HomeMy WebLinkAboutD-3 Staff Report - Resolution Expressing Concerns with LA County DA DirectivesSCHEDULED ITEM
D-3
TO:
VIA:
FROM:
DATE:
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
SERGIO GONZALEZ, CITY MANAGER
MARCO A. MARTINEZ, CITY ATTORNEY
MAY 17, 2021
SUBJECT: DISCUSSION REGARDING LOS ANGELES COUNTY DISTRICT ATTORNEY
SPECIAL D IRECTIVES AND ADOPTION OF RESOLUTION
RECOMMENDATION:
It is recommended City Council discuss the information provided in this report and determine
whether they wish to adopt a Resolution No. 2021-C25 similar to the ones adopted by other Los
Angeles County cities. (See Resolution Options)
BACKGROUND:
At the May 3, 2021, the City Council, at the request of Councilmember Mendez, directed staff to
return with an item enabling discussion of the recent “special directives” issued by Los Angeles
County District Attorney George Gascon and the “No Confidence” votes taken by surrounding
Los Angeles County cities. This report provides information related to that request.
ANALYSIS:
The District Attorney (DA) is an elected county official established by Government Code Section
§26500-26543. The DA is responsible for the prosecution of criminal violations of state law and
county ordinances occurring within the county in which they are elected. This includes
investigation and apprehension, as well as prosecution in court. The DA serves as legal advisor to
the Grand Jury and, through its family support division, also enforces parental financial
obligations. The Board of Supervisors exercises budgetary control over elected DAs but not
operational control.
1
APPROVED
CITY COUNCIL
5/17/2021
Declaration 2C selected
LA COUNTY DISTRICT ATTORNEY
May 17, 2021
Page 2
2
Every four years, the voters of Los Angeles County elect a nonpartisan DA to serve as the chief
prosecutor for the County. In November of 2020, the voters of the County, elected George Gascon
as the DA. DA Gascon was subsequently sworn in on December 7, 2020. On December 8, 2020,
DA Gascon issued nine Special Directives (and two subsequent amendments) outlining new
policies and procedures for the Los Angeles County District Attorney's Office. The Special
Directives included the following (See Attachment):
1.Special Directive 20-06: Pretrial Release Policy (Elimination of Cash Bail)
SD 20-06 sets forth new policies and protocols on pretrial release and the use of cash bail.
The SD prohibits Deputy District Attorneys (DDAs) from requesting cash bail for any
misdemeanor, non-serious felony, or non-violent felony offense. If cash bail is requested
for other offenses, DDAs must recommend cash bail amounts that are aligned with the
accused's ability to pay. Furthermore, bail and/or pretrial detention may only be
considered if there are no other options to protect public safety and reasonably ensure the
defendant's return to court. Additionally, DDAs shall not object to the release of anyone
currently incarcerated in Los Angeles County on cash bail who would be eligible for
release under this SD.
2.Special Directive 20-07: Misdemeanor Case Management
SD 20-07 states that the following misdemeanor charges shall be declined or dismissed
before arraignment and without conditions unless exceptions or factors for consideration
exist: trespassing, disturbing the peace, driving without a valid license, driving on a
suspended license, criminal threats, drug and paraphernalia possession, minor in
possession of alcohol, drinking in public, under the influence of a controlled substance,
public intoxication, loitering, loitering to commit prosecution, and resisting arrest.
Exceptions and factors for consideration include repeat offenders in the preceding 24
months. However, some misdemeanors listed do not have exceptions or factors of
consideration identified.
3.Special Directive 20-08: Sentencing Enhancements/Allegations
4.Special Directive 20-08.1: Amendment to Special Directive 20-08
5.Special Directive 20-08.2: Clarification of Special Directive 20-08
SD 20-08 states that the following sentence enhancements or sentencing allegations shall
not be filed in any cases and shall be withdrawn in pending matters: any prior strike
enhancements, including the Three Strikes Law; STEP Act enhancements (also known as
gang enhancements); violations of bail; and firearm allegations.
Amendments 20-08.1 and 20-08.2 were issued on December 15, 2020 and December 18,
2020, to make further clarification of SD 20-08. The amendments state that DDAs may
pursue the following allegations, enhancements, and alternative sentencing schemes: hate
LA COUNTY DISTRICT ATTORNEY
May 17, 2021
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crime, elder and dependent adult abuse, child physical abuse, child and adult sexual abuse,
human sex trafficking, and financial crimes.
6.Special Directive 20-09: Youth Justice
SD 20-09 implements policies for crimes involving youth. Pursuant to this SD, youth
accused of misdemeanors will not be prosecuted. If necessary and appropriate, youth
accused of misdemeanor offenses and low-level felonies will be referred to pre-filing,
community-based diversion programs. Youth will not be charged for crimes involving
property damage or minor altercations with group home staff, foster parents, and/or other
youth if the youth's behaviors can reasonably be related to the child's mental health or
trauma history. The SD also provides that filings will generally consist of the lowest
potential code section that corresponds to the alleged conduct and mandate one count per
incident. Furthermore, youth will not be sent to the adult court system and enhancements
shall not be filed on youth petitions.
7.Special Directive 20-10: Habeas Corpus Litigation Unit
SD 20-10 establishes policies regarding the Habeas Corpus Litigation (HABLIT) Unit's
review of non-capital cases.
8.Special Directive 20-11: Death Penalty Policy
SD 20-11 provides that the DA's Office will not seek the death penalty in any case charged
on or after December 8, 2020. The DA's Office will also not defend any existing death
sentences and will engage in a thorough review of every existing death penalty judgment
from Los Angeles County.
9.Special Directive 20-12: Victim Services
SD 20-12 establishes policies related to services currently provided by the Bureau of
Victim Services (BVS). These new policies include the following: (1) BVS will contact all
victims of violent crime within 24 hours of receiving notification; (2) BVS will contact the
families of individuals killed by law enforcement and provide support services; (3) BVS
will support survivors and all others harmed by violence and crime regardless of
immigration status, reporting, cooperation, or documentation; (4) BVS will establish a
Victim Emergency Fund; and (5) BVS will not require cooperation as a condition of
offering services.
10.Special Directive 20-13: Conviction Integrity Unit
SD 20-13 establishes policies regarding the Conviction Integrity Unit (CIU). These
policies relate to case review criteria, access to discovery, investigations in claims of
LA COUNTY DISTRICT ATTORNEY
May 17, 2021
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wrongful conviction, and case resolution. This SD also provides that the CIU shall develop
and maintain a database to track errors and other causes of wrongful convictions
uncovered in the course of its case reviews. Pursuant to this SD, the database will track
official misconduct, including the names of law enforcement officers found to have
committed misconduct or whose testimony has otherwise been proven to be unreliable.
11.Special Directive 20-14: Resentencing
SD 20-14 provides that the DA's Office will seek to review and remediate every sentence
that does not comport with the new Sentencing Enhancement and Juvenile Policies. The
DA's Office specifically commits to an expedited review of the following categories of
cases: (1) Those who have already served 15 years or more; (2) Those who are currently
60 years of age or older; (3) Those who are at increased risk of COVID-19; (4) Those who
have been recommended for resentencing by the California Department of Corrections and
Rehabilitation; (5) Those who are criminalized survivors; and (6) Those who were 17 years
of age or younger at the time of the offense and were prosecuted as an adult.
Azusa Impacts
The adoption of the Special Directives have affected the criminal case filings sent to the District
Attorney’s office. As of May 3, 2021, 80 cases have been rejected due to Special Directive 20-07.
In addition, there are currently 85 cases that are pending additional investigation. Out of these 85
cases, it is anticipated that approximately 70-80% will be rejected due to the Special Directives.
Actions Taken by Other Los Angeles County Cities
Some Los Angeles County cities have expressed concerns with the Special Directives. Their
discussion focused on the impacts to public safety and crime victim rights. The following cities
have held discussion and/or adopted Resolutions of “No Confidence” in the District Attorney
and/or the Special Directives:
Beverly Hills
Santa Clarita
Whittier
La Mirada (Did not Adopt Resolution)
Lancaster
Pico Rivera
Other cities may be considering similar actions.
Draft Resolution
LA COUNTY DISTRICT ATTORNEY
May 17, 2021
Page 2
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The Draft Resolution attached to this Report includes similar recitals adopted by other cities.
However, the declaration section of the Resolution provides the Council with other options besides
a vote of “No Confidence.” These additional options include:
1.A declaration expressing concerns with the adoption of the Special
Directives (Declaration 2A);
2. A declaration expressing concerns with the adoption of the Special
Directives and requesting their immediate repeal (Declaration 2B);
3.A declaration expressing concerns with the adoption of the Special
Directives, requesting their immediate repeal and declaring a “no
confidence” vote in the District Attorney (Declaration 2C).
The Council may choose to adopt a Resolution that includes one or more of these declarations.
FISCAL IMPACT:
There is no fiscal impact arising from this action.
Prepared by: Reviewed and Approved:
Marco A. Martinez Sergio Gonzalez
City Attorney City Manager
Attachments:
1)Draft Resolution No. 2021-C25
2)Los Angeles County Special Directives
45635.01000\33942252.1
1
RESOLUTION NO. 2021-C25
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA
EXPRESSING CONCERNS REGARDING THE ADOPTION OF THE LOS
ANGELES COUNTY DISTRICT ATTORNEY’S SPECIAL DIRECTIVES
AND THEIR IMPACT ON CRIMINAL FILING PRACTICES AND
PUBLIC SAFETY IN THE CITY OF AZUSA
WHEREAS, The City Council of the City of Azusa values and places the highest
priority on public safety and protecting its community; and
WHEREAS, the City Council believes that all of the criminal laws and penalties
contained in the California Penal Code serve to deter crime and criminal elements in the state
and the City of Azusa; and
WHEREAS, on December 7, 2020, Los Angeles County District Attorney George
Gascon issued a series of Special Directives to be effective on December 8, 2020; and
WHEREAS, the Special Directives include the following:
1.Special Directive 20-06 eliminates cash bail for any misdemeanor, non-
serious felony, or non-violent felony offense.
2.Special Directive 20-07 declines or dismisses several misdemeanor
charges, including trespassing, disturbing the peace, criminal threats, drug
and paraphernalia possession, under the influence of a controlled
substance, public intoxication, and resisting arrest.
3.Special Directive 20-08 eliminates several sentence enhancements,
including the Three Strikes Law, gang enhancements, and violations of
bail.
WHEREAS, the Special Directives undermine the deterrent effects of various criminal
laws and penalties that were meant to protect the public, including the residents of the City of
Azusa; and
WHEREAS, it is of the utmost importance for the City of Azusa that policies aim to
restructure or amend prosecutorial directives are consistent with state law and issued with
reasonable intent and priority to enhance public safety and protect the general public and victims'
rights.
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
SECTION 1. The facts set forth in the Recitals, above, are true and correct and are
hereby adopted in support of this Resolution
Attachment 1
45635.01000\33942252.1
2
[SECTION 2 - OPTIONS FOR CITY COUNCIL DECLARATIONS]
SECTION 2A. The City Council of the City of Azusa expresses its concerns
regarding the adoption of Los Angeles County District Attorney George Gascon’s Special
Directives and their impact on public safety in the City of Azusa.
SECTION 2B. The City Council of the City of Azusa expresses its concerns regarding
the adoption of Los Angeles County District Attorney George Gascon’s Special Directives, their
impact on public safety in the City of Azusa and urges the District Attorney to reconsider and
immediately repeal their adoption.
SECTION 2C. The City Council of the City of Azusa expresses its concerns
regarding the adoption of Los Angeles County District Attorney George Gascon’s Special
Directives, their impact on public safety in the City of Azusa and affirms a vote of no confidence
in Los Angeles County District Attorney George Gascon and his Special Directives.
SECTION 3. The City Clerk shall certify to the adoption of this Resolution. Staff is
directed to transmit this Resolution to any interested offices and organizations.
PASSED, APPROVED and ADOPTED this 17th day of May, 2021.
Robert Gonzales
Mayor
ATTEST:
Jeffrey Lawrence Cornejo, Jr.
City Clerk
45635.01000\33942252.1
3
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
I HEREBY CERTIFY that the foregoing Resolution No. 2021-C25 was duly
adopted by the City Council of the City of Azusa, at a meeting thereof held on the 17th day
of May 2021, by the following vote of the Council:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
Jeffrey Lawrence Cornejo, Jr.
City Clerk
APPROVED AS TO FORM:
Marco A. Martinez
City Attorney
SPECIAL DIRECTIVE 20-06
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM:GEORGE GASCÓN
District Attorney
SUBJECT: PRETRIAL RELEASE POLICY
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of Bail and Own Recognizance in Chapter 8 of the Legal
Policies Manual. Effective December 8, 2020, the policies outlined below supersede the relevant
sections of Chapter 8 of the Legal Policies Manual.
INTRODUCTION
The purpose of this memo is to outline the new policies and protocols that will guide our
recommendations for pretrial release and the use of cash bail moving forward. While these policies
will take effect immediately, there will be ongoing opportunities for staff to give valuable feedback
about how we can best operationalize these changes. We will continually monitor and review data
collected on the implementation of these policies and we will regularly review these policies with
office staff and members of the community to ensure that they are effective and successful. These
new policies capture our shared vision of justice for all in Los Angeles County.
THE UNFAIRNESS OF CASH BAIL
Across the nation, bail reform is a topic of much debate. While some jurisdictions have passed
statewide bail reform (New York and New Jersey), others have changed local bail setting practices
by reducing reliance on cash bail. Although California voters chose not to implement SB10
through the passage of Proposition 25, the conversation about bail reform remains active and
robust.
While it is nearly certain that legislation seeking to eliminate cash bail will once again be put to
voters, we will not wait for statewide reform before imposing meaningful changes in the use of
cash bail. We must seek to protect the public while ensuring that our practices–particularly with
regard to the utilization of cash bail–do not lead to periods of unnecessary incarceration that harm
individuals, families and communities.
Cash bail creates a two-tiered system of justice - one where those with financial resources are able
to remain free, while those who lack such resources are incarcerated. While most justify the use of
cash bail to incentivize an individual to return to court, evidence suggests that no such incentives
$77$&+0(172
2
are required: it is exceptionally rare that individuals willfully flee prosecution or commit violent
felony offenses while released pretrial and the overwhelming majority of people will return to
court, even when they have no financial interest at stake.1 In addition, appearance rates for those
people who are not detained are improved when they receive effective court reminders,
transportation assistance and referrals to community-based services when they are in need.
Disparities in bail setting, unduly impact low-income communities of color and set the wheels of
mass incarceration in motion: individuals detained pretrial are more likely to plead guilty to a case,
in turn receiving a criminal record; those with criminal records face obstacles for future
employment opportunities; and those people who cannot be employed see their opportunities for
economic mobility and advancement severely hindered. The negative impacts of incarceration
extend well beyond an incarcerated individual into their families and communities. Jobs are lost,
people are evicted and deported, children lose contact with their primary caregivers, and those who
were detained return to their communities destabilized by the traumatizing conditions in our jails.
The negative consequences of cash bail have fallen unequally on the shoulders of low-income
communities of color in Los Angeles County. Of the 5,885 people detained pretrial in August
2020, 84% were people of color and nearly half (42%) were incarcerated for non-serious, non-
violent offenses2. These individuals jailed pretrial spend, on average, 221 days in jail3 without
having been convicted of a crime. While COVID-19 led to substantial declines in the Los Angeles
County Jail population, early releases were not proportionate across all race categories and
subpopulations, including those who are most vulnerable. Specifically, while Black people were
29% of the pre-COVID jail population, only 24% of them were released early, and, when looking
at the pretrial population with mental health needs, Black and Hispanic people received early
release at a significantly lower rate than white people.
The US Constitution guarantees every person – regardless of race, class or origin – the right to be
presumed innocent during the pretrial phase of a criminal proceeding. America’s promise is to
provide for everyone “equal justice under the law”. While one might argue that pretrial detention
doesn’t remove these rights, our detention practices and the use of unaffordable cash bail
eviscerates the bedrock of our democracy and undermines our principles of justice, fairness, and
equality under the law.
It’s time for a change. We must adopt a more just approach to prosecution by seeking to undo the
legacy of cash bail while still fulfilling our obligations to protect public safety. Freedom should be
free.
1 For a pilot project conducted by The Bail Project in Compton, 300 people had bail paid for them. 93% of clients
included in the pilot were people of color. The outcomes of the pilots favor own recognizance release: 96% returned
for every court date and, of clients whose cases are now disposed, 33% had their cases dismissed and 97% of those
individuals who received a conviction required no additional jail time as part of their sentence.
2 Charges at the time of booking
3 This reflects the average number of pretrial days spent in jail to-date on 8/19/20, which is likely an underestimate.
Many people will remain detained long after the date of analysis. A truer measure would be the average number of
days an individual spends from being placed in custody to being released or their case disposed, though such
information is not currently available.
3
It is our duty as stewards of public safety to mitigate all public safety risk, and this includes
ensuring that our office’s prosecutorial actions do not inflict needless harm on court-involved
individuals through unnecessary incarceration. We must, and can do better, than to continue to
impose cash bail where it is not required, as evidence suggests that cash bail is neither effective
nor required to keep communities safe or to ensure return to court for future appearances.
For all the reasons mentioned above, it is time to re-evaluate our policies and procedures regarding
the use of cash bail and pretrial detention before conviction. The policies outlined in this memo
are merely a starting point as we begin to better balance the well-being of the accused with our
obligations to maintain public safety during this pretrial period. By minimizing the utilization of
cash bail, reducing unnecessary pretrial detention, seeking the least restrictive conditions of release
possible, and utilizing community-based support programs and interventions, the long-term safety
of all Los Angeles County residents can be improved and the system will be made more fair and
just.
Pretrial release recommendations shall be guided by the following principles and policies:
I. ELIMINATION OF CASH BAIL
A.The presumption shall be to release individuals pretrial.
B.All individuals shall receive a presumption of own recognizance release without
conditions. Conditions of release may only be considered when necessary to ensure public
safety or return to court.
1. Pretrial release conditions, if any, shall be considered in order from least restrictive (No
Conditions) to most restrictive (Electronic Monitoring / Home Detention). Release with
no condition shall be the initial position. The least restrictive condition or combination
of conditions for release must be determined to be inadequate to protect public safety
and to reasonably ensure the defendant’s return to court before considering the next
least restrictive condition.
2. All pretrial release conditions requested shall be reasonably related to the charges,
and necessary to protect the public and to reasonably ensure the defendant’s return
to court.
3. Only after all pretrial release conditions have been thoroughly evaluated and
determined to be inadequate to protect public safety and to reasonably ensure the
defendant’s return to court shall bail or pretrial detention be considered.
C.Pretrial Detention Procedures
1. Pretrial detention shall only be considered when the facts are evident and clear and
convincing evidence shows a substantial likelihood that the defendant’s release would
result in great bodily harm to others or the defendant’s flight.
a) The substantial likelihood of the defendant's flight may include
felony holds from other jurisdictions. Release conditions or
detention may be considered for the limited purpose of ensuring the
defendant is not removed to another jurisdiction. Considerations
4
shall include but are not limited to a comparison of the seriousness
of the charges locally and for the hold, the uncertainty of when the
defendant will be returned, and maintaining joinder of co-
defendants.
2. DDAs shall not request cash bail for any misdemeanor, non-serious felony, or non-
violent felony offense.
3. If pretrial release conditions have been found insufficient to ensure return to court and
public safety, DDAs may consider requesting bail at arraignment for:
a) Felony offenses involving acts of violence on another person; or
b) Felony offenses where the defendant has threatened another with
great bodily harm; or
c) Felony sexual assault offenses on another person.
