No One Throws Book at Small L.A. Crack Dealers : Drug wars: Usually, only biggest peddlers and worst chronic abusers face lengthy prison time, records show.

By DAVID FREED

Dec. 18, 1990 12 AM PT

TIMES STAFF WRITER

California legislators in 1987 passed a law intended to stiffen the penalties for selling crack cocaine. Upon conviction, the new statute said, crack dealers had to go to prison, except in unusual cases.

But in Los Angeles, hundreds of crack dealers convicted in Superior Court each month do not go to prison, The Times has found. They are sent to County Jail for no more than a few months--or weeks--before returning to the streets, where they often commit new crimes.

So goes the war on drugs in the nation’s second most populous city.

Violations of narcotics laws, particularly those involving cocaine, account for more Superior Court cases in Los Angeles County than all other felony filings combined. More than half of all criminal defendants in Superior Court today have been charged with dealing narcotics, possessing drugs for sale, or keeping them for personal use.

Many have been convicted time and again for selling or using narcotics. Yet, only the biggest dealers and the most chronic abusers have the proverbial book thrown at them, records show.

In studying more than 1,800 random Superior Court cases, The Times found that maximum sentences were given to only 3% of 184 defendants convicted of selling cocaine, heroin or other illegal drugs, excluding marijuana.

Of the other convicted dealers, 70% were granted probation on condition that they first serve time in the County Jail. In part because of jail overcrowding, none served more than five months.

Those who sell marijuana received similar treatment, The Times found. Only one of 69 dealers charged with felony sale of marijuana received the maximum four-year sentence.

“You wonder why people deal drugs? I’ll tell you why,” said Arvis Bruveris, a Los Angeles County deputy probation officer. “Because nothing happens to them when they get caught.”

Take Leonard Dean. Since moving to Los Angeles from Denver in 1985, he has been arrested or detained at least 24 times on suspicion of selling or possessing small quantities of cocaine, marijuana or fake drugs, or for possession of narcotics paraphernalia.

He has been sent to the County Jail at least six times for drug law violations, serving an average of three months for each conviction, records show. He had never been to state prison--until this year.

Oddly enough, it was not cocaine that sent him there. Dean’s undoing was a bunch of “bunk,” or bogus drugs.

In April, an undercover officer approached Dean in the parking lot of a convenience store in Hollywood and asked to buy a “dove”--a street term for $20 worth of rock cocaine. Dean handed him a small bindle.

“This is good stuff,” he told the officer, taking his money. The stuff, as it turned out, was an over-the-counter headache medicine. Narcotics detectives contend that dealing phony narcotics can be more dangerous than peddling the real thing because users have been known to kill dealers who cheated them.

Dean was arrested and charged with sale “in lieu of” narcotics, which carries a possible prison sentence of 16 months, two years or three years. In July, he agreed to plead guilty in exchange for a 16-month term.

The California Department of Corrections gives “one for one” time credit to virtually every prisoner. That means an inmate sentenced to 16 months serves about half that. In Dean’s case, with credit for time served in jail, his sentence was closer to 4 1/2 months.

As far as Dean was concerned, 4 1/2 months was too long.

“I got screwed,” Dean, 40, lamented in an interview at the California Institution for Men at Chino soon after he was sentenced. “I’m not a dope dealer. I’m a dope user. Every cop in Hollywood knows I don’t deal dope. I deal bunk.”

Judges and prosecutors say they have no choice but to offer lesser sentences to most street dealers and other drug offenders so that court time and resources can be spent on criminals who pose greater threats to public safety.

“This is the price we have to pay,” said Superior Court Judge Michael A. Tynan. “We’ve got to move the lightweight stuff through the system so the heavy cases can be tried.”

Not everyone in law enforcement believes that the system should compromise with drug offenders.

While testifying before Congress in September, Los Angeles Police Chief Daryl F. Gates suggested that casual drug users “ought to be taken out and shot.”

