Home › News › County News
Totten wants judge barred from hearing select cases
Gutierrez is too lenient, DA says
Download this story as a podcast!
Totten
"Judge Gutierrez's denial of probation in so many cases ... is contrary to the interests of justice," District Attorney Greg Totten stated in court documents. "Judge Gutierrez's decisions to deny probation appear to be made as a matter of policy."
Cases cited by the district attorney
Here are highlights of the three cases in the petitions filed by the district attorney:
- Julia Laracas Dilida, 40, of Oxnard appeared before Judge Arturo Gutierrez on Nov. 16. Deputy District Attorney Linda Groberg had asked the judge to disqualify himself. Gutierrez refused to do so or to stop the judicial proceedings. Dilida pleaded no contest to petty theft and was found guilty by the judge. He fined her $500.
- On Nov. 15, Clay Leroy Cook, a homeless man from Simi Valley, appeared before Gutierrez accused of public intoxication. Groberg asked the judge to disqualify himself from hearing this case. The judge refused. He required Cook to pay $100 as restitution and $287 in court fees. Cook was ordered to serve eight days in jail. Gutierrez gave Cook credit for two days served.
- Also on Nov. 15, Kason Williams, 25, of Oxnard appeared before Gutierrez. He was charged with giving false information to a police officer. Groberg asked the judge to disqualify himself from hearing the case. Williams pleaded no contest. The judge ordered that he pay $100 as restitution and court fees of $287. Williams was ordered to serve two days in jail with credit for two days served.
All three defendants were represented by attorney Martha Wolter of the Public Defender's Office. Wolter did not respond to a request for comment.
Other cases:
District Attorney Greg Totten's petitions also cite six other case examples that went to court this year in which Gutierrez allegedly acted improperly. Those examples were cited solely to support the allegations in the three petitions seeking to set aside the outcome of each of the three cases (above).
In one case, a defendant was charged with leaving a restaurant without paying the tab. The restaurant manager told officials it was the second time the man did that.
Prosecutors asked for 36 months' probation, restitution, jail and an order to stay away from the restaurant. Gutierrez denied probation and fined the man $250.
In another misdemeanor case, two defendants, both on parole, assaulted a man outside a bar. They refused to follow a police officer's instructions and attempted to flee. The district attorney asked for 36 months' probation, 10 days in jail, an order to stay away from the bar and probation allowing searches.
Gutierrez denied probation and sentenced each defendant to five days in jail with credit for five days already served.
— Raul Hernandez
STORY TOOLS 
More from County NewsVentura County District Attorney Greg Totten wants to stop a judge from hearing certain criminal cases on grounds that he allegedly handed down lenient sentences and violated state law by not stepping aside in cases when prosecutors lawfully requested it.
Totten's office filed legal papers asking an appeals court to compel Ventura County Superior Court Judge Arturo Gutierrez to disqualify himself when prosecutors ask him to. The law requires judges to step aside if an attorney requests it within 10 days after a case is assigned.
The court documents Totten filed Nov. 21, requesting a writ of mandate, charge that Gutierrez sentenced nearly 1,500 misdemeanor defendants from August to early November and that in two-thirds of those cases he turned down prosecutors' requests to put the defendants on probation as a part of their sentences in addition to fines or jail time.
"Judge Gutierrez's denial of probation in so many cases is contrary to the interests of justice," the district attorney stated in the documents. "Judge Gutierrez's decisions to deny probation appear to be made as a matter of policy."
This is the first time the district attorney has asked a court to order a judge not to handle misdemeanor or felony cases, said First Assistant District Attorney Michael D. Schwartz. In legal circles, the practice is known as "papering" a judge.
Gutierrez, who has announced he plans to retire in February, and other judges did not respond to a reporter's repeated requests for comment.
'It's really somewhat juvenile'
Defense attorneys expressed strong criticism of the district attorney's action, with some accusing Totten's office of adopting an unreasonable posture by routinely asking for excessive sentences that include probation.
Attorney Jay Leiderman, president of the Ventura County Criminal Defense Bar Association, said Gutierrez, who handles misdemeanors, should be applauded — not denounced — for weighing each case and not taking a "cookie cutter" approach.
