Misreading Law Allowed Leniency : Crime: Orange County prosecutors reduced or dismissed charges against suspects caught with drugs in jail. Officials say they erred on the side of caution.

Based on an “erroneous reading” of state law, Orange County prosecutors have reduced or dismissed drug charges against criminal suspects caught with narcotics in county jails because the jails lacked signs warning inmates and visitors that 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 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, 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. The district attorneys’ policy of going light on drug offenders lasted from late March to late May.

Prosecutors defended the practice, 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 narcotic 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 that says that “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 next 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 study of dozens of case filings to see 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 receive a $55 fine instead of a minimum two years in prison.

* A 23-year-old Santa Ana man had marijuana and 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 dis-missal of a felony drug charge that could have landed him in state prison for up to four years.

But because prosecutors believed that the proper signs were not posted, they permitted suspect Michael Angelo Serrano to plead guilty to a lesser charge of “unauthorized possession” and he was 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 entered Theo Lacy Jail in Orange in January.

Wanstreet was turning himself in to begin serving a 120-day jail sentence for a burglary conviction. 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 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.

But one prosecutor, who was not aware that her colleagues in Central Municipal Court were regularly reducing the felony drug charges, was not willing to offer Wanstreet a deal. Because Wanstreet had a previous conviction for a serious felony, which counts as a strike under the state’s “three strikes” law, she wanted Wanstreet charged with the felony. His punishment would then 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 that 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 testify about the policy being followed by prosecutors in Central Municipal 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, Spitzer, who has received commendations from his office as an outstanding prosecutor, said he was 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 that the intent of the sign posting law made it clear that people who walked into Orange County jails should be forewarned 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 did not know about the situation until he informed them and that he handled at least 10 cases 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 defendant faced up to four years in prison to a less serious felony in which the defendant faced up to three years but was often punished with short stints in the local jail.

The district attorney’s office later 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 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.”