Association of Deputy District Attorneys for Los Angeles County v. Gascon (Prosecutors have a mandatory duty to allege strikesCal. Ct. App., June 2, 2022, No. B310845) 2022 WL 1797864, at *1–3
Scope of prosecutorial discretion
Issues on appeal: 1. 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? The Court of Appeal ruled: Yes for pleading, no for proving.
2. 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? Court held: No, but courts do not have to grant those motions. (See People v. Nazir (June 2, 2022, B310806) ––– Cal.App.5th –––– (Nazir).)
Los Angeles County District Attorney George Gascón’s Special Directives
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. The directive also 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.
Challenge to Special Directives by Association of Deputy District Attorneys for Los Angeles County (ADDA)
The Association of Deputy District Attorneys for Los Angeles County (ADDA) is the certified exclusive bargaining representative for 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 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.
On appeal, 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.
The Court of Appeal concluded that ADDA has associational standing to seek relief on behalf of its members and that 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; rather the duty affirms the voters’ and the Legislature’s authority to prescribe more severe punishment for certain recidivists. But 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 discretionary act. Mandamus is not available to compel a prosecutor to exercise his or her discretion in a particular way when moving to dismiss allegations of prior strikes or sentence enhancements under section 1385 or when seeking leave to amend a charging document. The court affirmed the trial court’s order in part and reversed it in part.
The district attorney argued that his unreviewable prosecutorial discretion includes whether to allege prior convictions under the three strikes law and whether to continue prosecuting existing allegations of prior convictions and sentence enhancements in pending cases.
The court of appeal found that the district attorney overstated his authority. He is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion.
The Legislature and the voters intended the Three Strikes Law to create duties to plead and prove prior strikes. Courts have held the language of section 667, subdivision (f)(1), stating the “prosecuting attorney shall plead and prove each prior serious or violent felony conviction,” limits prosecutorial discretion by requiring a prosecutor to plead and prove each prior serious felony conviction. Imposing a duty to plead and prove prior serious and felony convictions is consistent with the Legislature’s stated intent of “ensuring” longer sentences and greater punishment for repeat felons. (§ 667, subd. (b).) Without requiring a prosecutor to plead and prove qualifying prior convictions, a court cannot apply the alternative sentencing scheme created by the three strikes law.