Governor Brown just signed SB 1391 over the weekend. The timing is interesting, because Daniel Marsh’s hearing about whether he should be transferred to juvenile court under Proposition 57 began on Monday.
The Daniel Marsh case was no doubt a horrific crime, but I have been concerned from the start that we are dealing with fear, anger, and emotion rather than reason, logic and science.
The signing statement by Governor Brown was unusually detailed and thoughtful. Remember, he is a former AG, a prosecutor, so his views on this are not uninformed.
In his signing statement, Governor Brown called SB 1391 “a difficult bill.” He noted, “The opposition of certain crime victims and their families to this measure is intense. I have carefully 
listened to that opposition and it has weighed on me.”
DA Jeff Reisig and the family of the victims in the Marsh case naturally have a different view. They see the idea of Daniel Marsh being released as a bad idea, they describe how he “savagely tortured and murdered an elderly couple in their home.” The DA’s office writes: “He had methodically planned his attack, targeted the victims at random, and committed his heinous acts out of morbid curiosity.”
Here’s a key point: even with this bill being signed, the governor believes there are legal mechanisms that would potentially hold Mr. Marsh in custody.
The governor noted, along the lines of some lawyers and judges: “Welfare and Institutions Code sections 1800 and 1800.5 allow either the Director of the Division of Juvenile Justice, or the Board of Juvenile Hearings, to petition for extended incarceration if a youth is deemed truly dangerous. This mechanism exists under current law, and has been used in the past when circumstances have warranted. It will continue to be used when needed, and there are no time limits prescribed in statute.”
That addresses the immediate concerns. But it is not going to quell the anger – and I would expect that the California District Attorneys Association, along with local DAs like Jeff Reisig of Yolo County and Anne Marie Schubert of Sacramento County, will attempt to override this legislation with a proposition in the near future.
The Association of Deputy DAs put out a provocative piece calling out the “utter disdain for crime victims by Governor Brown and the State Legislature.”
Sacramento Bee columnist Marcos Breton reported on Tuesday that “the district attorneys in Sacramento and Yolo counties – at some point, maybe all state DAs – are going to fight Gov. Jerry Brown on his 11th-hour approval of a misguided bill…”
He quoted Yolo DA Jeff Reisig, stating, “We’re going to fight this every step of the way to try to distinguish this case by whatever legal and factual grounds we can.
“This was one of the most heinous and horrific crimes any of us have ever seen,” he said. “It was gruesome. It was terrifying. This kid planned this out and executed it with some degree of sophistication. He didn’t leave behind any physical evidence. We found out because he talked to his girlfriend. I can’t even put into words how upsetting it would be if Daniel Marsh were released when he was 25.”
Mr. Breton believes that the law will be legally challenged, since the voters approved Prop. 57 and this modifies its provisions.
He notes that Governor Brown argued that current law allows for extended detentions if the juvenile still poses a threat.
He writes: “The state Director of Juvenile Justice can request that the prosecuting attorney petition for more jail time. Theoretically, that petition could result in another trial of the defendant.”
He warns, “It sounds good, except neither Schubert nor Reisig can recall this ever happening in their jurisdictions before.”
Yes, but perhaps that is because they have never had to use that.
Mr. Breton believes that there is a strong case that can be made that Prop. 57 is working by itself. He cites the fact: “In fiscal year 2017-18, the Sacramento County DA filed 1,035 juvenile delinquent cases. But since October of last year, Schubert’s office has only petitioned for five transfer hearings to adult courts. These are rare cases when teens under 16 are prosecuted as adults.”
My problem is different. From my vantage point of watching cases coming down the pike – the DA in Yolo County led the state in direct files of juvenile cases in adult court. Yolo County was four times above the state average. And, just as we demonstrated last week, the result was gang charges in cases that did not merit such charges – in order to enable the defendant to be tried as an adult without any say.
Yes – I get it – Prop. 57 has taken care of that. But the question many of us have is how often is a judge in Yolo County going to deny a DA’s request to try a juvenile as an adult?
The problem I have is that the same DAs that abused the previous law (Anne-Marie Schubert had a direct file rate twice that of the state average), are the ones complaining that the new law goes too far.
But, if we are designing the new law for the worst of the worst, are we perhaps going too far? Just because using Welfare and Institutions Code sections 1800 and 1800.5 for the exceptional case has not been done before, does that mean it can’t become a more frequent tool for courts to use in the case of the extraordinary 15-year-old who commits an unthinkable crime?
Time will tell.
—David M. Greenwald reporting reporting
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