Approaches to Felonies Differ--as Do Results : Crime: D.A. defends O.C. filing philosophy, but other counties do it differently--and more successfully.

Orange County prosecutors talk tough.

The county’s police officers and sheriff’s deputies enjoy some of the greatest budgetary resources in the state.

And county voters shout their support for law enforcement, declaring at the ballot box and in opinion polls that crime is their greatest concern.

So, why does Orange County have the poorest record for putting felons behind bars when compared to the state’s most populated counties, as a Times investigation has shown?

The distinct characteristics of crimes committed in the other counties--Los Angeles, San Diego, San Bernardino and Santa Clara--might account for some differences in law enforcement performance.

But a Times study has found others that are within the control of prosecutors and police:

* In deciding whether to file a felony or a misdemeanor charge, Orange County Dist. Atty. Michael R. Capizzi’s office often elects to file the lesser charge, which brings no more than a year’s sentence in County Jail. Capizzi says his prosecutors are encouraged to file felonies only when it is likely that a conviction will result in a prison sentence. Prosecutors elsewhere said they seek felony convictions even without the possibility of prison for a number of reasons, such as stricter probation terms, the ability to build a criminal record against a suspect and the promise of stricter punishment in the future.

* Although promoted as a get-tough policy, Orange County’s purported ban on plea-bargaining may actually hinder the ability of prosecutors to get the harsher sentences they want. Some prosecutors complain that the policy--a politically popular measure implemented by former Dist. Atty. Cecil Hicks and reaffirmed by Capizzi--promotes the filing of felony charges only in cases that are sure winners. Such bans conflict with positions taken by the National District Attorneys Assn. and the American Bar Assn., and have been shunned by other major metropolitan prosecutors in California.

* Unlike counties that score high on law-enforcement effectiveness, Orange County lacks a centralized “felony filing unit.” In San Diego and Santa Clara counties, experienced felony trial lawyers are assigned to centralized units, developing expertise as well as a consistent, clearly communicated pattern of bringing charges.

* Other counties have accentuated and fine-tuned prosecutor programs to train police officers and improve communication. The programs have provided helpful guidance about what evidence is needed to secure convictions. In Orange County, police training has been sporadic, and prosecutor-police communication is weaker than in other major California counties. One apparent consequence: Law enforcement agencies here have a spotty record getting felony arrests accepted for felony filing by the district attorney’s office.

The Felony ‘Hammer’

For more than a decade, the Orange County district attorney’s office has lived by one rule in filing felonies against criminal suspects: Don’t bother if there’s no chance of getting the accused sentenced to state prison.

“If they’re not going to state prison,” Capizzi said, “then you’ve got to question whether you’ve been calling them right as felonies.”

In fact, Capizzi said, when his deputies are faced with filing certain theft, assault or drug cases that under state law can be handled either as misdemeanors or felonies, they occasionally have good reason to file the lesser charge.

“Sometimes you can get a more substantial jail sentence out of the municipal court judge, because in the overall scheme of things, it may be serious to [that judge], whereas in Superior Court, where you’re dealing with homicides, it’s not that serious,” Capizzi said.

Capizzi recalled a conversation he recently had with a relatively new municipal court judge, who told him that some theft cases going to Superior Court were being punished with only 45 to 90 days in jail. “I’m giving six to nine months on those cases, if they stay in my court,” Capizzi quoted the judge as saying.

In the other four counties The Times studied, however, prosecutors reject that approach.

For many crimes, prosecutors in those counties said that they prefer to file felonies as a means of tagging an offender with a felony conviction record, even if the jail sentence is minimal. That way if the suspect commits another crime, it would mean serious prison time.

Lou Boyle, a San Diego County chief deputy district attorney and former judge, is sharply critical of Orange County’s policy.

“It’s an excuse to file fewer felonies,” Boyle said, speculating that Capizzi perhaps does not have the resources to pursue felony convictions.

Boyle said certain felony convictions result in “strikes” that can be applied under the new “three-strikes” law, which mandates a sentence of 25 years to life for criminals who have two prior convictions for specified serious or violent felonies.

“I don’t care if someone gets 30 days in county jail for a residential burglary,” Boyle said. “You can still get the strike. Priors are important for sentencing. There are lots of reasons to prosecute felonies that are not necessarily state prison cases.”

San Diego County prosecutors believe a prior felony conviction can do many other things: add to a offender’s prison time after a second criminal conviction; allow the prosecution to impeach a defendant or witness at a criminal trial; and deprive convicted felons of certain rights.

