By Macy Lu
SACRAMENTO – Sacramento County Superior Court Judge Shelleyanne Chang denied defense attorney Stephen Hirsch’s objection this week to consolidating defendant Adrian Kushner’s three charges for his upcoming jury trial.
What defense counsel had hoped for was three trials so as not to prejudice the juries, but the judge ruled that saving the court money with one trial—the “judicial economy argument”—trumped the defendant’s rights.
Judge Chang also denied a request for zero bail to each of his charges, pursuant to the emergency bail schedule in place due to the pandemic.
Kushner was charged for the possession of “firearms” and “a substantial amount of drugs” back in December of 2019. He allegedly repeated this same offense twice while out on bail this year, once in May and then in July.
Though Hirsch acknowledged that the defendant committed “obviously all the same class of crimes,” he still argued against the consolidation of the three charges on the basis that “Mr. Kushner would 
suffer substantial prejudice in having all of these charges heard in a single trial by a single jury.”
He believes that the “large quantity of different allegations of drug possession” would “[overwhelm] the jury” and thus cause them to “overlook or not closely examine the evidence on each specific charge.” He wanted Kushner to have separate trials for each of the three charges.
Deputy District Attorney Alexandra Sanders, who originally suggested the consolidation, said consolidation is “in the interest of judicial economy.” She emphasized that since “we have multiple of the same charges, the same types of drugs…some evidence would be cross admissible to demonstrate a pattern.”
Judge Chang ruled in favor of consolidation, agreeing with Sanders that “these crimes all are of the same class of crimes and have the same characteristics or attributes.” She cited People v. Capistrano from 2014 to substantiate her decision, underscoring that “strong evidence of a lesser but inflammatory crime” that “might be used to bolster a weak prosecution case on another crime” is not manifest in Kushner’s situation.
She remindd Hirsch that “joinders are ordinarily favored because it avoids increased expenditures” for the court, highlighting the role financial factors play in influencing judicial decisions.
As part of his second request, Hirsch asked whether it would be possible for Judge Chang to rule in favor of a zero bail for each of the defendant’s charges, with the exception of possession of a firearm by a felon, for which he requested the standard non-emergency amount of $50,000.
He based his request on a previous judge who had ruled on the defendant’s case in June, and “cited the possession of firearms as…one of the main reasons” for not setting bail; “however…the most recent alleged offense does not involve the possession of a firearm.”
Hirsch noted that “Mr. Kushner has been…making required appearances. He even came to court in person when he knew he was likely to be remanded.”
Additionally, he stated, “These charged offenses…they’re all based on acts of possession. There’s no acts of violence, no threats of violence involved.” For these reasons, he argued, the court can trust the defendant is responsible enough to appear while out of custody on bail.
To further allay Judge Chang’s decision regarding bail, the defendant expressed willingness to undergo “probation supervision, pretrial services” and be placed “on a (substance monitoring) device or…[attend] Narcotics Anonymous meetings.”
Despite this demonstration of conformity, Judge Chang agreed with DDA Sanders that “being out on bail does not really work for Mr. Kushner because he’s [continued] to possess firearms and a large amount of drugs.”
She pointed out that “generally once bail has been set by the court there is a requirement to change circumstances…and frankly the court does not find any changed circumstances with respect to Mr. Kushner.”
For this reason, the judge concluded that “the court is going to…set no bail,” requiring the defendant to be held in custody until at least after the trial.
Kushner will return for a preliminary hearing on Dec. 18, in Sacramento Dept. 1 at 8:30 a.m.
Macy is a junior from Orange County, CA studying Communications and English at UC Davis. She loves meeting people, reading books, and writing creatively.
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