The new Los Angeles District Attorney, George Gascon, has committed his administration to massive changes in criminal sentencing for defendants.
Immediately after winning the 2020 election for Los Angeles County District Attorney, he released nine “special directives” to all deputy district attorneys under his supervision.
These directives lay out sweeping changes to the DA's office's policies on a wide variety of topics including:
- elimination of cash bail;
- resentencing of defendants;
- juvenile court proceedings;
- standards of review for habeas corpus petitions.
Of particular interest, however, are the changes to the office policies regarding sentencing and resentencing of adult criminal defendants.
Under the new policies, both defendants whose cases are pending in criminal court and those who have already been sentenced can expect to see substantial reductions in their maximum confinement time.
As of December 2020, anyone convicted of a crime in Los Angeles might be able to:
- petition the court for a reduced sentence, or
- an immediate release from custody, and
- anyone who is currently being held on bail might be able to get released on their own recognizance right away.
The new policy is designed to keep as many people out of jail as possible and reflects a commitment to rehabilitate offenders rather than punish them.
In order to give readers a better understanding of the of the sweeping reforms put in place by the new LA District Attorney, our Los Angeles criminal defense lawyers are providing a review below.
Elimination of Enhancements and Special Allegations
Due to the nature of California's determinative sentencing system, which provides for much less discretion at sentencing than, for example, in a federal proceeding, the sentencing exposure of a defendant is largely a product of the prosecutor's charging decisions.
This is particularly true when one considers the impact on the sentencing of a defendant based on "enhancements,” and “special allegations,” such as:
- use of a weapon enhancement;
- criminal street gang enhancement;
- strike under California's three strikes law;
- special circumstances in life without parole cases
A hypothetical will illustrate how impactful these charging decisions are on a defendant's exposure.
Case Example – PC 245(a)(2) Assault with a Deadly Weapon
Suppose our defendant is accused of assault with a deadly weapon, a firearm, pursuant to California Penal Code 245(a)(2).
We can assume that no one was seriously injured, much less killed, which is why the defendant is not charged with a more serious offense.
However, because the defendant personally used a firearm, the crime is a “serious felony,” under Penal Code 1192.7(c)(8).
The base charge alone carries a sentence of two, three, or four years. A sentencing court is:
- bound by law to select one of these three options;
- based on a number of factual and equitable factors.
Allegation of prior serious felony
If the prosecutor alleges that the defendant suffered a prior conviction for a serious felony in California or any other jurisdiction, however, Penal Code Section 667(a)(1) mandates a consecutive 5-year prison term on top of the base sentence.
Allegation of prior “strike”
If the prosecutor alleges that the prior conviction was a “strike,” within the meaning of California's three-strikes law, Penal Code 667(e)(1) requires the doubling of the base term.
Allegation of benefiting a street gang
If the prosecutor alleges that the defendant committed the assault for the benefit of a criminal street gang, an additional 5-year consecutive term applies under Penal Code 186.22(b)(1)(B).
As we can see, with California enhancements and special allegations our defendant's four-year case becomes an 18-year case.
Special Directive 20-08 – Sentencing Enhancements and Allegations
District Attorney Gascon's Special Directive 20-08, issued December 7, 2020, finds that:
- “The current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety.”
In a sweeping move, Gascon has directed all deputy district attorneys to not file any new cases which include:
- sentencing enhancements, or
- special allegations of any kind, and
- to move to dismiss such enhancements and allegations in all pending cases at the earliest available opportunity.
As our hypothetical illustrates, this change is a massive windfall for defendants currently charged with serious or violent felonies, especially those with prior felony records.
The special directive enumerates some of the most commonly used enhancements:
- prior-strikes,
- 5-year prior,
- 3-year prior,
- Proposition 8,
- STEP Act – gang enhancement,
- Bail or OR release violations.
The directive makes clear that the enumerated provisions constitute a non-exhaustive list.
In the directive itself, and in public statements, Gascon has committed to not seeking any enhancements or special allegations of any kind against criminal defendants.
This includes special circumstances allegations in:
- murder cases, which trigger a sentence of life without the possibility of parole, and
- firearm enhancements which can likewise result in life sentences depending on how the firearm is used in the commission of a crime.
Misdemeanors and Low-Level Felony Cases in California
While the greatest impact will be for felony defendants charged with serious offenses, low-level felony and misdemeanor cases will also be impacted.
Special Directive 20-08 also states that in all probation eligible cases, probation shall be the presumptive offer except in extraordinary cases. Deviations from this policy must be specifically approved by the bureau director.
Special directive 20-07
Special Directive 20-07 implements numerous changes to misdemeanor case management including, as relevant here, that prosecutors will:
- presumptively be required to offer diversion to misdemeanor defendants, with;
- additional presumption that the diversion offer does not require the defendant to enter a plea beforehand, or
- waive any statutory rights other than the right to speedy trial.
Once again, deviations from the policy in extraordinary circumstances must be approved in writing by a supervisor.
Resentencing of Defendants
These sentencing policy changes is even more impactful when considered in conjunction with Gascon's Special Directive 20-14, issued the same day, which addresses resentencing. Under California Penal Code 1170(d)(1) a court may, at any time, recall the sentence of a state prison inmate upon the recommendation of the district attorney and resentence the defendant.
This is one of the only mechanisms by which a defendant whose case has reached final judgment, meaning appellate opportunities have been exhausted or are time barred, can “re-open” their case and seek relief from a court.
As readers will imagine, the cases in which the previous district attorney administration voluntarily moved the court to reduce a previously imposed sentence were very limited.
How Does the Resentencing Process Work?
Any defendant who was convicted of a crime in Los Angeles County need to contact their criminal defense lawyer to determine eligibility for a reduced sentence or an immediate release under District Attorney's new directives.
If you are eligible, your lawyer can file a motion to have your matter placed on the court calendar.
Gascon has committed in his resentencing special directive to reviewing all 20,000 to 30,000 cases which his office identifies as having resulted in sentences inconsistent with the new policy guidelines.
This presumably means that prosecutors will be moving courts pursuant to Penal Code Section 1170(d)(1) for resentencing in:
- all cases which resulted in state prison sentences based on sentencing enhancements,
- whether obtained after jury trial, or
- by plea agreement.
Priority review of certain California cases
Given the practical impossibility of accomplishing such a task all at once, the special directive provides a list of factors to prioritize the review of cases. Priority will be given to inmates who have:
- served over 15 years in state prison,
- elderly inmates, or
- inmates at increased COVID-19 risk and have been recommended for resentencing by the Department of Corrections and Rehabilitation.
Call Eisner Gorin LLP to Determine Eligibility for Resentencing
If you want to seek resentencing based on the new directives set by the LA District Attorney, contact our experienced team of Los Angeles criminal defense lawyers to determine if you are eligible.
Our law firm can help you with resentencing, issues related to getting immediately released own recognizance, and any other matters related to the new directives discussed above.
It remains to be seen how the policy changes announced on December 7, 2020 will play out in everyday practice in Los Angeles' criminal courts, particularly when courts have their opportunity to weigh in, such as at resentencing.
Nevertheless, on their face the special directives announced by Gascon appear to herald a sea change in the District Attorney's Office's approach to charging and sentencing which will provide substantial benefits to criminal defendants.
Eisner Gorin LLP is a top-ranked criminal defense law firm that represents people throughout Southern California courts, including Los Angeles County, Orange County, Ventura County, Riverside, and San Bernardino.
We are located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is next to the Van Nuys Superior Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our office for an immediate consultation at (877) 781-1570.
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