The San Diego City Attorney’s Office is appealing three dozen drunken driving misdemeanor cases that were settled by plea bargain more than a month ago, contending the judge’s decision to suspend imposing most of the fines and fees is not allowed under state law.
The sheaf of appeals comes at an unusual time for the court, as it works to dig out from a massive backlog of unresolved cases that were suspended or delayed for months as the court all but shutdown — then slowly reopened in stages — because of the COVID-19 pandemic.
As of this week there are 13,129 cases in the pipeline — that includes 9,113 misdemeanor cases and 4,016 felonies. Another 7,031 cases — 5,895 misdemeanor and 1,136 felonies — are still awaiting an arraignment , which is the defendants’ first court appearance and the start of the court case against them.
The cases at issue in the appeals were all handled by Judge Daniel B. Goldstein, one of the court’s veteran judges who was assigned to handle a large number of misdemeanor cases that had reached an agreed plea bargain the week of Aug. 10.
According to lawyers who were in the courtroom that week and have since been told their client’s cases are being appealed, Goldstein stayed about two-thirds of the total fines assessed in misdemeanor DUI cases. The fine is usually $2,133, but in these cases Goldstein stayed $1,599.
Staying the fine does not mean it was wiped out. It remains in effect for the term of probation, usually three years, that is imposed as part of the sentence. The fine could be reinstated if the person commits another crime.
Bradley Patton, a veteran defense lawyer, said that Goldstein was up front about what he was doing. “The judge made it clear at the beginning of the proceedings he would be doing this,” said Patton. “No one objected.”
Complicating matters is that in misdemeanor cases a court reporter is not used; instead, the proceedings arerecorded. All the hearings were being done using Microsoft Teams remote video because of the pandemic, but for some reason the audio recordings of the proceedings that week malfunctioned, so there is no exact record.
Bradley Corbettt, a lawyer who had two clients whose cases are now targeted for appeal, said Goldstein was making a good faith effort to both get at the looming backlog of cases, and be attuned to the impact the fines cold have on individuals in a time of unemployment and economic distress.
“He’s as good a judge as there is in the entire county,” Corbett said. “He’s not pro-prosecution or pro-defense. He’s just fair. He gave people a little bit of a break, because a lot of people are out of jobs or out of work.”
Another lawyer said that at the start of the hearings Goldstein said on the video feed what he would do, and told lawyers to note that there would be a benefit to other defendants who try to resolve their case early on in the process.
But a couple of weeks after Goldstein’s work, lawyers who had represented people began getting contacted by the San Diego City Attorney’s Office that what Goldstein had done was not allowed under the law and the cases would be appealed.
Patton said the notice he got saying the case was to be appealed cited a section of state law that says the grounds for appeal would be the imposition of an unlawful sentence — specifically Goldstein’s staying portion of fines that under the law are mandatory and can’t be modified.
Goldstein declined to comment on the controversy because the cases are still active and judicial rules prohibit judges from commenting on ongoing cases. Hilary Nemchik, director of communications for the San Diego City Attorney Mara Elliott, said in a statement that the fines are necessary.
“Our Office takes these crimes seriously,” she wrote. “Victims of drunk and drug-impaired driving are also living under COVID, and these penalties help them recover from the financial, emotional, and physical harm done to them and their families. That’s why the Legislature made the penalties mandatory and not subject to judicial discretion.”
Goldstein did not waive any restitution — payment to a victim — that may have been called for.
Appeals of misdemeanor cases are heard by a panel of Superior Court judges. It is possible some of the cases that prosecutors may settle short of an appeal, with defendants simply agreeing to pay the whole fine.