D.When cash bail is being requested under the limited circumstances delineated in this memo,
DDAs shall recommend cash bail amounts that are aligned with the accused’s ability to
pay. There should be a presumption of indigency when the court has determined that a
client is entitled to court appearance counsel.
E.For those individuals who are indigent, DDAs shall avoid the selection of restrictive
conditions of release that include fees and costs for their administration (e.g., paying a
licensing fee for electronic monitoring) unless no alternative restrictive condition or
combination of conditions can be applied to meet the same need.
F.Conditions of release shall be evaluated based on all available information about the
accused. Individuals with underlying conditions, such as behavioral health conditions, shall
not receive overly restrictive release conditions based solely on the presence of such issues.
Scores from risk assessment tools may never be the sole basis for a recommendation for
detention.4 All pretrial release conditions requested shall be reasonably related to the
charges and necessary to protect the public and ensure the defendant’s return to court.
G.If defense counsel requests a review of release conditions, the DDAs will not oppose
defense counsel motion to the court to remove or modify the conditions of release, if the
accused’s conduct has demonstrated that a threat to a specific identifiable person or persons
and/or any evidence of the accused’s intention to willfully evade prosecution has b een
eliminated.
H.Covid-19 Addendum: Regardless of charge, release with least restrictive conditions is the
presumptive position when the accused belongs to a vulnerable/high risk group (as defined
by the CDC and the LA County Department of Public Health) where incarceration could
result in serious illness or death due to Covid-19 exposure.
4 There are well-documented concerns among social science researchers that risk assessment tools cannot predict
what they aim to predict and perpetuate racial bias. See Technical Flaws of Pretrial Risk Assessments Raise Grave
Concerns.
5
II. APPEARANCES AND VIOLATIONS OF CONDITIONS OF RELEASE
A.DDAs shall not oppose defense counsel’s requests to waive client appearances at non-
essential court appearances. The burden of appearing for short, non-consequential hearings
can be hugely impactful to individuals who have to arrange to take off from work, arrange
for childcare, and find their way to court. Many court appearances require minimal
involvement from the accused and due to overburdened court calendars can result in
extensive wait times before short appearances are held.
B.In the event of non-appearance, DDAs will not oppose defense counsel’s request for a
bench warrant hold when no clear and convincing evidence exists that the non-appearance
occurred as a result of the accused’s willful evasion of prosecution.
III. RETROACTIVITY OF POLICY
DDAs shall not object to the release of anyone currently incarcerated in Los Angeles County on
cash bail who would be eligible for release under the policies outlined in this memo.
TABLE 1
PRETRIAL RELEASE CONDITIONS FROM LEAST TO MOST RESTRICTIVE
LEAST
RESTRICTIVE
Ɣ Own Recognizance Release
Ɣ Release to community member, friend, family member or
partner with promise to accompany the accused to court
Ɣ Phone/text/online check-ins with designated agency
Ɣ Travel Restrictions - order to not leave state, passport surrender
Ɣ Driving prohibitions or restrictions
Ɣ Stay away order
Ɣ AA/NA meeting attendance (or similar community support
groups)
Ɣ Order to surrender weapon(s) to law enforcement
Ɣ Ignition Interlock Device
6
MORE
RESTRICTIVE
Ɣ In-person check-ins with designated agency
Ɣ Mental health treatment
Ɣ Alcohol abuse treatment
Ɣ Substance abuse treatment
Ɣ Drug and alcohol testing
Ɣ Residential treatment program
Ɣ Home relocation during case pendency
Ɣ Secure Continuous Remote Alcohol Monitoring
Ɣ Electronic monitoring/GPS
Ɣ Home detention
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-07
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: MISDEMEANOR CASE MANAGEMENT
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of Misdemeanor Case Management in Chapter 9 of the
Legal Policies Manual. Effective December 8, 2020, the policies outlined below supersede the
relevant sections of Chapter 9 of the Legal Policies Manual.
INTRODUCTION
The public’s interaction with the criminal justice system is mainly through misdemeanor
prosecutions, yet the power and influence of the misdemeanor system in Los Angeles County has
gone largely unnoticed. The goal of this new policy is to reimagine public safety and best serve
the interests of justice and community well-being. As such, the prosecution of low-level offenses
will now be governed by this data-driven Misdemeanor Reform policy directive.
Los Angeles County courts should not be revolving doors for those in need of treatment and
services. Currently, over 47% of those incarcerated pre-trial on misdemeanor cases suffer from
mental illness. Likewise, nearly 60% of those released each day have a significant substance use
disorder. Meanwhile, individuals experiencing homelessness account for almost 20% of arrests in
Los Angeles despite comprising only 1.7% of the population. The status quo has exacerbated social
ills and encouraged recidivism at great public expense.
Moreover, the consequences of a misdemeanor conviction are life-long and grave, even for those
who avoid incarceration. Misdemeanor convictions create difficulties with employment, housing,
education, government benefits, and immigration for non-citizens and citizens alike. Deportation,
denial of citizenship, and inadmissibility affect not only individuals, but also children, families,
and immigrant communities. And no matter one’s immigration status, the resultant costs and fees
of misdemeanor convictions force many to choose between necessities such as rent, transportation,
and medical care versus financial obligations to the justice system.
Despite the immense social costs, studies show that prosecution of the offenses driving the bulk
of misdemeanor cases have minimal, or even negative, long-term impacts on public safety.
Agencies equipped with the social-service tools necessary to address the underlying causes of
offenses such as unlicensed driving, sex work, drug possession, drinking in public, and trespassing
2
are best positioned to prevent recidivism and will thus be empowered to provide help to those in
need.
The goal of the Los Angeles County District Attorney’s Office is to protect public safety. To do
so as effectively as possible, we will direct those in need of services to treatment providers, divert
those undeserving of criminal records to appropriate fora, and reorient our focus towards
combating violent and serious criminal offenses.
I.DECLINATION POLICY DIRECTIVE
The misdemeanor charges specified below shall be declined or dismissed before arraignment and
without conditions unless “exceptions” or “factors for consideration” exist.
These charges do not constitute an exhaustive list. Each deputy district attorney is encouraged
to exercise his or her discretion in identifying a charge falling within the spirit of this policy
directive and proceed in accordance with its mandate.
In addition, each deputy district attorney retains discretion to seek a deviation from this policy
when a person poses an identifiable, continuing threat to another individual or there exists another
circumstance of similar gravity. In such a situation, the deputy district attorney must consult with
their supervisor, place their justification for seeking a deviation in writing, and record their
supervisor’s determination in the case file. Such a deviation should be the exception, not the rule.
In all circumstances, the person’s ability to pay shall be considered.
Trespass – Penal Code § 602(a)-(y)
a. Exceptions or Factors For Consideration
i. Repeat trespass offenses on the same public or private property over the
preceding 24 months
ii. Verifiable, imminent safety risk
iii. No indicia of substance use disorder and/or mental illness, or homelessness
Disturbing The Peace – Penal Code § 415(1)-(3)
a. Exceptions or Factors For Consideration
i. Repeat offenses over the preceding 24 months involving substantially
similar behavior to that charged
ii. No indicia of substance use disorder and/or mental illness
Driving Without A Valid License – Vehicle Code § 12500(a)-(e)
a. Exceptions or Factors For Consideration
i. Repeat driving offenses over the preceding 24 months involving
substantially similar behavior to that charged
3
Driving On A Suspended License – Vehicle Code § 14601.1(a)
a. Exceptions or Factors For Consideration
i. Repeat driving offenses over the preceding 24 months involving
substantially similar behavior to that charged
Criminal Threats – Penal Code § 422
a. Exceptions or Factors For Consideration
i. Offense related to domestic violence or hate crime
ii. Repeat threat offenses over the preceding 24 months
iii. Documented history of threats towards victim
iv. Possession of a weapon capable of causing bodily injury or death during
commission of offense
v. No indicia of substance use disorder and/or mental illness
Drug & Paraphernalia Possession – Health & Safety Code §§ 11350, 11357, 11364, &
11377
a. Exceptions or Factors For Consideration
i. None identified
Minor in Possession of Alcohol – Business & Professions § 25662(a)
b. Exceptions or Factors For Consideration
i. None identified
Drinking in Public – Los Angeles County Municipal Code §13.18.010
c. Exceptions or Factors For Consideration
i. None identified
Under the Influence of Controlled Substance – Health & Safety Code § 11550
a. Exceptions or Factors For Consideration
i. None identified
Public Intoxication – Penal Code § 647(f)
a. Exceptions or Factors For Consideration
i. None identified
Loitering – Penal Code § 647(b),(c), (d), (e)
a. Exceptions or Factors For Consideration
i. Repeat offenses over the preceding 24 months involving substantially
similar behavior to that charged
4
Loitering To Commit Prostitution – Penal Code § 653.22(a)(1)
a. Exceptions or Factors For Consideration
i. None identified
Resisting Arrest – Penal Code § 148(a)
a. Exceptions or Factors For Consideration
i. Repeat offenses over the preceding 24 months involving substantially
similar behavior to that charged
ii. The actual use of physical force against a peace officer
iii. The charge is filed in connection with another offense not enumerated above
If the charge is not declined, follow these sequential steps until dismissal:
A.Pre-Arraignment Diversion via Administrative Hearing. Upon compliance with
condition(s) imposed in the administrative hearing, the charge shall be formally declined;
B.Post-Arraignment, Pre-Plea Diversion. Upon compliance with condition(s) imposed at
arraignment or pretrial, the charge shall be dismissed without the entry of a plea of nolo
contendere or guilty;
C.Post-Arraignment, Post-Plea Diversion. Upon compliance with condition(s) imposed at
pre-trial, the charge shall be dismissed following the withdrawal of a plea of nolo
contendere or guilty.
The conditions of such diversion shall be the same as those statutorily required upon
conviction, absent monetary fines and fees and status registration. In no circumstance may the
offer of diversion be conditioned upon (1) waiver of a person’s constitutional or statutory rights or
(2) a temporal or procedural deadline other than commencement of trial.
II. DIVERSION POLICY DIRECTIVE
The purpose of the Diversion Policy Directive is to utilize remediation to protect public
safety, promote individual rehabilitation, and encourage prosecutorial discretion. For all
misdemeanor offenses not listed below under the Declination Policy Directive, pre-plea diversion
shall be presumptively granted. This diversion policy shall not apply to (1)offenses excluded under
Penal Code §1001.95 and (2) any driving under the influence offense.
The Diversion Policy Directive is also intended to complement statutory diversion schemes
such as those codified under Penal Code §§ 1001.36, 1001.80, 1001.83, and 1001.95. The Deputy
District Attorney shall utilize their discretion, in accordance with the spirit of this policy, when
determining which diversionary scheme is best suited to serve the interests of justice.
The conditions of such diversion shall be the same as those statutorily required upon
conviction, absent monetary fines and fees and status registration. In no circumstance may the
offer of diversion be conditioned upon waiver of a person’s constitutional or statutory right, except
for a waiver of time under Penal Code § 1382. The duration of such diversion shall presumptively
be 6 months, but in no circumstance shall it exceed 18 months. Upon compliance with the
5
condition(s) imposed, the charge(s) shall be dismissed without the entry of a plea of nolo
contendere or guilty.
The presumption of pre-plea diversion may be rebutted upon reasoned consideration of the
following factors:
Ɣ Convictions for offenses of equal or greater severity than that charged over the preceding
24 months;
Ɣ Documented history of threats or violence towards a victim;
Ɣ Clear evidence of an identifiable, continuing threat to another individual or other
circumstance of similar gravity.
In such a situation, the Deputy District Attorney must consult with their supervisor, place their
justification for seeking a deviation in writing, and record their supervisor’s determination in the
case file.
III. NON-DIVERSIONARY PLEA OFFERS
If a misdemeanor case is not subject to declination or resolved via the Diversion Policy Directive,
the deputy district attorney shall adhere to the following guidelines when making plea offers:
Ɣ No offer shall require that a defendant complete combined jail time and community labor
as a term of a sentence;
Ɣ No offer shall require that a defendant complete in excess of 15 days of community labor
as a term of a sentence;
Ɣ No offer shall require status registration for a defendant unless mandated by statute;
Ɣ Once conveyed to the defendant, no offer shall be increased in response to the defendant
exercising their right to pursue a jury trial or pretrial motion.
In seeking a deviation from any of the aforementioned guidelines, the deputy district attorney must
consult with their supervisor, place their justification for seeking a deviation in writing, and record
their supervisor’s determination in the case file.
IV. FINES AND FEES
Fines and fees place burdens on individuals in the criminal system and their families and pose
significant and sometimes insurmountable obstacles to reentry. Deputy district attorneys shall:
Ɣ Presume that an individual is indigent and unable to pay fines and fees under the following
circumstances: the individual is represented by the Public Defender, the Alternate Public
Defender, Bar Panel, or a free legal services organization, the defendant is receiving any
type of means-tested government benefits, the defendant is experiencing homelessness or
the defendant can make a showing of indigence by clear and convincing evidence;
Ɣ Actively support and in no case object to requests to waive fines and fees for indigent
individuals;
Ɣ Refrain from arguing that a failure to pay a fine, fee, or court ordered program represents
a violation of summary probation if the defendant is indigent as defined above, or that
6
summary probation should be extended based upon an alleged failure to pay, or that an
individual should be incarcerated or suffer an additional sanction due to failure to pay.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-08
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: SENTENCING ENHANCEMENTS/ALLEGATIONS
DATE: DECEMBER 7, 2020
This Special Directive addresses the following chapters in the Legal Policies Manual:
Chapter 2 Crime Charging - Generally
Chapter 3 Crime Charging - Special Policies
Chapter 7 Special Circumstances
Chapter 12 Felony Case Settlement Policy
Chapter 13 Probation and Sentencing Hearings
Effective December 8, 2020, the policies outlined below supersede the relevant sections of the
abovementioned chapters of the Legal Policies Manual. Additionally, the following sections of
the Legal Policies Manual are removed in their entirety. Chapter 2.10 - Charging Special
Allegations, Chapter 3.02 - Three Strikes, Chapter 7 - Special Circumstances, Chapter 12.05 -
Three Strikes, Chapter 12.06 - Controlled Substances.
INTRODUCTION
Sentencing enhancements are a legacy of California’s “tough on crime” era. (See Appendix.) It
shall be the policy of the Los Angeles County District Attorney’s Office that the current statutory
ranges for criminal offenses alone, without enhancements, are sufficient to both hold people
accountable and also to protect public safety. While initial incarceration prevents crime through
incapacitation, studies show that each additional sentence year causes a 4 to 7 percent increase in
recidivism that eventually outweighs the incapacitation benefit.1 Therefore, sentence
enhancements or other sentencing allegations, including under the Three Strikes law, shall not be
filed in any cases and shall be withdrawn in pending matters.
This policy does not affect the decision to charge crimes where a prior conviction is an element of
the offense [i.e., felon in possession of a firearm (Penal Code § 29800(a)(1)), driving under the
influence with a prior (Vehicle Code § 23152), domestic violence with a prior (Penal Code §
1 Mueller-Smith, Michael (2015) “The Criminal and Labor Market Impacts of Incarceration.”, available at
https://sites.lsa.umich.edu/mgms/wp-content/uploads/sites/283/2015/09/incar.pdf.
2
273.5(f)(1)), etc.], nor does it affect Evidence Code provisions allowing for the introduction of
prior conduct (i.e., Evidence Code §1101, 1108, and 1109).
The specified allegations/enhancements identified in this policy directive are not an exhaustive list
of all allegations/enhancements that will no longer be pursued by this office; however, these are
the most commonly used allegations/enhancements.
POLICY
Ɣ Any prior-strike enhancements (Penal Code § 667(d), 667(e); 1170.12(a) and 1170.12 (c))
will not be used for sentencing and shall be dismissed or withdrawn from the charging
document. This includes second strikes and any strikes arising from a juvenile adjudication;
Ɣ Any Prop 8 or “5 year prior” enhancements (Penal Code §667(a)(1)) and “3 year prior”
enhancements (Penal Code §667.5(a)) will not be used for sentencing and shall be
dismissed or withdrawn from the charging document;
Ɣ STEP Act enhancements (“gang enhancements”) (Penal Code § 186.22 et. seq.) will not
be used for sentencing and shall be dismissed or withdrawn from the charging document;
Ɣ Special Circumstances allegations resulting in an LWOP sentence shall not be filed, will
not be used for sentencing, and shall be dismissed or withdrawn from the charging
document;
Ɣ Violations of bail or O.R. release (PC § 12022.1) shall not be filed as part of any new
offense;
Ɣ If the charged offense is probation-eligible, probation shall be the presumptive offer absent
extraordinary circumstances warranting a state prison commitment. If the charged offense
is not probation eligible, the presumptive sentence will be the low term. Extraordinary
circumstances must be approved by the appropriate bureau director.
II. PENDING CASES
At the first court hearing after this policy takes effect, DDAs are instructed to orally amend the
charging document to dismiss or withdraw any enhancement or allegation outlined in this
document.
III. SENTENCED CASES
Pursuant to PC § 1170(d)(1), if a defendant was sentenced within 120 days of December 8, 2020
they shall be eligible for resentencing under these provisions. DDAs are instructed to not oppose
defense counsel’s request for resentencing in accordance with these guidelines.
3
APPENDIX
California has enacted over 100 sentencing enhancements, many of which are outdated,
incoherent, and applied unfairly. There is no compelling evidence that their enforcement improves
public safety. In fact, the opposite may be true. State law gives District Attorneys broad authority
over when and whether to charge enhancements. The overriding concern is interests of justice and
public safety.
The Stanford Computational Policy Lab studied San Francisco’s use of sentencing enhancements
from 2005 to 2017. They released their report, Sentencing Enhancements and Incarceration: San
Francisco, 2005-2017 in October of 2019. The following policy is informed by the results of the
Stanford study.
As noted in the study:
“During the 1980s and 90s, enhancements became more numerous and severe. Dozens
of new enhancement laws were passed in a way that critics alleged was haphazard —in
“reaction to the ‘crime of the month.’”
California’s massive rates of incarceration can be tied directly to the extreme sentencing laws
passed by voters in the 1990’s, including the 1994 Three Strikes Law. In 1980, California had a
prison population of 23,264. In 1990, it was 94,122. In 1999, five years after the passage of Three
Strikes, California had increased its population to a remarkable 160,000. By 2006, the prison
population had ballooned to 174,000 prisoners. California now has 130,000 people in state prison
and 70,000 people in local jails.
The Stanford study found that the use of sentencing enhancements in San Francisco accounted for
about 1 out of 4 years served in jail and prison. This study found that the use of sentencing
enhancements -- mostly Prop. 8 priors and Three Strikes enhancements -- accounted for half of the
time served for enhancements. The study concluded that we could substantially reduce
incarceration by ceasing to use enhancements. These enhancements also exacerbate racial
disparities in the justice system: 45% of people serving life sentences in CDCR under the Three
Strikes law are black.
Gang enhancements have been widely criticized as unfairly targeting young men of color. Recent
analyses by the LA Times suggest that the CALGANG database is outdated, inaccurate and rife
with abuse. According to California Department of Corrections and Rehabilitation data from 2019,
more than 90 percent of adults with a gang enhancement in state prison were either black or Latinx.
According to Fordham Law Prof. John Pfaff, “There is strong empirical support for declining to
charge these status enhancements. Long sentences imposed by strike laws and gang enhancements
provide little additional deterrence, often incapacitate long past what is required by public safety,
impose serious and avoidable financial and public health costs in the process, and may even lead
to greater rates of reoffending in the long run.”
According to Pfaff, a growing body of evidence-based studies have suggested that policing deters;
long sentences do little. What deters most effectively is the risk of detection and apprehension in
the first place. Other studies increasingly indicate that spending more time in prison can cause the
4
risk of later reoffending; as the harms and traumas experienced in prison grow, the ability to
reintegrate after release falls.
