Can George Gascon Just Not File Strikes?

One of the most controversial policies implemented by newly-elected district attorney George Gascon is a directive to not file enhancements under the Three Strikes Law. You might remember this law: it provides that when a person is convicted of a third serious or violent felony they are “out,” meaning sentenced to 25 years to life.

Three Strikes has other provisions you may not have heard of as well. If you have been convicted of one strike, any subsequent felony conviction’s punishment is doubled. Strikes also keep people in prison for more of their term. With a strike the good behavior credit you get in prison is limited to 20% of your sentence. Without a strike, you could get much more, up to 75% credit. In other words, if you are sentenced to 10 years, you could get out in 2.5 years if you don’t have a strike. But you serve 8 years if you do.

The Directive: Don’t Plead and Prove Strikes

Three Strikes is an “enhancement.” It must be plead in the complaint. In other words, you must write down in the complaint that a defendant was previously convicted of these strikes on these dates and is thus in even more trouble. Then, before conviction, you have to actually prove this happened. You can use RAP sheets and prison documents and other things. Gascon has ordered his deputies to stop pleading these enhancements. In other words, if you find out that someone has a previous strike, you should just ignore it.

The Constitution: Plead and Prove Strikes

Here’s the problem. Article I of the California Constitution, at section 28(f)(4), says this:

 Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.

Cal. Const. Art. I, Section 28(f)(4).

You shall use strikes without limitation. “Shall” in the legal context means “must,” as in “no option.” There is no exception to this provision in the California constitution. It tells prosecutors: you must do this.

The Penal Code: Plead and Prove Strikes

The Penal Code has similar provisions.

Notwithstanding any other law, [Three Strikes] shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious or violent felony conviction…

(Pen. Code section 667(f)(1).)

Because it’s the Penal Code, they put the exact same thing in another place, just for good measure.

Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in this section.  The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction…

(Pen. Code section 1170.12.)

Notice that “shall” pops back up in here. There’s one important difference between these laws and the California constitution. Prosecutors may ask the court to dismiss the strikes once they are plead, if it is “in the furtherance of justice.” But it’s up to the court, meaning the judge, to decide whether to do this. It’s not up to the prosecutor. It doesn’t just happen automatically. The judge has to agree that it is “in the furtherance of justice.”

Follow Orders and Be Disbarred or Follow the Law and Get Fired

This is a big deal because the new DA is ordering his deputies to violate the California Constitution. That puts them in a tough spot. They could choose to follow orders and not file strikes. But that has consequences. First and foremost, prosecutors don’t want to break the law. In fact, that’s the exact opposite of thing they signed up for. Even if you leave out the important principles at issue here, there are still pitfalls. Following orders puts them at risk of a bar complaint. This has happened already to the Head Deputy in Antelope Valley. Just imagine that your family member was shot but lived. Imagine the shooter had two strikes. The shooter was facing 25-life, or more, under the previous administration. Now, without the strikes, they are facing five years served at 50% – just 30 months prison. You can’t even get a law degree in 30 months. Victims are – and should be – upset about this. Deputies who follow orders have to face these victims on virtually every case.

Now imagine that you don’t follow orders. The constitution trumps an office directive, after all. You’ve read up on things, and you’re trying to do the right thing. Well, you are going to get put on a list. The defense bar is keeping a list of prosecutors that don’t go along. They are providing that list to the new DA. If you find yourself on that list, you can be disciplined or even fired for insubordination. Rumor is that your boss will be fired to for failing to control you.

Gascon has put prosecutors between a rock and a hard place. Follow his orders and be disbarred, or follow the law and be fired.

CDAA Letter

On January 12, 2021, the California District Attorney’s Association published an open letter discussing this issue. You can read it here:

The letter focuses more on the wisdom of the “no enhancements” policy, rather than its legality, but it is still worth reading.

Update

A Superior Court Judge ruled that Gascon must file strikes. He issued a new policy to that effect.

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