In Nazir v. Superior Court, a criminal defendant is asking the Supreme Court to overturn the superior court’s refusal to dismiss sentence enhancements filed in an ongoing prosecution of him. He went to the high court after the Court of Appeal summarily denied his writ petition two days after it was filed.
Normally, a petition for review under such circumstances has little chance of success. But this one has some high-profile support that changes the odds.
For one thing, the prosecutor — Los Angeles District Attorney George Gascón — is on the defendant’s side. It was Gascón’s office, not the defendant, that (unsuccessfully) moved the trial court to dismiss the firearm enhancements filed by Gascón’s predecessor. Additionally, the district attorney’s answer to the petition for review — an answer requested by the Supreme Court — uncommonly says the petition should be granted. The DA claims that “elected prosecutors cannot effectively carry out their constitutional responsibilities if they are forced to charge enhancements and seek penalties that, in the elected prosecutor’s judgment, do not advance public safety or serve the interests of justice.”
Also supporting the defendant’s petition is an amicus curiae letter signed by 69 current and former elected prosecutors and attorneys general from California and around the country, asking the Supreme Court to “make clear that trial courts are not permitted to thwart the will of voters and the district attorneys they elect.” The amici also urge the court to “clarify the authority of elected prosecutors to implement new and lawful criminal justice policies aimed at unwinding decades of mass incarceration that have adversely impacted people of color.”
Even the Los Angeles Times has gotten into the act. In an editorial, the paper says, “The correct move now would be for the justices to order the trial court to drop the enhancements and, in so doing, vindicate a district attorney’s power to decide what charges to file and what punishments to seek — and vindicate the right of the people to set the proper course for their criminal justice system.”
The petition for review has two strikes against it.
First, although the Supreme Court will occasionally straight grant in a case where the Court of Appeal has not issued an opinion (e.g., Daly v. Board of Supervisors (see here), In re Friend (see here), Stancil v. Superior Court (see here)), it’s quite rare.
Second, the defendant is seeking extraordinary writ review before trial, which is generally not appropriate when future events could moot the superior court’s order; e.g., a jury might acquit the defendant or at least not find true the facts necessary to impose the sentence enhancements. That would militate against even a grant-and-transfer order.
The Nazir petition for review seems somewhat similar to the one in Becker v. Superior Court. (See here.) The defendant there sought a pretrial end to prosecution of her for murdering her fetus because of drug use during pregnancy. The Court of Appeal summarily denied Becker’s writ petition, and her subsequent petition to the Supreme Court garnered considerable publicity and outside support, including an amicus brief by California’s Attorney General. The Supreme Court nonetheless declined to hear the case, although stating in its order that the denial was “without prejudice to seek relief from any future proceedings.”
As if to highlight appellate court reticence to grant writ review of a legal issue that can become moot, the superior court today dismissed the murder charges against Becker.
So, even though the odds are better than for most other similarly situated petitions for review, I’m predicting the Supreme Court will deny Nazir’s petition, perhaps with a notation like the one in the Becker case that the denial is without prejudice to possible future relief. Of course, my poor track record on predictions might just be one more thing in favor of Nazir’s petition.
The court is expected to rule on the petition by June 16.
Related:
Tyler Pialet in the Daily Journal: “Gascón urges state high court to review defense appeal.”