That prison may actually increase the risk of reoffending while imposing serious costs on
communities starkly illuminates the need to invest in alternatives. Such options do exist. One
striking example: by expanding access to (non-criminal justice based) drug treatment, the
expansion of Medicaid yielded billions in reduced crime in states that participated in the expansion.
By avoiding harsh sentencing and investing in rehabilitation programs for the incarcerated, we can
reduce crime and help people improve their lives.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-08.1
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: FURTHER CLARIFICATION OF SPECIAL DIRECTIVE 20-08
DATE: DECEMBER 15, 2020
This Special Directive is intended to further supplement the language provided in SD 20-08,
Section II concerning Pending Cases, issued on December 7, 2020. The introduction of that
Special Directive states, “...sentence enhancements or other sentencing allegations, including
under the Three Strikes law, shall not be filed in any cases and shall be withdrawn in pending
matters.” The language is clear that this policy is intended to put an end to the practice of alleging
strike priors and all other special allegations in accordance with the constitutional authority granted
solely to prosecutors across the state of California.
If a pending matter has strike priors alleged or enhancements/allegations (pursuant to SD 20-08)
deputies shall make the following record:
“The People move to dismiss and withdraw any strike prior (or other enhancement) in this case.
We submit that punishment provided within the sentencing triad of the substantive charge(s) in
this case are sufficient to protect public safety and serve justice. Penal Code section 1385
authorizes the People to seek dismissal of all strike prior(s) (or other enhancements) when in the
interests of justice. Supreme Court authority directs this Court to determine those interests by
balancing the rights of the defendant and those of society ‘as represented by the People.’ The
California Constitution and State Supreme Court precedent further vest the District Attorney with
sole authority to determine whom to charge, what charges to file and pursue, and what punishment
to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary,
or voter initiative without amending the California Constitution. It is the position of this office
that Penal Code section 1170.12(d)(2) and Penal Code 667(f)(1) are unconstitutional and infringe
on this authority. Additional punishment provided by sentencing enhancements or special
allegations provide no deterrent effect or public safety benefit of incapacitation--in fact, the
opposite may be true, wasting critical financial state and local resources.”
Legal authority: People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 530 (“[T]he language
of [section 1385], ‘furtherance of justice,’ requires consideration both of the constitutional rights
of the defendant, and the interests of society represented by the People, in determining whether
there should be a dismissal.” (emphasis in original); Dix v. Superior Court (1991) 53 Cal. 3d at
451.
TRICT AT
N
2
Furthermore, if a court refuses to dismiss the prior strike allegations or other
enhancements/allegations based on the People’s oral request, the DDA shall seek leave of the court
to file an amended charging document pursuant to Penal Code section 1009.
If a court further refuses to accept an amended charging document pursuant to Penal Code section
1009, the DDA shall provide the following information to their head deputy: Case number, date
of hearing, name of the bench officer and the court’s justification for denying the motion (if any).
The DDA shall stipulate to any stay of proceedings if requested by the defense.
gg
SPECIAL DIRECTIVE 20-08.2
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: AMENDMENT TO SPECIAL DIRECTIVE 20-08
DATE: DECEMBER 18, 2020
This Office is committed to eliminating mass incarceration and fostering rehabilitation for those
charged with crimes. As such, this Office will not pursue prior strike enhancements, gang
enhancements, special circumstances enhancements, out on bail/O.R. enhancements, or Penal
Code section 12022.53 enhancements. After listening to the community, victims, and my deputy
district attorneys, I have reevaluated Special Directive 20-08 and hereby amend it to allow
enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary
circumstances. These exceptions shall be narrowly construed.
Effective immediately, Special Directive 20-08 is amended as follows:
The following sentence enhancements and allegations shall not be pursued in any case and shall
be withdrawn in pending matters:
x Any prior-strike enhancements (Penal Code section 667(d), 667(e), 1170.12(a) and
1170.12(c)) will not be used for sentencing and shall be dismissed or withdrawn from the
charging document. This includes second strikes and any strikes arising from a juvenile
adjudication;
x Any Prop 8 or “5-year prior” enhancements (Penal Code section 667(a)(1)) and “three-year
prior” enhancements (Penal Code section 667.5(a)) will not be used for sentencing and
shall be dismissed or withdrawn from the charging document;
x STEP Act enhancements (“gang enhancements”) (Penal Code section 186.22 et. seq.) will
not be used for sentencing and shall be dismissed or withdrawn from the charging
document;
x Special circumstances allegations resulting in an LWOP sentence shall not be filed, will
not be used for sentencing, and shall be dismissed or withdrawn from the charging
document;
x Violations of bail or O.R. release (Penal Code section 12022.1) shall not be filed as part of
any new offense;
x Firearm allegations pursuant to Penal Code section 12022.53 shall not be filed, will not be
used for sentencing, and will be dismissed or withdrawn from the charging document.
2
However, where appropriate, the following allegations, enhancements and alternative sentencing
schemes may be pursued:
x Hate Crime allegations, enhancements or alternative sentencing schemes pursuant to Penal
Code sections 422.7 and 422.75;
x Elder and Dependent Adult Abuse allegations, enhancements, or alternative sentencing
schemes pursuant to Penal Code sections 667.9, 368(b)(2)/12022.7(c);
x Child Physical Abuse allegations, enhancements or alternative sentencing schemes
pursuant to Penal Code sections 12022.7(d), 12022.9, and 12022.95;
x Child and Adult Sexual Abuse allegations, enhancements or alternative sentencing
schemes pursuant to Penal Code sections 667.61, 667.8(b), 667.9, 667.10 ,667.15, 674,
675, 12022.7(d), 12022.8(b), and 12022.85(b)(2);
x Human Sex Trafficking allegations, enhancements or alternative sentencing schemes
pursuant to Penal Code sections 236.4(b) and 236.4(c);
x Financial crime allegations, enhancements or alternative sentencing schemes where the
amount of financial loss or impact to the victim is significant, the conduct impacts a
vulnerable victim population or to effectuate Penal Code section 186.11;
x Other than the enhancement or allegation prohibitions previously listed, enhancements or
allegations may be filed in cases involving the following extraordinary circumstances with
written Bureau Director approval upon written recommendation by the Head Deputy:
o Where the physical injury personally inflicted upon the victim is extensive; or
o Where the type of weapon or manner in which a deadly or dangerous weapon
including firearms is used exhibited an extreme and immediate threat to human life;
Facts or circumstances that are sufficient to meet the legal definition of great bodily injury
or use of a deadly or dangerous weapon alone are insufficient to warrant extraordinary
circumstances. The written request and approval must be placed in the case file.
CASE SETTLEMENT
The following directives cover case settlement.
1. If the charged offense(s) is probation-eligible, probation shall be the presumptive offer.
a. Appropriate deviations from this presumption are as follows:
i. If the charged offense(s) is probation-eligible, and extraordinary
circumstances exist, the Deputy District Attorney may file the basis and
recommendation for a deviation in writing to their Head Deputy and the
appropriate Bureau Director. Upon written approval from the Bureau
Director, the Deputy District Attorney may offer a state prison sentence in
accordance with this policy. The written basis for the deviation,
recommendation, and approval shall be kept in the case file.
ii. If, but for the terms of this directive, the People could have reasonably
alleged an enhancement, and defendant’s conduct would have therefore
been ineligible for probation, Deputy District Attorneys may file a
3
recommendation for a deviation in writing to their Head Deputy. Upon
written approval from the Head Deputy, the Deputy District Attorney may
offer a state prison sentence pursuant to the sentencing triad of the
substantive offense(s). The written basis for the deviation,
recommendation, and approval shall be kept in the case file.
2. If the charged offense(s) is not probation eligible, the presumptive sentence shall be the
low term.
a. When deviating from the low term the deputy shall document the supporting
reasons in the case file.
gg
SPECIAL DIRECTIVE 20-09
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: YOUTH JUSTICE
DATE: DECEMBER 7, 2020
This Special Directive addresses current policies in the previously named Juvenile Delinquency
Practice Manual. Effective December 8, 2020, the policies outlined below supersede the relevant
sections of the Juvenile Delinquency Practice Manual.
INTRODUCTION
In upholding the laws as they presently stand, this office will support efforts that recognize
children as a separate class in line with decisions1 from the Supreme Court of the United States
and state-wide legislation2. This office will do its part to find alternatives to detention and make
diversion the default. The following changes to existing practices seek to bring this office in step
with the trend to seek “care over cages” and address “need over deed.” This will also include the
creation of a juvenile division that allows for specialization and promotability, and that receives
specialized training.
All prosecutorial practices in youth justice will account for the established science
demonstrating young people’s unique vulnerabilities (including their impulsivity, susceptibility to
peer influences, risk-taking and lesser ability to fully appreciate long-term consequences, and their
lack of control over their home/family/life circumstances), their malleability and capacity for
growth and maturation, and thus their diminished culpability and potential for rehabilitation.
Specifically, we will be guided by the following principles:
Ɣ Our prosecutorial approach should be biased towards keeping youth out of the juvenile
justice system and when they must become involved, our system must employ the “lightest
1 Roper v. Simmons 543 U.S. 51 (2005), Graham v. Florida 560 U.S. 48 (2010), Miller v. Alabama 567 U.S. 460
(2012), Montgomery v. Louisiana 577 U.S. __ (2016).
2 Proposition 57 (Eliminated prosecutors’ direct file authority and established new court procedures for transferr ing a
youth’s case to adult court), SB 1391 (Repealed prosecutors’ authority to motion to transfer a case of youth age 14 or
15 to adult court), SB 439 (Set minimum age of juvenile court jurisdiction at 12, excluding murder and violent rape
offenses), SB 395 & 203 (Require youth under age 18 to consult with legal counsel prior to custodial interrogation or
waiving constitutional rights), SB 823 (Plans closure of DJJ and transferring the responsibility for youth to the
counties).
2
touch” necessary in order to provide public safety;
Ɣ A juvenile justice system must be family and child centered, holistic and collaborative with
other systems and communities in order to heal trauma, foster positive youth development,
and promote true public safety;
Ɣ A juvenile justice system must incorporate research and data in order to create effective
responses to crime and youth need;
Ɣ We must invest in community-based services, schools, health and mental health programs
and other resources that allow all children to thrive, no matter their zip code, race or gender;
Ɣ Any court involvement in a young person’s life should be proportionate, for the shortest
duration possible and result in a pathway towards a better future for youth; and
Ɣ Youth justice approaches should reflect what science and data clearly demonstrate-that
youth are malleable and continue to mature until their early-to mid-20s, affording the
juvenile justice system a unique opportunity to support youth in achieving well-being.
The following policies shall be implemented immediately:
I. FILING DECISIONS
1.Youth accused of misdemeanors will not be prosecuted. If deemed necessary
and appropriate, youth accused of misdemeanor offenses and low-level
felonies will be referred to pre-filing, community-based diversion programs.
2.Crimes involving property damage or minor altercations with group home
(STRTP) staff, foster parents, and/or other youth shall not be charged when
the youth’s behaviors can reasonably be related to the child’s mental health or
trauma history. Involvement in the justice system can exacerbate, rather than
improve, mental health issues or trauma and seeking resolution or supports through
alternatives like restorative justice and health systems can better address the root
causes of such behaviors,
3.We will decline charges for property damage or minor altercations with
members of the youth’s household when the family can be better served by
DCFS, or by way of an appropriate plan by a parent or legal guardian, and the
behaviors can reasonably be related to the child’s mental health, trauma history, or
alleged child abuse or neglect.
4.We will continue to work with the Youth Justice Workgroup to develop
collaborative decision-making teams that facilitate information sharing,
collaboration and input into filing decisions by other key partners, including
schools, health systems, families and youth themselves.
5.We will support and work with the Youth Justice Workgroup and Office of
Youth Development to eliminate provision of diversion programs by probation
and law enforcement, such as Probation’s Juvenile Citation Diversion Program
(in which youth are cited for infractions to appear in juvenile traffic court), and
instead dismiss or refer such cases where appropriate to YDD’s expanding
3
diversion infrastructure.
6.EFFECTIVE JANUARY 1, 2021: The Abolish Chronic Truancy (ACT) unit
and other truancy interventions by the District Attorney is disbanded.
II.PETITIONS
1.Filings will consist of the lowest potential code section that corresponds to the
alleged conduct and mandate one count per incident. (a)The only exception to
misdemeanor filings will be in the case of “wobbler” offenses that warrant
intervention (such as assault (Penal Code § 245)). Absent a documented history of
violence, such cases will be filed as misdemeanors and require approval from the
Deputy in Charge (DIC) to bypass diversion. (b) Filing Wobbler offenses as
felonies will require a documented history of violence for the charged youth and/or
serious injury to the alleged victim. In such cases, appropriate charging, including
the decision to file a felony, must receive Head Deputy approval. Request for
permission to file a felony shall include the basis for the request on a written
memorandum. This memorandum shall be forwarded from the Head Deputy to the
appropriate Bureau Director.
2.Filing deputies are instructed to NOT file any potential strike offense if the
offender is 16 or 17 years of age at the time of the offense. The only exception
to this policy shall be charges involving forcible rape and murder.
a. For example, all robberies will be filed, at most, as a grand theft person
and/or assault by means likely to cause great bodily injury. For all open
cases, a strike offense shall be withdrawn or refiled/amended as a non-strike
offense, or vacated and replaced with a finding of a non-strike offense, or
dismissed.
3.Enhancements shall not be filed on youth petitions consistent with the office wide
directives on ending enhancement filings.
4.The office will immediately END the practice of sending youth to the adult
court system.
a.All pending motions to transfer youth to adult court jurisdiction shall
be withdrawn at the soonest available court date, including agreeing to
defense counsel’s request to advance.
b. Cases will proceed to adjudication or disposition within the existing
boundaries of juvenile jurisdiction.
5. The following guidelines shall be followed in sexual offense cases:
a.We will avoid labeling normative adolescent behavior as a sex offense
and instead collaborate with appropriate partners to provide effective
interventions that reduce recidivism and support a youth’s education and
development around healthy sexual behavior.
i. Example: Child pornography statutes shall not be used to charge
4
youth who consensually own or send sexually explicit photographs.
b.We will strive to structure charges, filing and prosecution wherever
possible to avoid the requirement of sex offense registration.
c.We will withhold objections to removal from sex offense registries for
individuals who were youth when they committed their offenses.
III.TRANSPARENCY
1.Provide timely, complete and “open discovery”, including Brady and other
information calling into question the integrity of law enforcement action involved
at the earliest opportunity-- including with the initial discovery packet when
available.
a. Consistent with the ABA rules and best prosecutorial practices, our office
will approach discovery in a manner that maximizes transparency and
accountability.
IV. DETENTION
1.The office Presumption shall be against detention3.
a.In the vast majority of cases, youth should be released to their families
and/or caregivers, or to the least restrictive environment possible consistent
with WIC § 636.
b.In line with the spirit of WIC § 202(a), detention will only be sought where
a child poses an immediate danger to others, and only for as long as the
child represents a danger to others.
c.Detention will not be sought on the grounds that a child has no other place
to go, or that a child has serious mental health problems. If detention is
sought in an exceptional case, the request should be for a minimal period
and should only be after failed attempts at community detention (CDP).
2.Deputies shall not seek detention for a probation violation unless the violation
constitutes an independent, serious crime that poses an imminent risk of harm to
others.
3.Deputies shall not seek detention for leaving placement.
a.Engaging a Child Family Team (CFT) meeting shall be the first remedial
measure taken to assist in stabilizing the youth.
b.If immediate replacement is not available, the youth should be sent to DCFS
Transitional Shelter Care (TSC) to await Probation identifying placement.
4.House arrest (CDP) shall not be sought in excess of 15 days and deputies shall
stipulate to house arrest credits toward maximum confinement.
V. DISPOSITION AND RESOLUTION OF CASES
3http://www.pjdc.org/wp-content/uploads/Californias-County-Juvenile-Lockups-November-2020-Final.pdf
5
1.Deputies shall not oppose dismissal on competency grounds when presented
with evidence of incompetence.
2.Deputies shall seek to avoid immigration consequences.
a. Deputies are instructed to offer dispositions in accordance with Penal Code
§ 1016.3(b):
i.“The prosecution, in the interests of justice, and in furtherance of the
findings and declarations of Section 1016.2, shall consider the
avoidance of adverse immigration consequences in the plea
negotiation process as one factor in an effort to reach a just
resolution.”4
3.Deputies shall only seek probation supervision in serious felony cases and
request terms that are individually tailored to a youth’s needs.
a. Probation conditions will not include automatic search conditions, gang
conditions, and other conditions that are overboard.
4.Deputies shall not object to sealing records pursuant to WIC § 786 and 781, or
dismissing strike offenses pursuant to WIC § 782.
VI. DUAL STATUS (CROSS-OVER) YOUTH
5.Deputies shall make every effort to prevent a dependent youth from crossing
over into the delinquency system.
a. If the court determines dual status is appropriate, deputies will encourage a
dependency lead for children involved in the dependency system. When
available, diverting cases to other systems will be the default position.
6.No delinquency filing if the circumstances that give rise to the potential
petition also give rise to the dependency petition.
a.Examples: Parent and youth are delivering drugs; both are arrested and
charged with drug trafficking; dependency petition is filed; teen will not be
charged.
b.In a physical fight where the parent is hitting teen and the teen responds by
hitting back, resulting in a dependency petition, the teen will not be charged.
7.For any child awaiting placement, the District Attorney will support the
release of youth to a temporary, non-secure setting so that youth do not face
prolonged detention simply because no safe placement has been identified.
8.The presumption for youth in congregate care and housing based on mental
health needs will be that the alleged conduct was within the scope of behaviors to
be managed or treated by the foster home or facility.
4 1016.2 codifies Padilla v. Kentucky 559 U.S. 356 (2010)
6
a. Formal filing in these situations will require DIC approval and conform to
all other policies enumerated herein regarding misdemeanors and charging
the lowest possible offense.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-10
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: HABEAS CORPUS LITIGATION UNIT
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of Bureau of Prosecution Support Operations, Habeas
Corpus Litigation Team in Chapter 1.07.03 of the Legal Policies Manual. Effective December 8,
2020, the policies outlined below supersede the relevant sections of Chapter 1.07.03 of the Legal
Policies Manual.
INTRODUCTION
Irrefutable evidence shows that wrongful convictions occur with unacceptable frequency,
including convictions that are obtained in proceedings where due process violations and other
fundamental constitutional errors denied a defendant their right to a fair trial. The mission of the
Habeas Corpus Litigation (HABLIT) Unit is to ensure that justice is done in every case filed in
that unit and that every potentially meritorious claim raised in a petition for a writ of habeas corpus
is carefully reviewed and investigated.
In every case, HABLIT shall undertake a good-faith case review designed to ensure the
integrity of the challenged conviction. In every case, where any injustice is uncovered, including
racial injustice, whether or not it is of a constitutional magnitude, HABLIT shall examine and
recommend appropriate remedies capable of redressing the harm uncovered, within the bounds of
the law. For example, HABLIT is directed to ascertain whether, based on its review and
investigation into claims raised in a petition, the outcome in the case comports with the office’s
current views what would constitute a fair and just conviction and sentence today and, if not,
HABLIT shall take steps to find a remedial solution to bring the conviction and sentence into line
with today’s standards, such as recommending that a petitioner be considered for resentencing to
a lesser term pursuant to Penal Code § 1170(d).
