O.C. Jail Drug Cases Dismissed : Courts: Prosecutors’ ‘erroneous reading’ of state law mandating posted notice against possession led to leniency on felony charges. D.A.’s office has ended practice.

Based on an “erroneous reading” of state law, Orange County prosecutors reduced or dismissed drug charges against criminal suspects caught with narcotics in county jails because the jails lacked signs warning both inmates and visitors they could be sent to prison for bringing illicit drugs into jail.

As a result, some inmates who should have faced felony charges punishable by two to four years in state prison had their cases dismissed or were given the opportunity to plead guilty to lesser charges that carried lighter sentences, according to court documents.

The prosecutors’ leniency was extended to those charged with the crime before May 1 of this year, when new signs were posted in the jails spelling out the consequences of getting caught with the drugs: up to four years in prison. The old signs warned that getting caught with illegal drugs in jail was a felony, but gave no punishment range.

The public defender’s office said it handled at least eight cases in which criminal suspects were given a break by the district attorney’s office.

But prosecutors say they typically file 10 to 15 such cases a month, so many more drug possession cases could have been involved. Their policy of going light on drug offenders lasted from late March to late May.

Prosecutors defended the practice last week, saying they initially believed the warning signs were a requirement for prosecution, but concluded otherwise when an inmate’s legal challenge to the practice made prosecutors rethink the policy.

“Until we were sure, we were leaning over backward for these defendants,” said Carl W. Armbrust, a deputy district attorney and chief of the narcotics enforcement team for 15 years. “Please believe that we’re not soft on criminals who have drugs. We just gave them the benefit of the doubt for a while on this one.”

At issue is a state law which says “any person who knowingly has in his or her possession in . . . any county jail . . . any controlled substances . . . is guilty of a felony punishable by imprisonment in state prison for two, three or four years.”

In the following paragraph, the same law states that “the prohibitions and sanctions addressed in this section shall be clearly and prominently posted outside of, and at the entrance to, the grounds of all detention facilities. . . .”

Without doing any legal research, prosecutors decided that they could not file a felony charge if the proper signs had not been posted.

Armbrust said his office had not undertaken an analysis to see how many cases were affected by the policy and saw no need to do so. Such an effort would be too time-consuming, he said, and would require the careful study of dozens of case filings to see exactly what happened to each.

But a review of court documents by The Times turned up several cases of criminal suspects caught with narcotics in the jails who benefited by the new policy:

* A 44-year-old San Clemente man arrested for carrying Valium in the jail but had his case dismissed;

* A 27-year-old man caught with methamphetamine in jail whose case was also dismissed;

* A 25-year-old El Toro woman whose felony marijuana charge was reduced to an infraction, allowing her to escape with a $55 fine instead of a minimum two years in prison; and

* A 23-year-old Santa Ana man who had marijuana and drug paraphernalia in the jail. He pleaded guilty to a minor possession charge and had his sentence suspended.

And in one case that reached Superior Court, a man caught with cocaine in the county jail’s Intake and Release Center, where suspects are first booked into the jail system, benefited from the dismissal of a felony drug charge that could have landed him in state prison for up to four years.

But because prosecutors believed the proper signs weren’t posted, they permitted suspect Michael Angelo Serrano to plead guilty to a lesser charge of “unauthorized possession,” and he was eventually sentenced to only six months in jail.

The practice of reducing charges lasted just a few months and ended in late May with the case of David Jack Wanstreet of Huntington Beach, who checked in to the Theo Lacy Jail in Orange in January of this year.

Wanstreet was turning himself in to begin serving a 120-day jail sentence for a residential burglary conviction the previous fall. With him, he brought three books. In one, glued between several pages, was less than an ounce of marijuana.

Charged with possessing an illegal substance in a jail, Wanstreet suddenly faced eight years in the harsher conditions of a state prison, instead of 120 days in the local jail.

His attorney argued that Wanstreet should be able to plead to a simple misdemeanor possession charge, because the jail signs were inadequate, and because others arrested for the same charge had had their charges reduced or their cases dismissed outright.

