lacey as district attorney. On December 8, 2020 the new district attorney issued Special Directive 20-08, which made changes to the Legal Policies Manual. Special Directive 20-08 stated that "sentence enhancements or other sentencing allegations ... shall not be filed in any cases and shall be withdrawn in pending matters." The Special Directive explained 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 California's 100-plus sentence enhancements 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 20-08 instructed deputy district attorneys in pending cases to move to dismiss or withdraw sentence enhancement allegations. On December 15, 2020 the district attorney issued a clarification to Special Directive 20-08 for pending cases where the People had alleged prior serious or violent felony convictions under the three strikes law ( §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) ) or sentence enhancements. In such cases, Special Directive 20-08.1 directed deputy district attorneys to "make the following record":

" ‘The People move to dismiss and withdraw any strike prior (or other enhancement) in this case. We submit that punishment provided within the sentencing triad of the substantive charge(s) in this case are [sic ] sufficient to protect public safety and serve justice. Penal Code section 1385 authorizes the People to seek dismissal of all strike prior(s) (or other enhancements) when in the interests of justice. Supreme Court authority directs this Court to determine those interests by balancing the rights of the defendant and those of society "as represented by the People." The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution.... Additional punishment provided by sentencing enhancements or special allegations provide[s] no deterrent effect or public safety benefit of incapacitation—in fact, the opposite may be true, wasting critical financial state and local resources.’ "² If a trial court refused to dismiss allegations of prior serious or violent felony convictions under the three strikes law or refused to dismiss sentencing allegations under section 1385, Special Directive 20-08.1 instructed deputy district attorneys to "seek leave of the court to file an amended charging document pursuant to Penal Code section 1009."

C. The Trial Court Denies the People's Motion To Dismiss the Firearm Enhancements

On December 11, 2020 the People orally moved under section 1385 to dismiss the firearm enhancements alleged in the fourth amended complaint. The trial court, stating it understood the motion was "based solely on District Attorney Gascón's Special Directive," denied the motion. The court stated that "the People may file an amended information omitting the enhancements that are at issue here, and if they do that, we can proceed, but insofar as the motion to dismiss the existing information under ... section 1385, it is without legal justification." The court said the cases "are clear that the exercise of discretion under [ section] 1385 must be based on an individualized consideration of the offense and the offender and not on any antipathy or disagreement with the statutory scheme."

On December 18, 2020 the People filed a written motion under section 1385 to dismiss the firearm enhancements, restating verbatim the arguments recited in Special Directive 20-08.1. In the alternative the People sought leave to file an amended complaint omitting the firearm allegations. At the hearing, the prosecutor did not present any argument in support of the motions, other than parroting the language of Special Directive 20-08.1.

Counsel for Nazir argued the court erred in denying the People's previous motion to dismiss by applying case law that involved a trial court dismissing...