HABLIT shall not, as a policy, defend every conviction or raise every conceivable
procedural challenge with equal fervor and without regard to the potential merits of the claims
presented. Before relying on procedural challenges to defeat any claims raised in a petition,
HABLIT shall make a fulsome initial assessment as to whether a petitioner’s claims have potential
merit, i.e., whether the facts alleged, if true, state a prima facie case for relief. Where a claim
appears potentially meritorious on its face, HABLIT shall immediately commence investigating
the claim, and seek the earliest possible resolution where it is determined that the claim is
meritorious. If the petitioner has failed to state a prima facie case and/or the petitioner is abusing
2
the writ process by filing successive petitions without additional new evidence supporting the
claims presented, HABLIT shall defend the conviction.
GUIDING PRINCIPLES
“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to
convict. The prosecutor serves the public interest and should act with integrity and balanced
judgment to increase public safety both by pursuing appropriate criminal charges of appropriate
severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.
The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of
victims and witnesses, and respect the constitutional and legal rights of all persons, including
suspects and defendants.”
-American Bar Association, Criminal Justice Standards for the Prosecution Function, Standard 3-
1.2(b)
“When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood
that a convicted defendant did not commit an offense of which the defendant was convicted, the
prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2)
if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence
to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make
reasonable efforts to cause an investigation, to determine whether the defendant was convicted of
an offense that the defendant did not commit...When a prosecutor knows of clear and convincing
evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense
that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”
-American Bar Association, Model Rules of Professional Conduct, Standard 3.8(g)-(h); California
Rules of Professional Conduct (F)-(G)
POLICIES GOVERNING HABLIT UNIT CASE REVIEW OF NON-CAPITAL CASES
A. Habeas Corpus Litigation
Post-conviction litigation differs significantly from the primary work of our office at the
trial level. Postconviction litigation at its core is an attempt to balance the People’s interest in
finality—that a jury’s verdict is presumed reliable and brings closure to a case—with an
individual’s interest in fundamental Constitutional rights and statutory due process rights, and
society’s interest in preventing wrongful convictions. When tasked with responding to a petition
for writ of habeas corpus, HABLIT must weigh these competing interests and find the appropriate
balance in each individual case.
Where a petitioner’s claims are patently meritless or plainly refuted by the record, the
balance tips strongly in favor of finality and HABLIT shall defend that conviction. But where a
petitioner presents allegations that are supported by reasonably available evidence, the balance tips
against finality and HABLIT shall not simply oppose the petitioner’s claim, for the sake of
protecting a conviction. Rather, HABLIT shall assess each claim on the merits and if it could
potentially expose fundamental constitutional error and/or a statutory right to due process
HABLIT’s response to the court should so indicate.
3
In weighing whether a conviction should be defended and protected, or whether a different
outcome or resolution is in the interests of justice, HABLIT shall investigate and take into account
the following considerations:
Ɣ Whether there is a reasonable probability that the applicant is actually innocent,
despite the petitioner’s ability or inability to articulate a legally sound claim1;
Ɣ Whether material evidence relied upon to obtain the conviction is no longer deemed
credible;
Ɣ Whether there is evidence the prosecution or conviction was tainted by racial
discrimination, whether or not a court previously agreed with the applicant’s
assertion of racial discrimination;
Ɣ Whether the prosecution failed to disclose material evidence in the possession of
any law enforcement agency that was favorable to the defense, whether
exculpatory, impeaching, or mitigating;
Ɣ Whether the fact-finding process was so corrupted as to deny the applicant a fair
adjudication of his or her guilt or innocence at trial;
Ɣ Whether a manifest injustice rendered the trial fundamentally unfair; and/or,
Ɣ Whether, had the office known at the time of trial what it now knows about the
evidence, the office would not have chosen to prosecute the case.
The above list is intended to be illustrative; it is not exhaustive.
HABLIT’s de novo weighing of these interests, prior to a decision to defend a conviction,
will ensure greater confidence in this Office’s convictions, promote transparency, and strengthen
the public’s confidence in our criminal justice system, which is capable of addressing errors when
they are exposed.
HABLIT’s approach to case review and case resolution shall be guided by this office’s
policy of avoiding unnecessary litigation and resolving cases at the earliest possible juncture,
where it is in the interests of justice to do so. HABLIT shall consider what steps, if any, can and
should be taken to remedy any injustice it uncovers, whether or not the error or errors are of a
constitutional magnitude.
Where HABLIT determines, for example, that based on its review and investigation into
claims raised in a petition, the outcome in the case does not comport with the office’s current views
and policies of what constitutes a fair and just conviction and sentence today, HABLIT shall take
steps to find a remedial solution to bring the conviction and sentence into line with today’s
standards, including seeking dismissal of the case pursuant to P.C. 1385, moving for a reduction
of sentence pursuant to P.C. 1170(d), advocating before the BPH for release on parole, supporting
a petition for the restoration of rights, seeking expungement of the case, and/or supporting a request
for clemency or pardon, where such remedies are in the interest of justice.
B. Screening and Litigation Prior to the Issuance of an Order to Show Cause
1 See, Rule 3.8 Special Responsibilities of a Prosecutor (Rule Approved by the Supreme Court,
Effective June 1, 2020)
4
Upon the filing of a petition, the reviewing court may either summarily dismiss the petition,
ask our office for informal briefing, or issue an order to show cause (OSC). The issuance of an
OSC is analogous to issuing the writ of habeas corpus, i.e., requiring the body of the petitioner to
be brought to court to initiate a cause of action as to whether the petitioner’s confinement is
constitutional. The writ—an OSC—must issue if a petitioner’s allegations state a prima facie case
on a claim that is not procedurally barred. People v. Romero, 8 Cal. 4th at 738; Pen. Code § 1476.
1. Informal Briefing
HABLIT’s involvement in the foregoing process is triggered when a reviewing court
requests an informal response. The purpose of an informal response to assist the court in deciding
whether to summarily deny a petition or issue an OSC. See Cal. Rules of Ct. R. 8.385(b).
If HABLIT is tasked with informal briefing, an independent review of the petitioner’s
allegations must be done with the balancing between finality and individual rights discussed above
as the paramount consideration. If a determination is made that the petitioner's allegations —
accepted as true and resolving inferences in favor of the petitioner as the law requires—set forth a
prima facie claim for relief, HABLIT’s informal response to the court should be to advise it that
an OSC is necessary. This does not mean that HABLIT is conceding the conviction should be
overturned at this stage. It means that HABLIT acknowledges a case should be initiated, and that
the court may exercise its “full power and authority” to hold a hearing, allow discovery, “and to
do and perform all other acts and things necessary to a full and fair hearing and determination of
the case.” Pen. Code. § 1484.
In the preparation of an informal response, HABLIT shall be cognizant of the expedited
manner in which the California Legislature and Courts intend for habeas corpus petitions to be
litigated. California Rules of Court 4.551; Maas v. Superior Court (2016) 1 Cal.5th 962, 981. The
informal reply need only address the petition’s sufficiency as a pleading – that is, whether it states
a prima facie claim for relief, and whether there are any applicable procedural bars. People v.
Romero (1994) 8 Cal.4th 728, 737. The informal response shall not present evidence or otherwise
address the merits of the claims presented, except to state whether or not a prima facie case has
been made and an OSC should issue, or that, instead, the petition fails to state a prima facie case
and/or is procedurally barred.
2. Procedural Bars
Procedural bars to post-conviction relief were erected for the express purpose of preventing
abuse of the writ. When this office urges the court to dismiss a potentially meritorious claim on
the basis of a procedural bar alone, it undermines confidence in our ability to fairly administer
justice and, ultimately, in the People’s faith in our convictions and the integrity of our system.
Because HABLIT’s decision to argue that a procedural bar prevents a court from
considering the merits of a petitioner’s claims, such decisions shall be based on whether the
petition, in fact, constitutes an abuse of the writ. Procedural bars of otherwise meritorious claims
should not be argued, absent compelling good cause that has been approved by a supervisor. In
no circumstance shall HABLIT assert a procedural bar when there is a credible claim of factual
innocence.
While HABLIT’s post-conviction investigation into a petitioner’s claims will often be
underway while informal briefing is being prepared, that ongoing investigation should not form
5
the basis of any requested extension of time in which to file the informal response.
3. Post-Conviction Investigation
The goal of a post-conviction investigation is to uncover the truth and determine whether
a petitioner’s claims have merit, not to defend a conviction that is unsound. These investigations
shall not be undertaken as a means of “protecting” a conviction, nor shall they be adversarial in
nature. Threatening a witness, recanting or otherwise, with prosecution for perjury, either directly
or indirectly, is witness intimidation and prosecutorial misconduct under California law. People
v. Bryant (1984) 157 Cal.App.3d 582.
The HABLIT Unit Head Deputy shall work with the training division and management to
ensure deputies and investigators are trained in best practices for conducting post-conviction
investigations and deputies shall consult with relevant experts when investigating potentially
meritorious claims raised in a petition. HABLIT investigations often require looking into
convictions that are decades old, where witnesses’ memories have faded, and/or that involve
reluctant or recanting witnesses, and therefore often require specialized knowledge and training
on issues such as memory science, as eyewitness identifications, and police practices used at the
time that are no longer considered best practices.
These investigations shall not be undertaken as a means of “protecting” a conviction, nor
shall they be adversarial in nature. Thus, for example, investigators should not engage in tactics
designed to dissuade a recanting witness by threatening to charge that witness with perjury; rather
the paramount goal of a HABLIT investigation shall be to determine the reliability and truthfulness
of the recantation. Using a high-pressure, coercive, or intimidating approach in these
investigations wastes time and resources and sends a mixed message to office staff about the
HABLIT’s mission and undermines the office’s credibility with the public.
HABLIT deputies and investigators shall also make all reasonable efforts to avoid
unintentional witness intimidation. These efforts will include, but are not limited to, conducting
interviews outside of a police station in a non-threatening or neural location, if possible, and the
concealing of the investigator’s gun, if one is carried, except where specifically required to do so
by law, or if approved by the elected District Attorney.
HABLIT deputies and investigators shall audio record and/or video record all witness
interviews conducted in the course of post-conviction investigations. HABLIT shall provide
copies of those recordings to the petitioner or petitioner’s counsel, once an OSC has issued, and
shall continue providing all discovery to which the petitioner has a right, as soon as it is discovered.
All discovery provided by this office shall be documented by signed discovery receipts.
HABLIT deputies and investigators shall understand what confirmation bias is—also
referred to as tunnel vision—and how to avoid it. Studies have shown that confirmation bias is
pervasive in reinvestigations in wrongful conviction cases, where prosecutors tasked with
checking their own work and the work of their colleagues fail to see error because they are looking
to confirm that no mistakes were made in the original investigation and trial. When original police
reports are viewed deferentially and/or treated as unassailable accounts of the truth of what
transpired in the case, for example, confirmation bias is likely driving the investigation. Research
shows that police reports are often incomplete and contain inaccuracies, due to the fast-pace at
which criminal investigations unfold, following serious felony offenses, and therefore should be
reviewed critically, not deferentially. HABLIT deputies and investigators shall test and probe
6
information in police reports, witness accounts, and other new evidence presented by an applicant,
in a manner designed to uncover the truth, rather than protect the conviction.
4. Facilitating Informal Discovery and Limited Factfinding
Prior to the issuance of an OSC, the court’s power to compel discovery is limited.
However, Penal Code § 1054.9 and ongoing Brady requirements obligate our office to provide
discovery where conditions are met. HABLIT should interpret these bases in good faith and in
accordance with this office’s policies governing discovery.
Recognizing that certain categories of otherwise privileged information and work product
prepared by this office may contain exculpatory or impeachment information relevant to a
petitioner’s claims, and the benefit to the truth-seeking process of having both parties review this
material, HABLIT shall err on the side of disclosing the complete LACDA trial file to the
petitioner’s counsel for independent review, subject only to reasonable and necessary disclosure
agreements. Any redactions shall be limited to those deemed strictly necessary to protect victim
or witness privacy.
Moreover, absent clearly abusive or frivolous attempts to obtain information, HABLIT
shall facilitate a petitioner’s ability (or petitioner’s counsel’s ability) to speak with law
enforcement agents and prosecution experts to obtain information and/or materials the petitioner
needs to further support the claims raised in the petition, where such communications can be
facilitated.
In the event the petitioner’s case file(s) have been lost in whole or part, HABLIT shall
immediately inform the petitioner, or their counsel, that the file(s) is lost or incomplete. HABLIT
shall work with the Post-conviction Discovery Unit to reconstruct the case file by complete files
from law enforcement agencies responsible for investigating the case, including:
Ɣ The LACDA’s internal files;
Ɣ The LAPD, LASD, LAFD, and/or any other law enforcement agency or emergency
services provider involved in the case;
Ɣ Crime labs;
Ɣ The coroner’s office, in homicide cases;
Ɣ The original trial deputy’s personal file;
Ɣ The superior court file;
Ɣ The courthouse exhibit room;
Ɣ The court of appeal; and
Ɣ Any other source reasonably likely to have relevant materials, records, and/or
evidence, such as medical records, where appropriate releases are provided, 911
dispatch call recordings, etc.
Ɣ
5. Red Flags
Documented wrongful conviction cases show that convictions obtained by the presentation
of certain types of evidence are at a higher risk of producing an unreliable or unconstitutional
outcome. HABLIT shall pay special attention to claims involving any of the following high-risk
7
factors, most of which are considered to be the most common causes of wrongful convictions:
Ɣ the petitioner was convicted based, in whole or in part, on eyewitness identification
evidence or testimony, particularly where it was a stranger identification or cross-
racial identification, or both2;
Ɣ the petitioner was convicted based, in whole or in part, on a confession and there
are allegations that this confession was false or coerced 3;
Ɣ the petitioner was convicted based, in whole or in part, on testimony that has since
been recanted as false or coerced;
Ɣ the petitioner’s conviction is alleged to have been borne from official misconduct,
including witness tampering, misconduct in interrogations, fabricated evidence and
confessions, the concealment of exculpatory evidence, and misconduct at trial4;
Ɣ law enforcement personnel involved in the investigation or arrest of the petitioner
were subsequently discharged or relieved of their duties for misconduct;
Ɣ the petitioner was convicted based on forensic evidence grounded in methodologies
that have since been largely or wholly discredited as unreliable, including but not
limited to bloodstain pattern analysis, comparative bullet lead analysis, forensic
odontology (bitemarks), hair microscopy for the purpose of determining whether
known/unknown hairs share a common source, Shaken Baby Syndrome (SBS).
HABLIT shall review the forensic methods used to analyze the evidence and ensure
that forensic evidence used to obtain a conviction has standardized scientific
principles and/or otherwise remains foundationally valid and valid as applied5;
2 HABLIT shall verify that eyewitness identifications supporting a conviction comport with standards and
research accepted by the scientific community and do not run afoul of the best practice and
recommendations in the 2019 Third Circuit Eyewitness Identification Report. The CIU shall assess the
reliability of eyewitness identification evidence in light of the non-exhaustive lists of system and
estimator variables set forth in State v. Henderson (N.J. 2011) 27 A.3d 872, and continually examine and
apply emerging research related to eyewitness identifications, including but not limited to the American
Psychological Association white papers Policy and Procedure Recommendations for the Collection and
Preservation of Eyewitness Identification Evidence (2020) and Eyewitness Identification Procedures:
Recommendations for Lineups and Photospreads (1998).
3 HABLIT shall consult the 2010 American Psychological Association white paper on police interrogation
and confessions, and any emerging literature or research regarding false confession and recanting witnesses,
to inform its review of convictions supported by testimony that has since been recanted.
4 HABLIT shall consult the National Registry of Exonerations report Government Misconduct and
Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement (2020), and any
emerging literature or research regarding official misconduct, to inform its review of convictions alleged to
have resulted in whole or in part from official misconduct.
5 The use of unreliable and misleading forensic evidence, which we know is a common cause of wrongful
convictions imperils the integrity of the criminal legal system. The CIU shall critically and continually
examine emerging scientific literature, which may also call into question older forensic methods, and train
staff about these changes, so that case review criteria can be updated as needed. The CIU shall ensure that
forensic evidence supporting a conviction complies with the findings, recommendations, and best practices
set forth in specific reviews of the relevant sciences, including but not limited to:
8
Ɣ the petitioner was convicted based on forensic evidence that the LACDA has
generally accepted as reliable, but the particular conclusions or opinions presented
to the jury in support of the prosecution’s case exceeded the bounds of what is now
recognized to be valid science – for example, through testimony purporting to
“identify” a petitioner as the unique source of an item of biological evidence
through a method other than DNA analysis, or through expert testimony implying
or stating a statistical basis for the likelihood of a particular conclusion that is not
verifiable or otherwise valid;
Ɣ the conviction was based on evidence, the reliability of which has since been called
into question, and was corroborated only with jailhouse informant testimony or
testimony by an informant that has been used by law enforcement or this office on
more than one occasion;
Ɣ a gang allegation was found true by a jury where the only evidence of gang
membership was presented by a gang expert, and that evidence would now be
deemed inadmissible hearsay under People v. Sanchez (2016) 63 Cal. 4th 665, and
the evidence of gang membership served as the only evidence of motive used to
obtain the conviction;
Ɣ evidence based on analysis by crime labs that were not accredited when the analysis
was conducted, and/or have been implicated in scandals related to their handling
and testing of evidence;
Ɣ evidence supporting the conviction was corroborated by one or more of the above
types of unreliable evidence;
Ɣ defense counsel was disbarred or otherwise disciplined after the challenged
conviction was obtained, or was found by a court to have provided ineffective
assistance of counsel in one or more other cases.
6. Forensic Evidence
Where a petitioner challenges the reliability of forensic evidence the prosecution presented
at trial to obtain the conviction, HABLIT shall examine the reliability of the forensic testing
obtained at the time of trial. Where the reliability of that evidence is in question, HABLIT shall
consult with experts and determine whether re-testing the evidence in question would be probative,
in that it may tend to help identify the identity of the perpetrator of the crime, or may otherwise
exculpate the petitioner. HABLIT shall request that forensic test results be expressed in reports
Ɣ American Association for the Advancement of Science (AAAS) reports on Fire Investigation
(2017) and Latent Fingerprint Examinations (2017)
Ɣ American Statistical Association (ASA) Position on Statistical Statements for Forensic Evidence
(2019)
Ɣ National Academy of Sciences (NAS) report Strengthening Forensic Science in the United States:
A Path Forward (2009)
Ɣ National Institute of Standards and Technology (NIST) report on Latent Print Examination and
Human Factors (2012), Working Group on Human Factors in Handwriting Examination (2020),
and Scientific Foundation Studies on DNA mixture interpretation, bitemark analysis, firearms
examination, and digital evidence (forthcoming)
Ɣ President’s Council of Advisors on Science and Technology (PCAST) report Forensic Science in
Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016).
9
and testimony using clear and comprehensible language, to inform the HABLITS’s decision
making.
Where a petitioner seeks DNA testing of evidence as part of new evidence sought in
support of a claim raised in a petition and has facially satisfied the requirements of P.C. 1405,
HABLIT shall not raise procedural challenges or defenses to oppose, nor shall it oppose, requests
DNA testing, where the testing may lead to evidence identifying the perpetrator of a crime. Where
a petitioner requests DNA testing and needs assistance in ascertaining the status of the evidence to
be tested, HABLIT shall assist the petitioner in ascertaining the status of physical evidence by
facilitating contacts between petitioners seeking DNA testing, or their attorneys, and the crime lab,
the coroner’s office, law enforcement, or other entities, who can assist in searching the locations
where the evidence may be stored in an effort to locate the evidence in question.
