How to Screw Up a Successful Recall

The recall campaign appears likely to qualify for the ballot. At the same time, Gascon’s poll numbers are dropping and support for the recall is surging. But the rules of the recall vote mean that Los Angeles may end up right where it started. If too many mainstream candidates run and split the vote, Gascon’s replacement may be just as radical.

The Recall Has Gathered Enough Signatures as Gascon’s Poll Numbers Have Dropped

Leaders of the effort to recall Los Angeles District Attorney George Gascon are saying privately that they have gathered over 700,000 signatures in support of a recall. They need 566,857 in order to put the recall on the ballot. The additional signatures will serve as a cushion when some of the signatures are inevitably invalidated by the Registrar. The campaign has exceeded their stated goal of collecting 650,000 – 700,000 signatures.

Both recall supporters and Gascon supporters are privately saying that they do not expect him to survive the recall. Gascon is the political mentor of San Francisco District Attorney Chesa Boudin, who was recalled earlier this summer. The landslide recall of Boudin happened in San Francisco, which is more liberal than Los Angeles County. The implication for Gascon is that the landslide to oust him will be even larger than Boudin’s.

This is backed up by bad polling for Gascon. A July 28, 2021 poll showed that 34% had an unfavorable impression of Gascon, while only 17% had a favorable impression. 40% disapproved of his performance and only 25% approved. Crucially, 55% of those surveyed would vote to recall Gascon while only 23 % would vote to keep him. Only 13 % were unsure. These conclusions have been reinforced by subsequent polls. In June, a poll of liberal Long Beach found that 45% of voters back the recall and 27% oppose it. Repeated polls, such as a poll commissioned by the Los Angeles Police Protective League, show Gascon’s support deteriorating: a plurality of voters now support recalling him.

Credit: Santa Monica Observer

The Winner of a Plurality of Votes, Not a Majority of Votes, Would Replace Gascon

Article II of the California Constitution allows voters to recall and remove elected officials. The process began when the recall campaign filed a Notice of Intent to Recall, which was approved by the County Registrar. Then they began gathering signatures. If the recall effort has gathered enough signatures then the recall will appear on the ballot. After that, according to the University of California’s Institute for Governmental Studies:

The recall ballot has two components: a yes or no vote for recall, and the names of replacement candidates, selected by the nomination process used in regular elections. The recall measure itself is successful if it passes by a majority. In that case, the replacement candidate with a simple plurality of votes wins the office. If the recall measure fails, the replacement candidate votes are ignored.

This is the crucial point: if the recall is successful, the next LA DA will be the winner of the plurality of votes. There is no run off. If there are 10 candidates, the next DA could win with a tiny plurality, say, 20% of the vote.

Many Mainstream Candidates Have Expressed Interest In Running to Replace Gascon

It seems like everyone wants to replace George Gascon. The most visible candidate is Jon Hatami, a veteran prosecutor who successfully prosecuted the killers of Gabriel Fernandez. Hatami appeared in a Netflix special about the Fernandez, an eight-year-old who was tortured and murdered by his mother and her boyfriend. Hatami has actively campaigned against Gascon for months, and was profiled in LA Magazine as a probable replacement, complete with this illustration:

Credit: LA Magazine

John McKinney, another veteran prosecutor, also appears to be running. McKinney is assigned to the LADA’s prestigious Major Crimes Division. He is active on social media and is pushing an alternative to progressive prosecution that he calls “Proportional Justice.” Like Hatami, he frequently appears on television to promote the recall.

Eric Siddall is Vice-President of the union representing Los Angeles Prosecutors. This group, made up of George Gascon’s employees, voted 98% to 2% in favor of the recall. Siddall has also frequently appeared on local media in support of the recall effort. He advocates for “responsible and sustainable reform.”

Other names being floated to replace Gascon are John Lewin and Steve Cooley. Lewin is a legend in the LADA’s office, famous for his successful cold-case prosecutions. Like McKinney, he works at the Major Crimes Division. He recently convicted Robert Durst, subject of HBO’s The Jinx. He was also profiled in Los Angeles Magazine as “The King of Cold Cases.” Steve Cooley has already served as LA DA and is talking about coming out of retirement. He unsuccessfully ran for California Attorney General as a Republican, but could not even win his own county.

