People v. Andrews
The PEOPLE, Plaintiff and Respondent, v. THEODORE LAVORD ANDREWS, Defendant and Appellant
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author)
Analysis
The trial court denied the defendant's request to strike serious/violent felony priors and sentenced him to 25 years to life under the Three Strikes law. The Court of Appeal affirmed, rejecting the equal protection argument that disparate charging policies between San Diego and San Francisco counties violated the law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of request to strike serious/violent felony priors and imposition of 25-to-life sentence“The trial court denied requests to strike at least two of the serious/violent felony priors. The court did, however, strike the four prison priors. Andrews was sentenced to an indeterminate term of 25 years to life pursuant to section 667, subdivision (e)(2).” | unclear | correct | agree with court The appellate court affirmed the judgment, implicitly upholding the trial court's exercise of discretion in applying the Three Strikes statute, as the primary focus of the opinion was rejecting the constitutional challenge to the statute's application rather than reviewing the specific evidentiary basis for the priors. |
Equal protection challenge based on disparate charging policies between counties“We will find that differences in the application of the law by local prosecutors, not based on invidious discrimination, do not rise to the level of a denial of equal protection.” | de novo | correct | agree with court The court held that disparities in enforcement between local prosecutors, absent invidious discrimination or arbitrary classification, do not violate equal protection, relying on the broad discretion vested in district attorneys and the lack of authority for intercounty proportionality review. |
Authorities
- relied: Taliaferro v. Locke (1960) 182 Cal.App.2d 752 — District attorneys are vested with substantial discretion in selecting which cases to charge and at what level.
- relied: Leo v. Superior Court (1986) 179 Cal.App.3d 274 — Prosecutors can exercise broad discretion in charging decisions.
- relied: People v. Lucas (1995) 12 Cal.4th 415 — Prosecutors have broad discretion in charging decisions.
- relied: Bradley v. Lacy (1997) 53 Cal.App.4th 883 — Prosecutors have broad discretion in charging decisions.
- relied: Oyler v. Boles (1962) 368 U.S. 448 — Selective enforcement of statutes does not violate equal protection unless based on an unjustifiable standard such as race, religion, or other arbitrary classification.
- relied: Murgia v. Municipal Court (1975) 15 Cal.3d 286 — Charging decisions must not be based on impermissible classifications such as race.
- relied: People v. Arias (1996) 13 Cal.4th 92 — The Supreme Court has not required intercounty proportionality review in death penalty cases, supporting the view that local prosecutors may set their own policies.
- relied: People v. Kirkpatrick (1994) 7 Cal.4th 988 — The Supreme Court has not required intercounty proportionality review in death penalty cases.
- relied: People v. Keenan (1988) 46 Cal.3d 478 — The Supreme Court has not required intercounty proportionality review in death penalty cases.
The appellate opinion: sound — The opinion is sound because it correctly applies the principle that prosecutorial discretion is broad and that equal protection does not require uniform enforcement across jurisdictions absent invidious discrimination. It effectively distinguishes the lack of intercounty proportionality review in death penalty cases as analogous to the current situation, providing a robust legal basis for rejecting the appellant's claim.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court entered judgment on a jury verdict convicting Andrews of possessing cocaine base and two misdemeanors, found three serious/violent felony priors and four prison priors true, struck the prison priors but refused to strike the strike priors, and sentenced him to 25 years to life under the three strikes law, rejecting his claim that prosecuting him as a third striker denied equal protection because the San Francisco District Attorney would not have done so. The Court of Appeal affirmed, holding in the published portion that county-to-county differences in prosecutorial charging policy, absent invidious discrimination, do not violate equal protection, and rejecting two trial-conduct claims in unpublished portions.