“One of the ways our office has looked at this is, ‘How many bites of the apple do you want a suspect to get?’ ” explained Chuck Nichol, a San Diego County prosecutor now in charge of the office’s appellate training division. “It is common practice for district attorneys to issue felony cases where state prison is not the likely sentence.”

“We hang tight on felonies,” said George W. Kennedy, the Santa Clara County district attorney. “We believe that felony probation is a good hammer. Misdemeanor probation is meaningless. You just go back to county jail--that’s not much incentive. But with a felony, if you violate probation, it can be hasta luego “ -- off to state prison for several years.

David R. Ross, a Los Angeles County deputy district attorney who has written statewide guidelines for filing criminal charges, said the possibility of sending suspects to prison is only one of many factors his office uses in deciding whether to file felony charges.

“It is definitely something we look at,” said Ross, who chairs the committee on charging standards of the California District Attorneys Assn. “If the person belongs in prison, we will try to file a felony. It is a good test. But it is not the only criteria.”

San Bernardino County prosecutors agree.

“We certainly have a large number of cases where we see felony conduct, or where a felony is warranted, that we don’t think are going to end up in state prison,” said Gary Fagan, the supervising deputy district attorney. “But we file a felony anyway, because it activates prior [conviction] sections [of the state Penal Code] that provide enhancements at sentencing.”

Unintended Consequences?

Chief among the differences between Orange County and other counties is a 14-year-old ban on plea-bargaining by prosecutors in felony cases--a policy Capizzi said his office was forced to adopt because he and his immediate predecessor believed judges had grown soft on crime in the late 1970s, offering sentences lower than what prosecutors demanded.

Two national organizations--the National District Attorneys Assn. and the American Bar Assn.--encourage the use of plea-bargaining as a necessary means to move cases through an overburdened criminal justice system that could not possibly conduct trials for all criminal defendants. Prosecutors in California’s other large counties openly engage in the practice of bargaining to help manage how criminals are prosecuted and sentenced.

Plea-bargaining bans are “a lot of rhetoric that borders on demagoguery,” said former San Diego County Dist. Atty. Edwin L. Miller. “There are a lot of reasons to dispose of a case at a certain level and it has to do with whether it’s the fair thing to do, and whether justice is being done.”

Under Orange County’s ban, prosecutors can discuss possible guilty pleas with defense attorneys and judges. But they cannot become involved in traditional plea-bargaining, which is the offering of concessions in charging or punishment in exchange for a guilty plea that avoids a costly trial.

Some exceptions apply: if evidence problems threaten a successful prosecution; if critical witness testimony cannot be secured; if a reduction in charges will not affect the sentence; or if the “interests of justice” demand it.

Under a 1992 revision to the policy, before any discussion of a plea can take place, local prosecutors must pick a sentence they think is appropriate, note it in their case file and stick to it unless an exception arises.

Although Capizzi and Hicks have long touted the ban, the policy has not ended plea-bargaining, only handed more responsibility for it to the very judges Capizzi and Hicks have complained about for years.

Defense attorneys, judges and even some members of the district attorney’s staff say the policy amounts to little more than political posturing to appear tough on crime, and might have actually compromised the power of prosecutors to influence the outcomes of their own cases.

“There are more misdemeanor filings because of the ban,” said one veteran prosecutor who spoke on condition that he not be named. “We take the obvious winners, the slam-dunks, as felonies. We want cases where we can stand firm on all the charges.” If there’s a risk that a defense attorney will insist on a jury trial whose outcome is anything but certain, he said, the tendency of many prosecutors is to ensure a guilty plea by filing misdemeanor charges that reduce the defendant’s potential time behind bars.

Judges and defense attorneys say the restrictions also have diminished the district attorney’s influence in settling felony cases, leaving judges to make sentencing concessions as an inducement to plead guilty. As a result, some prosecutors contend the district attorney’s office has lost control of some of the felony cases it files, a view shared by James L. Smith, the presiding judge of Orange County Superior Court.

“Because of the policy, their position is not based on a rational evaluation of the case anymore. Because of this, judges are listening to prosecutors less today. They have lost control of their cases, and they are not as influential in getting the sentences they want,” Smith says.

Legal scholars and the American Bar Assn. argue that if a ban reduces the discretion and influence of prosecutors, the voice that should be arguing strenuously for the victims and a fair outcome in the case is muffled.