HABLIT shall carefully scrutinize cases in which experts or others opined or testified using
terms like “reasonable degree of scientific certainty,” which have no accepted scientific meaning,
yet convey an unsupported measure of reliability or conclusiveness to the factfinder. HABLIT
shall request that all information concerning the limitations of forensic techniques should be
disclosed alongside the results of any analyses. All forensic methods have limitations, and none
are error free. Where error rates for a method are not known or have not been adequately measured,
reports shall state that fact. HABLIT shall carefully scrutinize any conviction based in whole or
in part upon testimony that states or implies a “zero error rate” or which purports to provide an
error rate that has not been independently validated. HABLIT shall similarly make those
limitations clear in communications with the applicant and/or their counsel and the court. HABLIT
shall also request that all methods of forensic analyses be documented in the first instance to permit
HABLIT’s review and disclosure of all steps followed and the methodology used to arrive at the
conclusions reached.
HABLIT shall ensure that the petitioner and/or their counsel receive certificates or reports
of forensic analyses, as well as complete documentation of the methods used and the results
reached. HABLIT shall disclose to the petitioner or petitioner’s counsel all inconclusive and
exculpatory forensic results. If a petitioner alleges that evidence was improperly analyzed and/or
mishandled by the crime lab or coroner’s office, or other governmental entity, HABLIT shall seek
and provide the petitioner with any information discovered concerning “corrective actions” taken
in a laboratory relating to problematic methods and personnel, and proficiency testing of individual
analysts, if any, where relevant.
Once HABLIT learns that a petitioner is seeking to test forensic evidence, HABLIT shall
make a request to preserve any forensic evidence in the case.
7. Cumulative Error Claims
Where a petitioner alleges a claim of cumulative error, the allegation is that there are at
least two separately cognizable trial errors which, while viewed independently may be harmless
error, but when the prejudice from the two or more errors is viewed cumulatively it rises to the
level of prejudicial error. People v. Hill (1998) 17 Cal.4th 800, 844.
HABLIT shall be cognizant that errors can be and are made, both during the investigation
and prosecution of felony cases. HABLIT shall, where a cumulative error claim is raised,
affirmatively and fairly assess the combined prejudice to a petitioner, where the petition states a
10
prima case for relief as to one or more claims in the petition. HABLIT shall consider, in assessing
whether the petitioner was denied the right to a fair trial, whether the court, during the direct appeal
or a prior habeas proceeding, ruled that another error, or other trial errors, did occur (in addition
to the errors alleged in the petition), but denied relief as to the earlier-identified error(s) on the
ground that they were harmless. Any prejudice flowing from the error or errors earlier ruled to be
harmless, must be considered along with the prejudice arising from the additional error identified
in the petition, in determining whether the errors, combined, can together sustain a cumulative
error claim. In re Reno (2012) 55 Cal.4th 428, 483. As with other claims, if a petitioner’s
cumulative error claim sets forth a prima facie claim for relief, HABLIT shall so advise the court
in its informal response and indicate that an OSC as to the cumulative error should issue.
8. C.C.P. §170.6 Challenges
The superior court generally assigns habeas corpus petitions to the same department that
presided over the trial and/or sentencing proceedings. On occasion, the matter will be reassigned
to another judge, such as when a judge retires or where there may be a conflict of interest.
Conflicts are not infrequent because the vast majority of criminal court judges are former
prosecutors, and petitions often allege government or prosecutorial misconduct that implicates
former LACDA colleagues of the judge assigned to hear the post-conviction case.
When such reassignments occur, HABLIT shall not challenge, pursuant to Civil Procedure
§170.6, any judge who is not a former prosecutor unless there is a non-pretextual and articulable
justification for the filing of a §170.6 challenge, approved by a supervisor. When HABLIT files a
C.C.P. §170.6 challenge to an assigned judge who is not a former prosecutor, it creates the
appearance that this office believes it will receive more favorable treatment from a judge who was
a former prosecutor than one who was not. While the law does not require that any specific reason
be articulated in the public filing, HABLIT shall avoid even the appearance of judge-shopping and
shall not file §170.6 challenges for that purpose.
C. Post-OSC Litigation
When the court issues an OSC, formal briefing begins. During this formal briefing and up
to and including an evidentiary hearing, HABLIT’s role shall not be merely adversarial to the
petitioner but—again—one of seeking justice and balancing the interest of finality with potentially
meritorious claims indicating a wrongful conviction.
1. Post-OSC Discovery
Once the court issues an OSC, the petitioner is entitled to discovery and has subpoena
power to seek materials from sources outside this office. To the extent HABLIT did not already
provide discovery to the petitioner informally as set forth in B.4., infra, once the OSC issues,
HABLIT shall do so and shall continue providing the petitioner with additional new materials that
are discovered, as they become available. As noted above, HABLIT deputies and investigators
shall audio record or video record all witness interviews conducted in the course of post-conviction
investigations and shall provide copies of those recordings to the petitioner. All discovery shall
be documented through the use of signed discovery receipts.
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2. The Return
Upon issuance of the OSC, HABLIT shall file a timely Return that admits or denies the
material factual allegations in the petition. Denials shall be supported by citations to evidence;
general denials may be deemed “admissions,” and shall be avoided. The Return is the People’s
opportunity provide the court with the factual bases for any denial, and allege new facts in support
of petitioner’s conviction. HABLIT shall provide, in the Return, an articulable reason or
justification for any allegation being denied, supported by a factual basis and evidence. HABLIT
shall admit factual allegations where there is no basis for denying them. The purpose of the
admission and denial of facts in the Return is to assist the court in determining whether the merits
of the petition can be reached, without the need for an evidentiary hearing, and to limit the scope
of any required evidentiary hearing only to those facts actually in dispute.
3.Communications with Petitioner’s Trial Counsel
This Office respects the sanctity of the attorney-client privilege between a defendant and
defense counsel. A petitioner who alleges Ineffective Assistance of Counsel may have impliedly
waived some portion of the attorney-client privilege as to communications with petitioner’s trial
counsel. This waiver is not absolute, however, and is extremely limited.
HABLIT shall err on the side of caution and notify a petitioner before seeking to contact
defense counsel and provide petitioner with a chance to object or modify a claim to avoid an
inadvertent or implied waiver of the attorney-client privilege. HABLIT will not seek disclosure
of anything beyond that which is strictly necessary and legally allowable under California and
Federal law, including information that exceeds the limited scope of a pending ineffective-
assistance-of-counsel claim.
HABLIT shall not encourage any attorney to violate their ethical duties of confidentiality
and loyalty to former clients, as articulated in the California Rules of Professional Conduct; rather,
HABLIT attorneys or investigators speaking to defense counsel must remind defense counsel of
the attorney-client privilege prior to the start of a substantive interview.
D. Case Resolution
Where the court, or HABLIT, determines that a petitioner’s conviction and sentence must
be vacated for any reason, HABLIT shall ascertain (i) if determined by the court, whether the
court’s decision should be appealed; (ii) whether there still exists constitutionally permissible
evidence sufficient to prove that person’s guilt beyond a reasonable doubt; and/or (iii) whether
there are identifiable avenues for obtaining constitutionally permissible evidence sufficient to
prove that person’s guilt beyond a reasonable doubt.
If there are grounds for appealing a court’s ruling, and it is in the interests of justice to do
so, HABLIT shall ensure that a notice of appeal is timely filed. If a decision is made to appeal the
grant of a habeas corpus petition, a memorandum shall be submitted to a supervisor for approval,
justifying the decision to appeal before a notice of appeal is filed. If an appeal is taken, there shall
be a strong presumption that a petitioner who has secured a grant of habeas relief in the superior
court should be released OR, or granted bail, pending that appeal.
If, in HABLIT’s assessment, there exists constitutionally permissible evidence sufficient
to prove that person’s guilt beyond a reasonable doubt and/or there are identifiable avenues for
12
obtaining constitutionally permissible evidence sufficient to prove that person’s guilt beyond a
reasonable doubt, and it is in the interests of justice to do so, HABLIT shall articulate what the
remaining evidence is and, if approved by the District Attorney, shall announce that the LACDA
intends to retry the petitioner.
If there are no grounds for appealing the court’s ruling, and where there no longer exists
constitutionally permissible evidence sufficient to prove that person’s guilt beyond a reasonable
doubt and there are no identifiable avenues for obtaining constitutionally permissible evidence
sufficient to prove that person’s guilt beyond a reasonable doubt, HABLIT shall announce that the
LACDA does not intend to appeal, nor does it intend to retry, the petitioner.
1. Re-Sentencing Cases
Where HABLIT determines that the fair and just resolution in a case involves, among other
relief, seeking a reduction in the petitioner’s sentence pursuant to P.C. 1170(d), and the decision
is approved by the District Attorney, HABLIT shall inform the petitioner or petitioner’s counsel
of the decision at the earliest possible opportunity. With the petitioner’s agreement, HABLIT shall
coordinate with deputies tasked with resentencing so that a motion for resentencing can be filed
by the LACDA at the earliest opportunity.
HABLIT’s decision to seek a sentence reduction shall not be dependent upon the
petitioner’s agreement to withdraw any claims made in a pending petition. For example, a
petitioner who maintains that they are actually innocent of the crimes of conviction shall not be
forced to choose between dropping the claim of innocence and receiving the support of the
LACDA for a P.C. 1170(d) reduction in sentence.
2. Reentry Assistance & Compensation Assistance
HABLIT shall not delay the release of any person whose entitlement to post-conviction
relief and release from custody has been established, for any reason; it is the duty of the HABLIT
to immediately arrange for conditional release of those individuals pending the formalization of
the conviction being vacated, including facilitating the release process by coordinating with the
CDCR, providing the CDCR with court orders and any other documentation required to secure the
petitioner’s release from custody.
Where HABLIT determines that a conviction should be overturned and a case dismissed
based on actual innocence, HABLIT shall assist the petitioner in securing necessary support and
documentation, such as a finding of actual innocence, that facilitate successful reentry into the
community and will support the enactment of systems of compensation for those wrongfully
convicted.
3. Findings of Factual Innocence
This office recognizes that monetary compensation is essential to a wrongfully convicted
person’s ability to rebuild their life. Under California law, wrongfully convicted persons who are
innocent of the crimes for which they were convicted may file a claim for compensation with the
California Victim Compensation and Government Claims Board (CVCGC Board), under
California Penal Code section 4900.
13
Under current law, the CVCGC Board determines whether to approve a claim by either: (i)
holding a hearing at which the claimant presents evidence supporting their claim of innocence, and
reaching a determination as to whether the claimant has met the standard; or, (ii) receiving a
“finding of factual innocence” made by the superior court, which is binding on the CVCGC Board.
Under current law, a wrongfully convicted person must demonstrate that they are innocent
by a preponderance of the evidence. The burden is on the wrongfully convicted person to prove
their innocence. Because that standard is antithetical to the bedrock principle of our criminal
justice system–which presumes a person is innocent until they are proven guilty beyond a
reasonable doubt6–absent extenuating circumstances and supervisor approval, it shall be the policy
of this office to move jointly for and/or concede in the superior court that “a finding of factual
innocence” should be made, where the conviction has been overturned, the charges have been
dismissed, the LACDA does not intend to appeal the court’s ruling overturning the conviction, and
there no longer exists constitutionally permissible evidence sufficient to prove that person’s guilt
beyond a reasonable doubt.
In such cases, the LACDA shall proactively assist the petitioner in seeking the statutory
compensation to which they are entitled, including filing in the superior court, jointly with the
petitioner, if requested, a motion “for a finding of factual innocence by a preponderance of the
evidence that the crime with which he or she was charged was either not committed at all or, if
committed, was not committed by him or her.” Cal. Pen. Code 1485.55 (b). Because the court’s
“finding of factual innocence,” is binding on the CVCGC Board, this office’s joint request for that
finding will expedite and facilitate the compensation process. HABLIT shall also assist the
petitioner, in the above-described circumstance, by supporting their claim before the CVCGC
Board, when filed, if requested.
4. Victim Outreach & Advocacy
HABLIT shall comply with all statutes and rules governing victims’ rights and may engage
a victim representative at any stage in the investigation when doing so may be in the best service
of the investigation and/or the victim. HABLIT will be respectful of victims and institute a culture
of keeping victims abreast of investigation outcomes, when the outcome affects or changes the
nature of the conviction and/or sentence. Upon the District Attorney’s decision to seek relief in a
case, HABLIT shall engage a victim representative to liaise with the victim or victims.
5.“Learning Organization”
6 “Absent conviction of a crime, one is presumed innocent.” Nelson v. Colorado. (2017) 137
U.S. 1249, 1255 (explaining that once a criminal conviction is erased, the presumption
of innocence is restored and holding that the state “may not presume a person, adjudged guilty of
no crime, nonetheless guilty enough for monetary exactions”),
citingௗJohnsonௗv.ௗMississippi (1988) 486 U.ௗS. 578, 585 (1988) (holding that after a “conviction
has been reversed, unless and until [the defendant] should be retried, he must be presumed
innocent of that charge”); Coffinௗv.ௗUnited States (1895) 156 U.ௗS. 432, 453 [“axiomatic and
elementary,” the presumption of innocence “lies at the foundation of our criminal law.”
14
The outcomes of HABLIT investigations are intended to provide a critical opportunity to
identify systemic gaps that go beyond just one individual’s error and can reinforce the idea that
the District Attorney’s office is a “learning organization.” HABLIT will have a clear avenue for
recommending policy and procedural changes, as well as enhanced training, to address any
deficiencies that are uncovered.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-11
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: DEATH PENALTY POLICY
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of Special Circumstances Cases in Chapter 7 of the Legal
Policies Manual. Effective December 8, 2020, the policies outlined below supersede the relevant
sections of Chapter 7 of the Legal Policies Manual.
A sentence of death is never an appropriate resolution in any case. The office will strive to ensure
that all actions taken are consistent with this policy, including refraining from filing letters stating
an intention to seek the death penalty, filing briefs, seeking discovery, or making arguments in
court that indicate that the death penalty is an appropriate sentence.
INTRODUCTION
Racism and the death penalty are inextricably intertwined.1 Numerous studies have found that
race influences who is sentenced to die in this country and in California; this includes both the race
of the defendant and the race of the victims.2
Los Angeles County has historically been one of the nation’s most prolific death penalty counties,3
and it exemplifies how racism infects death penalty proceedings. There are currently 215 people
on California’s death row who were sentenced to death as a result of capital prosecutions in Los
Angeles County.4 An astonishing 85% of those people are people of color.5 This makes Los
1 Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the
Death Penalty (1995) 35 Santa Clara L. Rev. 433, 439; see also Equal Just. Initiative, Lynching in America:
Confronting the Legacy of Racial Terror 5 (3d ed. 2017), <https://lynchinginamerica.eji.org/report/>.
2 Alexis Hoag, Valuing Black Lives: A Case for Ending the Death Penalty (2020) 51 Colum. Hum. Rts. L. Rev. 983
[collecting and describing studies].
3 Death Penalty Info. Ctr., Outlier Counties: Los Angeles County Has Nation’s Largest – and Still Expanding –
Death Row (Nov. 21, 2016), <https://deathpenaltyinfo.org/news/outlier-counties-los-angeles-county-has-nations-
largest-and-still-expanding-death-row>.
4 Brief of Amicus Curiae The Honorable Gavin Newsom in Support of Defendant And Appellant McDaniel, People
v. McDaniel (S171393, app. pending), Attachment A, at p. 79, <https://www.gov.ca.gov/wp-
content/uploads/2020/10/10.26.20-Governor-Newsom-McDaniel-Amicus-Brief.pdf>.
5 Ibid.
2
Angeles County an outlier even within the state’s flawed system; the rest of California’s death row
is populated by 59% people of color.6
In light of its unequal application to people of color, the death penalty inflicts an extraordinary
amount of harm to the moral authority of our justice system. In addition, the death penalty serves
no penological purpose as state sanctioned killings do not deter crime,7 and any retributive value
of the death penalty is undermined by California’s dysfunctional death penalty system. Cal ifornia
has executed 13 people since 1978, while over 11 times that number of people have died of other
causes awaiting execution.8
The death penalty is also costly and makes no fiscal sense from the prospective of public safety.
The strains upon the state’s and the county’s financial health are extraordinary. Los Angeles can
no longer waste huge taxpayer resources to pursue the death penalty when so many needs are
unmet. California has spent more than $5 billion since 1978 prosecuting death penalty cases,
defending death judgments, and maintaining a death row that houses approximately 712 people.9
These funds are better spent on programs that improve the quality of life and safety of the Los
Angeles County community. A majority of Los Angeles County residents agree.10
Finally, by imposing the death penalty, there is a real risk of executing innocent people. According
to a peer-reviewed study published in the National Academy of Sciences, one in 25 people
sentenced to death in the United States from 1973 to 2004 was erroneously convicted.11 This
“conservative estimate”12 would mean that at least 9 people currently on death row who were
convicted in Los Angeles County are innocent. Maintaining a system of capital punishment when
6 Ibid.
7 Michael L. Radelet & Traci L. Lacock, Do Executions Lower Homicide Rates: The Views of Leading Criminologists,
(2009) 99 Journal of Criminal Law and Criminology 489, 501 [“88.2% of the polled criminologists do not believe that
the death penalty is a deterrent”]; National Research Council of the National Academies, Deterrence and the Death
Penalty, 70-71 (Daniel S. Nagin & John V. Peppers eds., 2012) [finding deterrent effect as justification for capital
punishment is “patently not credible” based on meta-analysis of studies conducted].
8 Cal. Dept. of Corr. & Rehab, Condemned Inmates Who Have Died Since 1978, <https://www.cdcr.ca.gov/capital-
punishment/condemned-inmates-who-have-died-since-1978/>.
9 Judge Arthur L. Alarcón and Paula M. Mitchell, Costs of Capital Punishment in California: Will Voters Choose
Reform this November? (2012) 46 Loy. L.A. L. Rev. S1 [concluding that California had spent over $4 billion on the
death penalty from 1978-2011 and estimating that the state’s death penalty system costs approximately $184.2 million
annually]; Cal. Dep’t of Corr. & Rehab., Condemned Inmate List (Secure) (Nov. 16, 2020),
https://www.cdcr.ca.gov/capital-punishment/condemned-inmate-list-secure-request/ (listing 712 people on death
row).
10 Rachel Lawler, Public Policy Institute of California, Is Momentum Growing to End California’s Death Penalty?,
(Apr. 9 2019), https://www.ppic.org/blog/is-momentum-growing-to-end-californias-death-penalty/ [polling data that
62% of Los Angeles County voters prefer life in prison over the death penalty]; California Secretary of State,
November 8, 2016 General Election – Statement of Vote, State Ballot Measures p. 71, <
https://elections.cdn.sos.ca.gov/sov/2016-general/sov/65-ballot-measures-formatted.pdf> [52.3% of Los Angeles
County voters voted in favor of Proposition 62 in 2016]; California Secretary of State, November 6, 2012 General
Election – Statement of Vote, State Ballot Measures p. 67, <https://elections.cdn.sos.ca.gov/sov/2012-general/15-
ballot-measures.pdf> [54.5% of Los Angeles voters voted in favor of Proposition 34 in 2012].
11 Samuel R. Gross, Barbara O’Brien, Chen Hu, & Edward H. Kennedy, Rate of false conviction of criminal
defendants who are sentenced to death, 111 Proceedings of the National Academy of Sciences of the United States of
America 7230-7235 (2014), <https://www.pnas.org/content/pnas/111/20/7230.full.pdf>.
12 Id. at p. 7234.
3
there is a significant risk that an innocent person will be executed is intolerable. (See policy memo
on Conviction Integrity for additional steps that will be taken related to innocence issues.)
The immediate steps detailed below recognize that it is essential to communicate with victims’
family members and other stakeholders in order to conduct a thorough review of every case in
which this office previously made a decision to seek the death penalty and those cases in which
this office previously obtained death judgments. Victims’ family members deserve the utmost care
and consideration, and it is critical for this office to provide information and services to them and
to ensure that their voices are heard. (See policy memo on Victims’ Services for additional steps
that will be taken related to the needs of victims.)