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Rejection of Andrews's equal protection challenge to application of the three strikes law based on the San Francisco District Attorney's more lenient charging policy“We will find that differences in the application of the law by local prosecutors, not based on invidious discrimination, do not rise to the level of a denial of equal protection.” | de novo | correct | agree with court The court did not articulate a standard but treated the constitutional question as one of law and resolved it independently. Its result follows Oyler v. Boles, which requires a showing that selective enforcement rests on an unjustifiable standard such as race, and Murgia, which frames California's discriminatory-prosecution doctrine the same way; the record here showed only differing policies between two offices. The reliance on capital-case authority (Arias, Kirkpatrick, Keenan) rejecting intercounty proportionality review is apt by analogy. The court also plausibly noted that section 667, subdivisions (f) and (g), direct prosecutors to plead and prove strikes, so a prosecutor who complies with the statute cannot be faulted because another may not. Gaps: the court never addressed whether defendants in different counties are 'similarly situated,' did not cite Davis v. Municipal Court (1988) 46 Cal.3d 64, which upheld a local charging policy against a similar equal protection attack, and somewhat overstated that San Francisco 'ignores the mandates of the statute' given subdivision (f)(2) permits dismissal in furtherance of justice. None of these affects the outcome. |
Permitting the prosecutor to address the relative difference between the misdemeanor charges and the felony possession offense (unpublished Part I)“improperly allowed the prosecution to address the relative difference between the misdemeanor charges and the felony possession offense” | unclear | correct | unsure The Court of Appeal rejected this contention but its reasoning appears only in an unpublished portion omitted from the opinion provided. Without the analysis or the record of the argument, no independent assessment is possible. |
Limiting defense counsel's closing argument regarding Andrews's childhood (unpublished Part II)“improperly limited trial counsel’s ability to address Andrews’s childhood in closing argument” | unclear | correct | unsure The appellate court rejected this claim in an unpublished portion not reproduced here; limitations on closing argument are ordinarily reviewed for abuse of discretion, but the opinion as provided gives no reasoning to evaluate. |
Authorities
- relied: Oyler v. Boles (1962) 368 U.S. 448 — Selective enforcement of a habitual criminal statute does not deny equal protection unless the selection is deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification.
- relied: Murgia v. Municipal Court (1975) 15 Cal.3d 286 — A discriminatory prosecution claim requires a showing that the defendant was singled out for prosecution on the basis of an invidious or impermissible classification.
- relied: People v. Arias (1996) 13 Cal.4th 92 — Intercase and intercounty proportionality review is not constitutionally required; local prosecutors may set charging policy absent invidious discrimination.
- relied: People v. Kirkpatrick (1994) 7 Cal.4th 988 — Variations among counties in prosecutors' decisions to seek the death penalty do not violate equal protection or require proportionality review.
- relied: People v. Keenan (1988) 46 Cal.3d 478 — Prosecutorial discretion in deciding which cases to prosecute capitally, exercised without invidious discrimination, does not deny equal protection.
- relied: Taliaferro v. Locke (1960) 182 Cal.App.2d 752 — The district attorney is not required to file every possible criminal case and has substantial discretion in selecting which cases to charge.
- relied: Leo v. Superior Court (1986) 179 Cal.App.3d 274 — Prosecutors exercise broad discretion in charging decisions, subject to constitutional limits.
- relied: People v. Lucas (1995) 12 Cal.4th 415 — The prosecutor's broad charging discretion includes decisions about the level at which to charge and whether to seek enhanced punishment.
- relied: Bradley v. Lacy (1997) 53 Cal.App.4th 883 — Courts generally will not interfere with the prosecutor's discretionary charging decisions.
- missed: Davis v. Municipal Court (1988) 46 Cal.3d 64 — A district attorney's local charging policy that produces different treatment of similarly charged defendants in different counties is a legitimate exercise of prosecutorial discretion and does not deny equal protection or violate separation of powers; directly supports the court's result and should have been addressed.
The appellate opinion: sound with gaps — The court correctly applied Oyler and Murgia to hold that geographic variation in prosecutorial charging policy, without invidious classification, is not an equal protection violation, and its analogy to the Supreme Court's rejection of intercounty proportionality review in capital cases is apt. It omitted the directly relevant decision in Davis v. Municipal Court, never articulated a standard of review or the similarly-situated threshold, and characterized the San Francisco policy as ignoring statutory mandates without accounting for section 667, subdivision (f)(2)'s furtherance-of-justice mechanism, though none of these gaps undermines the result.