"He is giving what would be considered appropriate sentences, what they are worth objectively, not what the district attorney thinks they are worth," Leiderman said. "But the district attorney thinks they are too light. They think everyone needs to be put on probation. It's really somewhat juvenile on their part."
Totten's filings cite three recent misdemeanor cases and also point to other alleged instances involving the judge. The three examples were pleas by three defendants that were accepted last month by Gutierrez.
The district attorney's legal petitions ask the appeals court to vacate, or set aside, the three sentences.
Totten's actions, which name the Ventura County Superior Court as the defendant, could be heard in the county's appellate court for misdemeanor cases, which is part of the County Superior Court.
Schwartz said the three justices of the appeals court must first agree to hear the case. If they decide to do so and rule against the district attorney, prosecutors can take the case to the state appeals court.
Schwartz said that, for now, prosecutors are allowing Gutierrez to continue to hear misdemeanor cases, pending a ruling from the county's appeals court. However, a favorable ruling could mean that prosecutors will continue to ask that Gutierrez disqualify himself in handling misdemeanor cases.
Schwartz said he doesn't believe there is going to be animosity between the judges and prosecutors as a result of this legal action.
"I don't think so. We are doing what we need to do to protect the people of the state of California," he said, adding that judges will do what is appropriate in handling this matter.
"We are not always going to agree," he said. "This isn't something that we do lightly."
'He's been an excellent judge'
Totten claims in the documents that his prosecutors asked Gutierrez to disqualify himself from hearing the cases involving the three defendants: Clay Leroy Cook, Kason Williams and Julia Laracas Dilida.
According to the court documents, the judge refused to do so and didn't grant prosecutors their request for a stay, which would have provided time for them to appeal the judge's refusal to step aside.
In addition, Totten wants the appellate court to order Gutierrez to refrain in the future from accepting guilty or no contest pleas when his prosecutors ask him to disqualify himself and let another judge handle the case.
Public Defender Ken Clayman said he can't comment on Totten's request because he hasn't seen the petitions. However, he believes Gutierrez shouldn't be excluded from hearing misdemeanor cases.
"He's been an excellent judge in the courtroom for years," Clayman said. "I don't see any reason why he can't sit fairly in every case."
According to Totten's court filings, Gutierrez sentenced 1,466 misdemeanor defendants, including two corporations listed as defendants, from Aug. 1 to Nov. 9 of this year. He denied probation as part of the sentence in 65 percent of the cases, according to the district attorney.
By law, a judge can accept or reject a plea bargain agreement after a defendant pleads guilty or no contest. The documents filed by Totten contend that Gutierrez has appeared to routinely disregard the fact that probation was part of plea-bargain agreements.
The documents cited instances of people who committed assault or theft from local merchants, and in at least four instances the defendants were on parole after serving prison time for felony crimes.
'No reason has to be stated'
Speaking in general terms, and not specifically in relation to this judge or the district attorney, Oxnard attorney Glenn J. Campbell said lawyers can ask for a judge to disqualify himself or herself as soon as the attorneys find out that the judge has been assigned to the case.
"No reason has to be stated," Campbell said. It requires "just a general allegation (of unacceptability) and filing the paperwork."
By law, Campbell said, the judge has to step aside and allow another judge to hear the case.
However, if more than 10 days have passed since a judge was assigned to a case, an attorney who files a motion for disqualification would have to offer a specific reason and evidence, Campbell said. For example, he said, an attorney might claim that a judge had exhibited bias against him or had an interest in the outcome of the case, such as owning stock in a corporation named as a defendant.
Attorney Tim Quinn, vice president of the county Criminal Defense Bar Association, said Gutierrez played a central role in reducing a crushing backlog of criminal cases by agreeing, about a year ago, to concentrate on handling misdemeanors while a second judge took aim at the backlog of felony cases.
Quinn said the district attorney was in agreement with that backlog-reduction plan and didn't complain about Gutierrez until recently, after the misdemeanor backlog was reduced, Quinn noted.