The “Progressive Prosecutor” Movement is Still Alive and Well

Although there are many mainstream candidates interested in replacing Gascon, the movement that got Gascon elected his not gone away, even if they have lost momentum. The media’s reaction to the successful recall of SFDA Chesa Boudin made this glaringly obvious. The voter’s repudiation of Boudin, they said, wasn’t what it looked like. He was unfairly blamed for an environment outside of his control, sandbagged by the SFPD, or a victim of voters manipulated by fear-mongering. Meanwhile, progressive prosecutors like Larry Krasner, the District Attorney of Philadelphia, cruised to reelection without a problem.

This movement will put a candidate on the ballot if Gascon is recalled. There are many liberal candidates who have been described as “woke” or “progressive prosecutors” that want the job. For example, Rachel Rossi ran for LADA in 2020. She did not make the runoff, but still received 23% of the vote. There is nothing preventing her from running again as a replacement for Gascon.

The Scenario

Imagine a hypothetical. The voters, in line with recent poll numbers, vote to recall Gascon. The five candidates listed above appear on the ballot as replacements for Gascon. So does Rachel Rossi, repeating her 2020 effort to become LADA. The voters overwhelmingly prefer the mainstream candidates, and give them a total of 60% of the vote. In other words, each receives about 12%. Meanwhile, voters give the progressive prosecutor movement 40%, far less than the votes received by the mainstream. However, there is only one candidate for these votes to go to. Rachel Rossi receives 40% of the vote, trouncing her nearest mainstream rival. The overwhelming desire of the voters is frustrated. LA does not get rid of the radical ideas that led to the recall effort in the first place. Because of vote-splitting, LA ends up right back where it started.

Vote Splitting is Real

This is not a far-fetched prediction. Vote splitting is an electoral effect in which the distribution of votes among multiple similar candidates reduces the chance of winning for any of the similar candidates, and increases the chance of winning for a dissimilar candidate. Vote splitting occurs most easily in plurality voting, the type of voting applicable to Gascon’s recall.

Vote splitting has happened before. The most famous example is the support Ralph Nader took from Al Gore, allowing George W. Bush to win the presidency. But it has also happened in California, when voters recalled Governor Gray Davis. There were 135 replacement candidates, including actor Arnold Schwarzenegger. Concerns about vote splitting caused the Democratic Party to withdraw all but one of their major candidates. The Republicans withdrew most of their candidates as well. 61% of voters wanted the recall. Schwarzenegger and another Republican received 63% of the vote, but split it between themselves. Schwarzenegger was still able to beat the Democrat, who received 31% of the vote.

What should really drive this point home are the results of the March 2020 election for LADA. In that primary election, mainstream candidate Jackie Lacey received 48% of the vote. Progressive candidates George Gascon and Rachel Rossi split the progressive vote 28% to 23% respectively. Had that been a recall, Lacey would have won outright. Because it wasn’t, Rossi’s voters went to Gascon, and Gascon went on to win. Recent experience suggests, therefore, that vote splitting in the LADA race really matters.

If recall supporters are serious about returning the LADA’s office to moderates, they should get serious about vote splitting. Even two candidates may be too many. Otherwise, they will watch all their efforts go down the drain.

Briefing Complete in Union Lawsuits Against Gascon

The First Lawsuit

The Association of Deputy District Attorneys for Los Angeles County (ADDA) filed a lawsuit on December 30, 2020 to stop several illegal policies put out by newly-elected district attorney George Gascon. The Superior Court agreed with the ADDA and filed a temporary injunction on February 8, 2021. Gascon appealed on March 19, 2021. He filed his opening brief on August 17, 2021. The ADDA responded on November 16, 2021. Briefing was completed when Gascon filed a reply on December 6, 2021.

There were two amicus curiae briefs. The first was from the American Civil Liberties Union of Southern California. The second was written by Erwin Chemerinsky, law professor at the University of California at Berkeley, writing on behalf of 67 other progressive prosecutors. The ADDA responded on January 3, 2022.

As of today, the parties are awaiting a decision by the Second District Court of Appeal.

Alisa Blair. Credit Voyagela.com.