Despite the chief’s hyperbole, The Times found that low-level crack dealers in Los Angeles routinely spend little time in custody--even after selling cocaine to undercover officers.

The reason is that few are ever charged under the law passed in 1987 that was designed to put dealers in prison for selling crack cocaine, known in legal terms as cocaine “base.” Widely regarded as more addictive than powdered cocaine, crack resembles small, white-colored rocks and is usually smoked in a pipe.

Possessing powdered cocaine for sale is punishable in California by two, three or four years in prison. The 1987 statute increased the punishment for possession of crack for sale to three, four or five years. It also mandated that convicted crack dealers had to go to prison, except “where the interests of justice would best be served” by a grant of probation.

However, before a prosecutor can charge a suspected dealer with having sold crack cocaine, he must first be able to prove in court that the drug is, in fact, crack. That requires special laboratory testing with a device called an infrared spectrofotometer.

Testing normally takes between 20 and 30 minutes. Police criminalists mix a piece of suspected crack cocaine with chemicals, then place a glass slide of the mixture inside a spectrofotometer. An infrared beam scans the slide and determines whether the sample is crack by the way it absorbs light.

The Police Department’s Scientific Investigations Division owns three $40,000 spectrofotometers--hardly enough, criminalists say, to process samples of all crack cocaine seized each day by the city’s police officers.

“We just don’t have time to run the base test on every rock that comes in,” said Donald Hale, a supervising criminalist.

Accordingly, the police and district attorney’s office quietly struck a deal soon after the 1987 crack law was passed: Unless the case involves more than 2 grams of cocaine, police criminalists will not conduct lab tests to confirm whether the cocaine is truly crack unless specifically requested by prosecutors.

The district attorney’s office, with plenty of bigger cases, rarely makes the request.

So, dozens of small-time street dealers arrested each week in Los Angeles are charged with selling powdered cocaine, rather than crack. Instead of a minimum three years in state prison, they are subject to no more than a year in County Jail.

The lab’s restrictive testing policies benefit the vast majority of drug dealers arrested in Los Angeles today, narcotics detectives say, because street-level dealers usually carry no more than a gram or two of crack--which still can amount to a dozen or more rocks of cocaine.

When questioned by The Times, Gates indicated that he was unaware of the arrangement between his lab and the district attorney’s office.

“The Legislature has come out with a very tough law and we’re not following through on it,” Gates said. “I’d be very happy to make sure that the lab processes whatever the amount of (crack) if the district attorney will file it.”

Dist. Atty. Ira Reiner pointed out that his prosecutors have filed more than 1,800 cases of sale of crack this year, the majority arising from arrests made by the Los Angeles County Sheriff’s Department.

Reiner noted that the Sheriff’s Department, unlike the police, performs necessary laboratory tests in all crack cases, even when the amount seized is less than 2 grams.

He said the district attorney’s office would be willing to file all crack cases generated by the Police Department as long as laboratory analysis is done in each case.

“It’s no more work for us to file,” Reiner said, “and it gives us more leverage” against dealers.

Small quantities of crack are not the only evidence for which the Los Angeles Police lab has little time today.

Criminalists also no longer analyze drug paraphernalia for traces of narcotics, according to staff members. Consequently, a user or dealer caught with an empty pipe probably would not face criminal charges--even though possessing drug paraphernalia is a misdemeanor, punishable by six months in jail.

“We used to do every narcotics booking,” said Hale, who has worked in the lab for 24 years. “But it’s gotten to where that’s just impossible. . . . It’s all these filings.”

Of 544 cocaine cases of all types examined by The Times, two-thirds involved dealers or users caught with a gram or less. Among them was Fernando Molina Rodriguez, a transient from Mexico who last year was sentenced to six months in jail for robbing and knifing a man near MacArthur Park.

He was arrested in April in the same area after selling suspected crack to an undercover Los Angeles police officer. The amount, records show, was less than 2 grams--not enough for Police Department laboratory testing--so he was charged with selling powdered cocaine.