But one prosecutor, who wasn’t aware that her colleagues in Central Municipal Court were regularly reducing the felony drug charges, wasn’t willing to offer Wanstreet a deal. Because Wanstreet already had a prior conviction for a serious felony, which counts as a strike under the state’s “three strikes” law, she wanted Wanstreet charged with the felony so his punishment would be doubled from a maximum of four years to eight.

Wanstreet’s attorneys filed a motion to ask a judge to throw out the charges, arguing that Wanstreet was being unfairly and selectively prosecuted, because others were getting concessions that he was being denied.

In court documents, Wanstreet’s attorneys cited six cases that were dismissed or reduced between April 11 and May 8.

In their response to that motion, prosecutors denied that Wanstreet was being singled out for harsher treatment. Deputy Dist. Atty. Fahnda W. Hashish blamed fellow prosecutor Todd A. Spitzer’s “erroneous reading” of state law for the reduced charges the other suspects enjoyed.

Superior Court Judge Cecil Hicks, who was the county’s longtime district attorney before he was appointed to the bench, agreed there was no selective prosecution and denied Wanstreet’s motion for a dismissal.

But before the judge made his ruling, Wanstreet’s attorney called Spitzer to the stand to testify about the policy being followed by prosecutors in Central Municipal Court.

A district attorney since 1990 and a trustee of the Brea-Olinda Unified School District, Spitzer testified that he received approval to routinely reduce felony drug charges sought by sheriff’s deputies who caught inmates or visitors with controlled substances in Orange County jails. He said that before instituting the policy, he sought and received approval from Armbrust, the head of the district attorney’s Narcotics Enforcement Team.

“Based upon my conversation with Mr. Armbrust . . . I believed that I had the clear authority to reduce all those charges of contraband in the jail down to straight possession,” Spitzer said.

Spitzer said he also had the blessing of Peter Huelsenbeck, his immediate supervisor in the central Municipal Court unit where Spitzer worked evaluating cases to be forwarded to Superior Court.

In an unusual twist, Spitzer faced a blistering cross-examination from Hashish, who got Spitzer to acknowledge that he had done no “statutory or case law research” before coming to the conclusion that prosecutors had no choice but to reduce or dismiss the charges without the proper signs being posted.

In an interview last week, Spitzer, who has received commendations from his office as an outstanding prosecutor, said he was simply trying to do the right thing in reducing the charges and offering defense attorneys the opportunity to plea bargain cases before the situation turned into “a hornet’s nest.”

Citing an “ethical obligation to disclose weaknesses in our cases,” Spitzer said he believed the sign-posting law made it clear that people who walked into Orange County jails should be warned of the consequence of bringing drugs inside.

“I have an obligation to tell the other side,” he said. “I have to live with myself as a human being. Now here I am, the lone D.A. at the end of the gangplank. I went to my supervisor. I noted what I was doing in every file. I have no remorse and would not have done anything differently.”

Spitzer said the public defender’s office didn’t even know about the situation until he informed them and that he handled at least 10 cases himself in which the charges were reduced.

In every one of his cases, he said, the plea bargain was from a more serious felony in which the defendants faced up to four years in prison to a less serious felony in which the defendants faced up to three years but were often punished with short stints in the local jail.

The district attorney’s office ultimately determined that the sign need not be posted to prove the crime. Citing a year-old opinion issued by the local appeals court, prosecutors said the sign requirement is not an element of the crime. The case in which that ruling was made, however, may be appealed.

Deputy Public Defender Lee I. Blumen praised Spitzer for taking the politically unpopular position that defendants’ rights should be preserved.

“The bottom line is that Todd has integrity and read the law and determined that the sign posting wasn’t proper,” Blumen said. “He had an obligation to disclose that to us. I know Todd professionally and nobody would ever claim that he’s soft as a D.A.”

Reflecting on the situation, Armbrust admits that although his office was just being careful in giving criminal suspects the benefit of the doubt, it always seemed odd to him that a sign needed to be posted warning anyone not to get caught with drugs in a jail.

“Are we going to post signs saying inmates shouldn’t rape or murder each other?” he said. “I’m dead set against people having drugs at all and there should be another point against them if they have it in jail.”