Concerns about losing their ability to influence plea negotiations is one reason why most other California counties have avoided bans like Orange County’s. Boyle, the San Diego chief deputy district attorney, said he would never allow judges and defense attorneys to determine a case’s outcome without a prosecutor’s input.

“I want to be in chambers when we’re both invited back,” Boyle said. “It would scare me to death not to be part of the process.”

Defending the policy he helped draft, Capizzi says the ban is a success and popular with Orange County voters. He maintains that it has ended problems associated with plea-bargaining, such as prosecutors’ overcharging defendants to gain a tactical advantage during negotiations.

“We think it works,” Capizzi said. Since the policy was revised in 1992, he said, “there has been an increase in the number of trials, and there has been a dramatic increase in the number of prison commitments.”

Statistics provided by Capizzi show that the number of people sent to state prison from Orange County, including parole and probation violators, rose from 1,468 in 1988 to 3,664 in 1992. But no studies have been undertaken in Orange County to confirm a link between the plea-bargaining ban, sentencing and the county’s trial rate.

The rise in prison commitments Capizzi refers to coincides with an almost 30% increase in the number of violent crimes in the county, and an even greater increase in the number of felony cases filed in county courts. According to data from the Judicial Council of California, felony case filings rose from 8,448 in fiscal year 1988-89 to 12,542 in fiscal year 1992-93--an increase of almost 50%.

Lack of Consistency

Unlike some other prosecutors’ offices, Orange County does not have a single “felony filing unit” in the district attorney’s office to evaluate cases brought by police and provide some consistency in the way cases are handled.

Such units “gather experience and judgment in the exercise of the screening function,” states the American Bar Assn.’s Standards for Criminal Justice. “They are especially effective when staffed by attorneys with trial and appellate experience.”

Instead of taking their felony cases to a single centralized unit, police in Orange County cart their case files to five different courthouses--scattered from Laguna Niguel in the south to Fullerton in the north--where they deal with dozens of different prosecutors.

The result is an inconsistency in case handling, according to national experts and a review of local court cases.

At Municipal Court in Santa Ana, for example, the Orange County district attorney declined to file felony charges against an Anaheim gas station operator who stole $100,000 worth of gasoline. The defendant was later prosecuted by the Anaheim city attorney’s office and convicted, but misdemeanor charges were filed, which carried a penalty of no more than a year in jail.

Across the county at Municipal Court in Newport Beach, the district attorney filed felony charges against a man suspected of stealing a $1,000 bicycle from the garage of an Irvine attorney. The defendant was convicted of possession of stolen property and sentenced to 16 months in prison.

In San Diego and Santa Clara counties, experienced felony trial lawyers are assigned to centralized units, where they are expected to remain for several years and develop an expertise in evaluating felony cases.

By having police deal with the same deputy district attorneys year in and year out, prosecutors say communication is enhanced and police know what to expect, because the criteria for filing felony charges remains the same.

The head of Santa Clara’s unit, Deputy Dist. Atty. Mike Adams, spent nine years in trial work before being assigned to the felony filing unit five years ago. Except for homicides and sex crimes, which are handled by other specialized units, Adams and two other prosecutors are responsible for filing 8,000 to 10,000 felony cases each year.

“We have a lot of face-to-face interaction with the police and we directly and indirectly train them,” Adams said. “My goal is simply to avoid unnecessary trials. I know that a good arrest, a good police report and a good [felony filing] means a guilty plea, and we all save time.”

In San Diego, prosecutors usually handle 20 to 25 felony trials before they are permitted to evaluate and file felony charges. High experience levels, San Diego prosecutors say, lead to consistency in case filings.

“After years of dealing with these same types of cases, we know exactly what we’re looking for,” said John Hewicker, who ran San Diego County’s unit for 22 years until his retirement in March.

The five-member San Diego County unit files about 9,000 felony cases a year. As in Santa Clara County, homicides and sex crimes, as well as certain others, go to specialized units. In the three San Diego County branch courts, veteran prosecutors are permanently assigned to handle an additional 8,000 felony filings per year.

A similar but much larger unit handles felony filings in Los Angeles County.

In Orange County, the responsibility for evaluating and filing felony cases is decentralized and can rest with far more people--the heads of the district attorney’s five offices, their assistants, preliminary hearing deputies and any felony-level prosecutor.

Some of them have other duties as well, and the number filing felony charges can vary from office to office. In addition, the Orange County district attorney’s office has many specialized prosecution units, which also evaluate and file felony cases.