In Georgia, a judge recently sentenced a man to life in prison for selling an undercover police officer $20 worth of cocaine--the same amount that Rodriguez sold. In Indiana, judges are authorized to mete out 20 to 50 years for a mere 3 grams.

In May, after Rodriguez agreed to plead guilty to selling cocaine, Los Angeles County Superior Court Judge Clarence (Red) Stromwall sentenced him to three years’ probation, with the first year to be spent in jail.

With 65 days of credit for time already served, Rodriguez was released a little more than four months later.

In central Los Angeles alone, about 100 people each week arrested on suspicion of selling crack or possessing it for sale are charged instead with dealing or possessing powdered cocaine because the amounts do not warrant lab testing, said Deputy Dist. Atty. John A. Perlstein.

Even when suspects are charged with selling small amounts of crack, the charges often are dropped during plea bargaining and defendants are given probation--sometimes with serious consequences, court records show.

Jesus Rivera Perez, 21, sold an undercover police officer 12 cocaine rocks--2.89 grams--in April, 1989, and was charged with selling crack.

During plea bargaining, prosecutors tossed out the crack charge and Perez pleaded guilty to the lesser charge of selling powdered cocaine, court records show. He was placed on three years’ probation by Superior Court Judge Sam Burbick and ordered to serve the first six months in jail.

Perez was released after about three months and promptly deserted probation.

Early one morning in December, 1989, while allegedly fleeing a drug deal gone sour, Perez forced his way into an apartment in Mid-Wilshire and held a tenant at knifepoint for 2 1/2 hours, court records show.

As dawn approached, a neighbor knocked on the door. Perez, according to police reports, chased him with the knife and shoved him out of a second-story window. The neighbor suffered a broken ankle.

Perez was detained by the building’s security guard until officers arrived. He was charged with assault with a deadly weapon and violating his probation.

In May, as the case was about to go to trial, Deputy Dist. Atty. Marsh M. Goldstein dismissed the assault charges, records show. Perez’s former hostage could not be located to testify, and the neighbor whose ankle was fractured was in prison on a narcotics charge, according to Goldstein.

“The case,” he said, “was going down the drain.”

With the assault charges dropped, Goldstein pressed the probation violation. Perez in June admitted he was in violation and was sentenced to three years in prison--the lowest term for selling cocaine.

With credit for time that he already had served in jail, he will likely remain imprisoned for less than a year.

Why wasn’t Perez sent to prison in 1989, instead of being granted probation?

“We’re dealing with volume today,” said Goldstein, a prosecutor for 25 years. “The way the system is, it almost ensures that guilty people are going to slip through the cracks or get sentenced to less.”

Six years ago, prosecutors under John Perlstein’s supervision each week reviewed about 100 narcotics cases of every type. By last year, the weekly average had grown to 400. Today, it is approaching 500.

“It’s the reality of life in Los Angeles,” Perlstein said, staring out his office window at the downtown skyline.

With so many cases, the process of filing charges against drug offenders begins before the sun rises.

At 4:30 a.m. each weekday, narcotics detectives at the Police Department’s Parker Center headquarters begin compiling paper work on drug offenders arrested the previous day. Five copies of each document are then stuffed into large, gold-colored envelopes called “packages” and carried to the district attorney’s offices on the 17th floor of the Criminal Courts Building.

By 7 a.m., the envelopes are stacked on a table next to Perlstein’s desk. Three detectives working in assembly-line fashion jot cryptic notations on each envelope, collate additional documents and pass each package to Perlstein.

The prosecutor examines the cases, rejecting about 1 in 4, referring about 1 in 10 to the city attorney as misdemeanors, and assigning the rest to the half-dozen deputy district attorneys who will draw up felony criminal charges.

Later that day, secretaries will type up formal “charge sheets,” so that the suspected drug offenders can be arraigned--or formally accused--before a judge.

