Court Commissioner, Deputy Attorney General Go Head-to-Head

Thursday, March 13, 2008

Page 5

JUDICIAL ELECTIONS: Los Angeles Superior Court Office No. 95

Court Commissioner, Deputy Attorney General Go Head-to-Head

The contest to succeed Los Angeles Superior Court Judge Alan Kalkin, who has retired, pits a Los Angeles Superior Court commissioner against a California deputy attorney general, both of whom are endorsed by prominent judges and have hired campaign consultants and promised six-figure campaigns.

Patricia Nieto will be designated as “Superior Court Commissioner” on the June 3 primary ballot, while Deputy Attorney General Lance Winters will be listed as “Criminal Prosecutor.”

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LANCE WINTERS

Deputy Attorney General and Volunteer Judge Pro Tem Looks ‘to Treat People Well’

Lance Winters has seen the court system at two very different, in fact polar opposite, levels.

As a state deputy attorney general for 15 years, the last 10 at a management level, he handles death penalty appeals and habeas corpus cases before the California Supreme Court and federal courts. But as a volunteer judge pro tem, he hears small claims cases.

Both experiences, he says, have helped forge his determination to become a judge.

“I think I know criminal law really, really well,” he says. At the same time, he adds, “I know how to treat people well, how to help people.”

Winters, 41, has racked up some impressive endorsements, including those of two of the attorneys general he has served under—Democrat Bill Lockyer, now the state treasurer, and Republican Dan Lungren, now a congressman. “Your knowledge, experience and integrity combine to make you exceptionally well qualified to be a superior court judge,” Lockyer wrote in his endorsement letter.

The current attorney general, Jerry Brown, has a policy of not endorsing subordinates who are running for office, perceiving it as a conflict of interest, Winters explains.

But Winters has been entrusted with major responsibilities by all of the attorneys general under whom he has served, including appeals in the case of Kenneth Gay, twice sentenced to death for the 1983 murder of Los Angeles Police Department Officer Paul Verna.

Gay’s 1985 death sentence was overturned in 1998 by the state Supreme Court, which found that he had incompetent legal representation in his first trial. He was then convicted and sentenced to death for the second time in 2000, and his new appeal—focused largely on whether, and to what extent, evidence supporting a “lingering doubt” as to the defendant’s guilt may be offered when a retrial is limited to the issue of penalty, Winters explains—was argued earlier this year.

Besides his former bosses, Winters’ endorsers include Sheriff Lee Baca, Court of Appeal Presiding Justices Arthur Gilbert and Paul A. Turner and Justice Fred Woods, and Los Angeles Superior Court Judges Tricia Ann Bigelow, H. Chester Horn, Daniel Lowenthal, Darrell Mavis, Judith Levey Meyer, and Daniel S. Murphy.

Turner, who performed Winters’ wedding—his wife, Kerri Winters, is a former deputy attorney general who now works for the Department of Alcoholic Beverage Control—describes the candidate as “an articulate guy” whose “arguments are always concise and persuasive.”

Turner particularly cites Winters’ argument in People v. Dixon, 32 Cal. App. 4th 1547. Turner’s opinion held that a man convicted of murdering a prostitute—whom the defendant said refused to perform a sex act after she was given some drugs as payment—was not entitled to sua sponte instructions on the lesser offense of manslaughter.

The defendant’s claim of provocation was too weak to support a “heat of passion” instruction, the court said, because there was no evidence as to how much time passed between the alleged refusal to have sex and the shooting, and also because a reasonable person would not have been provoked to kill by the victim’s alleged conduct.

The case has since been cited as a basis for limiting manslaughter instructions in domestic violence cases, Turner notes.

Turner, who was a criminal defense attorney before his appointment to the bench, said he doubts Winters will bring a pro-prosecution bias to the bench. As a deputy attorney general, Turner explains, Winters has always recognized that “the prosecutor’s role is to seek justice.”

The presiding justice cites People v. Westbrook (2002) 100 Cal.App.4th 378, in which the court accepted Winters’ concession that the trial judge had erred in jailing a drug defendant, rather than grant Proposition 36 probation, based on the defendant having committed a robbery while a juvenile.

Winters and the appellate panel said the defense was correct in arguing that a juvenile adjudication for a serious or violent felony does not render a defendant ineligible for probation under Proposition 36.