The Second Lawsuit

On October 14, 2021, the ADDA sought an injunction in Superior Court to prevent District Attorney George Gascon from appointing ineligible political supporters to civil service protected positions in the District Attorney’s Office. Specifically, Gascon appointed former public defenders:

  1. Alisa Blair;
  2. Tiffiny Blacknell; and
  3. Shelan Joseph.

He did this outside of the merit system created by the County Charter to root out political bias in hiring and promotion. None of these public defenders had taken or passed the test required for promotion, nor did they have the required experience as a prosecutor. There were 53 candidates who had followed the rules and had been certified as eligible under the County Charter. All 53 were passed over.  The ADDA also appealed before the Civil Service Commission.

On November 8, 2021, a judge denied the ADDA’s request for a preliminary injunction. He held that the appeal before the Civil Service Commission should be completed before an injunction issued. A day before the court denied the request, Gascon promoted 53 internal candidates. Lawyers said this appeared to be an attempt to moot the lawsuit and the Civil Service proceedings. The parties held a trial setting conference on December 3, 2021, which was continued. Then, Gascon filed a Motion for Stay of Proceedings on December 21, which the ADDA opposed on January 3, 2022. Briefing was completed with Gascon ‘s reply on January 7th. The Court heard the motion on January 14, 2022 and denied it. That same day, the court continued a trial setting conference for a second time.

The next hearing is another trial setting conference on April 20, 2022.

Holly Mitchell Thinks Police and Prosecutors’ Unions are “White Supremacist Organizations”

Here’s LA County Supervisor Holly Mitchell saying that police and prosecutor’s unions are “clearly such white supremacist organizations.”

She made the comments at a forum titled, “Stop LA Sheriff Attacks: Family Forum” hosted by Black Lives Matter Los Angeles. She then claimed that law enforcement was retaliating against the public for legislative defeats in Sacramento. “They know that they’ve lost more than they’ve won [in terms of getting legislation passed],” she said. “And I think that’s what then amplified their behavior, their behavior against you at the community level.”

Who is Holly Mitchell?

Holly J. Mitchell is a politician currently serving as a member of the Los Angeles County Board of Supervisors. She holds the seat previously held by Mark Ridley-Thomas. Before that, she served in the state assembly and senate since 2010. Her most notable accomplishment is prohibiting discrimination against black hairstyles in the workplace. The LA Times calls her the “queenmaker” of black politics in California.

When Mitchell ran for the seat, she criticized her opponent’s support of law enforcement. “His historic support of law enforcement, his endorsement by police unions, his crafting of Measure C several years ago, which rolled back police accountability gains that we had earned since the Rodney King experience, kind of flies in the face of what people are asking for now.”

Mitchell is also notorious for an incident in the State Senate. Another senator, Susan Rubio from Baldwin Park, adjourned the Senate in honor of Sgt. Ernie Barbossa, a 30-year LASD veteran who had recently passed away. When Mitchell heard that her colleague was honoring Sgt. Barbossa, she scowled, shook her head, and got up. She left before the senate was adjourned, while her colleague was still talking about Sgt. Barbossa’s work with at-risk youth. Although Senator Rubio only spoke for 80 seconds, Senator Mitchell left after 36 seconds before she was done. You can watch the whole thing below:

Why This is Bad

First, and most obviously, these comments are false. Police agencies in Los Angeles, including the largest, LASD, are majority-minority organizations. In other words, they are mostly people of color, with a white minority. Holly Mitchell is claiming that all of these people of color are acting against their own self-interest. She’s claiming that all these people of color are being racist against their own communities and races. It’s preposterous. People of color are not just overrepresented in these groups, they are often the majority.

Did Mitchell intend to call the 52.5% of the force that is Hispanic a bunch of racists?

And it’s not just the street cops. Inglewood, a city in Mitchell’s jurisdiction, has a black police chief, a black mayor, a black supervisor, and a majority black population. Until a few months ago, the DA was also black. Literally every leader in that town’s criminal justice organizations was black. Does Mitchell believe that all of these people are running a white supremacist system?

Calling someone a racist is a very serious allegation. Being a racist is among the worst, most hated, and most shameful things a person can be. We should not throw this allegation around. Especially because those unfairly accused of racism, in this case, cops and prosecutors, often respond with outrage and hostility.

Comments like this widen the racial divide instead of closing it. Harmful, baseless name-calling belongs in the schoolyard, not on the board of supervisors.

