BAKERSFIELD, Calif. — The Kern County District Attorney's Office declared "no confidence" in the Superior Court judge who dismissed the firearms enhancements in the sentencing of a man who shot and seriously wounded a man in East Bakersfield.
On Friday, Judge Michael E. Dellostritto sentenced Isaiah Marshall, 20, for the shooting of a man back in Nov. 2019. With the firearms enhancements, Marshall could have been sentenced to 32 years to life in prison, but with the enhancements struck he instead received a prison term of 18 years and six months.
"If ever there was a case that warrants the imposition of a life sentence for unlawfully injecting firearms into crimes and increasing violence and suffering caused by doing so, this is it," DA Cynthia Zimmer said.
The DA's Office said this ruling is "a reflection of the Judge’s opinion that it is not in the 'interest of justice' for this defendant."
The victim of the shooting was treated at the scene before being taken to Kern Medical. Following the shooting, Marshall got rid of the gun and car and fled to Las Vegas. He hid out there for two weeks before returning to Bakersfield. He was arrested in December.
"Judge Dellostritto’s refusal to impose an appropriate sentence in this case is an insult to the victims and law enforcement attempts to get the gun violence plaguing Kern County under control," Zimmer said.
According to Zimmer, the law allows the District Attorney the option to refuse to accept a judge who is alleged to be biased against the People. "From today forward, I will use that authority in every case I can to prevent future criminal cases from being heard by Judge Dellostritto," she said.
After the DA's announcement Friday, attorneys with the Kern County’s Criminal Defense Section drafted a letter rebuking the DA's comments towards Judge Dellostritto's ruling.
"The District Attorney’s comments are a direct assault on an independent judiciary," said Elliott Magnus, President of the Criminal Defense Section of Kern County. "For a prosecutor to react so vehemently and publicly to an adverse ruling, simply because she disagrees with it, undermines the public’s confidence in the judicial system and is affront to the principles reflected in the Constitution."
The DA's Office responded to the Criminal Defense Section's claims, stating that the decision to rebuke Judge Dellostitto's decision is a right afforded to them by law.
"The ability of an attorney to disqualify a judge on a case due to a belief that the judge is biased in against a party is well established in the law," DA's Office spokesman DDA Joe Kinzel said. "Members of the criminal defense bar have used the same procedure routinely, including against the same judge at issue here."
Kinzel went on to state that Judge Dellostritto also refused to impose a statutorily required life-without-parole sentence for a Hilario Viruncruz, who was convicted of kidnapping a 13-year-old child for purpose of sexual assault, finding that the lawfully mandated sentence of life-without-parole was “cruel and unusual punishment.”
"If a judge is flatly dismissing a firearm enhancement found true by a jury after trial, and thus not imposing sentence on it, and is refusing to impose statutorily required sentences, the District Attorney feels he is inappropriate to try criminal cases, and not only is she required to act, but the public should be aware of what is happening," Kinzel said.
23ABC asked Judge Dellostritto to respond on the DA's comments, but have not received a response at this time.
You can read both responses in entirety below:
Every attorney has a sworn duty to uphold the Constitution of the United States. The Constitution and our democracy created and depend on an independent judiciary. It is an environment where judicial officers should be allowed to act without fear of intimidation or coercion from any party to a case, including the prosecution. For our system of justice to work, judges must feel free to exercise their discretion free of undue influence.
As Alexander Hamilton stated in the Federalist papers, “There is no liberty, if the power of judging be not separated from the legislative and executive powers.” This is as true today as it was at the time of the founding of our great country.
For these reasons, attorneys in Kern County are alarmed and appalled by the public comments made by the Kern County District Attorney about the Honorable Judge Michael Dellostritto. The District Attorney’s comments are a direct assault on an independent judiciary.
Judges are not advocates for one side. They are not bound to exercise their discretion for the sole benefit of the prosecution. For a prosecutor to react so vehemently and publicly to an adverse ruling, simply because she disagrees with it, undermines the public’s confidence in the judicial system and is affront to the principles reflected in the Constitution. Her comments also have a chilling effect on the independence of the judiciary. These comments instill fear in and pressure on all judges to act in accordance with the prosecutions’ wishes or face unfair attacks on their integrity.
Judges encounter complex and difficult cases every day where peoples’ lives and futures hang in the balance. The Kern County District Attorney’s Office should not seek to negate this vital impartiality by publicly attacking a judge. The public should take pride in our local judiciary and be assured that Judge Dellostritto is a competent and capable judge.
The ability of an attorney to disqualify a judge on a case due to a belief that the judge is biased in against a party is well established in the law. Members of the criminal defense bar have used the same procedure routinely, including against the same judge at issue here.
Judges are elected officials, and are accountable to the communities they serve. Whether a judge is following the law, and the manner in which a judge uses discretion is important in a democracy to make informed decisions. It is also important to ensure fairness in criminal cases.
In addition to the case we sent the press release regarding (attached), Judge Dellostritto also refused to impose a statutorily required life-without-parole sentence for a Hilario Viruncruz, who was convicted of kidnapping a 13 year old child for purpose of sexual assault, finding that the lawfully mandated sentence of life-without-parole was “cruel and unusual punishment.”
If a judge is flatly dismissing a firearm enhancement found true by a jury after trial, and thus not imposing sentence on it, and is refusing to impose statutorily required sentences, the District Attorney feels he is inappropriate to try criminal cases, and not only is she required to act, but the public should be aware of what is happening.
