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.

Gascon to Judges: Go Along or Get Out

Los Angeles judges just got dragged in to the conflict between George Gascon’s policies and the Penal Code. Gascon already has his hands full compelling his own prosecutors to follow orders to dismiss all enhancements. These orders are unwise at best and illegal at worst. Meanwhile, independently elected judges are refusing to go along. Their permission is required and they are not giving it. Today, Gascon began threatening them too.

Gascon is Forcing Prosecutors to Move to Dismiss Enhancements

In a dramatic move, Gascon banned the use of enhancements on his first day in office. Enhancements lengthen prison terms for particularly bad conduct. They also lengthen the terms of people with bad records. Gascon claims that these laws are racist and drive mass incarceration. The legislature claims these laws make the punishment fit the crime and take dangerous criminals off the street.

Crime victims and prosecutors are generally in favor of the use of enhancements. Prosecutors are also aware that the California Constitution and the Penal Code require the use of enhancements in certain circumstances. There were rumors of widespread opposition to Gascon’s ban on the filing of enhancements. The opposition correctly pointed out that Gascon was ordered prosecutors to violate the law. Instead of backing down, Gascon doubled down, and began threatening to fire those prosecutors who continued following the law. As their supervisor, Gascon has a lot of leverage of prosecutors. Threatening to fire someone is an effective way to compel them to do things. Gascon can intimidate his employees in other ways. He can give them “freeway therapy,” by assigning them to a courthouse across the county from their home. He can prevent them from obtaining plum assignments. He can move them to difficult or boring assignments.

Gascon seems to be using each one of these tools to force compliance with his orders. And it seems to be working. Most prosecutors are going along. But there has been resistance from the bench.

Gascon Needs the Judges’ Permission to Dismiss Enhancements

The law clearly provides that a prosecutor may not dismiss an enhancement herself. She must move the judge to do it. The judge, in turn, must make a finding that it is in the interests of justice. The findings required may be even more complicated for a “strike” offense. Prosecutors have been reluctantly moving to dismiss enhancements pursuant to Gascon’s instructions. They are doing this to avoid being fired, even though many believe that such dismissals are both unjust and illegal.

But judges haven’t been going along. They have been denying the motion. Many believe the judges are on solid legal ground. Today, Gascon’s administration responded to the judges.

Gascon Threatens the Judges

Each party in a criminal matter may refuse to have their case appear in front of a judge. (Pen. Code section 170.6.) This is called “papering” a judge. The email above is an order to paper Judge Shellie Samuels for refusing to dismiss enhancements. At first blush, this doesn’t appear to be that big of a deal. After all, Judge Samuels probably has hundreds of cases on her docket. But consider this: the District Attorney’s Office is a party to every criminal case. That means they are a party to every single case on Judge Samuels’ docket. If the District Attorney papers Judge Samuels on every case, Judge Samuels will have no criminal cases at all. That is what Joseph Iniguez is ordering. He specifically says that no other cases should be assigned to her. He is ordering his prosecutors to use Penal Code section 170.6 to take Samuels entire criminal docket away.

Once these orders are carried out, and Judge Samuels’ docket is gone, she is useless as a criminal judge. She can’t be fired, because she is herself an elected official. The only place she is useful is Civil Court and Traffic Court. That’s where she will be moved.

Gascon and Iniguez clearly want to make an example of Samuels. No judge wants to lose their case load, be moved out of their courthouse, and forced to preside over civil or traffic cases. Some judges have never even practiced in these areas of law. In fact, most criminal judges are either former public defenders or former district attorneys. Most of them have no idea what goes on in civil court and shouldn’t be there. That’s the threat that Gascon is using.

The tactic worked. On December 17, Bill Melugin from FOX LA reported that Gascon will no longer be papering Judge Samuels because “she has subsequently started dismissing enhancements in accordance with his new policies.”

Why Is This a Big Deal?

Issuing an order to your employees to violate the law is a big deal. That’s what Gascon did when he ordered prosecutors not to file strike enhancements. Then threatening to fire them if they did not comply was an even bigger deal. Break the law or lose your job is a choice that no one should have to make. Still, the judiciary is an independent branch of government that is supposed to check the executive branch in these situations. So threatening the judicial branch is not only immoral but threatens our separation of powers. Those who think Gascon is a reformer should stop and ask themselves why he has to break the law threaten virtually every other person in the criminal justice system in order to accomplish his goals. Has he gone to far? Just ask Judge Shellie Samuels.

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.


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