Spousal Abuse Is Rarely Prosecuted as a Felony in O.C. : Crime: Statistics indicate an absence of vigorous pursuit of cases in the county--95% of arrests end up as misdemeanors. D.A. says overall data is incomplete.

At a time when local domestic violence complaints are soaring at record rates, state crime statistics show that the Orange County district attorney’s office has the worst record among prosecutors in the state’s six most-populous counties for vigorously pursuing spousal abuse cases.

Over the past three years for which state figures are available, the office of Dist. Atty. Michael R. Capizzi elected to file the smallest percentage of cases as felonies, had the lowest conviction rate in those felony cases--52.4%--and succeeded in putting the smallest percentage of serious offenders in prison.

A Times investigation revealed that more than 95% of the felony spousal abuse arrests in Orange County ended up being filed in court as misdemeanors, giving Orange County the lowest felony filing rate--4.2%--among the state’s top six counties. In comparison, San Diego County, which comes closest to Orange County in terms of population and demographics, has a felony filing rate nearly four times higher.

Domestic violence counselors and those concerned over battered wives have fought for years to get the criminal justice system to take spousal abuse more seriously. But it has taken the double-murder case against former football great O.J. Simpson to finally focus public attention on the nation’s epidemic of spousal abuse--and the legal system’s response to it.

California law gives prosecutors the option of filing spousal abuse cases either as felonies, punishable by prison terms of two to four years for first-time offenders, or as misdemeanors, which can only be punished with relatively shorter stays in the county jail, or with probation.

In an interview last week, Capizzi dismissed the statistical comparisons--which echoed similar findings of a recent Times investigation revealing that his office had the poorest record among the six most-populous counties for prosecuting rape--saying that the state’s statistical data was incomplete. He also said the state statistics are unsuitable for comparisons between counties--an assertion that is contradicted by recognized criminologists and disputed by state justice department officials.

Capizzi said he is proud of the way his office has handled spousal abuse cases, and said a special prosecution unit he created 15 months ago is cracking down on individuals who batter their mates. He said his office is doing the best it can with limited resources.

“I think we do well in that area with the caseload that’s presented to us. We are constantly striving to do better,” Capizzi said. “As a result of (the new unit), we are much stronger in our handling of those cases. We are able to give them more individualized attention, and that was the purpose in creating that unit.”

Critics, however, say the figures raise troubling questions about how seriously prosecutors treat spousal abuse cases that are often a critical predictor of escalating violence--and even murder.

“I think these are abysmal figures, and they certainly look like Orange County has not faced the fact that domestic abuse is a serious crime,” said Dr. Mildred Kaley Pagelow, a Cal State Fullerton professor who has researched domestic abuse for 20 years.

Reports of spousal abuse in Orange County have skyrocketed over the past five years for which official statistics are available. The numbers are growing at a pace 65% higher than the state as a whole, and 20% faster than in Los Angeles County, which saw a slight decrease in the last year.

Likewise, Orange County police agencies have been arresting adults and juveniles for spousal abuse at a rate that is increasing virtually twice as fast as statewide and five times faster than in Los Angeles County.

Reasons for the dramatic increases are unclear, although some speculate that increased spousal abuse may be linked to the economic downturn and to an increased awareness of the problem and willingness to call police.

The most troubling statistic shows that deadly domestic violence is also on the rise in Orange County.

According to state figures, 19 men and women were killed in 1993 in domestic violence cases in Orange County, an increase of five over the number just five years ago. At the same time, homicides linked to domestic abuse in Los Angeles County and the state reportedly declined.

Critics say Capizzi--and by extension, Orange County--has been slow to recognize and combat spousal abuse and domestic violence.

Some note that there are more shelters for abused animals in Orange County than there are facilities for battered women.

“Long before (Orange County) established a special prosecution unit, other counties had already done that,” Pagelow said. “There’s just been no special emphasis on these cases.”

One of the state’s first pilot programs for prosecuting spousal abuse was started in Los Angeles in 1985, while the district attorney’s office there created a full-fledged unit 1 1/2 years ago. San Diego started a program in 1988 and has since become a nationwide model. Both jurisdictions boast a higher percentage of felony filings, higher conviction rates, and a higher rates of incarceration for spousal abuse than Orange County, according to state figures.

The data used in The Times’ comparisons comes from the California Department of Justice, which collects statistics on crime and punishment from every law enforcement agency, prosecutor’s office and courthouse in the state.

The data tracks felony spousal abuse arrests, the recommendations to prosecutors of the arresting agencies, prosecutors’ filing of the cases either as felonies or misdemeanors, and the outcome of those cases once they are adjudicated in the courts.

In defending his office’s handling of spousal abuse cases, Capizzi said there are many factors that can distort the picture given by felony arrest statistics.