THE USE OF THE DEATH PENALTY AT TRIAL
In any case charged from this day forward, the District Attorney’s Office will not seek the death
penalty. In any case currently charged with special circumstances that does not fall into the
categories listed below, the case shall now proceed as a non-death penalty case. The Special
Circumstance Committee is hereby permanently disbanded.
The following specific policies apply to all filed cases where a letter of intent to seek the death
penalty has been filed or verbally noticed in court, or a jury has returned a verdict of death.
1. All Deputy District Attorneys are to request a continuance of at least 30 days to enable the
District Attorney or his designee, to review the case. If a deadline cannot be continued, the
Deputy District Attorney shall immediately notify the District Attorney or his designee No
new briefs or documents will be filed in these cases without direct approval from the
District Attorney or his designee.
2. Further instructions will be provided on a case-by-case basis.
CASES WITH A JUDGEMENT OF DEATH ARISING OUT OF LOS ANGELES
COUNTY
The District Attorney’s Office will not seek an execution date for any person sentenced to death.
The District Attorney’s Office will not defend existing death sentences and will engage in a
thorough review of every existing death penalty judgment from Los Angeles County with the goal
of removing the sentence of death. The Office will continue to defend validly obtained convictions
in all cases where the evidence supports the conviction beyond a reasonable doubt, consistent with
the policies established for conviction integrity review.
Consistent with this policy, in any post-conviction case in which the District Attorney is counsel
for the People of the State of California in record correction proceedings or counsel or co-counsel
for the Secretary of the Department of Corrections and Rehabilitation in post-conviction
proceedings, the following specific policies apply:
4
1. All Deputy District Attorneys are to request a continuance of at least 30 days to enable the
District Attorney or his designee to review the case. If a deadline cannot be continued, the
Deputy District Attorney shall immediately notify the District Attorney. No new briefs or
documents will be filed, nor any evidentiary hearing dates set, in any case without direct
approval of the District Attorney or his designee.
2. For cases arising from death judgments in Los Angeles County in which the District
Attorney is not currently counsel or co-counsel for any party to the litigation, the office
will consult with the Attorney General and seek his assistance with implementing the goals
of this Office. This Office authorizes and encourages the Attorney General to adopt
positions and negotiate resolutions in state and federal post-conviction proceedings
consistent with this policy in any capital case arising out of Los Angeles County.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-12
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: VICTIM SERVICES
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of Bureau of Victim Services in Chapter 1.05.02 and
Victim-Witness Relations in Chapter 8 of the Legal Policies Manual. Effective December 8, 2020,
the policies outlined below supersede the relevant sections of Chapter 1.05.02 and Chapter 8 of
the Legal Policies Manual.
INTRODUCTION
Supporting victims in their journey to becoming survivors is fundamental to community safety.
When a person has been harmed, wronged, or experienced loss at the hands of another, they need
justice and healing. The criminal justice system must ensure that they have the rights and resources
necessary to defend themselves, as well as services to facilitate their re-entry to the community.
Attention and resources must be directed to the victims whose lives may be forever changed by
the act of another, as crime victimization takes away a person’s power and safety and many endure
the effects of trauma long after the justice system has completed its role. It is a sad reality that the
vast majority of victims do not find justice in the system, as many offenders are not known,
arrested, charged, or convicted. It is important for us to have a system that takes care of victims
and survivors regardless of the outcome of the criminal case.
The Los Angeles County District Attorney’s Office will pursue a system of parallel justice, where
we not only seek legal prosecution of offenders, but also provide support services for victims in
their evolution to becoming survivors. Below are the policies that shall be implemented
immediately in connection with other services currently provided by the Bureau of Victim
Services.
POLICY
1. The Bureau of Victim Services (BVS) will contact all victims of violent crime within 24
hours of receiving notification. This includes sexual assault, homicide, attempted
homicide, domestic and intimate partner violence. Support will be provided to both
victims/survivors as well as any children witnessed or were indirectly affected by violence
and crime.
2
2. BVS will also contact the families of individuals killed by police and provide support
services including funeral, burial and mental health services immediately following the
death regardless of the state of the investigation or charging decision.
3. BVS will support survivors and all others harmed by violence and crime regardless of
immigration status, reporting, cooperation or documentation.
a. Immigration status will not be asked or needed to secure Advocacy services,
California Victims of Crime Compensation or Restitution.
4. BVS will establish a Victim Emergency Fund to provide immediate financial resources to
victims and family members impacted by violent crime. to
a. This fund will help to compensate for expenses not covered by the California
Victims of Crime Compensation (Cal VCB) including relocation, funeral and burial
costs, and essential needs such as food, shelter, clothing expenses.
Additionally, BVS shall not require cooperation as a condition of offering services.
Furthermore, DDAs are directed to immediately stop seeking body attachments for victims.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-13
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: CONVICTION INTEGRITY UNIT
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of Bureau of Prosecution Support Operations, Conviction
Integrity Unit (formerly known as the Conviction Review Unit) in Chapter 1.07.03 of the Legal
Policies Manual. Effective December 8, 2020, the policies outlined below supersede the relevant
sections of Chapter 1.07.03 of the Legal Policies Manual.
INTRODUCTION
The CIU shall conduct strategically collaborative, good-faith case reviews designed to
ensure the integrity of challenged convictions, remedy wrongful convictions, and take any
remedial measures necessary to correct injustices uncovered, within the bounds of the law. The
CIU will also study and collect data on the causes of wrongful convictions in L.A. County, in
service of informing office wide policies and procedures designed to prevent such injustices going
forward and strengthen community confidence in the criminal legal system overall. The CIU is
committed to seeking the truth and ensuring transparency in the review process and shall openly
and regularly report its case review numbers to the public. To fulfill its mission, the CIU will
operate independently from litigation units in the office and approach its review and investigation
in a non-adversarial manner to ensure that justice prevails in each and every case.
GUIDING PRINCIPLES
“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to
convict. The prosecutor serves the public interest and should act with integrity and balanced
judgment to increase public safety both by pursuing appropriate criminal charges of appropriate
severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances.
The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of
victims and witnesses, and respect the constitutional and legal rights of all persons, including
suspects and defendants.”
-American Bar Association, Criminal Justice Standards for the Prosecution Function, Standard 3-
1.2(b)
2
“When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood
that a convicted defendant did not commit an offense of which the defendant was convicted, the
prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2)
if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence
to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make
reasonable efforts to cause an investigation, to determine whether the defendant was convicted of
an offense that the defendant did not commit...When a prosecutor knows of clear and convincing
evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense
that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”
-American Bar Association, Model Rules of Professional Conduct, Standard 3.8(g)-(h); California
Rules of Professional Conduct (F)-(G)
POLICIES GOVERNING CIU CASE REVIEW
In view of the growing body of evidence demonstrating that wrongful convictions occur
with greater frequency than is acceptable in our criminal legal system, as well as the legislature’s
recent revisions to the Penal Code that expand the legal avenues available for review of new
evidence supporting claims of wrongful conviction, and based on a review of best practices
employed in CIUs in other jurisdictions, the policies governing this office’s CIU shall be as
follows:
The CIU shall be an independent unit that reports directly to the District Attorney or his
designee. It shall be staffed with specially trained deputies, investigators, paralegals and other
staff who are committed to its mission.1 The CIU shall be comprised of members with diverse
backgrounds and experiences.
The CIU has a broad mandate to review a wide range of issues relating to wrongful
convictions but shall prioritize claims of actual innocence brought by individuals who are currently
in custody. The CIU shall not reject any case because a conviction is based on a guilty plea, an
appeal is pending, the case is in active litigation, or where the applicant has completed his or her
sentence. The CIU shall be authorized to fast-track cases submitted by applicants who are
represented by counsel, including innocence organizations, where those cases have undergone
substantial, reliable investigation and where new evidence supporting the wrongful conviction
claim is presented.
CASE REVIEW CRITERIA
The CIU shall accept for review cases in which:
(1)the applicant was prosecuted by the Los Angeles County District Attorney’s
Office; and,
1 The CIU shall work with defense organizations and members of the post-conviction legal community,
including innocence organizations, as well as relevant experts, to develop and implement trainings on best
practices for conducting post-conviction investigations.
3
(2) there is a claim of actual innocence or wrongful conviction; and,
(3) the CIU identifies one or more avenues of investigation that have the
potential to substantiate the applicant’s claim(s) of actual innocence and/or
wrongful conviction.
The intake criteria shall always include an “interest of justice” exception. Under this
exception, the CIU shall be authorized to undertake a review and investigation in cases that do not
meet the intake criteria, if doing so is in the interests of justice. The interests of justice may be
met where the applicant alleges and/or the CIU concludes that further investigation is warranted
to determine whether:
1.There is a reasonable probability that the applicant is actually innocent2;
2.Some or all of the evidence relied upon to obtain the conviction is no longer deemed
credible;
3.There is evidence the prosecution or conviction was tainted by racial
discrimination, whether or not a court previously agreed with the applicant’s
assertion of racial discrimination;
4.The prosecution failed to disclose material evidence in the possession of any law
enforcement agency that was favorable to the defense, whether exculpatory,
impeaching, or mitigating;
5.The fact-finding process was so corrupted as to deny the applicant a fair
adjudication of his or her guilt or innocence at trial;
6.A manifest injustice rendered the trial fundamentally unfair; and/or,
7.Had the office known at the time of trial what it now knows about the evidence, the
office would not have chosen to prosecute the case, or would have charged the case
differently.
The above list is intended to be illustrative; it is not exhaustive.
The CIU shall pay special attention to cases where the applicant claims the conviction was
obtained based on any of the following high-risk factors, or common causes of wrongful
conviction, which shall not be rejected without meaningful review and investigation:
1. The applicant was convicted based, in whole or in part, on eyewitness identification
evidence or testimony, particularly where it was a stranger identification or cross-
racial identification, or both3;
2 See, Rule 3.8 Special Responsibilities of a Prosecutor (Rule Approved by the Supreme Court, Effective
June 1, 2020).
3 Both at the application stage and in the investigation of cases accepted for review, the CIU shall verify
that eyewitness identifications supporting a conviction comport with standards and research accepted by
the scientific community and do not run afoul of the best practice and recommendations in the 2019 Third
Circuit Eyewitness Identification Report. The CIU shall assess the reliability of eyewitness identification
evidence in light of the non-exhaustive lists of system and estimator variables set forth in State v. Henderson
(N.J. 2011) 27 A.3d 872, and continually examine and apply emerging research related to eyewitness
identifications, including but not limited to the American Psychological Association white papers Policy
4
2. The applicant was convicted based, in whole or in part, on the applicant’s
confession and there are allegations that this confession was false or coerced4;
3. The applicant was convicted based, in whole or in part, on testimony that has since
been recanted as false or coerced;
4. The applicant’s conviction is alleged to have been borne from official misconduct,
including witness tampering, misconduct in interrogations, fabricated evidence and
confessions, the concealment of exculpatory evidence, and misconduct at trial5;
5. Law enforcement personnel involved in the investigation or arrest of the applicant
were subsequently discharged or relieved of their duties for misconduct;
6. Law enforcement personnel involved in the investigation or arrest of the applicant
who have been adjudicated by a court or an internal investigation by a law
enforcement entity to have been committed an act of dishonesty or sexual assault
as defined by Cal. Penal Law Section 832.7 (b) (B) and (C);
7. The applicant was convicted based on forensic evidence grounded in
methodologies that have since been largely or wholly discredited as unreliable,
including but not limited to bloodstain pattern analysis, comparative bullet lead
analysis, forensic odontology (bitemarks), hair microscopy for the purpose of
determining whether known/unknown hairs share a common source, Shaken Baby
Syndrome (SBS). The CIU shall review the forensic methods used to analyze the
evidence and ensure that forensic evidence used to obtain a conviction is
foundationally valid and valid as it was applied in the case6;
and Procedure Recommendations for the Collection and Preservation of Eyewitness Identification Evidence
(2020) and Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads (1998).
4 The CIU shall consult the 2010 American Psychological Association white paper on police interrogation
and confessions, and any emerging literature or research regarding false confession and recanting witnesses,
to inform its review of convictions supported by statements obtained during custodial interrogations that
have since been recanted or disavowed by the person who allegedly made the statement.
https://web.williams.edu/Psychology/Faculty/Kassin/files/White%20Paper%20-%20LHB%20(2010).pdf
5 The CIU shall consult the National Registry of Exonerations report Government Misconduct and
Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement (2020), and any
emerging literature or research regarding official misconduct, to inform its review of convictions alleged to
have resulted in whole or in part from official misconduct.
6 The use of unreliable and misleading forensic evidence, which we know is a common cause of wrongful
convictions, imperils the integrity of the criminal legal system. The CIU shall critically and continually
examine emerging scientific literature, which may also call into question older forensic methods, and train
staff about these changes, so that case review criteria can be updated as needed. The CIU shall ensure that
forensic evidence supporting a conviction complies with the findings, recommendations, and best practices
set forth in specific reviews of the relevant sciences, including but not limited to:
I. American Association for the Advancement of Science (AAAS) reports on Fire Investigation
(2017) and Latent Fingerprint Examinations (2017)
II. American Statistical Association (ASA) Position on Statistical Statements for Forensic Evidence
(2019)
III. National Academy of Sciences (NAS) report Strengthening Forensic Science in the United States:
A Path Forward (2009)
5
8. The applicant was convicted based on forensic evidence that the LACDA has
generally accepted as reliable, but the particular conclusions or opinions presented
to the jury in support of the prosecution’s case exceeded the bounds of what is now
recognized to be valid science – for example, through testimony purporting to
“identify” an applicant as the unique source, or through expert testimony implying
or stating a statistical basis for the likelihood of a particular conclusion that is not
verifiable or otherwise valid;
9. A conviction was based either on the factors identified above but corroborated only
with jailhouse informant testimony or testimony by an informant that has been used
by law enforcement or this office on more than one occasion;
10. The conviction was based, in whole or in part on jailhouse informant testimony or
testimony by an informant that has been used by law enforcement or this office on
more than one occasion;
11. The conviction was based in whole or in part on the testimony of witnesses who
received benefits from this office or law enforcement in exchange for, or close in
time to, their testimony against the applicant;
12. A gang allegation was found true by a jury where the only evidence of gang
membership was presented by a gang expert, and that evidence would now be
deemed inadmissible hearsay under People v. Sanchez (2016) 63 Cal. 4th 665, and
the evidence of gang membership served as the only evidence of motive used to
obtain the conviction;
13. Evidence based on analysis by crime labs that were not accredited when the analysis
was conducted, and/or have been implicated in scandals related to their handling
and testing of evidence;
14. Evidence supporting the conviction was corroborated by one or more of the above
types of unreliable evidence;
15. The applicant was convicted after one or more retrials, following a hung jury;
16. Defense counsel was disbarred or otherwise disciplined after the challenged
conviction was obtained, and/or presented no evidence to counter the prosecution’s
case at trial, and/or was found by a court to have provided ineffective assistance of
counsel in one or more other cases.
IV. National Institute of Standards and Technology (NIST) report on Latent Print Examination and
Human Factors (2012), Working Group on Human Factors in Handwriting Examination (2020),
and Scientific Foundation Studies on DNA mixture interpretation, bitemark analysis, firearms
examination, and digital evidence (forthcoming)
V.President’s Council of Advisors on Science and Technology (PCAST) report Forensic Science in
Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016).
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SPECIAL CONCERNS IN EVALUATING FORENSIC EVIDENCE
In cases involving forensic evidence, the CIU shall request or permit the applicant’s
counsel to conduct forensic testing, when doing so could be probative, in that it may tend to
identify the identity of the perpetrator of the crime or may exculpate the applicant seeking review
of their conviction. The CIU shall request that forensic results be expressed in reports and
testimony using clear and comprehensible language, to inform the CIU’s own decision making
and that of other legal actors. Where such testing is conducted, the CIU shall permit any forensic
analysts retained by the CIU to speak freely and independently with t he applicant’s counsel and
shall make the analysts’ underlying data and case materials available to the defense.
The CIU shall not raise procedural challenges or defenses to oppose, nor shall it oppose,
requests for seeks forensic testing, including but not limited to DNA testing, fingerprint analysis,
firearms comparison, GSR, toxicology, where the testing may lead to evidence relevant to the
applicant’s claim of actual innocence or wrongful conviction, including but not limited to testing
that is capable of identifying the perpetrator of a crime. The CIU shall assist applicants in
ascertaining the status of physical evidence by facilitating contacts between individuals seeking
testing and/or their attorneys and the crime lab and/or law enforcement personnel needed to search
evidence and property rooms to locate the evidence in question.
The CIU shall carefully scrutinize cases in which experts or others opined or testified by
using terms like “reasonable degree of scientific certainty,” which have no accepted scientific
meaning yet convey an unsupported measure of reliability or conclusiveness to the factfinder. The
CIU shall request that all information concerning the limitations of forensic techniques should be
disclosed alongside the results of any analyses. All forensic methods have limitations, and none
are error free. Where error rates for a method are not known or have not been adequately measured,
reports shall state that fact. The CIU shall carefully scrutinize any conviction based in whole or
in part upon testimony that states or implies a “zero error rate” or which purports to provide an
error rate that has not been independently validated. The CIU shall similarly make those
limitations clear in communications with the applicant and/or their counsel and the court. The
CIU shall also request that all methods of forensic analyses be documented in the first instance to
permit the CIU’s review and disclosure of all steps followed and the methodology used to arrive
at the conclusions reached.
The CIU shall ensure that the applicant and/or their counsel receive not just certificates or
reports of forensic analyses, but also complete documentation of the methods used, and the results
reached. The CIU shall disclose the applicant and/or their counsel all inconclusive and exculpatory
forensic results, in addition to any information about corrective actions taken in a laboratory or
proficiency testing of individual analysts. The CIU shall also make routine requests to preserve
forensic evidence, especially where the applicant and/or their counsel seek preservation for
potential future testing.
The CIU shall facilitate a CODIS, AFIS or NBIN search of evidence that may help
demonstrate an individual was wrongly convicted.
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PRO SE APPLICANTS
When a case accepted for review is submitted by a pro se applicant, the CIU shall determine
whether appointment of independent legal representation would promote justice and facilitate
review of the case, such as in cases involving high-risk factors, listed above. In the absence of
those factors, the determination as to whether appointment of counsel would promote justice shall
be determined on a case-by-case basis. In such cases, the CIU shall recommend that the applicant
seek legal representation and, if requested, assist by referring the individual to an appropriate
innocence project, law school clinic, pro bono counsel, or public defender office. The CIU shall
also consider whether to file a joint petition for writ of habeas corpus stipulating that an order to
show cause should issue and counsel should be appointed pursuant to Penal Code section 1484.
Where an applicant is represented by counsel, the CIU shall use joint discovery and/or
limited disclosure agreements, in appropriate cases, to share work product information. The CIU
will seek to conduct investigations jointly and collaboratively with counsel, sharing exculpatory
or improperly withheld information as quickly as practicable. Any attorney-client or work-product
privileged information that is shared between a claimant and the CIU shall not be shared with other
units in the office and shall not be used at trial or in post-conviction proceedings by other units for
any purpose.
COMMUNICATIONS WITH APPLICANT’S COUNSEL
This Office respects the sanctity of the attorney-client privilege between an applicant and
defense counsel. An applicant who alleges Ineffective Assistance of Counsel may have,
unwittingly, impliedly waived some portion of the attorney-client privilege as to communications
with their trial counsel. This waiver is not absolute, however, and is extremely limited.
The CIU shall err on the side of caution and notify an applicant before seeking to contact
defense counsel or seeking to obtain counsel’s file and provide the applicant with a chance to
object or modify a claim to avoid an inadvertent or implied waiver of the attorney-client privilege.