Searches without a warrant
Leiderman said that in a number of the misdemeanor cases, the District Attorney's Office was seeking probation with a provision that would allow the defendant to be stopped and searched anytime without a warrant.
"That is not the way a society should be run. That's not the way the Fourth Amendment was intended. That's not the way we Americans should be living our lives," Leiderman said.
Schwartz denied that prosecutors ask for probation in every misdemeanor case. He said prosecutors are seeking appropriate sentences for the crimes committed. He said they ask for probation, including the right to search a person without a warrant, in cases involving petty theft, drugs and possession of weapons.
"I don't know what percentage of the time we've asked for probation," he said. "There are a number of cases where we have asked for probation and traditionally, judges have given probation where Judge Gutierrez has not given probation."
Posted by rjlebeck on December 2, 2007 at 5:47 a.m. (Suggest removal)
Ventura County: Come for vacation, leave on probation.
Posted by bob100 on December 2, 2007 at 9:02 a.m.
(This thread was removed by the site staff.)
Posted by ironwoman on December 2, 2007 at 9:20 a.m. (Suggest removal)
Good for Totten. I am glad someone is standing up for what is right for our society, justice and public safety.
No anti-authority comments from this end.
Posted by rjlebeck on December 2, 2007 at 9:27 a.m.
(This thread was removed by the site staff.)
Posted by Face on December 2, 2007 at 10:24 a.m. (Suggest removal)
In the wild west of Internet hijinx, it is a fool who uses his real name anywhere in the blogosphere.
Posted by rjlebeck on December 2, 2007 at 10:37 a.m. (Suggest removal)
I would rather be a fool and freely and openly exercise my First Amendment rights than be a coward and hide behind them.
Posted by Common_Sense on December 2, 2007 at 10:48 a.m. (Suggest removal)
This should be directed at atleast one additional Judge (Clark) I continue to read public comments about. Perhaps things like this should be made public by the DA's office more often so that we voters know when going to the polls to re-elect these folks. Isn't there a DA union or other body that can educate the public on liberal judges?
Posted by imn93002 on December 2, 2007 at 12:02 p.m. (Suggest removal)
Hey CommonSense your bias is showing. How about a "DA union or other body that can educate the public on" ALL judges...no matter what you "think" their political persuasion may be. The line between liberal and conservative has been blurred in recent years making these labels virtually useless. Even though Judges, like the DA, are elected positions they all (including the DA) should be investigated prior to election day!
Posted by Common_Sense on December 2, 2007 at 3:36 p.m. (Suggest removal)
Imn...I agree with you. The point I was making was slanted to meet the focus of this article. I would be interrested in hearing about every judge before making my vote, though if I had to choose who I learned about, it would be those who lean a little left.
Right now, there is no real way for the public to be educated about these individuals. As for my bias, yeah, I am not a huge supporter of those who do not hold people accountable for their actions. I guess I am a law-and-order type of dude who does not think that judges handing out sentences should be of the mindset that minimal fines are sufficient punishment for those who steal from others (as this judge seems to be). We are fortunate to live in a county where crime is relatively low. I think that is likely due, in part, to a history of lacking tolerance for deviant behavior. If our judicial officers begin to adopt the mentality of judges in Los Angeles and other areas with higher crime rates we can expect our crime rates to increase. It's Common_Sense.
Posted by rjlebeck on December 2, 2007 at 6:50 p.m. (Suggest removal)
Whatever happened to the concept that the punishment should fit the crime. Deterrence as a justification for punishment of an individual is morally indefensible because it punishes an individual for a crime that someone else might commit in the future.
To be stripped of your 4th Amendment rights for 3-5 years as a consequence for a first-time petty theft or a minor drug conviction speaks of tyranny and justice run amuck.
Totten may consider himself as a god in his desire to be both judge and jury in his attept to bully and intimidate Judge Gutierrez but we might soon find out his feet are merely made of clay.