Capizzi said prosecutors face a higher burden than police officers, who frequently consider a case to be a felony at the time of arrest, when a later and more thorough evaluation of the evidence by prosecutors dictates that it should be treated as a misdemeanor.

“They can arrest for probable cause,” he said. “Many times there is a felony probable cause arrest, and when the liaison officer comes in, they will say this is not a felony, it should be a misdemeanor.

“If we see them as a misdemeanor, we will file it as a misdemeanor.”

But the overwhelming reduction of felony arrests to misdemeanor charges shows that prosecutors are disregarding police judgment, Pagelow said. Years ago, she said, the problem in spousal abuse cases typically involved police who refused to arrest abusive husbands--or boyfriends who, under California law, can sometimes be defined as spouses--in about 95% of the cases.

“Now, they make that call (and make an arrest), but it’s not prosecuted as a felony,” she said. “When the charge is a misdemeanor, the message very often is that this is nothing to worry about.”

Capizzi said his office doesn’t underestimate what is at risk.

“Obviously, we wanted to see a more aggressive stance on these cases, and that’s why we started the unit,” he said. “These cases just tug at you to see that we have to do something to deal with these cases before they turn into a homicide.”

But critics say that every domestic dispute case, regardless of the severity of any injuries, presents an opportunity to try to break the cycle of violence.

Even in cases where there is evidence of prior violence and repeat offenses, the criminal justice system as a whole often allows offenders to escape the most serious punishment.

Consider, for example, the case of James Calvin Wilkes, 46, of Garden Grove, who was charged with misdemeanor injury to his spouse in January, 1991, and was arrested again for slashing his wife with a machete before the first case was resolved.

Records show that while awaiting trial for the machete attack, Wilkes was sentenced to informal probation for the first offense.

And when he pleaded guilty to felony charges in the machete attack, he was again sentenced to probation--even though he had a prior conviction for voluntary manslaughter, a shooting death in San Diego.

When he was arrested for violating his probation, and faced a possible five-year prison sentence, he was instead sent to Orange County Jail for one year, getting credit for six months already spent in custody.

Capizzi’s domestic violence unit has two prosecutors and one investigator devoted full time to felony spousal abuse cases, while two deputies in each of the county’s five courthouses handle misdemeanor domestic violence cases in addition to their routine caseload.

Each spousal abuse case is reviewed individually, and prosecutors take into consideration the victim’s injuries and the defendant’s prior record. Repeat offenders are not automatically charged with felonies.

Senior Deputy Dist. Atty. Jane Shade said the unit cannot handle all cases stemming from domestic violence but concentrates on the most serious and difficult cases, such as those involving several charges, or reluctant witnesses, or stalking.

The unit is currently revamping its system of record-keeping to be able to track domestic abuse cases, Shade said.

She said many felony arrests are properly filed as misdemeanors, and she personally reviews all spousal abuse case rejections to make sure the decision not to prosecute was correct.

“We take these charges very, very seriously,” said Shade, who added that she considers domestic violence cases to be “homicide prevention” cases. “There is discretion involved, but that’s what we do.”

In Santa Clara County, prosecutors have used their discretion to file a much higher percentage of felonies. The felony filing rate there is nearly five times that of Orange County, and its felony conviction rate is 54% higher. Nearly 50% more of those convicted of spousal abuse in Santa Clara County end up with some form of incarceration.

The Santa Clara district attorney’s office opened its domestic violence unit in late 1990, said Rolanda Pierre-Dixon, the head of the unit.

“It’s not that difficult to file a felony case,” she said. “You’ve got a woman with a broken bone, or someone who has been hospitalized or there’s some lethality involved. In those cases, I will file a felony. But there’s an old saying: ‘A bad felony does not make for a good misdemeanor.’ You’ve got to have a good case, and we pursue good cases here.”

San Diego County has one of the nation’s model programs for prosecuting domestic violence cases.

The city attorney has nine deputies, and the district attorney’s office has 12 prosecutors, who do nothing but track felony and misdemeanor spousal abuse cases. The San Diego Police Department has 24 detectives and three sergeants devoted to such cases.

“We have the largest specialized felony domestic violence unit in the country,” said Casey G. Gwinn, head deputy city attorney and supervising attorney of the domestic violence unit. “We’ve gone far but still have a long way to go.”

While more than one-fourth of the cases rejected for prosecution in Orange County are explained as “victim unavailable/declines to testify,” San Diego has a policy of pressing ahead with charges--even with an uncooperative victim--once the unit has taken the case.

Some Orange County law enforcement agencies have officers who specialize in domestic dispute cases, but many departments do not. All insist that they take domestic violence seriously, but also say that it is not always realistic to pursue felony prosecutions.