While Orange County lacks a felony filing unit, Capizzi said his office has always assigned experienced felony trial lawyers for that role. He added that this policy was started years ago while other counties were using inexperienced prosecutors to evaluate cases.

Capizzi dismissed the American Bar Assn. recommendations for felony filing units, saying that the nation’s largest legal organization has “a rather insignificant role and presence” in the state.

But former and current Orange County prosecutors interviewed by The Times consider felony filing a problem area that could easily be improved upon. The process leads to inconsistency, they said, and can result in poorly evaluated cases and different outcomes for similar cases.

Said Ken Doesburg, a sheriff’s investigator: “There are no set guidelines or set criteria for filing. Often it’s a seat-of-the-pants call.”

Doesburg said he handled two similar grand theft cases, one involving $1,800 in which the accused had no criminal record and one involving $2,000 in which the suspect had a criminal history. The $1,800 case was filed as a felony and the $2,000 case was filed as a misdemeanor.

While Orange Police Chief John R. Robertson praised the district attorney’s specialized units for working closely with investigators on their cases, he thought a felony filing unit was a good idea for average felony cases.

“It would help to have a small core unit that we could deal with day in and day out,” Robertson said. “With the smaller focus, it would make training more consistent, and it would help tell police what they need to get a felony case filed.”

Capizzi said that much of the criticism of the felony filing process comes from prosecutors elsewhere and others who do not know how felonies are evaluated and filed by his office. He maintains that with “rare exception” those evaluating potential felony cases have had felony trial experience.

Training Is Key

Part of the problem with developing strong cases is the inconsistent and often spotty training and communication between police and prosecutors in Orange County. Officials say police training has been sporadic and prosecutors provide little guidance on evidence needed to secure convictions.

“There is little regular training with the police on investigations, report writing, preparing cases for filing,” said one current deputy district attorney. “This has been done sporadically over the years by conscientious prosecutors, but there has been no sustained effort in any organized way.”

Recent studies by the National Institute of Justice and the Center for the Study of Crime at Southern Illinois University found that a major cause of weak criminal cases is a poor working relationship between police and prosecutors.

The American Bar Assn. says the district attorney’s role in police training “cannot be casual or occasional, but must be carefully organized and presented. The function of the prosecutor is so important that allowance must be made in the budget for whatever personnel are required to perform effective police training.”

Capizzi said his office provides a training officer to work with the police and a video training tape that is also circulated around police departments. Officers also receive training at the police academy before they join the force, and are periodically retrained through the academy, Capizzi said.

Police officers “are doing their job very well, operating under the rules they are permitted to operate under, and the restrictions they have upon them. . . . When the baton is handed off to us, I think we’re doing well.”

Capizzi said he works “very, very closely with the chiefs of police and I sense they are very happy with the way we are performing our role in this criminal justice system.”

But the district attorney’s offices in San Diego and Santa Clara counties--the two California counties closest in population and crime to Orange County--seem to enjoy a much closer working relationship with police agencies.

In San Diego County, the use of a deputy district attorney to work in the San Diego Police Department is recognized nationally as a model of good police-prosecutor relationships.

“When I was assigned over there, the idea was to get the D.A.’s office to intervene on a case as early as possible,” said Mike Carleton, who had the job from 1981 until he was promoted earlier this year to run the East County branch of the San Diego district attorney’s office.

“We wanted to avoid mistakes in the initial investigation and put out fires before they became bigger,” Carleton said. “I think we were able to put the cops on the right track early on.”

Unlike Orange County, San Diego County has a written set of “felony issuance” guidelines, which describe the instances in which police officers should submit a case to the district attorney as felonies, and which should be sent to the San Diego city attorney as misdemeanors.

Police know upfront that they need not seek a felony after arresting someone for stealing property valued at $1,500 or less. Petty theft with a prior felony conviction calls for an automatic felony filing. Spousal abuse with a significant injury is treated as a felony, the guidelines say.

In Santa Clara County, prosecutors say they go weekly, sometimes more often, to local departments to train police in report writing, investigative techniques and case preparation. The instruction includes post-mortems on successful and unsuccessful cases.

“The whole team knows what everyone else is doing, from D.A. to detective to patrol officer,” said Lt. Phil Beltran, the training commander for the San Jose Police Department. “D.A.s come through all the time. They tell us how cases are won and lost.”

By way of contrast, a training sergeant for one of Orange County’s larger police agencies said, “I can’t recall ever seeing a felony filing deputy come over to this department.”

