Allison Jackson, who is representing the victim in the Elmy Workman case was never notified that the same plea deal that was rejected by Judge John Feeney was presented again to Judge Dale Reinholtsen. She was not also sure if Judge Reinholtsen had been given the background of the case.
Ms. Jackson sent a letter to Judge Reinholtsen after I contacted her about a change in dates. She had not been notified, niether had the victim.
Although DDA Zach Curtis is assigned this case, who approved the deal between the District Attorney's office and the defendant?
Today, in Courtroom Four, Neal Sanders was present with defendant Elmy Workman who is out of custody. Mr. Curtis for the People; and Ms. Jackson for the victim, Angela Pitts.
Judge Reinholtsen said he had received Ms. Jackson's letter and a letter from Mr. Sanders and while he had reviewed the file, he needed to review it with depth. One of the reasons he mentioned was the three month plus Bodhi Tree trial and that he could not delay evidentiary rulings and reviewing jury instructions because they had already lost two jurors and one alternate and there are other schedules to consider after August 11.
He mentioned two options: one to hear oral arguments from all three attorneys, then rule a week from now or do everything on one date. Both Ms. Jackson and Mr. Sanders said there was no rush and they were willing to wait for the ruling. The next hearing is on August 13 at 2 p.m.
Pasted below is the text of Ms. Jackson's letter:
I am writing on behalf of the Victim, Angela Pitts, regarding the suggested disposition agreed to by the prosecution and defendant (for the second time) which was entered into on June 25, 2014. There are three main points this letter seeks to address: 1) victim rights and standing regarding the disposition and sentencing of the defendant’s case; 2) the lack of Victim notification regarding the advancement of this case initially set for June 30 but advanced to June 11 and June 25 for a change of plea; and 3) the fact that the plea taken on June 25, 2014, to PC 245(a) and a PC 12022.7 GBI enhancement, conditional for probation was expressly dealt with by Judge Feeney by way of rejection on April 15, 2014, after the matter was fully briefed and argued. Judge Feeney found that, based upon the facts as they related to the crime and to defendant’s culpability, there were no unusual circumstances under Rule 4.413 that would allow the court to grant probation in this matter. I have an idea why the People didn’t notify me as counsel for the Victim (nor the Victim) about the advancement of the matter from June 30 to June 11 and 25. I was central to having the earlier plea set aside. I do not know if you were informed that the defendant had previously pled to the exact same charge and enhancement conditional upon a grant of probation which was rejected on April 15, and that Judge Feeney made his findings on the record based upon briefs, and extensive letters.
1. Victim Rights and Standing:
As you are aware, and as the People should be aware, on November 4, 2008, the voters of the State of California approved Proposition 9, the Victims’ Bill of Rights Act of 2008: Marsy’s Law, a measure to provide all victims with rights and due process. Marsy’s
Law significantly expands the rights of victims in California. Under Marsy’s Law, the California Constitution article I, § 28, section (b) now provides victims with rights in addition to those afforded to victim in 1982, including but not limited to:
• To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.
• To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.
• To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
• To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.
• To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.
• To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.
• To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.
• To be informed of the rights enumerated in paragraphs (1) through (16).
Proposition 9, Marsy’s Law, expanded the Victim’s Bill of Rights first passed by California voters in June 1982 and now provides victims with standing in any proceeding in which a right of a victim is at issue including, but not limited to, plea bargaining, sentencing, and appellate review.
2. Lack of Victim Notification of Change of Plea:
I first appeared on behalf of the victim in this matter on March 12, 2014, which was the date initially set for sentencing. My client was told by Mr. Gallegos immediately before trial about the plea bargain for probation. The victim objected to this plea bargain. She hadn’t even seen the probation report and had no idea she even had a right to see it. Judge Feeney put the matter over a week and provided me with the PSR to discuss it with the Victim. On March 17, I provided a sentencing letter to Judge Feeney on behalf of the Victim and then appeared at the next court date, March 20, 2014.
On March 20, Judge Feeney stated that after review of my letter, PC 12022.7 precluded him from putting the defendant on probation. After argument by the defendant, Judge Feeney referred the matter to probation for a consideration of Rule 4.413. On March 27 and April 1, I submitted to the Probation Department additional letters on the issue of the lack of unusual circumstances, as well as for Judge Feeney and for inclusion in the supplemental report regarding Rule 4.413. On April, 3, 2014, I again appeared on behalf of the Victim. The Defendant asked for a continuance to address the supplemental report and the issue of unusual circumstances. Finally, on April 15, 2014, after extensive briefing regarding Defendant’s plea to the PC 245(a) and PC 12022.7, conditional upon receiving probation, Judge Feeney rejected this plea as conditioned.
Both the People and Defendant knew that Judge Feeney made findings on the record that there were no unusual circumstances when he rejected this plea. Both the People and Defendant knew that I represented the Victim. Unfortunately, for some reason Victim Pitts was (again) not notified that the Defendant and the prosecutor were advancing the matter and re-attempting to get the same plea approved only in a different courtroom. This tactic is untenable.