Filing procedures, authorities say, are faster today than ever. By law, police and prosecutors in California once had three days to formally charge a suspect or free him. But under a 1989 court decision, a suspect can be held only two days without being charged.

Federal authorities, as if to pick up the slack, have taken a more aggressive role in prosecuting local drug cases.

“The sad fact . . . is that state drug sentences are notoriously weak (in California),” former drug czar William J. Bennett was quoted as saying last month. “This means that (the federal agencies) must shoulder a disproportionate share of the burden of apprehending drug criminals in California.”

Five years ago, according to agents, the U.S. attorney routinely referred federal narcotics investigations to the district attorney’s office for prosecution if defendants were arrested with less than with 1,000 grams (2.2 pounds) of cocaine.

Today, federal charges, which can be much harsher than state laws, are filed in cocaine cases where a minimum of 500 grams is involved, said Special Agent John Marcello of the U.S. Drug Enforcement Agency. He noted that the U.S. attorney nowadays will take on cases in which less cocaine has been seized but where there are “aggravated circumstances.”

In December, a 22-year-old south Los Angeles man arrested with about 150 grams of cocaine became the first person in California to be sentenced to life in prison without possibility of parole under a new federal law designed to put away offenders upon their third drug conviction.

Although Superior Court judges in Los Angeles County tend to give comparatively light sentences to street dealers, they show no reluctance to impose heavy sentences when defendants are linked to sizable amounts of drugs.

Superior Court Judge William Pounders, in July, sentenced a man with no criminal history to 14 years in prison after officers watched him unload from a van 300 kilogram-size packages of cocaine--about 660 pounds.

There are special statutes on California’s books that allow judges to impose mandatory prison terms when much smaller amounts of drugs are involved, particularly when defendants have a previous drug conviction. In Los Angeles, prosecutors often overlook those special statutes when filing charges or drop them during plea bargaining.

Take the case of drug user Benjamin Jimenez, 36, and drug dealer Effrain Velasquez, 20, both illegal immigrants from El Salvador.

In March, officers arrested the two men after watching Velasquez sell Jimenez $20 worth of suspected crack cocaine outside a bar on Alvarado Street, west of downtown.

Officers recovered 15 pieces of suspected crack from Velasquez. However, the Police Department’s lab did not not analyze the contraband and Velasquez was charged with selling powdered cocaine rather than crack.

Velasquez, who apparently had a clean record, was granted probation and given a six-month jail sentence.

Records show that Jimenez last year was twice convicted on felony drug charges and twice granted probation. He deserted probation both times.

“It is time that he received a clear and unambiguous signal that California’s drug laws were meant to be obeyed by all who choose to live in this country,” Deputy Probation Officer Ray Chavira wrote in a report to the court after Jimenez’s most recent arrest.

With his previous convictions, Jimenez was potentially ineligible for probation. However, prosecutors did not file a special charge that would have compelled a judge to send Jimenez to prison, records show.

In May, Jimenez pleaded guilty to possession of cocaine and Superior Court Judge Candace D. Cooper ordered that he spend a year in jail, followed by two years on probation.

“I plead guilty,” Jimenez told the probation officer beforehand, “because I like the plea-bargain arrangement.”

The judge ordered that Jimenez report to the Probation Department within three days after serving his jail time.

“Let me advise you . . . Mr. Jimenez,” Cooper is quoted as saying in court transcripts, “(that) if you fail to report to probation in this case, if you desert this probation, I will send you to state prison.”

Jimenez was released from jail Sept. 26, less than four months later.

He has yet to report to the Probation Department.

Felony Drug Crimes

Drug crimes were 56% of Los Angeles County felony prosecutions in 1989. These are the drugs involved in cases studied by the Times.

Crack cocaine: 51%

Cocaine: 18%

Marijuana: 14%

Heroin:10%

Other: 7%

Prior Records of Defendants in Drug Cases

Nearly three-quarters of drug case defendants studied by the Times had prior criminal records, broken down as follows:

Misdemeanor or Juvenile: 30%