What Law Enforcement is Saying

Police officers are not happy to be called white supremacists. Retired LASD Chief Jim Hellmold said, “these commends are so dismissive & disrespectful to the service & sacrifice of so many honorable men and women! My late father served with his partners since the early 1960s, I served for 33 years, my sons are serving. We’re not white supremacists!” Retired LASD Commander Michael Parker said, “She is wrong. I would never be in a white supremacist organization and detest racist ideology. Also, LASD & LAPD have been majority – minority police agencies for 10+ yrs. Each have about 37% white officers, abt 46% Hispanic officers, and abt 13% Black officers.” LASD Chief Patrick Jordan said, “Can one of her staffers give her a demographics report regarding the LASD & LAPD!”

Judge Rules Gascon Gave Illegal Orders

LA prosecutors took George Gascon to court and won. Judge James Chalfant ruled against newly-elected LADA George Gascon, issuing a preliminary injunction blocking some of Gascon’s “special directives.”

Chalfant ruled that the Penal Code requires prosecutors to plead an prove “strike” priors. Gascon’s orders not to plead and prove these priors is illegal. He also ruled that prosecutors cannot move to dismiss these priors without legal cause. Gascon’s order to do so, he held, was not legal cause. He held:

The District Attorney’s disregard of the Three Strikes ‘plead and prove’ requirement is unlawful, as is requiring deputy district attorneys to seek dismissal of pending sentencing enhancements without a lawful basis. An injunction against a public official’s unlawful actions cannot, by definition, interfere with the lawful exercise of the official’s duties.

Chalfant Condemned Gascon in the Strongest Terms and Vindicated His Critics

Chalfant used extraordinary language condemning Gascon.

On December 7, 2020, when Gascón assumed the Office, he attempted to uproot the long-standing system of sentencing enhancements, including the Three Strikes law for prior convictions. Legislating by fiat, Respondent Gascón issued a series of special directives that all but repealed California’s sentencing enhancement laws and commanded his employees—Los Angeles County…prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law.

Chalfant’s ruling vindicated prosecutors who had spoken out against Gascon. Chalfant said that Gascon had ordered his prosecutors to violate the law, their oaths of office, and their ethical responsibilities.

Portions of the Special Directives prohibit deputy district attorneys from complying with their ministerial prosecutorial duties in violation of the law, their oaths of office, and their ethical responsibilities as officers of the court [….] The unlawful conduct includes barring deputy district attorneys from charging enhancements they statutorily are obligated to charge, barring deputy district attorneys from complying with their ministerial duty to exercise case-by-case discretion to maintain or move to dismiss charges, mandating that deputy district attorneys move to dismiss special circumstance allegations that cannot be dismissed by law, and mandating that deputy district attorneys attempt to unilaterally abandon a prosecution where a judge denied a motion to dismiss [….] Deputy district attorneys risk contempt of court or discipline by the State Bar each time they undertake this conduct.

Gascon Won An Early Victory on Other Sentence Enhancements

Although prosecutors may now file strikes, other sentencing enhancements remain banned in Los Angeles. Judge Chalfant declined to issue a preliminary injunction preventing Gascon from using a blanket policy to disallow the use of these enhancements. The Metropolitan News-Enterprise has this quote from a prosecutor:

As for new filings, it looks like as of now, Gascon can file cases without the special circ allegations, and without the [great bodily injury], gun, gang and other enhancements. This will decrease the number and types of convictions that will qualify as future strike priors.

For example, if a husband batters his wife, he would be guilty of a felony. If he broke her bones, prosecutors used to be able to add three years to the sentence for the infliction of great bodily injury. This is no longer on the table.

Chalfant Trashed Gascon’s Infamous “Script”

After judges began denying Gascon’s motions to dismiss strike priors, Gascon issued an order requiring his prosecutors to claim the Three Strikes Law was unconstitutional. Specifically, prosecutors would have to read from a script which included this claim. The script omitted law that held the opposite of Gascon’s claim: that Three Strikes was constitutional. Prosecutors cannot mislead the court by omitting law. Chalfant agreed that prosecutors could not be put in this ethical bind.