When the earlier plea for probation was rejected on April 15, 2014, the matter was set for pretrial on June 30, 2014; Trial Confirmation on July 7, 2014; and Jury Trial was set for July 21, 2014. For some reason, the People and Defendant advanced this matter to be specially set in your courtroom on June 11, 2014, and set for a change of plea on June 25, 2014. Neither I nor Victim Pitts were informed of the June 11 advancement date or the June 25 change of plea date. Nor was I informed about the attempt to get a new judge to approve, without Victim input, the plea agreement to the same charges, same condition, which were ejected after hearing and briefing by Judge Feeney. It was not until June 30, 2014, when I was at the courthouse, that I discovered that the pretrial had been vacated, that there had been a change of plea on June 25, and that the accepted plea was to the very same charges, enhancements and conditions which were rejected by this court, after briefing, letters and the Victim’s objections.
Deputy district attorney, Curtis and defense attorney Sanders were aware that I asserted the Victim’s rights to notification, and both knew the earlier plea had been rejected and the reasons for the rejection. It is my understanding that this repeat performance of the previously rejected plea bargain was directly ordered by Mr. Gallegos, and not his deputy. This intentional disregard of the Victim’s rights and the attempt to forum shop in a do over and without the Victim having a say, is deeply troubling and concerning.
3. Prior Rejection of Same Plea and Same Conditions:
The Defendant used a knife and inflicted great bodily injury. The criteria required under 4.413 cannot be met. This is what Judge Feeney found when he addressed this issue in numerous hearings March 12, March 20, April 3, and April 15, 2014 - the Defendant cannot legally be placed on probation.
After first appearing on the Victim’s behalf on March 12, 2014, (the original date for Defendant to be sentenced), and after informing Judge Feeney that the Victim, objected to the grant of probation, Judge Feeney put the matter over for one week so that Victim could be provided with a copy of the probation report. On March 20, Judge Feeney stated that he was going to reject the plea which resulted in the Defendant arguing the matter be sent to probation and for attorney Sanders to provide his own analysis of Rule 4.413.
When the matter was called again on April 15, 2014, for sentencing, Judge Feeney went through the criteria of Rule 4.413. While the district attorney may attempt to stipulate to anything, the legislature placed parameters as to when and if a court can make findings of unusual circumstances to place a defendant on probation when that defendant is convicted of a serious and/or violent felony. The legislature has declared serious and/or violent felonies to be presumptively ineligible for probation. After extensive briefing on the issue and a supplemental report from probation, Judge Feeney found, based upon the facts related to the case as well as to Defendant’s culpability, there were no unusual circumstances. Since the court could not make the necessary findings under Rule 4.413, Judge Feeney could not accept the conditional plea, and he rejected the plea for PC245(a) and PC 12022.7 with the condition of probation. When Judge Feeney rejected the earlier plea to the exact same charge, enhancement and condition, this rejection was based on his analysis of the criteria of Rule 4.413.
Under the criterion of the facts related to the Crime: Under Subsection (c)(1)(a) the great bodily injury sustained by the victim was not substantially less serious than the circumstances typically present in other cases involving the same probation limitation. The victim sustained a horseshoe shaped stab when the Defendant tried to “gut” her. The Defendant lacerated the Victim’s liver in the stabbing. It took surgeons 5-6 hours to repair the internal damage inflicted by Defendant’s attack. The victim remained in intensive care and was hospitalized for close to a week.
Under the criterion of the facts related to Defendant’s Culpability: Judge Feeney reviewed Subsection (c)(2)(a) through (c) and indicated that, given the facts, no unusual circumstances were present under that subsection for the court to grant probation for the presumptively ineligible offense. Judge Feeney found no great provocation, coercion or duress necessary under (c)(2)(a). Judge Feeney noted that, while the Defendant may suffer from depression, the crime was not “committed because of a mental condition not amounting to a defense.” (Subsection (c)(2)(b).) Nor was Defendant youthful or aged, at the time she committed the offense. (Subsection (c)(2)(c).)
Based upon the facts related to the crime and to Defendant’s culpability, a plea to Penal Code section 245, along with the enhancement under Section 12022.7, conditional for probation, was inappropriate on April 15, 2014, and is inappropriate now.
On behalf of Victim Pitts (and her family), I respectfully request that this court once again and finally reject the plea, enhancement and condition, all of which were previously rejected by Judge Feeney on April 15, 2014. Why this plea and the issue regarding unusual circumstances are being readdressed without the Victim’s knowledge nor my knowledge which precluded the Victim to objecting, now, in your courtroom, after the matter was advanced without my knowledge and I was kept from appearing to object, is a tremendous waste of judicial resources, a waste of the resources of the probation department, and it is a further victimization of Ms. Pitts by both the defendant and now the People.
Previous posts:
http://johnchiv.blogspot.com/2014/03/elmy-workman-sentenced-today.html
http://johnchiv.blogspot.com/2014/04/elmy-workman-sentencing-postponed-again.html
http://johnchiv.blogspot.com/2014/04/judge-feeney-tentatively-rejects.html
http://johnchiv.blogspot.com/2014/06/previous-plea-deal-rejected-back-on.html
http://johnchiv.blogspot.com/2014/03/defense-and-private-attorneys-run.html
Ahhh. And Paul and Neal are trying fast and furiously to untie the knots in their shorts.
ReplyDeleteAllison Jackson is not good. She is great.