Defendant Friendly New Los Angeles District Attorney Policy

December 14, 2020

On December 7th, 2020 George Gascon was sworn-in as the District Attorney of Los Angeles County. Immediately upon swearing in, he instituted a major change in Los Angeles County District Attorney Policy. He issued 9 special directives each ordering his prosecutors to be much more lenient on the defendants. This is the most significant change in Los Angeles prosecutions in many years. The Directives are:

  1. Pretrial release policy: ordering no more cash bails for defendants
  2. Misdemeanor case management: declination of filing and pretrial diversion for many charges (DUI and Domestic Violence excluded). (Special Directive 20-7).
    • This directive also instructs the DAs not to offer plea deals that involve Caltrans and Jail in the same case.
    • This directive also instructs the DAs not to make settlement offers worse for defendants only because the defendants exercise their rights to a pretrial motion or a jury or bench trial.
  3. Sentencing enhancements: Los Angeles district attorney will no longer file most sentencing enhancements (including prior strikes).
    • Presumptively all cases are eligible for probation if probation is not allowed (low term).
  4. Youth Justice: Los Angeles District Attorney will no longer prosecute misdemeanor juvenile cases and will have to file the lowest level felonies.
  5. Habeas Corpus:
  6. Death Penalty: Los Angeles District Attorney will no longer seek the death penalty
  7. Victim’s Services: Los Angeles District Attorney will no longer seek body attachments for victims of crimes.
  8. Conviction Integrity: Los Angeles District Attorney will reopen old convictions if there is evidence of innocence.
  9. Resentencing: under PC 1170(d) the Los Angeles Country District Attorney will not oppose resentencing to cases that were sentenced under old guidelines but qualify for less jail under the new guidelines (Special Directive 20-14).

These new guidelines will significantly reduce the number of criminal cases prosecuted in Los Angeles County. We are yet to see if this policy will result in a reduction in crime in the city. It should be noted that Los Angeles City and Los Angeles County are reducing the law enforcement budget by cutting millions of dollars from LAPD, LASD, and LA City Attorney.

What Gascon New Directive Means for DUI Cases

Even though DUI cases will not be dismissed (short of usual negotiation tactics such as low BAC, good field sobriety tests, inability to prove driving, etc), the new directive 20-07 specifically prohibits revoking offers only because the defendant chooses to go to trial. If you chose to go to trial, the worst that could happen is you get the same punishment as you got before trial. No more punishing Los Angeles DUI defendants for exercising their right to go to trial. Second, any offers of Cal Trans should not be more than 15 days. Any offers can not have both jail and Cal Trans. Any changes from this must be discussed with the supervisor.

EXAMPLE: You are charged with a 1st offense DUI. Calendar DA wants you do to a program and to pay a fine. You decide that you have a chance at trial; however, you are afraid that if you are convicted, you can be punished with jail time. You do not have to worry anymore: conviction will not result in any additional significant punishment because the DA has to offer the same deal to you even if you lose a trial.

Penal Code 1170: Los Angeles Sentencing

Penal Code Section 1170 explains how sentencing works in California. This code section was modified and came into effect only on January 2022. The code section has multiple parts such as:

  • 1170(a) is not important except for explaining the policy justification and rationale of the legislature.
  • 1170 (b) that court should select a middle sentence in felonies that have 3 terms (most felonies have 3 terms in addition to probation; such as “low term, middle term, high term).
  • 1170(c) that the court should inform defendants at the time of sentencing to state prison that they will be released on parole (most cases 3 years).
  • 1170(d) gives the court jurisdiction upon request of the district attorney to resentence any defendant at any time as long as the new sentence does not exceed the old sentence. This section was passed to allow the dismissal of old charges. Without this code section, the court would not have jurisdiction to recall old cases and dismiss marijuana charges for example. This is done to promote uniformity of sentencing. For example, if a crime is not prosecuted anymore (such is the position of the DA in juvenile invoved crimes), the DA can recommend a change of the sentence to address injustices. The overreaching concern here is the “interest of justice”.
  • 1170(e) allows State Prison to initiate sentence modification to release from custody defendants who are:
    • Terminally ill or,
    • Do not pose threat to the public
    • The inmate is medically incapacitated.
  • 1170(g) – in determinate sentence statutes, a person cannot serve his sentence in the county jail.
  • 1170(h) – if a statute that is a felony does not have a length of sentence, it is a 16-2-3 years statute. Also, if a person has previous violent or serious convictions or is a 290 registrant, he has to serve his felony conviction in state prison.

If your loved one is in the state prison, please check the newly adopted Penal Code section 1170 for possible resentencing.

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