Months after Los Angeles County District Attorney Jackie Lacey abruptly delivered a legal opinion that could have dismantled key protections from deportation for nonviolent drug offenders in California, her office reversed course and dropped its effort last Tuesday, just after The Daily Beast asked about it.
A spokesman for Lacey — who is facing a tough reelection fight to continue helming the country’s largest prosecutor’s office in a race that now includes popular former San Francisco DA George Gascon — said that the office’s effort was “strictly limited to legal analysis” at the behest of an appeals court judge, and it had asked the court to “withdraw the office’s legal opinion once we determined the potential consequences of that scholarly opinion.”
However, the legal wrangling in this case had been going on since last year, and parties including Los Angeles Public Defender Ricardo García and state Attorney General Xavier Becerra had filed briefs siding against the DA’s office starting early last month. The DA’s attorneys were set to give oral arguments before California’s 2nd Appellate District Court last Thursday, contending that these protections for immigrants were unconstitutional.
Last Tuesday, 16 hours after being contacted for this story, Lacey sent a letter withdrawing the opinion and the request for oral arguments.
At issue is California Penal Code 1203.43, a law which took effect at the beginning of 2016 to address a legal quirk that had been letting noncitizens be denied status and deported over criminal convictions that had already been vacated by the state as part of a Deferred Entry of Judgement (DEJ) program. This pretrial diversion let minor offenders avoid jail time and a record if they complete court-mandated treatment, like drug rehab. Prior to 2018, California only let drug defendants enter such programs if they pleaded guilty first, with the understanding that charges would be dropped if they followed the rules.
The catch was that while successful completion of a program would essentially nullify a conviction for state purposes, federal authorities still considered it a conviction for immigration purposes. Even minor drug crimes can make a noncitizen inadmissible or deportable under federal law, meaning that they may be unable to adjust their status or could even be stripped of legal status and deported by ICE. The new law created a standard process for immigrants who’d taken these diversion deals without being informed of the possible immigration consequences to have their guilty pleas declared legally deficient and thrown out altogether, shielding them from immigration consequences.
It’s hard to say exactly how many immigrants in the state took DEJ pleas between the program’s start in 1997 and reform in 2018 (immigration status is not recorded during criminal proceedings). A 2015 advisory on 1203.43 by the Immigrant Legal Resource Center estimated a number in the tens of thousands.
David Angel, an assistant district attorney in Santa Clara County, said that “thousands and thousands of people” had been able to void their guilty pleas there since the law went into effect. Santa Clara DA Jeffrey Rosen had supported its passage. “We want people to seek treatment, we don’t want the fact that they’re seeking treatment to be used against them in immigration court,” said Angel.
Rose Cahn, a senior staff attorney at the center, said that petitions under the law had been routinely granted in LA County before and after the DA’s office decided to challenge its legality. “LA DA is a huge office with over 800 prosecutors, and every day these motions are getting filed and granted in LA [Superior Court].”
The hubbub began with one such motion, filed in LA Superior Court on October 2018 on behalf of a man named Luis Roberto Villegas, who had completed a DEJ program in March of 2014. According to Villegas’ attorney, Patrick Obioha, his client is a recipient of Deferred Action for Childhood Arrivals (DACA), and was attempting to adjust his status to permanent resident. Obioha had filed many such petitions before, and said he expected this one to be no different. “It is normally granted by the judge. It’s ‘he’s qualified, she’s qualified,’ and they just sign it… It’s not my first rodeo on this 1203.43.”
This time, however, Judge Kathleen Blanchard took the motion off the calendar and refused to grant it on jurisdictional grounds. “In frustration, I called the court actually and told the clerk to let the judge know [granting the motion] is perfunctory,” Obioha said. Blanchard wouldn’t budge.
In December, Obioha filed a writ of mandate asking higher court — in this case the 2nd District Court — to force the lower court to grant the motion. As the other party in the case, the LA DA’s office was asked to weigh in and, to Obioha’s shock, they came out swinging. Deputy District Attorneys Phyllis Asayama and Matthew Brown not only argued that the writ shouldn’t be granted, but wrote that “1203.43 is unconstitutional as a violation of the separation of powers… The Legislature cannot unilaterally undo a judgment of dismissal and decree that a prior plea was invalid. Nor may it co-opt the judiciary to ratify its decrees.”
The argument was especially puzzling because, by definition, the only thing that changed when a prior defendant was granted a 1203.43 motion was that their guilty plea was voided for federal purposes. Charges had already been dismissed and convictions dropped for state purposes, meaning the only benefit petitioners received was protection from deportation. In tendering this opinion, the DA’s office was exclusively targeting these protections, and nothing else. In August, a division of 2nd District judges issued a tentative opinion siding with the DA and declaring an intent to deny the writ. In a final decision, the court would have the jurisdiction to shut down the program throughout all of California.
The preliminary decision spurred amicus briefs in defense of 1203.43 from the ILRC, the LA Public Defender, and Attorney General Becerra. In a rare reversal, the judges changed their minds and issued a tentative opinion siding against the DA’s office. A representative for the court told the Daily Beast that, while oral arguments have been cancelled, the court still intends to issue a final ruling in January. The withdrawal of the DA’s opposition, along with the latest tentative opinion, make it almost certain that the judges will uphold 1203.43.
Meanwhile, Obioha intends to again ask Judge Blanchard to grant the motion. “She’s bound to follow the directions of the court. It’s not her place to do anything different anymore,” he said.
Asked if the judge would comply, and if it remained her position or that of other judges in LA Superior Court that 1203.43 grants were out of jurisdiction, spokesperson Mary Hearn wrote: “We cannot speculate as to what Judge Blanchard’s ruling will be… Each judicial officer is independent and makes his/her decision based on the law and the facts of the case before them. Judge Blanchard’s ruling does not indicate ‘a position’ of the judicial officers of the Los Angeles Superior Court.”
It remains unclear why Villegas’ case in particular set this off. “Honestly, I was baffled when I saw the opposition the first time,” said Obioha. “I honestly don’t know, and to be honest with you, I think [the DA’s office] was just trying to file something [against 1203.43] and the judge ended up picking it up,” he said. Villegas declined to be interviewed.
The DA’s office’s contention that this was a scholarly legal opinion is undercut by the reasons for its withdrawal: if a practical consideration, rather than a legal one, could make them backpedal, presumably the same practical consideration could have prevented the opinion’s filing in the first place.
Angel, of the Santa Clara DA’s office, speculated that Lacey herself may not have played a role in trying to get 1203.43 thrown out, and stepped in once the prospect of media attention brought it to the forefront. “It’s a big office… I can’t imagine that DA Lacey or any of the people around her knew anything about this,” he said.
For Cahn, the ILRC attorney, there’s a through-line between this effort and other efforts by the DA’s office to combat legislative reforms to the criminal justice system, such as the high-profile battle over the so-called felony-murder rule. In that case, Lacey’s office deployed a very similar separation-of-powers argument against a new law that allows the reopening of cases where defendants were convicted for crime-related deaths that they hadn’t directly participated in.
“There’s no hiding the ball on this one… they knew what was at stake in this case from the very beginning,” she said, adding that either the office was incompetent in providing a legal opinion whose ramifications that did not understand, or Lacey got cold feet. “The reality that she’s facing a contested election with challengers to the left can’t be discounted here with regards to her change of posture in this case.”