Prosecutors Warn Calif. Court Order Is 'Dangerous Precedent'

More than 70 current and former elected prosecutors on Friday urged a California appellate court to overturn a trial court's decision declining to allow the Los Angeles County District Attorney's Office to withdraw previously requested sentencing enhancements, saying the ruling sets a "dangerous precedent."

The group told the appeals court in a brief spearheaded by the nonprofit Fair and Just Prosecution that the Los Angeles County Superior Court's refusal to withdraw sentencing enhancement undermines Los Angeles County District Attorney George Gascón's authority to enact officewide policy changes that were a part of his election campaign.

The trial court decision undermines Gascón's efforts to end lengthy prison sentences that have led to mass incarceration in the U.S. and prevents him from implementing changes that Los Angeles County residents want him to make while he is in office, according to the brief.

"[A]mici come together in our steadfast belief that elected prosecutors cannot effectively carry out their constitutional responsibilities if they cannot ensure implementation of policies officewide and are, instead, forced to charge offenses and seek penalties that, in the elected prosecutor's judgment, do not advance public safety or serve the interests of justice," the brief said.

In May 2020, the Los Angeles County District Attorney's Office, under Gascón's predecessor Jackie Lacey, charged Rehan Nazir with 35 counts for various offenses including carjacking, kidnapping and assault with a firearm and requested sentencing enhancements for his charges, according to Nazir's petition.

After Gascón was elected to take over Lacey's job, he issued a December 2020 directive to his prosecutors instructing them to no longer pursue sentencing enhancements, according to the petition.

A few days after the directive was issued, Gascón's office asked the Los Angeles County Superior Court to disregard the previously requested sentencing enhancements in Nazir's case, the petition said.

But the trial court rejected the office's request, saying that prosecutors must decide whether to pursue sentencing enhancements by assessing individual cases rather than treating them all the same under a uniform policy.

Nazir asked the California appellate court to overturn the decision, arguing that the trial court abused its discretion by not allowing prosecutors to exercise their authority over charging decisions, thus breaking the separation of powers in the judicial system.

FJP executive director Miriam Krinsky said in a statement Friday that Gascón's prosecutorial authority is "well-established and the efforts by some to override his decisions infringe on the role of elected prosecutors, the sanctity of separation of powers and the will of the voters."

"The people of Los Angeles County elected George Gascón to move away from dated 'tough on crime' approaches and bring about sensible, data-driven reforms that promote safer and healthier communities," Krinsky said.

The prosecutors' counsel on the brief, Berkeley School of Law professor Erwin Chemerinsky and Three Strikes Project director Michael Romano, said in the statement that the district attorney has the power to end the use of sentencing enhancements and "it would be unprecedented and dangerous for the judiciary to violate separation of powers and take this authority away."

"The Court of Appeal must ensure that we protect and preserve prosecutorial discretion granted to district attorneys by settled case law," they said.

District of Columbia Attorney General Karl Racine, one of the prosecutors who signed the brief, added in the statement that "no court should stand in the way" of Gascón's vision "to roll back the carceral policies that exploded prison populations without making us any safer."

Counsel for Nazir, Bruce Zucker of Kravis Graham & Zucker LLP, told Law360 Pulse on Friday that the case brings together "strange bedfellows," with both the defense and prosecuting attorneys joining together to argue that sentencing enhancements are well within the territory of prosecutorial discretion.

"To be forced to prosecute something when the district attorney doesn't want to do it puts the district attorney in a really funny position. It creates a lot of unfairness across the board," Zucker said.

The district attorney's office did not respond to requests for comment. The trial court and its counsel also did not respond to requests for comment.

The current and former prosecutors are represented by Michael Romano of the Three Strikes Project, Erwin Chemerinsky of Berkeley Law and Miriam Krinsky of Fair And Just Prosecution.

Nazir is represented by Mark J. Haushalter of Okabe & Haushalter, Bruce Zucker and Thomas I. Graham of Kravis Graham & Zucker LLP.

The trial court is represented by Hon. Lee W. Tsao and Frederick Bennett of the Los Angeles County Superior Court.

The district attorney's office is represented by Diana Marie Teran of the Los Angeles County District Attorney's Office and Stephanie Yonekura, Neal Kumar Katyal, Jo-Ann Tamila Sagar and Danielle Desaulniers Stempel of Hogan Lovells.

The case is Rehan Nazir v. The Los Angeles County Superior Court, appeal number B310806, in the Court of Appeal of the State of California, Second Appellate District, Division Seven.

--Editing by Michael Watanabe. Additional reporting by Aebra Coe.

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