Local Media Coverage Was Heavily Biased Towards Gascon

The Los Angeles Times covered this story under the headline, “Several of D.A. George Gascon’s reforms blocked by L.A. County judge.” The article does not explain how ordering your deputies to break the law and act unethical is a “reform.” They described the ADDA’s position as an “allegation” even though it has now been validated by Judge Chalfant. They reprinted large parts of Gascon’s arguments to the judge, even though they had been rejected by the judge.

Instead of focusing on the illegality of the orders and their unethical requirements, the LA Times described the dispute as “a broader divide between traditionalist and reform-minded prosecutors.” They describe the union as the “old guard of district attorneys.” Their article concludes with a pro-Gascon quote from one of his allies.

The LA Times, which endorsed Gascon, also ran an editorial titled, “Archaic ‘tough-on-crime’ holdouts are refusing to let George Gascon do his job.” Missing the point entirely, the editorial focuses on the history of policing and the CDCR, and decries mass incarceration. It does not address the disturbing fact that an elected official ordered his subordinates to do illegal and unethical things. The board wrote, “elections mean little if victors are denied the ability to shift direction.” Of course, election victors can’t shift direction by breaking the law. The Metropolitan News-Enterprise was ran a detailed refutation of the LA Times’ position. Finally, an LA Times opinion columnist ran a pro-Gascon piece as well.

LA’s local NPR station followed the LA Times in describing Gascon’s illegal orders as “reforms.” Their article is marginally better than the LA Times article, but still contains inaccurate language and allows Gascon the last word.

Reactions From the Union and Its Allies

The victorious ADDA said:

The court ruled as we expected in holding that the District Attorney cannot order his prosecutors to ignore laws that protect the public from repeat offenders. As detailed in our reply brief, the court ruled that the District Attorney’s policy violated the law to benefit criminal defendants and ordered him to comply with the law. This ruling protects the communities which are disproportionately affected by higher crime rates and those who are victimized. […] This decision was based on what the law is and not what an officeholder thinks it should be.

Gascon critic and LA Deputy District Attorney John Hatami said:

Today’s decision is more than a humiliating rebuke of Gascón. It is a reminder that no one is above the law and the law in Los Angeles is not determined by one man, no matter how much of an opportunist, but by the people of the state of California. It is a victory for the community, victims, survivors, and their families and a reminder to all DDA’s that we are required to follow the law, not the demands of the DA or any elected or unelected official. We swore an oath, we must hold to it. Always do the right thing. Always fight for justice for the most vulnerable in our society. Today is a good day, L.A., justice was done.

One of Gascon’s predecessors, Steve Cooley, told the Met News:

Judge Chalfant’s decision is to be lauded for its great attention to the fine points of the law and his sensitivity to the serious ethical problems created for Deputy DAs by Gascón’s directives. That being said, there is only one ultimate solution to the public safety threat posed by Gascón and that is Gascón’s recall. The website for the recall effort is recallgeorgegascon.com.

Fresno DA Lisa Smittcamp said:

Today Judge Chalfant stood up to George Gascon and his illegal directives that seek to threaten the safety of the people of Los Angeles County, and all residents of California. Gascon is not a criminal justice reformer. He is an anarchist. He is a rogue that is disguising himself as a District Attorney. He isn’t in office to promote public safety, to assist victims of crime, and to help keep children out of gangs. He is there to push an agenda that protects violent gang members, career criminals, and those who have a reckless disregard for human life. Today, I salute Los Angeles County Superior Court Judge Chalfant for ordering George Gascon to abide by the law.

Kern County District Attorney Cynthia Zimmer said:

The court’s ruling reinforces what had already become all too clear: that George Gascón has been commanding his deputy district attorneys to violate the law and their ethical duties since he took office, all for the benefit of ensuring that criminals receive the most lenient sentences possible. In all the argument put forward by Gascón, the judge found that ‘there is not a single reference to a concern for victims in the sentencing process,’ and that most of Gascón’s directives fail to consider or even mention victims or their rights. This injunction is a win for everyone who values the rule of law, public safety, and the rights of crime victims.

Reactions from Gascon and His Allies

Gascon said he would appeal the ruling. In the meantime, he said he would follow the ruling, which he claimed did not affect most of his directives.

I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism. My directives are a product of the will of the people, including survivors of crime, and a substantial body of research that shows this modern approach will advance community safety.

Gascon was forced to revise his special directives.