Posted by NothingButTheTruth on December 3, 2007 at 8:16 a.m. (Suggest removal)
adam.roland: Specifically, what Vehicle Code section are you claiming applies to the incident involving police beach incident? Some of your comment did not make sense -- ie. If Totten said Brisslinger "had not received beach driving training", but "refers to several official manuals that instruct drivers who use beaches to
'get off the vehicle' and survey the path of the vehicle before proceeding." I interpret that to mean manuals were in existence, but not used to train Brisslinger. Therefore, Totten's decision would be entirely valid.
Posted by UdontKnowMe on December 3, 2007 at 10:01 a.m. (Suggest removal)
Totten is upset because this judge is actually fair, and does what he is supposed to do. I haven't read anywhere that he is letting people off the hook. It is widely known that this is a very petty ass county. I think these DA's are really just upset that others don't agree with hanging people with the full arm of the law. This county does a good job of sweeping injustice from the corrupt law enforcement under the rug, arresting people on bogus charges, and these D.A.'s do a good job of prosecuting anything that walks on two legs. It's sad that this never gets the kind of publicity it should.
Posted by Equitable_Enforcer on December 3, 2007 at 11:10 a.m. (Suggest removal)
Some posters are missing the point. The probation was a negotiated condition in the plea bargaining process. No rights were violated. Since we're dealing with some folks who had a high probability of re-offending and some of whom were on parole from prison, probation in the cited cases becomes a good tool for law enforcement, including the DA, to be used when needed.
I hear the rights issue as a mantra of the left. In this case I believe that the judge is going against the basic rights of law abiding citizens to be safe. Judges should not be able to operate as "Lone Rangers," whereby they pick and choose what rules they will abide by. They must be held accountable.
Posted by socal2wheelsguy on December 3, 2007 at 11:30 a.m. (Suggest removal)
I have to laugh at the insinuation by "Common_ Sense" and certain others here that Ventura County judges are "liberal"; as in soft on crime. Nothing could be further from the truth; Ventura County is known for the most conservative judges in the State of California. Ventura County is known for its aggressive prosecution of crimes, and the judges here do not give breaks to criminals. I don't know the facts about Judge Guttierez, but I have confidence in our justice system and believe that Mr. Totten's accusations will receive appropriate consideration and action, if warranted.
Every case is different, and judges need to have discretion to produce a just result. I may not like some of the decisions made but I believe it's better to have a human make them instead of a computer.
Oh, and by the way, I'm a "law and order" sort of guy too. I think our sytem works pretty well overall and am grateful for the many fine judges, prosecutors, and law enforcement officials that keep all of us safe. They are among the real "heroes" of our society and deserve recognition for all that they do on our behalf!!!
Posted by Josie_Contreres on December 3, 2007 at 1:13 p.m. (Suggest removal)
The way I see it, adding Probation "as a consequence for a first-time petty theft or a minor drug conviction" (as one person mentioned) is intended as a deterrent to the specific convicted individual, in hopes to "Deter" them from committing the same or similar misdemeanor crime twice. (That's a GOOD THING). I don’t believe it was intended to deter someone else who might choose to commit a similar crime at a later date, but if it does, it’s a win, win situation in my book. [I do believe there should be an appropriate Time Frame applied to Probation based on the actual crime committed however].
Posted by Equitable_Enforcer on December 3, 2007 at 1:55 p.m. (Suggest removal)
oxyman, I can guarantee that you don't have all the facts regarding your neighbor's situation. You failed to tell us why his license was suspended in the first place. He told you what he wanted you to hear. A suspended license in itself wouldn't normally lead to probation. If your neighbor was driving while suspended, or even expired, such would have been surfaced during a traffic stop ... for valid reasons. Authority existed to impound his vehicle at the time. Some agencies do (CHP), others may not. The only way to get the vehicle back would be to obtain a valid license. Any way you cut it, to drive with a suspended license is not not legals and it is surely irresponsible. Nor is it responsible to drive without proof of insurance in the vehicle.
The problem with your neighbor is your neighbor --- not the police and not the DA. Moreover, your neighbor could well be one of those who presents a danger to society and who should be searched from time to time.