The CIU shall not seek disclosure of anything beyond that which is strictly necessary and legally
allowable under California and Federal law, including information that exceeds the limited scope
of the ineffective-assistance-of-counsel claim.
The CIU shall not encourage any attorney to violate their ethical duties of confidentiality
and loyalty to former clients, as articulated in the California Rules of Professional Conduct; rather,
CIU attorneys or investigators speaking to defense counsel must remind defense counsel of the
attorney-client privilege prior to the start of a substantive interview.
ACCESS TO DISCOVERY
If the CIU accepts a case for review, the CIU shall assist the applicant in obtaining all
discovery the applicant is entitled to under P.C. 1054.9, as well as any and all Brady materials in
the constructive possession of the office. The CIU shall also allow applicants and/or their attorneys
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to have access to all non-privileged and non-sensitive information in the case files under review,
including information in police reports and lab reports concerning the testing of forensic evidence.
Recognizing that certain categories of otherwise privileged information and work product
prepared by this office may contain exculpatory or impeachment information relevant to an
applicant’s claims, and the benefit to the truth-seeking process of having both parties review this
material, the CIU shall err on the side of disclosing the complete LACDA trial file to the
applicant’s counsel for independent review, subject only to reasonable and necessary disclosure
agreements. Any redactions shall be limited to those deemed strictly necessary to protect victim
or witness privacy.
The CIU shall not condition its review of a case or its own disclosures on any reciprocal
commitment by the part of the applicant to waive any aspect of the attorney-client or work-product
privilege or waive such privileges generally. Where otherwise privileged information may be
necessary for the CIU to fully investigate and consider an applicant’s claims for relief – for
example, to speak with the applicant’s trial counsel or review portions of the trial file to determine
if certain Brady information was or was not timely disclosed – the CIU shall limit its waiver
requests to only those necessary to investigate the claim or issue. Similarly, where the CIU seeks
to interview the applicant or the applicant’s prior counsel, the CIU shall afford the applicant’s
current counsel the opportunity to be present (or waive counsel’s presence) at the interview.
The CIU shall proactively seek to obtain complete files from law enforcement agencies
pertaining to the case, including forensic evidence and files maintained by laboratories and coroner
or medical examiner’s offices. In the event the CIU discovers that the case file(s) have been lost
in whole or in part, the CIU shall immediately inform the person seeking review of their conviction,
or their counsel, that the file(s) has been lost. The CIU shall work with the Discovery Unit to
reconstruct the file by obtaining records from:
Ɣ The LACDA’s internal files;
Ɣ The LAPD, LASD, LAFD, and/or any other law enforcement agency or emergency
services provider involved in the case;
Ɣ Crime labs;
Ɣ The coroner’s office, in homicide cases;
Ɣ The original trial deputy’s personal file;
Ɣ The superior court file;
Ɣ The courthouse exhibit room;
Ɣ The court of appeal; and
Ɣ Any other source reasonably likely to have relevant materials, records, and/or
evidence, such as medical records, where appropriate releases are provided, 911
dispatch call recordings, etc.
The CIU shall review every case previously rejected by the former CRU, whether at the
screening stage or after an investigation, in light of all of the above.
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INVESTIGATIONS IN CLAIMS OF WRONGFUL CONVICTION
CIU investigations often require looking into convictions that are decades old, where
witnesses’ memories have faded, and/or that involve reluctant or recanting witnesses, and therefore
often require specialized knowledge and training on issues such as memory science, eyewitness
identifications, and police practices used at the time that are no longer considered best practices.
CIU deputies and investigators shall consult with outside experts, as needed, to obtain relevant
materials concerning best practices regarding conducting CIU investigations.
These investigations shall not be undertaken as a means of “protecting” a conviction, n or
shall they be adversarial in nature. Thus, for example, investigators shall not engage in tactics
designed to dissuade a recanting witness and shall not threaten to charge that witness with perjury;
rather the paramount goal of a CIU investigation shall be to determine the reliability and
truthfulness of the recantation. Using a high-pressure, coercive, or intimidating approach in these
investigations wastes time and resources and sends a mixed message to office staff about the CIU’s
mission and undermines the CIU’s credibility with the public.
CIU deputies and investigators shall also make all reasonable efforts to avoid unintentional
witness intimidation. These efforts shall include, but are not limited to, conducting interviews in
non-threatening or neural locations (rather than in this office or another law enforcement entity’s
office or station), if possible, and the concealing of the investigator’s weapon, if one is carried,
except where specifically required to do so by law, or if approved by the elected District Attorney.
CIU deputies and investigators shall understand what confirmation bias is—also referred
to as tunnel vision—and how to avoid it. Studies have shown that confirmation bias is pervasive
in the reinvestigations in wrongful conviction cases. It can occur, for example, when original
police reports are viewed deferentially and/or treated as unassailable accounts of the truth of what
transpired in the case, when research shows that police reports are often incomplete and contain
inaccuracies, sometimes due to the fast-pace at which criminal investigations unfold, following
serious felony offenses. CIU deputies and investigators shall test and probe information in police
reports, witness accounts, and other new evidence presented by an applicant, in a manner designed
to uncover the truth.
INDEPENDENCE OF THE CIU
To the extent possible the CIU shall not disclose or discuss ongoing investigations with
other units within this office, other than the elected District Attorney and/or his designee. Nor will
the CIU share information from ongoing investigations with other governmental entities, except
where specifically required to do so by law, or if approved by the elected District Attorney. In
addition, to ensure a full and fair review of each case, investigations and case reviews shall be
conducted independently by CIU deputies and investigators, without consultation or input from
the original trial deputy, Head Deputy, or Assistant District Attorney of the trial division, except
as needed to obtain historical information about the case.
The trial deputies who handled the original prosecution shall be afforded a reasonable
opportunity to respond to any challenges that have been made to the prior handling of the case, but
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shall not take part in the office’s determination as to whether to accept a case for review or whether
to recommend that relief from a conviction be granted. This unique investigative and litigation
perspective underscores the need for CIU independence from other areas of the office and should
be read to encourage collaboration with an applicant seeking review of a conviction wherever
possible.
CASE RESOLUTION & REMEDIAL OPTIONS
Once a case that has been accepted for review undergoes a full investigation, the CIU shall
make a recommendation to the District Attorney as to whether it is in the interest of justice to seek
relief from the applicant’s conviction or sentence.
If the CIU concludes that it is not in the interests of justice to revisit the conviction and/or
sentence, the CIU shall inform the District Attorney of its conclusion and recommendation. The
District Attorney shall have final decision-making authority to determine whether it is in the
interest of justice for the office to seek relief from a conviction or sentence. If the determination
is made that relief is not warranted, the CIU shall communicate the reasons for its decision, in
writing, to the applicant with an explanation as to why and how the decision was reached, including
what investigative steps were taken.
If the determination is made that relief is warranted, the CIU shall determine and consider
all available and appropriate remedies, including seeking dismissal of the case pursuant to P.C.
1385, moving for a reduction of sentence pursuant to P.C. 1170(d), joining the applicant in filing
a joint petition for writ of habeas corpus that stipulates to the need for an issuance of an order to
show cause, advocating before parole boards for early release, supporting a petition for the
restoration of rights, seeking expungement of the case, and/or supporting a request for clemency
or pardon, where such remedies are in the interest of justice.
The CIU shall not delay the release of those persons whose entitlement to post-conviction
relief has been established, for any reason; it is the duty of the CIU to immediately arrange for
conditional release of those individuals pending the formalization of the conviction being
vacated.
VICTIM OUTREACH & ADVOCACY
The CIU shall comply with all statutes and rules governing victims’ rights and may engage
a victim representative at any stage in the investigation when doing so may be in the best service
of the investigation and/or the victim. The CIU will be respectful of victims and institute a culture
of keeping victims abreast of investigation outcomes, when the outcome affects or changes the
nature of the conviction and/or sentence. Upon the District Attorney’s decision to seek relief in a
case, the CIU shall engage a victim representative to liaise with the victim or victims.
REENTRY ASSISTANCE & COMPENSATION ASSISTANCE
Where the CIU determines that a conviction should be overturned and a case dismissed
based on actual innocence, the CIU shall assist in securing necessary support and documentation,
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such as a finding of actual innocence, that facilitate successful reentry into the community and will
support the enactment of systems of compensation for those wrongfully convicted.
FINDINGS OF FACTUAL INNOCENCE
This office recognizes that monetary compensation is essential to a wrongfully convicted
person’s ability to rebuild their life. Under California law, wrongfully convicted persons who are
innocent of the crimes for which they were convicted may file a claim for compensation with the
California Victim Compensation and Government Claims Board (CVCGC Board), under California
Penal Code section 4900.
Where the CIU determines that an applicant has demonstrated their innocence, the CIU shall
proactively assist the applicant in seeking the statutory compensation to which they are entitled,
including filing in the superior court, jointly with the applicant, if requested, a motion “for a finding
of factual innocence by a preponderance of the evidence that the crime with which he or she was
charged was either not committed at all or, if committed, was not committed by him or her.” Cal.
Pen. Code 1485.55 (b). The court’s “finding of factual innocence,” is binding on the CVCGC
Board and this office’s joint request for that finding will expedite and facilitate the compensation
process. The CIU shall also assist the applicant by supporting their claim before the CVCGC Board,
when filed, if requested.
Under current law, to obtain a “finding of factual innocence” in the superior court, a
wrongfully convicted person must demonstrate that they are innocent by a preponderance of the
evidence. The burden is on the wrongfully convicted person to prove their innocence. Because
that standard is antithetical to the bedrock principle of our criminal justice system, which presumes
a person is innocent until they are proven guilty beyond a reasonable doubt,7 it shall be the policy
of this office, absent extenuating circumstances and with supervisor approval, to move jointly for
and/or concede in the superior court that “a finding of factual innocence” should be made, where
the conviction has been overturned, the charges have been dismissed, and there no longer exists
constitutionally permissible evidence sufficient to prove that person’s guilt beyond a reasonable
doubt.
TRANSPARENCY
The CIU will conduct business in the most transparent manner possible, with biannual
updates to the website on the number of cases submitted, under review, rejected, and outcomes.
The CIU shall have open discussions with a designated ethics officer about critical case-related
7 “Absent conviction of a crime, one is presumed innocent.” Nelson v. Colorado. (2017) 137 U.S. 1249,
1255 (explaining that once a criminal conviction is erased, the presumption of innocence is restored and
holding that the state “may not presume a person, adjudged guilty of no crime, nonetheless guilty enough
for monetary exactions”), citingௗJohnsonௗv.ௗMississippi (1988) 486 U.ௗS. 578, 585 (1988) (holding that after
a “conviction has been reversed, unless and until [the defendant] should be retried, he must be presumed
innocent of that charge”); Coffinௗv.ௗUnited States (1895) 156 U.ௗS. 432, 453 [“axiomatic and elementary,”
the presumption of innocence “lies at the foundation of our criminal law.”
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decisions; the pursuit of justice and the interest in avoiding and remedying wrongful convictions
shall be at the forefront of each decision.
The CIU’s expansive scope of review and transparent practices are designed to remedy
past individual wrongful convictions and enhance community confidence in the justice system, as
well as provide a tool for improving office wide practices in a manner that reduces the likelihood
of errors occurring again in the future.
“LEARNING ORGANIZATION”
The outcomes of CIU investigations are intended to provide a critical opportunity to
identify systemic gaps that go beyond just one individual’s error and can reinforce the idea that
the District Attorney’s office is a “learning organization.” The CIU will have a clear avenue for
recommending policy and procedural changes, as well as enhanced training, to address any
deficiencies that are uncovered, including but not limited to:
Ɣ Consistent with its commitment to ensure that the forensic evidence underlying
convictions is scientifically sound and accepted, the CIU shall develop appropriate
systems, curricula, and CLE opportunities to help ensure that forensic evidence is
used appropriately office-wide, prospectively, at every stage of criminal and post-
conviction proceedings.
Ɣ Consistent with its commitment to the use of best practices in policing, the CIU
shall develop appropriate systems, curricula, and CLE opportunities to help ensure
that, officewide, deputies are regularly trained on what constitutes best practices in
policing and rely on evidence obtained through policies and procedures reflecting
the use of best practices in policing prospectively, at every stage of criminal and
post-conviction proceedings.
Ɣ The CIU shall develop and maintain a database to track errors and other causes of
wrongful convictions uncovered in the course of its case reviews. On a periodic
basis, not less than once a year, the CIU shall review and synthesize the data
collected to proactively recommend policy and procedural changes officewide. The
CIU shall develop a well-defined method to develop, implement, and train the
office on these changes. The CIU shall publish these findings and policy changes
on the website not less than once a year.
Ɣ The database shall track official misconduct, including the names of law
enforcement officers, prosecuting attorneys, agents of law enforcement including
jailhouse informants and crime lab analysts, expert witnesses, and any other actor
found to have committed misconduct or whose testimony has otherwise been
proven to be unreliable. Not less than once a year the CIU shall use the data
compiled in the database to compile a list of all other cases office wide, past and
present, in which those actors participated in a case that resulted in a plea or
conviction. The CIU shall review each of those cases and notify the applicant
and/or defense counsel that their case is being reviewed and the reason for the
review.
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The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
gg
SPECIAL DIRECTIVE 20-14
TO: ALL DEPUTY DISTRICT ATTORNEYS
FROM: GEORGE GASCÓN
District Attorney
SUBJECT: RESENTENCING
DATE: DECEMBER 7, 2020
This Special Directive addresses issues of the Bureau of Prosecution Support Operations in
Chapter 1.07.03 and Probation and Sentencing Hearings in Chapter 13 and Postconviction
Proceedings in Chapter 17 of the Legal Policies Manual. Effective December 8, 2020, the policies
outlined below supersede the relevant sections of Chapter 13 and Chapter 17 of the Legal Policies
Manual.
INTRODUCTION
Today, California prisons are filled with human beings1 charged, convicted and sentenced under
prior District Attorneys’ policies. Effective today, District Attorney George Gascón has adopted
new charging and sentencing policies.
Justice demands that the thousands of people currently serving prison terms imposed in Los
Angeles County under earlier, outdated policies, are also entitled to the benefit of these new
policies. Many of these people have been incarcerated for decades or are serving a “virtual life
sentence” designed to imprison them for life. The vast majority of incarcerated people are
members of groups long disadvantaged under earlier systems of justice: Black people, people of
color, young people, people who suffer from mental illness, and people who are poor. While
resentencing alone cannot correct all inequities inherent in our system of justice, it should at least
be consistent with policies designed to remedy those inequities.
The new Resentencing Policy is effective immediately and shall apply to all offices, units and
attorneys in the Los Angeles County District Attorney’s Office (hereinafter “Office”). While
particular attention will be paid to certain people as discussed herein, every aspect of existing
sentencing or resentencing policy will be subject to examination. The intent of this Resentencing
Policy is that it will evolve with time to ensure that it reflects the values of the District Attorney,
and by extension, the people of Los Angeles County.
1 We will seek to avoid using dehumanizing language such as “inmate,” “prisoner,” “criminal,” or
“offender” when referencing incarcerated people.
3
LENGTH OF SENTENCE
The sentences we impose in this country, in this state, and in Los Angeles County are far too long.
Researchers have long noted the high cost, ineffectiveness, and harm to people and communities
caused by lengthy prison sentences; sentences that are longer than those of any comparable nation.
DA-elect Gascón campaigned on stopping the practice of imposing excessive sentences.
With regard to resentencing, the Model Penal Code recommends judicial resentencing hearings
after 15 years of imprisonment for all convicted people:
The legislature shall authorize a judicial panel or other judicial decision maker to hear
and rule upon applications for modification of sentence from prisoners who have
served 15 years of any sentence of imprisonment.
(American Law Institute (2017) Model Penal Code Sentencing, Proposed Final Draft, p. 681.)
National parole experts Edward Rhine, the late Joan Petersilia, and Kevin Reitz have endorsed this
recommendation, adding: “We would have no argument with a shorter period such as 10 years.”
… These time frames correspond with criminological research showing that people age out of
crime, with most “criminal careers” typically lasting less than ten years.” (Rhine, E. E., Petersilia,
J., & Reitz, R. 2017. “The Future of Parole Release,” pp. 279-338 in Tonry, M. (Ed.) Crime and
Justice, Vol, 46, p. 294.)
Accordingly, this Office will reevaluate and consider for resentencing people who have
already served 15 years in prison. Experts on post-conviction justice recommend that
resentencing be allowed for all people (not just those convicted as children or as emerging adults)
and some experts recommend an earlier date for reevaluating continued imprisonment.
APPLICATION OF SENTENCE ENHANCEMENT POLICY FOR OPEN/PENDING
CASES
For any case that is currently pending, meaning that judgment has not yet been entered, or where
the case is pending for resentencing, or on remand from another court, the Deputy District Attorney
in charge of the case shall inform the Court at the next hearing of the following:
“At the direction of the Los Angeles County District Attorney, in accordance
with Special Directive 20-08 concerning enhancements and allegations, and in
the interest of justice, the People hereby
1.join in the Defendant’s motion to strike all alleged sentence
enhancement(s); or
2. move to dismiss all alleged sentence enhancement(s) named in the
information for all counts.
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FURTHER DIRECTIVES FOR OPEN/PENDING CASES
The following rules apply to any case where a defendant or petitioner is legally eligible for
resentencing or recall of sentence, including but not limited to:
Ɣ Habeas corpus cases.
Ɣ Cases remanded to Superior Court by the Court of Appeal or Supreme Court.
Ɣ Cases referred to the Superior Court under Penal Code section 1170(d)(1).
Ɣ Cases pending resentencing under Penal Code sections 1170.126, 1170.127, 1170.18,
1170.91, and 1170.95.
Ɣ Cases pending under Penal Code section 1170(d)(2).
Ɣ All cases where the defendant was a minor at the time of the offense.
Ɣ Any other case that may be the subject of resentencing not specified here.
Any Deputy District Attorney assigned to a case pending resentencing or sentence recall
consideration under any valid statute shall comply with the following directives until further
notice.
1) If the defendant or petitioner is serving a sentence that is higher than what he/she would
receive today, due to operation of law or by operation of the District Attorney’s new
Sentencing Policy, the deputy in charge of the case shall withdraw any opposition to
resentencing or sentence recall and request a new sentence that complies with current law
and/or the District Attorney’s new Sentencing Policy. This policy applies even where
enhancements were found true in a prior proceeding. This policy shall be liberally
construed to achieve its purposes.
2) If the defendant or petitioner is seeking relief under Penal Code section 1170.95, the DDA
may concede that the petitioner qualifies for relief. If the assigned DDA does not believe
that the petitioner qualifies for relief, the DDA must request a 30 day continuance, during
which time the assigned DDA shall review the case in light of the Office’s specific Penal
Code 1170.95 Policy, see below. If the DDA continues to oppose relief, the DDA shall
submit the reasons in writing to the Head Deputy. The Head Deputy shall then seek
approval from the District Attorney or his designee in order to determine whether the
Office will continue to oppose relief.
3) If a defendant or petitioner would not qualify for a reduced sentence by operation of law if
convicted today or under the Office’s new Sentencing Policy, then the DDA in charge of
the case may seek a 30-day continuance. During that time, the deputy shall evaluate
whether to support or oppose the resentencing (or sentence recall) request. If the deputy
believes that compelling and imminent public safety concerns justify opposition to
revisiting the sentence, then the deputy must submit those concerns in writing to her Head
Deputy who shall then seek approval from the District Attorney or his designee.
4) All laws concerning victim notification and support shall be honored.
