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  • Jeffery K. Rubenstein

Misdemeanor Special Directive

Misdemeanor Case Management

On December 7, 2020 a new misdemeanor special directive was sent from LA County District Attorney (DA), George Gascon, to all his deputy DAs. Effective December 8, the policies below supersede the related sections of the Legal Policies Manual Chapter 9. Jeffery K. Rubenstein presents this information and the attached document for his clients and others.

Introduction

The goal of this Misdemeanor Reform policy directive is to reimagine public safety and best serve the interests of justice and community well being. As of December 8, the prosecution of low level offenses will now be governed by this data driven special directive. LA County courts have been revolving doors for those in need of mental health and addiction treatment and services for too long. And at enormous public expense. Currently, over 47% of those incarcerated pretrial on misdemeanor cases suffer from mental illness. Another 60% have serious substance abuse problems. Plus LA's 1.7% population of homeless people account for almost 20% of arrests. Previous policies have made social ills and recidivism worse at great public expense. The goal of the LA County DA's Office is to protect public safety. People who need help will be diverted to other agencies with the social service tools necessary to address causes of offenses, such as unlicensed driving, sex work, drug possession, drinking in public and trespassing. This will let us refocus on combating violent and serious criminal offenses.

Declination Policy Directive

The misdemeanor charges specified below are to be declined (dismissed) before arraignment and without conditions unless “exceptions” or “factors for consideration” exist. These charges do not constitute an exhaustive list. Each deputy DA is encouraged to exercise his or her discretion in identifying charges that fall within the spirit of this policy directive and proceed in accordance with its mandate.

Trespass: Penal Code § 602(a)-(y)

Exceptions or factors for consideration:


  • Repeat trespass offenses on the same public or private property over the preceding 24 months.

  • Verifiable imminent safety risk.

  • No indications of substance use disorder, mental illness or homelessness.


Trespass: Penal Code § 602(a)-(y)

Exceptions or factors for consideration:


  • Repeat offenses over the preceding 24 months involving substantially similar behavior to that charged.

  • No indications of substance use disorder, mental illness or homelessness.


Driving Without A Valid License: Vehicle Code § 12500(a)-(e)

Exceptions or factors for consideration:

Repeat driving offenses over the preceding 24 months involving substantially similar behavior to that charged.

Driving On A Suspended License: Vehicle Code § 14601.1(a)

Exceptions or factors for consideration:

Repeat driving offenses over the preceding 24 months involving substantially similar behavior to that charged.

Criminal Threats: Penal Code § 422

Exceptions or factors for consideration:


  • Offense related to domestic violence or hate crime.

  • Repeated threat offenses over the preceding 24 months

  • Documented history of threats towards victim

  • Possession of a weapon capable of causing bodily injury or death during commission of the offense

  • No indications of substance use disorder, mental illness or homelessness.


Drug & Paraphernalia Possession: Health & Safety Code §§ 11350, 11357, 11364, & 11377

Exceptions or factors for consideration: None identified.

Minor in Possession of Alcohol: Business & Professions § 25662(a)

Exceptions or factors for consideration: None identified.

Drinking in Public: Los Angeles County Municipal Code §13.18.010

Exceptions or factors for consideration: None identified.

Under the Influence of Controlled Substance: Health & Safety Code § 11550

Exceptions or factors for consideration: None identified.

Public Intoxication: Penal Code § 647(f)

Exceptions or factors for consideration: None identified.

Loitering: Penal Code § 647(b),(c), (d), (e)

Exceptions or factors for consideration:

Repeat offenses over the preceding 24 months involving substantially similar behavior to that charged.

Loitering To Commit Prostitution: Penal Code § 653.22(a)(1)

Exceptions or factors for consideration: None identified.

Resisting Arrest: Penal Code § 148(a)

Exceptions or factors for consideration:


  • Repeat offenses over the preceding 24 months involving substantially similar behavior to that charged.

  • The actual use of physical force against a peace officer. The charge is filed in connection with another offense not enumerated above.


If the charge is not declined, follow these sequential steps until dismissal:


  1. Pre-Arraignment Diversion via Administrative Hearing. Upon compliance with condition(s) imposed in the administrative hearing, the charge shall be formally declined.

  2. 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 (no contest) or guilty.

  3. Post Arraignment, Post Plea Diversion. Upon compliance with condition(s) imposed at pretrial hearing, 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, fees and status registration. In no circumstance may the offer of diversion be conditioned upon either of these: Waiver of a person’s constitutional or statutory rights. A temporal or procedural deadline other than commencement of trial.

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 above under the Declination Policy Directive, pre plea diversion shall be presumptively granted. This diversion policy shall not apply to these: Offenses excluded under Penal Code §1001.95. Any driving under the influence (DUI) 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. Deputy DAs can use their discretion, in accordance with the spirit of this policy, when determining which diversionary scheme is best suited to serve the interests of justice. Conditions of such diversion shall be the same as those statutorily required upon conviction, absent monetary fines, fees and status registration. In no circumstance may the offer of diversion be conditioned upon waiver of a person’s constitutional or statutory rights. The exception is for a waiver of time under Penal Code § 1382. The duration diversion is presumably 6 months. In no circumstance can it exceed 18 months. Upon compliance with the condition(s) imposed, the charge(s) will 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 these factors:


  • Convictions for offenses of equal or greater severity than that charged over the preceding 24 months.

  • Documented history of threats or violence towards a victim.

  • Clear evidence of an identifiable, continuing threat to another individual or other circumstance of similar gravity.


In such situations, a deputy DA must consult his or her supervisor. Place their justification for seeking a deviation in writing. And record the supervisor’s determination in the case file.

Non Diversionary Plea Offers

If a misdemeanor case is not subject to declination or resolved via the Diversion Policy Directive, the deputy DA must adhere to these guidelines when making plea offers:


  • No offer shall require that a defendant complete combined jail time and community labor as a term of a sentence.

  • No offer shall require that a defendant complete in excess of 15 days of community labor as a term of a sentence.

  • No offer shall require status registration for a defendant unless mandated by statute.

  • Once conveyed to the defendant, no offer can be increased in response to the defendant exercising their right to pursue a pretrial motion or jury trial.


In such situations, a deputy DA must consult his or her supervisor. Place their justification for seeking a deviation in writing. And record the supervisor’s determination in the case file.

Fines and Fees

Fines and fees place burdens on individuals in the criminal system and their families. They pose significant and sometimes insurmountable obstacles to reentry. Deputy DAs must presume that an individual is indigent and unable to pay fines and fees under these circumstances:


  • Defendant is represented by the Public Defender, the Alternate Public Defender, Bar Panel, or a free legal services organization.

  • Defendant is receiving any type of means tested government benefits.

  • Defendant is experiencing homelessness.

  • Defendant can make a showing of indigence by clear and convincing evidence.


Additionally, deputy DAs must:


  • Actively support and in no case object to requests to waive fines and fees for indigent individuals.

  • Not argue 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.

  • Not demand that summary probation be extended based upon an alleged failure to pay.

  • 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.

Note: This JKRLAW Blog is an excerpt of George Gascon's entire Special Directive 12-07. For the entire original go https://da.lacounty.gov/policies and choose Special Directive 12-07.

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