How this analysis was made · dispute it
record incompleteOpinion — Huffman
Opinion
HUFFMAN, Acting P. J.This case presents the question of whether a defendant may claim a denial of equal protection because the district attorney of the county in which the prosecution occurs complies-more strictly with the three strikes law (Pen. Code, 1 § 667, subds. (b)-(i)) than would be the case in the City and County of San Francisco. We will find that differences in the application of the law by local prosecutors, not based on invidious discrimination, do not rise to the level of a denial of equal protection.
Theodore Lavord Andrews was convicted by a jury of possession of cocaine base in violation of Flealth and Safety Code section 11350, subdivision (a), and two related misdemeanors. The court found true four prison priors within the meaning of section 667.5, subdivision (b), and three serious/violent felony prior convictions within the meaning of section 667, subdivisions (b) through (i).
The trial court denied requests to strike at least two of the serious/violent felony priors. The court did, however, strike the four prison priors. Andrews was sentenced to an indeterminate term of 25 years to life pursuant to section 667, subdivision (e)(2).
Andrews appeals, contending the trial court improperly allowed the prosecution to address the relative difference between the misdemeanor charges and the felony possession offense, improperly limited trial counsel’s ability to address Andrews’s childhood in closing argument, and that application of the three strikes law to him was a denial of equal protection. We will reject each issue and affirm.
*1101 Factual Summary
The facts of the offense are only marginally relevant to the issues presented on this appeal. Accordingly, we will briefly summarize the facts in order to put some of the arguments into proper context.
Andrews and friends were confronted by San Diego police officers about 4:15 p.m. on October 17, 1996. Andrews, who was on parole, dropped a cocaine pipe and fled. He was tackled by an officer who thereafter forced Andrews to open his closed hand. The opened hand revealed a single rock of cocaine base.
Defense
Andrews testified in his own behalf. He admitted possession of the cocaine pipe and running from officers. He denied the possession of the rock which officers testified had been removed from his hand.
Discussion
I, II *
III
Equal Protection
Andrews contends he has been denied equal protection of the law because his case would not have been prosecuted as a third strike case in another county. Specifically, Andrews introduced evidence at trial regarding the charging policies of the District Attorney for the City and County of San Francisco. The materials introduced indicated the prosecutor in that jurisdiction does not apply the three strikes law to current felonies that are not serious or violent. From the fact the San Diego County District Attorney does apply the statute to charge a person such as Andrews who possesses a very small quantity of drugs (.1 gram), appellant argues disparate treatment in violation of principles of equal protection.
The record does not contain any statistical data nor does it show any statewide pattern of enforcement of this particular sentencing statute. We are not even fully informed of the policies of the San Diego County District *1102 Attorney. Even with the sparse record, however, it is clear there can be vast differences in the manner of enforcement of this draconian sentencing law. It seems to be without dispute that Andrews would not have faced a life term if he had committed the current offense within the San Francisco boundaries. Undoubtedly, such vast differences in enforcement patterns, based on nothing other than differing policies within cities or counties, is a source of concern. That a person faces either probation or 25 years to life based only on geography should trouble any thinking person. Having said that, however, does this court have the power to impose some systemic remedy? We think not.
In California, the district attorney of each county is the public prosecutor and is vested with the power to charge persons within that jurisdiction with criminal offenses. (Gov. Code, §§ 26500-26501.) That official is not required to file all possible criminal cases but is vested with substantial discretion in selecting which cases to charge and at what level. (See Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 755 [6 Cal.Rptr. 813].) While there are limitations on prosecutorial discretion as a general proposition, such official can exercise broad discretion in charging decisions. (Leo v. Superior Court (1986) 179 Cal.App.3d 274, 288 [225 Cal.Rptr. 15]; People v. Lucas (1995) 12 Cal.4th 415, 477-478 [48 Cal.Rptr.2d 525, 907 P.2d 373]; Bradley v. Lacy (1997) 53 Cal.App.4th 883, 893-895 [61 Cal.Rptr.2d 919].)