Santa Ana Police Lt. Robert Helton said his department does not have a special unit to handle such cases, but a civilian employee acts as a liaison with prosecutors to provide assistance. Helton said the biggest problem is reluctant victims.

“Many victims are unwilling to proceed with a criminal case because they are fearful, do not want to lose the family breadwinner, nor do they want to face more turmoil in their family,” he said.

Orange County Superior Court Judge Donald E. Smallwood was the driving force behind the creation of a county task force on domestic violence about a year ago. Smallwood said he expects the panel to produce detailed recommendations for tackling the problem in coming months.

“This is an area that has not been given the attention (it should have received) by prosecutors and the courts, and has just been soft-peddled over the years,” he said, adding that he believes that holds true for the nation, not just Orange County.

“It’s critical because this is the one area where we can make such a tremendous difference,” he said, adding that he estimates one killing in Orange County each month can be traced to domestic violence.

Capizzi said it is also unfair to blame his office for sentencing of spousal abusers. Prosecutors recommend a sentence but cannot force a judge to impose it.

There are some judges in the county who hand down sentences for spousal abuse that are too lenient for his tastes, he said, but declined to identify them or say whether his prosecutors take advantage of a legal procedure that would allow them to avoid taking spousal abuse cases before those judges.

He said his prosecutors do all they can “to the extent we can influence the sentence, create a higher percentage of cases going to prison and a higher level of prison commitments.”

Shade said prison is not always an appropriate sentence. Often, she said, prosecutors try to seek sentences that combine jail and therapy in an attempt to break the patterns of abuse. When possible, abusers are sent to a 32-session counseling program that focuses on stopping abuse before it starts again.

“By and large, there are very few defendants in spousal abuse cases that deserve prison,” said Shade. “What we are interested in is breaking the chain of violence.”

But Los Angeles attorney Gloria Allred, president of the Women’s Equal Rights Legal Defense and Education Fund, said the Legislature clearly designated spousal abuse law as a crime punishable as a felony if there is evidence of trauma.

She said Orange County prosecutors are undermining the Legislature’s intent.

“They’re basically saying, ‘we’ll wait until this guy beats you half to death before we do anything,’ ” said Allred, who said this is especially critical because studies show domestic violence almost always escalates in severity.

“Battered women need and deserve legal protection,” she said.

Allred said--and Judge Smallwood agreed--that domestic violence would be taken more seriously if the traditional victims were men.

“I do believe there is a gender bias at work here,” Smallwood said.

Shade said the unit is dedicated to making sure that trained prosecutors get justice for victims of spousal abuse, and said the office’s record for doing so is on the rise.

“Our response continues to get better and better,” Shade said.

Sgt. Tom Boylan, who supervises the crimes against persons unit of the Costa Mesa Police Department, was startled by the statistics and said, “they do not look that good (considering) the seriousness of the crime.”

The data, however, is only available through 1992, a few months before the Orange County district attorney’s office set up its domestic violence unit.

Boylan cautioned that the situation might have improved since then. “Our D.A. has been fairly aggressive in this area,” he said. “I think they are making a substantial effort today.”

Robin Jaruszewski, community outreach director at Interval House, a 55-bed shelter for battered women, said the number of victims she sees continues to grow. “We are always filled. We always have a waiting list. People are talking about O.J., O.J., and I’m saying, Where have all these people been? This happens every day.”

In many of the Orange County homicides linked to domestic abuse in the last year, law enforcement authorities were on alert that the alleged assailant could be dangerous:

* Camp Pendleton military police responded twice to quell domestic disturbances at the home of Tina and Jeffrey Gibson, a decorated Persian Gulf War veteran, but Gibson was never jailed or disciplined. Shortly after their divorce, Gibson allegedly murdered his ex-wife in San Clemente in May, 1993, before allegedly shooting to death his 5-year-old daughter and seriously injuring another woman in the apartment. Gibson has pleaded not guilty and faces trial.

* Anaheim city prosecutors charged Ysrael Jacoba Cordova, 36, with misdemeanor spousal abuse for an April, 1993, attack on his longtime companion, Rebecca Ann Cruz. He pleaded guilty and was sentenced to 30 days in jail. After his release, he attacked Cruz again. Although he was booked on felony charges, Orange County prosecutors filed the case as a misdemeanor. He again pleaded guilty to spousal abuse, and was sentenced to 120 days in jail. In February of this year, Cordova was charged with bursting into Cruz’s Anaheim home, fatally shooting her boyfriend, and threatening to kill Cruz before she fled out a back door. Cordova faces trial on murder charges later this year.

Spousal abuse cases are often troubling ones for the legal system--presenting difficulties not unlike those in rape cases. Victims are often reluctant to testify. The defendant often tries to blame the victim. Some jurors might be hesitant to convict someone in what many still see as a family dispute to be settled behind closed doors.