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PENAL CODE § 1170.95/SB 1437 RESENTENCING POLICY
1. We start with a position of respect for our co-equal branch of government, the legislature.
Like the courts, we presume that laws passed by the legislature are constitutional. “[U]nder
long-established principles, a statute, once enacted, is presumed to be constitutional.”
(Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1119.) We will no
longer seek to delay implementation of laws by making arguments that laws that provide
retroactive relief are unconstitutional.
2.The Office’s position is that defense counsel should be appointed when the petition is filed
and there should be no summary denials by the court. (People v. Cooper (2020) 54
Cal.App.5th 106; People v. Tarkington (2020) 49 Cal.App.5th 892, 917, review granted
Aug. 12, 2020, S263219 [dis. opn. of Lavin, J.].)
3. Many people accepted plea offers to manslaughter, made by this Office in order to avoid a
conviction for murder. It is this Office’s policy that where a person took a plea to
manslaughter or another charge in lieu of a trial at which the petitioner could have been
convicted of felony murder, murder under the natural and probable consequences
doctrine, attempted murder under the natural and probable consequences doctrine, or
another theory covered by Senate Bill 1437, that person is eligible for relief under section
1170.95. Such a position avoids disparate results whereby a person who this Office has
already determined to be less culpable -- as evidenced by allowing a plea for manslaughter
-- serves a longer sentence than a similarly situated person who is now eligible for relief
under section 1170.95.
4.Section 1170.95 (d)(2) states, “[I]f there was a prior finding by a court or jury that the
defendant did not act with reckless indifference to human life or was not a major participant
in the felony, the defendant is entitled to have his or her murder conviction vacated.” This
prior finding includes cases where a magistrate found that there was insufficient evidence
of major participation in a felony or reckless indifference to human life following a
preliminary hearing, or at any stage in the proceedings.
5.The Office’s position is that, consistent with the definition of “prima facie,” the court must
not engage in fact finding at the prima facie stage. (People v. Drayton (2020) 47 Cal. App.
5th 965.)
6.The Office’s position is that if the person was an accomplice to the underlying felony, and
had a special circumstance finding that was decided before People v. Banks (2015) 61 Cal
4th 788 or People v. Clark (2016) 63 Cal. 4th 522, then the filing of a Penal Code section
1170.95 petition is adequate to trigger the section 1170.95 process. There is no
requirement that the petitioner file a separate habeas petition first. (People v. York (2020)
54 Cal. App. 5th 250, 258.) The next stage is an evidentiary hearing.
7.The Office’s position is that if allegations pursuant to Penal Code section 190.2 (a) (17)
were dismissed as part of plea negotiations and the petitioner was not the actual killer, this
Office will not attempt to prove the individual is ineligible for resentencing. This Office
will stipulate to eligibility per section 1170.95(d)(2).
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8.The Office’s position is that, consistent with People v. Medrano (2019) 42 Cal. App. 5th
1001, 1008, rev. granted, that a person who was convicted of attempted murder under the
natural and probable consequences doctrine is eligible for resentencing under section
1170.95. Among other reasons, this avoids the great disparity that arises when one who
was convicted of murder under the now abolished natural and probable consequences
doctrine is able to be resentenced but one who was convicted of attempted murder is not.
9. If the client has previously won relief under People v. Chiu (2014) 59 Cal. 4th 155, the
Office will not attempt to argue that the petitioner is ineligible for resentencing, or could
be convicted as a direct aider and abettor.
10. If the jury was never instructed on direct aiding and abetting, implied malice murder, or
any other intent-to-kill theory, or if the trial prosecutor never argued one of these
theories, this Office will not argue that the petitioner can now be convicted under one of
these theories during 1170.95 proceedings. Theories must remain consistent.
11. Relatedly, if a jury was not even instructed on implied malice murder or some other theory
of homicide not covered by section 1170.95, the prosecution cannot now meet our burden
of proof beyond a reasonable doubt that the petitioner is ineligible for resentencing.
12. If the petitioner was convicted of murder and the petitioner’s jury was instructed on the
natural and probable consequences theory doctrine and/or a first or second degree felony
murder instruction at trial, then it may have been possible that petitioner was convicted
under one of these theories and this Office will not seek to rebut petitioner’s prima facie
showing. The case must proceed to the evidentiary hearing.
13. Because jury deliberations are secret, in the absence of special findings, it is not possible
to determine the actual basis of a jury verdict when multiple theories were before the
jury. Therefore, at an evidentiary hearing, if the petitioner was convicted of murder and
the petitioner’s jury was instructed with a felony murder or a natural and probable
consequences doctrine instruction along with other theories, there is a reasonable doubt
that the jury convicted petitioner under the old felony murder rule or the now abolished
doctrine of natural and probable consequences. Because the statute allows for the
introduction of “new or additional evidence,” the deputy district attorney may introduce
evidence to show, for example, that the petitioner was the actual killer, or acted as a major
participant with reckless indifference to human life, or was convicted under a still-valid
theory on which the jury was instructed. See below for this Office’s position on evidence
that we will and will not seek to admit.
14. At an evidentiary hearing pursuant to section 1170.95 (d)(3), the prosecution must prove
beyond a reasonable doubt that the petitioner is ineligible for resentencing. A deputy
district attorney may not argue that the standard for the court to determine whether a
petitioner is ineligible for resentencing is whether there is “sufficient evidence” to uphold
the conviction. This is a standard of proof for an appellate court affirming a conviction. It
is not the standard of proof for a trial court in a section 1170.95 proceeding. (People v.
Lopez (2020) 56 Cal.App. 5th 936, 949-950.)
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15.It is this Office’s position that the Evidence Code applies to any evidentiar y hearing
pursuant to section 1170.95. Statements made after promises of leniency or threats of
punishment (express or implied) are unreliable. A parole hearing is a coercive environment
and therefore statements made in them are unreliable and involuntary. This Office will not
seek to introduce statements by a petitioner made in parole hearing transcripts into court
for any purpose.
16.As a matter of due process, it is this Office’s policy that a petitioner has a right to
confrontation at a hearing under section 1170.95. Accordingly, this Office will not seek to
admit statements of a declarant when the petitioner did not have an opportunity to cross-
examine the declarant or when a purported expert’s opinion is based on inadmissible
hearsay. (See People v. Sanchez (2016) 63 Cal.4th 665.)
17. The Office will comply with all of our obligations under Brady v. Maryland and its progeny
during resentencing procedures.
18.The Office’s position is that any defendant who was under the age of 25 when the crime
occurred is entitled to present mitigation documents pursuant to People v. Franklin and
Penal Code section 3051.
19.The Office’s position is that a person’s age and the “diminished culpability of youth,” a
person’s mental illness, or cognitive impairment, or a person’s intoxication is relevant to
the determination whether a petitioner meets the standard of “reckless indifference to
human life.”
20. On resentencing, this Office will dismiss enhancements consistent with our current
enhancement policies and otherwise not seek a sentence that is inconsistent with this
Office’s current sentencing policies.
RESENTENCING UNIT
This Office declares that new Sentencing, Enhancement and Juvenile policies must apply with
equal force to sentences where the judgment is final. Accordingly, this Office commits to a
comprehensive review of cases where the defendant received a sentence that was inconsistent with
the charging and sentencing policies in force after Tuesday, December 8, 2020, at 12:01 AM.
In such cases, this Office shall use its powers under Penal Code section 1170(d)(1) to recommend
recall and resentencing. While priority shall be given to the cases enumerated below, the ultimate
goal shall be to review and remediate every sentence that does not comport with the new
Sentencing, Enhancement and Juvenile Policies.
Specifically, this Office commits to an expedited review of the following categories of cases,
which are themselves a subset of a universe of 20,000-30,000 cases with out-of-policy sentences:
Ɣ People who have already served 15 years or more;
Ɣ People who are currently 60 years of age or older;
Ɣ People who are at enhanced risk of COVID-19 infection;
Ɣ People who have been recommended for resentencing by CDCR;
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Ɣ People who are criminalized survivors;
Ɣ People who were 17 years of age or younger at the time of the offense and were
prosecuted as an adult.
In formulating this policy, we rely on current statistical data from the California Department of
Corrections and Rehabilitation (CDCR). (See Appendix.) Over time, the data may be subject to
change; the urgency of our mission will not be. In seeking resentencing under 1170(d)(1), this
Office shall argue that resentencing is necessary to eliminate disparity of sentences and to promote
uniformity of sentencing.
At all types of resentencing hearings, filing deputies shall assist the Resentencing Court by setting
forth any and all postconviction factors that support resentencing, including, but not limited to:
mitigation evidence; CDCR disciplinary records and record of rehabilitation and positive
programming while incarcerated; evidence that reflects whether age, time served, and diminished
physical condition, if any, have reduced the risk for future violence; evidence that reflects that
circumstances have changed since the original sentencing so that continued incarceration is no
longer in the interest of justice; and post-release reentry plans, demonstrating any family or
community support that is available upon release. (See e.g. Assembly Bill 1812, Pen. Code § 1170,
subd. (d).)
LIFER PAROLE HEARINGS
This Office recognizes that parole is an effective process to reduce recidivism, ensure public safety,
and assist people in successfully rejoining society. The CDCR’s own statistics show that people
paroled from life terms have a recidivism rate of less than four percent.
We are not experts on rehabilitation. While we have information about the crime of conviction,
the Board of Parole Hearings already has this information. Further, as the crime of conviction is
of limited value in considering parole suitability years or decades later, (see In re Lawrence (2008)
44 Cal.4th 1181; In re Shaputis (2008) 44 Cal. 4th 1241, 1255), the value of a prosecutor’s input
in parole hearings is also limited. Finally, pursuant to Penal Code section 3041, there is a
presumption that people shall be released on parole upon reaching the Minimum Eligible Parole
Date (MEPD), their Youth Parole Eligible Date, (YEPD), or their Elderly Parole Date (EPD).
Currently, sentences are being served that are much longer than the already lengthy mandatory
minimum sentences imposed. Such sentences are constitutionally excessive. (See In re Palmer
(2019) 33 Cal.App.5th 1199.)
This Office’s default policy is that we will not attend parole hearings and will support in writing
the grant of parole for a person who has already served their mandatory minimum period of
incarceration, defined as their MEPD, YEPD or EPD. However, if the CDCR has determined in
their Comprehensive Risk Assessment that a person represents a “high” risk for recidivism, the
DDA may, in their letter, take a neutral position on the grant of parole.
This Office will continue to meet its obligation to notify and advise victims under California law,
and is committed to a process of healing and restorative justice for all victims.
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YOUTH AND CHILDREN2
Currently, there are thousands of people from Los Angeles County serving sentences in the CDCR
for crimes they committed as children. As recent developments in adolescent brain science teach
us, young people are uniquely capable of rehabilitation and can lead productive lives as
contributing members of society without serving long sentences.
Under new Juvenile Directives, available here, people who are 17 or younger at the time of their
offense, will not be transferred to adult court and will remain committed to the youth system until
they are mature enough to reenter society. Accordingly, any person who was a minor at the time
of the offense and meets the eligibility requirements for recall and/or resentencing in adult court,
including but not limited to actions pursuant to Penal Code sections 1170(d)(2), or 1170(d)(1),
falls within this Office’s policy to oppose transfer of minors to adult court. In such cases, DDAs
shall join in any defense motion seeking to transfer the person to juvenile court for further
proceedings, and the deputy on the case shall state the reasons for supporting such transfer,
consistent with this Office’s policies, on the record.
2 We will refer to “youth,” “child,” or “children” instead of “juvenile(s).” The word “juvenile” is used
almost exclusively as a way to describe children who are in the criminal legal system or as police
descriptors. As a result, it has become a way to mark certain children as “other.” To the extent possible, we
will refer to the children in the criminal legal system as we would to all children, as “young person(s)” or
“children.” In accordance with Penal Code § 3051, we will refer to persons age 18 to 25 as “youths.”
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APPENDIX
A. Current CDCR Population from Los Angeles County
Table A.1: Descriptive Statistics for Demographic and Other Data
Variable Level Number Percentage
Total CDCR Prison Population Originating in Los Angeles County = 29,556*
(*excluding LWOP and condemned cases)
Gender
Female 1,078 3.65%
Male 28,478 96.35%
Race/Ethnicity
Black 11,139 37.69%
Latinx/Hispanic 14,683 49.68%
White 2,263 7.66%
Other 1,471 4.98%
Age Group
Less than 20 31 0.10%
20-29 5,945 20.11%
30-39 9,098 30.78%
40-49 6,489 21.95%
50-59 5,043 17.06%
60+ 2,950 9.98%
Offense Category
Crimes Against Persons 25,391 85.91%
Drug Crimes 461 1.56%
Property Crimes 2,230 7.54%
Other Crimes 1,474 4.99%
Time Served
Less than 5 8,307 28.11%
5 to less than 10 6,762 22.88%
10 to less than 15 5,123 17.33%
15 to less than 20 3,446 11.66%
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20+ 5,918 20.02%
Sentence Type
2nd Strike 8,106 27.43%
3rd Strike 2,395 8.10%
Determinate Sentence 9,841 33.30%
Life with Parole 9,214 31.17%
Table A.1: Time Served, Age at Time of Offense, Current Age, Classification Scores, and
Serious Rules Violation Reports (RVRs) Received in Past 3 Years
Count/
Percentage of Total LAC
Prison Population
Served 20 Years or More 5,918
(20.02%)
Served 15 Years or More 9,364
(31.68%)
Served 10 Years or More 14,487
(49.02%)
Served 7 Years or More 18,206
(61.60%)
Currently 60 Years or Older 2,950
(9.98%)
Currently 65 Years or Older 1,367
(4.62%)
Age 25 or Younger at Time of
Offense
13,410
(45.37%)
Age 18 or Younger at Time of
Offense
3,291
(11.13%)
Age 17 or Younger (Under 18) at
Time of Offense
1,557
(5.27%)
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Age 16 or Younger at Time of
Offense
778
(2.63%)
Age 15 or Younger at Time of
Offense
255
(0.86%)
Classification Score of 25 or Below 12,297
(41.61%)
Classification Score of 19 or Below 10,700
(36.20%)
No Serious RVRs in Past 3 Years 25,501
(86.28%)
CS of 25 or Below with No Serious
RVRs in Past 3 Years
12,016
(40.66%)
CS of 19 or Below with No Serious
RVRs in Past 3 Years
10,490
(35.49%)
Table A.3: Eligibility by Offense Type and Time Served (mix of lower-level offenses)
*The total prison population originating in LAC in this table excludes all LWOP and condemned cases.
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B. Background on Our Incarceration Crisis
Our ballooning prison population did not result from an increase in crime. In fact, our crime rate
has declined dramatically since the early 1990’s. Rather, harsher sentencing laws like Life Without
the Possibility of Parole, an increase in mandatory minimum sentences for indeterminate
sentences, Three Strikes sentencing, and requirements that that restrict people to complete 85% of
their imposed time now keep people in prison for longer than ever before, long after they pose any
safety risk to their community.
There are currently more people serving life sentences in America than were locked up in prison
at all during the 1970s. One in seven people behind bars is serving a life sentence.
California has led the way in this explosion. We had 23,000 people incarcerated in 1980. By 2000,
we had over 160,000 people. By 2010 we had 164,000. In the last 10 years, spurred by a United
States Supreme Court decision holding that California’s overcrowded prisons constituted cruel and
unusual punishment, as well as by a growing public awareness that we are incarcerating too many
people for too long, we have moved to reduce our prison population. However, we have five times
as many people incarcerated as we had in 1980.
California spent a shocking $15.7 billion on prisons in 2019-2020. This represents 7.4% of all state
funds. This is occurring while people are sleeping in our streets, our parks are trash-ridden, our
schools are in need of repair, our once-free public universities are underfunded and tuition rises,
people are hungry, and we need major infrastructure repair to even do things like provide clean
water to the people of California.
In Los Angeles County alone we currently have almost 30,000 people in CDCR.
Nationally, our criminal justice policies have disproportionately impacted minority populations.
60% of people in prison are Black, despite making up just 13% of the population. One out of every
five Black persons behind bars has a life sentence.
Almost 93% of people sent to prison from Los Angeles County are Black people and people
of color. Black people are approximately 9% of Los Angeles’s population. They constitute 38%
of Los Angeles’s state prison population. We can no longer deny that our system of hyper-
criminalization and incarceration is anything other than racist.
The incarceration rate of women is also on the rise. In 1980, there were 13,206 women in prison;
in 2017, there were 111,360.
Harsh sentencing laws have also meant that the prison population is old. If we continue at current
rates, one in three people behind bars in state prisons will be over 50 by 2030. In 1993, there were
45,000 people over 50 in U.S. state prisons. Twenty years later, there were 243,800. The growth
in the aging prison population has continued. Since 1999, New York has decreased its prison
population by 30 percent but during that same time span saw a doubling of its over 50 population.
Between 2001 and 2014, 29,500 people over 55 died in federal and state prisons.
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Current estimates show that the U.S. spends upwards of $16 billion a year to care for its elderly
population. In 2013 in Virginia, nearly half of the Department of Corrections budget for
prisoner health care went to caring for the elderly.
Recidivism and the Age-Crime Curve
Research consistently shows that individuals age out of crime, even those convicted of the most
serious offenses. By the time individuals reach their thirties, their odds of committing future crimes
drop dramatically. Much of this is due to neurological changes, which take place in profound ways
up until an individual turns 26. The prefrontal cortex, which is highly involved in executive
functioning and behavior control, continues to develop until age 26, making it harder for young
people to make what adults consider logical and appropriate decisions.
Given these changes, it makes little sense to sentence children and adolescents to lengthy terms of
incarceration without any meaningful opportunity for review, as the odds are extremely high that
those children can be rehabilitated and reenter society.
Likewise, incarcerating an aging population makes little penological sense. Those aged 50-64 have
far lower recidivism rates than the national average: seven percent compared to 43.3 percent. And
those over 54 have just a four percent recidivism rate. In other words, we are spending billions to
lock up people, 96% of whom will not even commit a technical violation once released.
Jurisdictions that allow for a “second look” or increased parole opportunities
“Look back” provisions allow sentenced individuals to petition for a reduced sentence after they
have shown meaningful signs of rehabilitation that indicate an ability to return to society. While
several jurisdictions have parole eligibility, only California has enacted a robust “look back” Act
thus far. Delaware has implemented one to address those sentenced under habitual offender laws.
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Federal: Los Angeles Congresswoman Karen Bass and United States Senator Cory Booker
introduced a bill for people serving in federal prison to reevaluate cases involving people over 50
years old and for those who have served at least ten years of a sentence, creating a rebuttable
presumption of release for those over 50.
District of Columbia: Recently, the District of Columbia passed Second Look Sentencing for
youths. This month, the Council is poised to expand this second look resentencing to all who were
under the age of 25 at the time of the crime.
Oregon: in January 2020, Oregon’s Second Look Resentencing, for minors SB 1008 goes into
effect.
Florida: Florida allows a second look for children who were sentenced as adults for offenses
committed before their 18th birthday.
Delaware: People convicted before their 18th birthday of a first-degree murder may petition for
modification after 30 years, and after 20 years for any other offense.
Colorado: Senate Bill 16-180 requires the Department of Corrections (DOC) to create a program
for kids sentenced as adults for a felony and presumes release upon participation after 3 years.
California: has made many of its recent changes retroactive, including resentencing for those
convicted of a third strike, Proposition 47, SB 1437, Penal Code section 1170, subsection (d),
among others. California also provides automatic parole review when a person commits the crime
before the age of 26 and has served 15, 20, or 25 years, depending on the controlling offense.
California has also expanded elderly parole this year with AB 3234 so that people who are 50 and
have served at least 20 years are eligible for parole consideration.
The policies of this Special Directive supersede any contradictory language of the Legal Policies
Manual.
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