The drafters of the three strikes law appear to have intended to limit to some extent the exercise of discretion by prosecutors when it comes to dealing with persons who come within the reach of the new law. Section 667, subdivisions (f) through (g) appears to contain legislative direction to prosecutors to file and prove the necessary prior convictions to bring a person within the statute. Those sections provide:
“(f)(1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).
“(2) The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.
“(g) Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and *1103 prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (f).” (§ 667, subds. (f), (g).)
Thus, we are faced at the outset of our analysis with the likelihood that the prosecutor in San Francisco, in electing to ignore the mandates of the statute, is failing to carry out the duties placed on all prosecutors by such statute. Such observation is important in our analysis because the argument advanced here is that as long as one prosecutor’s office refuses to strictly enforce the law, all prosecutors in the state are bound to operate at the lowest charging level. There is, of course, no authority for that proposition.
It has been recognized by the United States Supreme Court that disparities often exist in the patterns of enforcement of statutes, particularly habitual criminal laws. In Oyler v. Boles (1962) 368 U.S. 448, 456 [82 S.Ct. 501, 505-506, 7 L.Ed.2d 446], the court recognized some selectivity in the enforcement of such statutes may occur without creating a violation of equal protection. The court said: “Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore, grounds supporting a finding of denial of equal protection were not alleged.” (Ibid.)
There is no suggestion in this record that any charging decisions have been made on the basis of race or any other impermissible classification. (See Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44].) Rather, this case simply involves different charging policies as between two prosecutors’ offices.
There is no current authority which requires intercounty or intercáse proportionality review. The Supreme Court has not required such review in death penalty cases. (People v. Arias (1996) 13 Cal.4th 92, 192-193 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1023 [30 Cal.Rptr.2d 818, 874 P.2d 248]; People v. Keenan (1988) 46 Cal.3d 478, 505 [250 Cal.Rptr. 550, 758 P.2d 1081].)
The logic of the court’s death penalty jurisprudence is compelling here. Such cases turned on the ability of prosecutors in the various counties to set policy on the issuance and prosecution of capital cases. Arias and the other cases recognize it is appropriate for such locally elected officials to set and enforce their policies, as long as there is no invidious or otherwise improper discrimination. Such authority compels a conclusion this court cannot and *1104 should not attempt to direct one prosecutor’s office to accept or agree with the policies of another. Rather, we should look to the lawfulness of such policies and whether they comply with statutes and constitutional provisions.
We also find support in the structure of the prosecution function within the executive branch of California government. The California Attorney General has supervision over the district attorneys of the state and may take action to see to the adequate enforcement of the laws of the state. (Cal. Const., art. V, § 13; Gov. Code, § 12550 et seq.; see also 4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Introduction to Criminal Procedure, §§ 1785-1790, pp. 2104-2112.) The record does not disclose any information about the actions of the Attorney General nor, for that matter, the actions of any prosecutor’s office regarding the three strikes law, save for San Francisco. Such paltry record will not support a finding of denial of equal protection. Nor does it give any support for action by this court to require San Diego County officials to follow the lead of San Francisco in enforcing a state statute.
Thus, although it is disturbing to realize that whether a given offense produces minor sanctions or life in prison may depend on one’s physical location within the state, the solution does not lie in courts requiring all of the state’s prosecutors to follow the lead of the most eccentric among them. As long as those prosecutors faithfully follow the law and avoid any improper classification of offenders, there is no basis for the court to interfere with the policy decisions of such local officials. We leave the pursuit of greater uniformity to the Legislature and the Attorney General.
Disposition
The judgment is affirmed.
Nares, J., and Howatt, J., * concurred.
Appellant’s petition for review by the Supreme Court was denied November 4, 1998.
Cites, in this corpus
- Bradley v. Lacy C022867 · 1997-03-25
- People v. Arias S014356 · 1996-04-11
- People v. Lucas S004788. Crim. 26422 · 1995-12-29
- People v. Kirkpatrick S004642. Crim. 23921 · 1994-06-13
- People v. Keenan Crim. 22956 · 1988-08-25
- Leo v. Superior Court B017718 · 1986-03-27
- Murgia v. Municipal Court L.A. 30426 · 1975-09-24
- Taliaferro v. Locke Civ. 18932 · 1960-07-18
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