The Ventura County District Attorney's Office has run into a roadblock in its effort to set aside sentences that prosecutors consider too lenient.

A county appellate court this week denied the district attorney's bid to erase defendants' sentences in three misdemeanor cases and disqualify the judge who handled them.

In their decision, the justices also made some stinging comments against the prosecutors' legal motion.

The office of District Attorney Greg Totten had filed the legal petition in November after Superior Court Judge Arturo Gutierrez didn't put the three defendants on probation as prosecutors requested.

The three appeals court judges stated in the six-page ruling, which was filed Monday and made public on Wednesday, that disqualification under the law must involve a hearing where there are contested issues of law or fact.

The court noted that in the cases cited by prosecutors, the judge was "not called upon to hear or decide any contested issue of law or fact" in sentencing the defendants.

All three defendants pleaded "nolo contendre," or no contest, to the charges pending against them.

Gutierrez, who plans to retire this month, has made no public response to the controversy.

His supporters describe him as a tough judge who was simply doing what the county's judges, the district attorney and criminal lawyers had agreed to do more than a year ago to deal with a backlog of misdemeanor cases. Gutierrez ordered probation in some, but not all, misdemeanor cases.

The district attorney's legal motion sought a writ of mandate, or court order, to disqualify Gutierrez from hearing misdemeanor cases when prosecutors request it.

The petition argued that attorneys have that right, particularly when a judge isn't going along with sentences the district attorney wants to mete out on behalf of the public.

However, the court said sentencing is at the "discretion of the trial judge" and "involves an evaluation of the circumstances surrounding the offense."

In addition, the judges stated that prosecutors didn't use the "legally mandated form" when filing the legal motion.

"The petitioner instead chose to file their motion in a very different format of their own creation and attach to it an irrelevant and inappropriate four-page memorandum of points and authorities' and a five-page certificate,'" the judges wrote. "The court will not speculate as to why the petitioner chose to ignore the simple form and process set forth in and mandated" by law, the judges added.

However, if the district attorney's office had done that, Gutierrez could have "denied or stricken" the prosecution's motion in its entirety, had the hearing involved a "contested issue of law or fact," the judges' ruling stated.

The appellate ruling also said the district attorney's legal motion, by its "hybridization," had denied "the targeted judge the right to respond to their allegations" and "also denied the public the right to have a full and fair, independent judicial determination of the validity" of the complaint against Gutierrez.

Oral arguments in the case were presented Jan. 18 to the county appellate court by Senior Deputy District Attorney Michelle Contois and Attorney Sarah L. Overton, who is representing the Superior Court judges.

The oral arguments were made to Presiding Appeals Court Judge Barry Klopfer and Superior Court Judges Kent Kellegrew and Henry Walsh.

Overton and Contois didn't return a reporter's phone calls seeking comment Wednesday.

The three cases cited in the district attorney's legal motion involved Jula Laracas Dilida, charged with petty theft; Kason Williams, charged with giving false information to a police officer; and Clay Leroy Clark, charged with public intoxication. Gutierrez sentenced Dilida on Nov. 16, 2007, and sentenced Williams and Clark on Nov. 15.

On Nov. 21, the district attorney filed the petition for a writ of mandate in each case, noting that the prosecutor in all three cases requested Gutierrez to step aside, as provided for in state law.

Contois had also said in an interview that prosecutors might move to disqualify any judge who replaces Gutierrez if the second judge appears biased against the district attorney's sentencing position.

Prosecutors deny that they agreed to lighter sentences as part of the deal intended to whittle down the backlog of misdemeanor cases.

Overton argued before the court last month that there is no legal basis to grant the request for a writ of mandate, and therefore no basis to disqualify Gutierrez, because the law cited by the district attorney applies only to "hearings." The judge was only accepting nolo contendre pleas at the three arraignments, which didn't legally constitute a hearing, she said.

First Assistant Public Defender Duane Dammeyer told the appeals court that the three defendants, who had been represented by the Public Defender's Office, could be in a situation of double jeopardy if prosecutors succeed in reinstating the criminal charges against them. On Wednesday, Dammeyer said this is not a moot point since the writ of mandate was denied.

He added that the he was "somewhat surprised" by how upset the justices seemed to be about the way prosecutors filed the legal papers and, he said, "besmirching" the judge.

Contois told the justices that prosecutors were following the state Code of Civil Procedures when filing for the writ of mandate involving the three defendants and asking that Gutierrez's acceptance of their guilty pleas be revoked.