KERN COURTS SEEMINGLY MORE WILLING TO DEAL

Kern County's busy courtrooms have had a lot to do with its stiff brand of
justice.

The system has long been one in which many judges and lawyers have a
willingness -- some say an eagerness -- to go to trial. Along with
aggressive prosecutors and punishment-minded judges, the heavy trial load
has helped imprison defendants in large numbers.

But the system has let up on the throttle a bit in recent years with fewer
criminal trials, changes that became especially noticeable last year. Many
attorneys believe the change comes at least in part from a new approach in
which court efficiency is increasingly measured by success at reaching plea
bargains.

Many attorneys also see subtle differences during the past year in the type
of justice dispensed, although not radical departures from past practices.
Presiding Judge Arthur Wallace has encouraged settlements with active
involvement in plea discussions since taking the helm last year, many
attorneys say.

The courtrooms are increasingly running in different rhythms, as some
judges once used to a heavy load of criminal trials now handle more
lawsuits and other types of duties.

Exact numbers of plea bargains were not available. But the 233 felony
trials last year marked a 26.3 percent decrease from 1999, according to
Kern County District Attorney's data. At the same time, the 5,271 felony
cases filed marked a slight increase, the prosecution data states.

Before last year, the caseload had dropped steadily for several years,
contributing to the slower trial pace.

In Kern, a hard-nosed prosecution approach shapes plea bargains from the start.

For example, a methamphetamine charge that may be filed as a misdemeanor
elsewhere is more likely to be a felony in Kern. And Kern prosecutors often
tack on every additional charge they can.

"Sometimes charges are filed just for the purpose of enhancing their
settlement position," said Deputy Public Defender Michael Lukehart.

Defense attorneys call it "overcharging." District Attorney's officials say
it's just steadfast prosecution, noting that charges are backed up by
circumstances of the crime.

But even as some critics describe Kern charging policies as too harsh, some
crime victims worry plea bargains still end up being too soft on criminals.

The case over a fatal drunken driving crash last year on Kern Canyon Road
ended with Surina Castro taking a deal for a six-year term. That didn't sit
well with Maria Franco, the mother of the boy who was killed.

"My son's life was worth way more than six years," Franco said.

Still, Franco said she believes people who make mistakes deserve second
chances. Franco said she could have gone along with the light treatment had
she seen some remorse by Castro.

"I know she's not sorry for what she's done," Franco said.

Plea bargains have a bad reputation but prosecutors say they provide
justice. And they are crucial to a system that otherwise would collapse
under a crush of cases, officials said. There are nowhere near enough
judges or courtrooms to try all cases. Even the whopping 372 felony jury
trials in 1996 was a small fraction of the roughly 5,000 felony cases filed
that year.

But a general willingness to go to trial -- where the sentence may be
higher -- strengthens a prosecutor's hand in plea negotiations, District
Attorney Edward Jagels said.

The heavy trial numbers of previous years had put too much wear and tear on
the system, inefficiently requiring more lawyers, clerks and other staff to
keep up, said Kern Public Defender Mark Arnold.

"When you stretch your resources so far you run into the problem of quality
control, and the public wants quality prosecution, quality judicial
decisions and quality defense," Arnold said. "And they're entitled to that."

Last chance to deal

The attorneys sat together on the left side of the courtroom during the set
of "readiness" hearings. Plea bargains are discussed at the hearings every
Friday, and this set of sessions last year was like any other. Attorneys
chatted among themselves, also conferring with inmate clients in the well
of the court or clients' families in the hallway. Mostly, they waited their
turn.

To the roughly 10 people in the public seating on the right, the situation
was anything but routine. Some turned around anxiously whenever someone
entered the room. One man leaned his head back on his seat, briefly closing
his eyes.

Phyllis Goertz got kicked out for trying to get the attention of her
incarcerated son.

"The justice system just seems so confusing," she said in tears in the hallway.

Defendants can strike plea bargains early in the process. But the readiness
hearing -- usually held 10 days before trial -- tends to be the last chance
to make a deal.

The presiding judge has the influential duty of overseeing the readiness
hearing. Judge Wallace is good at getting deals at those hearings, often
steering attorneys to a settlement, many attorneys say. The approach brings
more plea bargains, and at times slightly lower sentences than under his
predecessors, the attorneys noted.

"You know where you stand, and you feel you've had a fair opportunity to be
heard," defense attorney Kyle Humphrey said. "It makes a difference."

Wallace declined to comment on comparisons between himself and predecessors.

Several attorneys said Wallace looks differently at the three-strikes
sentencing regime for repeat offenders. Three-strikes lies at the very
heart of prosecution in Kern, where -- unlike in some California counties
- -- offenders with two prior convictions can get terms of 25 years to life
in prison even for relatively minor felonies. But if the strikes are old
and the latest offense is nonviolent, Wallace reportedly is more willing
than predecessors to "strike a strike" -- remove a prior offense from the
sentencing formula and forgo the 25-to-life punishment.