“I don’t think the D.A. has ever given us [any instruction] related to felony filing,” the sergeant said.

The bottom line is that more than half of Orange County’s felony arrestees end up being charged with misdemeanors.

Cypress has one of the worst records among law enforcement agencies when it comes to getting felony arrestees charged with felonies, and Lt. Jim Weuve of that department said he is not at all surprised.

Often, Weuve said, his agency arrests burglars it can prove had an intent to steal, but the district attorney’s office files a misdemeanor petty theft charge.

“The D.A. says, ‘Yes, it’s a felony arrest,’ but they don’t have the time or the desire, I guess, to prosecute it as a felony.”

Weuve said he can understand why it happens: the Orange County D.A.’s office looks at a felony charge as one that should result in a state prison sentence and simply does not think of some arrests, such as the burglary of an inexpensive item, as worthy of prison.

In 23 years as a law enforcement officer, Weuve said, he has seen many of his cases downgraded to misdemeanors or not filed at all.

“We hear that a case lacks jury appeal; or on sexual assault cases that it’s a one-on-one situation and can’t be won; or a domestic violence case where the woman is beaten up very badly that is downgraded to a misdemeanor,” he said.

“Like any other profession, you have the good and bad at the D.A.’s office. Some are outstanding and others are lazy and take the easy way out.”

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Measures of Success

Only three police departments in Orange County--Newport Beach, Laguna Beach and Los Alamitos--come close to having the national average of 2.1 police officers per 1,000 residents. But a high police-to-resident ratio is not necessarily an indicator of less crime. Here’s how that ratio has compared to felony crime rates per 1,000 residents over the period 1988-1992: FBI felonies/1,000 residents* Costa Mesa: 84.5 Santa Ana: 78.2 Tustin: 72.6 Anaheim: 71.2 Westminster: 70.8 Garden Grove: 70.0 Fullerton: 68.9 Buena Park: 64.7 Orange: 64.2 Newport Beach: 61.0 Laguna Beach: 57.7 Fountain Valley: 54.1 Los Alamitos: 51.7 Cypress: 50.1 Huntington Beach: 47.9 La Habra: 46.7 Irvine: 43.6 La Palma: 39.0 Brea-Yorba Linda: 37.8 Placentia: 37.0 San Clemente: 33.7 Seal Beach: 31.8 ****

Sworn officers/1,000 residents Newport Beach: 2.19 Laguna Beach: 2.11 Los Alamitos: 2.07 Tustin: 1.60 Costa Mesa: 1.49 La Palma: 1.47 Seal Beach: 1.41 Santa Ana: 1.37 Orange: 1.34 Buena Park: 1.28 Fullerton: 1.28 Anaheim: 1.26 Placentia: 1.23 Cypress: 1.20 San Clemente: 1.19 Huntington Beach: 1.17 Irvine: 1.17 La Habra: 1.16 Garden Grove: 1.15 Brea-Yorba Linda: 1.12 Westminster: 1.08 Fountain Valley: 1.07 ****

% felony arrests charged as felonies Santa Ana: 59% Buena Park: 50% Orange: 46% La Habra: 44% Anaheim: 44% Garden Grove: 44% Huntington Beach: 43% Tustin: 42% Westminster: 41% Laguna Beach: 41% Los Alamitos: 41% Fountain Valley: 40% Seal Beach: 39% Placentia: 39% Irvine: 39% Fullerton: 38% San Clemente: 35% Costa Mesa: 34% La Palma: 33% Brea-Yorba Linda: 33% Newport Beach: 31% Cypress: 30% Note: Cities policed by Orange County Sheriff’s Department and unincorporated areas not included.

* FBI Crime Index, includes eight of the most commonly reported felonies: murder, rape, robbery, aggravated assault, burglary, larceny or grand theft, motor vehicle theft and arson.

Source: FBI Uniform Crime Reports, 1988-92

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Taxpayer Backup

Among the state’s five largest counties, police and sheriff’s deputies here have enjoyed the greatest financial support from taxpayers outside Los Angeles, and have seen their budgets grow faster in recent years. San Diego and Santa Clara are the most like Orange County in total population, demographics and crime rates. For the period 1988-92:

Per capita spending Budget for police increases Los Angeles $226 +45.8% Orange County $164 +52.8% San Bernardino $138 +36.0% Santa Clara $128 +19.5% San Diego $126 +24.2%

Source: California Department of Justice