Laurie Levenson, a professor at Loyola Law School, said that the ruling is a setback for Gascon.

Everything about this is unusual, but it’s not a surprise that it’s happening, given that Gascon is coming in as a progressive or reformer among DAs, many of whom don’t want to reform.

Gascon ally and San Francisco District Attorney Chesa Boudin had similar polices. He was forced to defend them. His spokeswoman said that his Three Strikes policy was “not absolute” and that charging decisions will be made “on a case-by-case basis.”

Notes

Cover Photo Credit (Youtube.com)

Appellate Court Signals Approval of ADDA Lawsuit

The Second District of the California Court of Appeal handed down its decision in People v. Laanui on January 8, 2021, about a week after the ADDA, a union representing Los Angeles prosecutors, sued DA George Gascon. On its face, the case does not appear to be relevant to the lawsuit, but on closer look, the court is clearly signaling approval for the union’s position.

A Parking Lot Murder Led to a Series of Other Crimes

Defendant Elliot Laanui shot victim Edward Emery in a supermarket in Redondo Beach in 1995. There were multiple witnesses and DNA evidence. The DNA was not tested until 2011. It led police to the defendant, who was arrested. Laanui implicated himself during a Perkins operation and communicated with undercover deputies. Somehow, the defendant was released and committed several other crimes, including a shooting and soliciting the murder of an accomplice.

Elliot Laanui

Strikes Were Charged as to Some Counts But Not Others

The information charged a complicated series of crimes and enhancements. There were six total counts. On counts 1, 2, and 3, the information alleged that defendant had suffered serious or violent felony convictions within the meaning of the “Three Strikes” law. These enhancements were not charged as to count 6, solicitation of murder of an accomplice.

Defendant was convicted on all counts. The court used the Three Strikes law to double the sentence on count 6, even though it had not been pled as to count 6. This decision was appealed to the Second District of the California Court of Appeal. This is the same court that would hear an appeal in the ADDA lawsuit.

The Court of Appeal Only Published Its Discussion of Strikes

The first clue of the Court of Appeal’s intentions came from what it chose to write about. The defendant in Laanui raised nine contentions on appeal. The court only published its discussion of the issues related to the filing of strikes.

The Court of Appeal affirmed the trial court and held that it properly doubled the sentence on count 6 under the Three Strikes law. After discussing the parties’ contentions, the Second District got right to the point, the same point at the heart of the ADDA lawsuit:

The purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses.” (§ 667, subd. (b).) By its own terms, it applies “in every case in which a defendant has one or more prior serious or violent felony convictions . . . .” (Id., subd. (f)(1), italics added; see also § 1170.12, subd. (d)(1).)

(People v. Laanui (2021) — Cal.Rptr.3d —, at p. *12.)

By now your ears should have perked up if you are remembering the ADDA lawsuit. After all, the heart of that suit is the contention that prosecutors must file strikes in every case, despite their boss’s order to never file strikes. Here, the Court of Appeal is making a blanket statement that Three Strikes applies in “every case” in which the defendant has a strike prior. By contrast, George Gascon doesn’t want it to apply in any case in Los Angeles.

What the court wrote next seems to apply directly to the ADDA lawsuit.

Indeed, despite the “general rule” that “the selection of criminal charges is a matter subject to prosecutorial discretion,” “the Three Strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction.” (People v. Roman (2001) 92 Cal.App.4th 141, 145 (Roman); see § 667, subd. (f)(1) [“The prosecuting attorney shall plead and prove each prior serious or violent felony conviction . . . .”], italics added; see also § 1170.12, subd. (d)(1).) The prosecution may move the court to dismiss the prior conviction allegation for insufficient evidence or “in the furtherance of justice” (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2)), but may not “unilaterally strike” the allegation. (Roman, at p. 145.)

(Laanui, supra, at p. *12.)

This statement could form the holding of a ruling in the ADDA case, it is so directly on point. This statement is also the first principle of law that appears in the published opinion. It was given pride of place despite the fact that the actual issue in contention was directly controlled by different precedent. (See People v. Garcia (1999) 20 Cal.4th 490.) Garcia holds that “it is appropriate to allege [defendant’s prior conviction] status only once as to all current counts.” (Id. at p. 502.)

