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Appeals court says California district attorneys must follow three-strikes law regardless of beliefs about it

San Francisco Chronicle 6/3/2022 By Bob Egelko
Court says prosecutors, such as George Gascón and Chesa Boudin, must charge “three strikes” cases despite their personal opposition but can ask the trial judge to dismiss strikes in the interests of justice. © Associated Press

Court says prosecutors, such as George Gascón and Chesa Boudin, must charge “three strikes” cases despite their personal opposition but can ask the trial judge to dismiss strikes in the interests of justice.

Prosecutors who oppose California’s “three strikes” law — such as George Gascón of Los Angeles and, to some extent, Chesa Boudin of San Francisco — are still required to charge sentence-lengthening strikes when a defendant has serious previous convictions, a state appeals court ruled. But the court said the prosecutor could then seek dismissal of strikes “in the interests of justice,” a decision for the trial judge.

The ruling by the Second District Court of Appeal in Los Angeles was a mixed verdict for the state’s 1994 law and prosecutors who want to roll it back. In a separate case Thursday, the same court said a law providing sentencing increases of up to 10 years for the use of a gun in a violent crime was not mandatory and could be rejected by a judge, at the prosecutor’s request, under the same interests-of-justice standard.

Three strikes, passed by the Legislature and approved by the voters, imposes sentences of 25 years to life in prison for defendants convicted of a third serious or violent felony. Convictions for a second such felony carry twice the usual sentence.

The three-strikes law, and other measures substantially lengthening sentences for repeated or violent offenders, led to huge increases in California’s prison population, court orders to reduce overcrowding in the disease-plagued prison system, and the emergence of prosecutors like Gascón and Boudin, who advocate scaling back mandatory-sentencing systems.

Gascón, elected in Los Angeles County in 2020 after eight years as San Francisco’s district attorney, opposes three strikes in all cases. Boudin, his elected successor in San Francisco, has said he would seek three-strikes sentences only in “extraordinary circumstances”; spokesperson Rachel Marshall said Thursday the office has “a presumption against filing them” but evaluates each case individually.

Gascón’s policy has drawn an in-house rebellion by the 800-member Los Angeles Deputy District Attorneys Association, which accuses him of siding with criminals and interfering with prosecutors’ traditional authority. A judge in Los Angeles largely sided with the association in February 2021, ruling that the three-strikes law requires prosecutors to file charges based on a defendant’s record and argue for the increased sentences.

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On Thursday, the appeals court agreed that Gascón’s office, in any felony case, must charge all strikes in the defendant’s criminal record.

In 1994, “the voters and the legislators created a duty ... that requires prosecutors to plead prior serious or violent felony convictions” to increase punishment for repeat offenders, Justice John Segal said in the 3-0 ruling. He noted that the three-strikes law said it “shall be applied in every case” in which a defendant has a past conviction for a serious or violent felony.

But the court said the law does not require the district attorney to “prove” a strike — that is, to argue for an increased sentence in all cases. While the D.A. cannot require office prosecutors to oppose three-strikes sentences in every case, Segal said, the office can argue in individual cases, based on a defendant’s record and other factors, that a third-strike term would be excessive.

In the second case, Segal, in another 3-0 ruling, ordered another Los Angeles judge to decide, in the interests of justice, whether to dismiss gun-use allegations that could add decades to the sentence of Rehan Nazir, charged with kidnapping and other crimes. Gascón opposes such sentencing increases, but the judge had agreed with the prosecutors’ group that they were required by state law if Nazir was convicted.

Attorney Nathan Hochman, who argued against Gascón’s policy in the three-strikes case and is a Republican candidate for state attorney general in Tuesday’s election, said the ruling in his case was a victory.

“Hopefully today marks the first in a series of defeats for ‘King Gascón’ and other district attorneys who have chosen to put their politics above their obligation to follow the law and protect their constituents,” Hochman said.

But Gascón’s office said in a statement that the ruling “maintains the district attorney’s discretion and authority as an elected constitutional officer. The court affirmed his ability to pursue his policy goals in the furtherance of justice.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: Twitter: @BobEgelko

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