Winters grew up in Tarzana and attended local public schools before going on to UCLA, where he earned his undergraduate and law degrees. He has spent his entire legal career in the employ of the state.

He has hired veteran campaign consultant Jill Barad and loaned $100,000 to his campaign.

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PATRICIA NIETO

Commissioner With Broad Background Seeks to Move Up to Judgeship

The premise behind Los Angeles Superior Court Commissioner Patricia Nieto’s campaign for an open seat on the court is a simple one: she’s already on the bench, and doing a good job, so she merits the full status of judge.

“I’ve been sitting for the last seven years,” she says. “I think I have a tremendous amount of experience.”

Nieto, 56, began working for the court as an as-needed referee in 2001 and was given a full-time juvenile delinquency referee assignment in January 2005. The assignment was “grueling,” she says, involving 60 to 70 cases a day, and lasted about 30 months.

She was sworn in last July as a commissioner, a position to which she was elected by the court’s judges, after an evaluating panel ranked her seventh among the hundreds of applicants.

Prior to serving on the bench, she was in private practice handling juvenile dependency and delinquency cases, as well as workers’ compensation, family law, immigration, and general civil and criminal matters.

“It was a great foundation” for the bench, she says, because she got to see “how judicial officers deal with the community,” and learned how to deal with clients who lacked sophistication about the legal system.

From the time she was admitted to the State Bar in 1979 until 1985, she worked in the small general practice law firm then named Romero, Paz, Rodriguez & Sanora. One of the partners, now-Superior Court Judge Steven Sanora, swore her in when she became a commissioner and is an unabashed booster.

“She is a dear friend and the most charming and disarming person I’ve ever met,” Sanora says of his protégée, praising her interpersonal skills and ability to handle “the most horrific or most contentious hearings” in juvenile court. “In delinquency court, both the prosecution and the defense were always asking ‘why aren’t you a judge yet’”?

Because commissioners can only preside over trials when the parties stipulate, Sanora—a former commissioner himself—notes, it is essential that they be “perceived as fair.” Nieto has that reputation, he asserts.

“She’s the only person I know who doesn’t have an enemy,” he says. He has observed her in her current assignment in family law, he notes, and “she’s just really impressive in court.”

He also praised her “extensive experience,” saying Nieto “has appeared in court [nearly] every day for the past 29 years.” As a judge, he added, she would not need “on-the-job training” and could immediately handle “everything except probate,” although the candidate herself acknowledges that she has only limited experience handling criminal jury trials.

Nieto also has the backing of Presiding Juvenile Court Judge Michael Nash, who recalls her service as a lawyer and referee in juvenile court and says he “never heard anyone say anything negative about her,” and of Superior Court Judge Rudolph Diaz, who was her supervisor at Eastlake Juvenile Court, where she had a reputation for “knowledge, industry, temperament and fairness,” Diaz says.

Nieto grew up in a large Mexican-American family in Kansas City, Mo. She fondly recalls how her maternal grandfather, an immigrant with a sixth-grade education, worked for a railroad and also sold fruits and vegetables from a truck to support his wife and 11 children.

What he passed down to his children and grandchildren, she says, was a “tremendous love for the United States” and a belief in education. She followed through on that, she notes, by tutoring Cuban children who were relocated to Kansas City by the federal government.

After graduating from high school in Kansas City, she went on to earn an undergraduate degree from the University of Kansas in 1974 and her law degree from USC in 1977. She also pursued summer studies in linguistics and anthropology—including excavation work—at the University of Guadalajara from 1971 to 1973 and studied Italian at UCLA from 2002 to 2004.

She has also studied Sanskrit and Swahili.

After leaving the Romero firm, she opened her own office, while remaining on the juvenile court dependency panel until becoming a referee. She also served on the Los Angeles commission that oversees the El Pueblo de Los Angeles Historical Monument, a post to which she was appointed by then-Mayor James Hahn in 2003 and reappointed by Mayor Antonio Villaraigosa in 2005.

She gave up her seat when she became a full-time bench officer last year.

She has retained the services of campaign consultant Carlos Leon, and said that she is prepared to spend $200,000 or more on the campaign.

Her affiliations have included the Mexican American Bar Association, the Juvenile Courts Bar Association, and the National Council of La Raza. She is married to attorney Timothy Martella, who heads a nonprofit law office that represents parents in dependency cases.

— Kenneth Ofgang

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