Why would the Court of Appeal discuss the general applicability of Three Strikes first? Especially when they could have skipped right to Garcia, which controls? And this happened not once, but twice. There is a second controlling case, People v. Morales (2003) 106 Cal.App.4th 445. This case is also factually analogous but was discussed second.

The opinion is littered with points of law that will apply in the ADDA case. The court quotes Penal Code section 667(f), which provides that Three Strikes “shall be applied in every case in which a defendant has a prior felony conviction. (Morales, supra, 106 Cal.App.4th at p. 455.) In fact, the Court of Appeal quotes this language in no fewer than three different sections of the opinion.

But that isn’t all. The court says that “it would be evident […] on the face of the Three Strikes law that the prior strike would apply to all eligible counts, unless the trial court dismissed the strike either on its own motion or in response to a motion by the prosecution or defense.” (Laanui, supra, at p. *15.) Moreover, “the prosecution expressly cannot make a discretionary choice not to pursue the Three Strikes alternative sentencing regime on all eligible counts.” (Id. [internal quotations and punctuation omitted].) But this is exactly what George Gascon wants to do. And it forms the basis for the dispute in the ADDA’s lawsuit.

The Court of Appeal concluded its opinion by describing Three Strikes as “nondiscretionary.” (Id. at p. *17.)

Why Is Really Happening Here?

The Metropolitan News-Enterprise summarized the opinion this way: “the majority opinion […] recite[s] a proposition that Los Angeles County’s new district attorney, George Gascon, is contesting: that a prosecutorial agency is legally obliged to allege all strikes.” The Met News continues:

The two opinions in Laanui, each reciting that the charging of all priors is mandated by statute, come at a time when Gascón is ordering deputies not to allege any strikes. Although the requirements of the Three Strikes Law have been upheld in the past, the opinions add reinforcement to the position of the Association of Deputy District Attorneys (“ADDA”), which has brought a Los Angeles Superior Court action against Gascón to block some of the “special directives” issued by him on Dec. 7, his first day in office, including his prohibition on alleging strikes.

The Laanui opinion was issued just after the ADDA lawsuit was filed. The ADDA lawsuit was discussed extensively in the legal press. And the Laanui opinion itself contains paragraphs of precedent that seem to control the issues in the ADDA lawsuit. This precedent is given pride of place in the opinion, even before cases that control the outcome.

I believe that the Court of Appeal is trying to signal the correct ruling to the ADDA’s judge. The only other option appears to be that Laanui is an incredible coincidence. But it is hard for me to believe that such a relevant and forceful opinion could have been issued by accident.

LA Prosecutors’ Union Finally Gets Off the Sidelines

The Association of Deputy District Attorneys is a union for deputy district attorneys in Los Angeles. They “strive to advance a work environment that allows our members to focus on their role as the primary guardians of justice in the courts.” Despite that language, the union has remained mostly silent as DA George Gascon has ordered his deputies to violate the Penal Code and ethical rules.

Today, the ADDA sent a letter to county officials, including Gascon, calling his orders in conflict with both the DA’s Office’s and individual prosecutor’s obligations under California law. They said they would request a temporary restraining order.

Gascon’s spokesman declined to comment and referred questions to his lawyer, the LA County Counsel’s Office.

It appears that Gascon is still working closely with Erwin Chemerinsky, the dean of Boalt Hall, UC Berkeley’s law school. NBC4 describes what happened.

Almost simultaneously an unsolicited statement was sent to reporters by the UC Berkeley Law School’s Three Strikes Project that said, “We are confident this attempt to obstruct the will of the voters will be struck down.” The Berkeley statement, quoting law school dean Erwin Chemerinsky and director of the Three Strikes Project Michael Romano, said that DA Association’s action shows it has a “longstanding opposition to reform.”

The union intends to go to court on December 30th. They are seeking “a writ of madate, declaratory relief and injunctive relief” against Gascon and the DA’s office.

Update

The lawsuit has now been filed. You can read the documents here. The LA times published a story about the lawsuit that mostly focused on whether enhancements are good or bad, not whether Gascon’s orders are illegal. At the same time, their editorial board wrote that enhancements were bad. The same board endorsed Gascon a few months ago. Some of the reader’s comments to this piece are insightful.

Gascon wrote a statement commending the court for denying LAADDA’s request for a temporary restraining order.