Nancy Rodriguez, a senior counselor at Interval House, said she is frustrated by the number of cases that are treated as misdemeanors by prosecutors.

“I personally think the very first offense should be considered a felony before it’s looked at as a misdemeanor,” Rodriguez said. “If it’s a misdemeanor, these guys are basically given a fine or jail time, and its usually time served.

“The system doesn’t seem to work sometimes,” she said. “Sometimes, its just a joke.”

Times staff writers Mark Landsbaum, Dan Weikel, Mark Platte and Richard O’Reilly, as well as library researcher Sheila Kern and computer analyst Sandy Poindexter, contributed to this report.

Spousal Abuse: How Orange County Compares

Among the state’s six-most populous counties, Orange County police arrest fewer individuals for spousal abuse, but generally seek the harshest punishment for those they do arrest. County prosecutors, however, pursue the smallest percentage of cases as felonies, electing instead to file the cases as misdemeanors. Very few defendants are ever sent to prison.

*

During 1990-92, the most recent period for which figures are available, Orange County police and sheriff’s deputies made the smallest number of spousal abuse arrests per 100 reported cases. County: Rate Los Angeles: 27.4 Santa Clara: 27.2 San Bernardino: 24.2 San Diego: 16.5 Alameda: 11.9 Orange: 11.6 *

Although Orange County police and deputies make fewer arrests, they seek felony punishment in more than nine out of 10 cases they bring to the district attorney. County: Percent Santa Clara: 44.0% Los Angeles: 52.3% Orange: 93.2% Alameda: 95.1% San Bernardino: 99.5% San Diego: 99.7% *

Under California law, district attorneys can file spousal-abuse cases either as felonies--generally punishable by two to four years in state prison--or misdemeanors punishable by no more than a year in jail, or probation, or both jail and probation. Here’s the percentage of cases district attorneys of the most populous counties filed as felonies: County: Percent Santa Clara: 19.5% San Diego: 15.8% San Bernardino: 13.9% Los Angeles: 9.4% Alameda: 8.2% Orange: 4.2% *

Orange County prosecutors generally win a smaller percentage of spousal-abuse cases than do their counterparts in the other counties at both the felony and misdemeanor levels:

County Felony Misdemeanor San Diego 82.4% 90.8% Santa Clara 80.7% 86.5% Los Angeles 74.1% 73.7% San Bernardino 67.9% 75.2% Alameda 53.1% 52.2% Orange 52.4% 65.3%

*

Among the felony cases brought to the court, Orange County sends the smallest percentage to prison--the most severe punishment: County: Percent Los Angeles: 16.2% Alameda: 9.2% San Bernardino: 8.5% San Diego: 8.3% Santa Clara: 7.2% Orange: 7.1% *

Among those not sentenced to prison, many convicted of spousal abuse end up in the county jail. The percentages of convictions that received jail sentences: County: Percent Santa Clara: 73.6% San Bernardino: 66.5% Los Angeles: 56.3% San Diego: 53.1% Orange: 50.8% Alameda: 39.5% *

A very small percentage of the spousal-abuse defendants taken to court are sentenced to prison. Of the total number of cases taken to court in the three-year period 1990-1992, here’s how many were actually sentenced to prison: County: Percent Los Angeles: 1.51% Santa Clara: 1.41% San Diego: 1.32% San Bernardino: 1.18% Alameda: 0.76% Orange: 0.30% Source: California Department of Justice

Family Violence Escalating

Domestic violence calls are an increasing problem for Orange County police. In both Los Angeles County and statewide, the 1989-93 increases are smaller than locally. In fact, such calls actually decreased in 1993 from the previous year in both Los Angeles County and around the state:

Orange Los Angeles County County California 1989 11,195 49,491 188,581 1990 11,451 53,743 195,019 1991 12,386 61,089 203,638 1992 13,876 69,437 240,826 1993 16,158 67,732 238,895 1989-93 change +44.3% +36.9% +26.7%

*

SPOUSAL ABUSE ARRESTS

Following the trend in domestic violence calls, arrests for spousal abuse have steadily increased since 1989. The percentage increase here far outpaces those recorded in both Los Angeles County and statewide:

Orange Los Angeles County County California 1989 1,087 14,829 38,200 1990 1,325 16,430 43,760 1991 1,484 16,562 45,677 1992 1,567 17,455 49,547 1993 1,793 16,663 50,982 1989-93 change +64.9% 12.4% 33.5%

*

MURDER MODERATING

The murder of spouses and former spouses, live-in companions and boyfriends or girlfriends leveled off in 1993.

Orange Los Angeles County County California 1989 15 94 270 1990 17 78 277 1991 14 80 267 1992 20 82 261 1993 19 67 253 1989-93 change +26.6% -28.7% -6.3%

Source: California Department of Justice