The number of plea bargains in three-strikes cases tripled to 74 last year,
according to district attorney's data. The 36 three-strikes sentences were
just more than half the 1999 total, figures show. The number of three
strikes cases remained unchanged.

For the three-striker, it's somewhat of a gamble. The accused generally
pleads without any guarantee of leniency, and Wallace makes the decision on
strikes at the sentencing hearing, attorneys said.

In one set of sentencing hearings in December, Judge Wallace calmly handed
out a series of sentences on plea bargains but got downright emotional over
former high school football star Mario Bravo Jr.'s robbery charge,
lamenting what he called the waste of Bravo's leadership skills.

"He's got everything going for him," Wallace said. "He's got a lot of
(family) support. He's thrown that in the toilet."

But instead of the agreed-on five-year sentence in the plea bargain,
Wallace gave him three years, saying he still has hope for the 20-year-old.
Wallace then spoke directly to Bravo, almost pleading with him to turn his
life around.

Bravo is innocent, said his mother, Delia Cisneros. The allegedly stolen
shoes, T-shirt and other items belonged to Bravo, she said after the
hearing. He copped a plea rather than risk a 10-year sentence if he lost at
trial, Cisneros said.

"That scared me, and that scared him," Cisneros said.

Bravo later decided to fight the charges only to discover he would not be
allowed to back out of the plea bargain, Cisneros said.

"Five years was a lot," Cisneros said. "Three years is still a lot, too."

Gang of four

At any given time, plea bargains are struck under the oversight of just a
few judges. With so many cases ending in pleas, those judges exert
considerable influence over sentences -- and consequently justice as a whole.

About five years ago, some attorneys contend, plea bargains started being
rejected in large numbers all at once by judges Richard Oberholzer, Lee
Felice, Stephen Gildner and Clarence Westra -- the so-called "gang of
four." The move was interpreted by many as a tough-on-crime move to stiffen
sentences.

"You could tell they were running the show and setting policy," said
defense attorney H.A. Sala.

The approach by a handful of judges also appeared to make them more prone
than other judges to rejecting defense motions, Arnold said without
specifying the judges involved. But the shift was especially pronounced
when it came to plea rejections, Arnold said.

He said the move came amid strong public outrage over crime, the kind of
trend that is not supposed to enter the courtroom.

"Judges do not have constituents," Arnold said. "They are to rule upon the
law and the Constitution. Their role is not to respond to trends."

Arnold said the rejections tapered off a few years ago.

Trial numbers rose dramatically with the rejections, Assistant District
Attorney Stephen Tauzer said.

Jagels said he applauds the intent to "raise the bar" of justice but said
the rejections often ignored evidence problems that cropped up
unexpectedly. Such deals ensure criminals get at least some time, Jagels said.

But Judge Oberholzer said the shift was not aimed at stiffening sentences.
The approach was meant to discourage inflated charges, which are less
likely if a prosecutor knows he or she may have to prove them before a
jury, Oberholzer said.

Judge Felice said he rejected some plea bargains after moving into a
courtroom that gave him that duty years ago but denied coordinating the
rejections with other judges. Felice said his rejections often were based
on a law enacted overwhelmingly by a ballot proposition in the 1980s
barring plea bargains for serious felonies without good reasons.

Even more deals?

Wallace oversaw the creation of a new type of pretrial hearing in October
- -- another status conference for various types of cases similar to the
readiness hearing, only earlier in the process. The hearings run by Judge
Gildner are saving money by getting plea bargains sooner, Wallace said.

But Gildner's status conference sometimes comes before basic defense
investigation is done, so defendants cannot make informed decisions about
potential deals, defense attorneys said. If defendants don't take deals
early on, the offers get stiffer later on.

"It shouldn't be so hard and fast that there can't be flexibility in
particular cases," attorney Joseph King said.

In many routine cases, the strength of the evidence is clear from the
start, Wallace said. Under the new system, the later plea offers are still
fair ones, Wallace said.

The consistency of the new system likely will strengthen sentences, Jagels
said. "This system minimizes the ability of the defense to maneuver in
order to try and get in front of a judge who might be particularly lenient
on a particular type of crime," Jagels said.

In addition to getting deals sooner in the process, the program may bring a
permanent increase in the number of plea bargains.

Jagels said there is nothing magic about the heavy trial schedule. As long
as stiff punishment is not compromised, the system is better off with fewer
trials, Jagels said.

When criminal trials drop, there are more courtrooms available for
lawsuits, family law hearings and other types of hearings that affect a
wider cross-section of people, Wallace said.

"Those people are the people really paying for court services," Wallace said.