Posted by alltosad on December 3, 2007 at 2:15 p.m. (Suggest removal)
I sorry but the D.A himself needs to take a moment and handle the management in his office. Instead of turning and looking the other way when it comes to the way his clerical staff is treated. Then, as to what a judge deems a far punishment and for that matter of what a judge does on his bench. If anyone should know best, it would be Mr. Totten on how to put the "Budget" first. Even the lack of professionalism runs inside his office.
Posted by Equitable_Enforcer on December 3, 2007 at 3:40 p.m. (Suggest removal)
alltosad, are you stating heresay or do you work within the office of the DA? Work ethics, as well as the drive for continuous self improvement, is often the dividing line between those who are comfortable and those who are not comfortable within a particular work environment.
By the way, the Code of Civil Procedure is pretty unambiguous as to Judge Gutierrez's responsibility under circs as outlined in the article. He is the one with the power in the courtroom, not the DA. In this case, it may be that Judge Gutierrez exercised a bit of judicial arrogance.
Posted by Tom_Johnston on December 3, 2007 at 6:25 p.m. (Suggest removal)
I think TimeArrow makes a very good, and under recognized point..that being that the proabation terms were part of a "deal" between the defendent and the DA's office. Tottens complaint seems to be the Judge doesn't do what Totten wants...
Of course there is nothing to say, or not say, that the probation terms were excessive, though the Judge could impose something between everything and nothing, pretty much what he wants, maybe some of the decisions could be a bit harsher.
Remember that the Judge argeed to take these cases to clear a backlog of cases that weren't being completed. Sounds like there is a heavy caseload, and the burdens the workers who manage these cases is not mentioned, but I know that they are real.
It would be interesting to know the caseloads for the Probation Dept. I'm sure they aren't exactly light. No one else's caseloads are.
Do we want these workers keeping tabs on violent offenders...or guys who skip without paying the restaurant check?? Think about that a minute...who DOES need to be "checked up" on, and how often they need it.....where should the Probation Dept's resources best be used?
How much of this is just Totten not getting his way? I don't know, but it sure does panders to the crowd in this VERY Red county...is there an election coming up soon for DA??
Posted by dpennock on December 3, 2007 at 11:46 p.m. (Suggest removal)
If you are a criminal and you are taking a plea deal, then accept the probation that is in the agreement. Otherwise, don't sign the deal and go to trial--it isn't that hard to figure out! When you are on probation or parole, you have given up a lot of rights--it is part of your punishment and it helps the police to monitor you so that you have a strong motivation not to re-offend. And it helps keep you out of actual jail. Now isn't that a good deal for all involved? Stop whining and start winning--obey the law!
Posted by Twslv05 on December 4, 2007 at 8:32 p.m. (Suggest removal)
In this case I think Totton is overeaching his athority just the same as a defence attorney would because an overzealous judge came down hard on his clients.
Its the job of the voters to not re elect any judge that doesn't serve the publics best interest.
I am not saying I agree with this judge at all but in this case its a matter of one Judge's opinion vs that of the DA's office.
Like it or not sometime its a crap shoot on how criminal and civil cases are heard.
Thats our system like it or not.
Posted by Zendaddy on December 5, 2007 at 10:48 a.m. (Suggest removal)
Judge Gutierrez is a great guy and even better judge.
I bet he too is tired of an unfair and corrupt DISTRICT ATTORNEY'S OFFICE just like the rest us.
its one thing to serve in the interest of justice its another when agencies become so corrupt they loose site of what they are here for.
Article discussions on this site are to support community debates of issues related to our stories and editorials.
Discussions should not stray from the subject of the story or editorial.
We do not allow the following:
- Posts that degrade others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation or disability.
- Disparaging remarks, abusive language or obscene comments.
- Threats, whether obvious or veiled.
We reserve the right to delete threads and/or ban users for these or other reasons we deem necessary.
Opinions are the sole responsibility of the person posting them. You agree not to post comments that are off topic, defamatory, obscene, abusive, threatening or an invasion of privacy. Violators may be banned. Click here for our full user agreement.
There are 20 comments to this article.
Comments are found beneath the Yahoo! ad below.