By Kathleen Cady
On Jan. 8, 41-year-old Alejandro Garcia was working the drive-through at Taco Bell in South Los Angeles. Mr. Garcia was shot to death by Jonathan Madden after Madden tried to pay with a counterfeit $20 bill. Mr. Garcia is survived by his wife and three children.
The tragedy of Mr. Garcia’s murder is compounded by the fact that it was entirely preventable. If we had an elected district attorney who enforced the law, Madden would have been in custody. Not only did Madden have a long criminal history — he had two open felony cases. He should have been in jail.
George Gascón’s bail policy ensured that Madden was on the street on that horrific day. This is because Gascón will not seek pretrial detention unless the current offense is either a “serious” or “violent” offense. There are no exceptions.
Madden’s criminal record demonstrates the absurdity of this policy. He had multiple felony convictions and has been to prison three times. He is the definition of “recidivist.” His first felony conviction was in 2001 for robbery (a violent felony), for which he was given a second chance and put on probation. He then picked up a 2002 burglary and grand theft conviction, a 2006 robbery conviction, a 2009 conviction for possessing drugs while in prison, and a 2018 conviction for felon in possession of ammunition and possessing cocaine for sale. The only reason Madden was out of custody while having two open felony cases pending against him is because of Gascón’s unlawful policy which did not allow allegations to be filed, combined with his blanket policy which does not allow prosecutors to ask for pretrial bail.
First Open Case
On Feb. 4, 2021, Madden was charged with being a felon in possession of a gun (Penal Code 29800(a)(1)). With his record, this charge is a red flag indicating that he is a danger to public safety. The law requires prosecutors to file prior violent/serious felony convictions (PC 667(a) and 1170.12). From Dec. 7, 2020, until Feb. 8, 2021, when a judge gave injunctive relief due to a lawsuit filed by the Association of Deputy District Attorneys, Gascón’s policies prohibited prosecutors from following this law. See ADDA v. Gascón, 20STCP04250 (L.A. Super Ct., filed Dec. 30, 2020). Unfortunately, Madden’s felony gun charge was filed during this two-month window. Further, Gascón’s policies prohibited prosecutors from asking for bail when a defendant is charged with being a convicted felon in possession of a gun. Had the prior convictions been alleged, the bail schedule would have allowed bail to be set at at least $160,000. Without the prior convictions, Madden’s bail was set at $30,000. That amount may seem high to a person unfamiliar with bail, but by paying a bail bondsman less than 10% of that amount — the fee can be charged to a credit card — Madden was able to bail out, only to commit another felony.
Second Open Case
On May 5, 2021, Madden was arrested and charged with felony sales of narcotics. When a person is bailed out on a felony offense and commits a new felony, the law allows an “out-on-bail” enhancement allegation to be charged. Gascón’s policies, however, do not allow for enhancements. The law and bail schedule should have set Madden’s bail at at least $190,000. Because of Gascón, Madden bailed out on only $100,000 bail. Gascón’s policies resulted in Madden being out of custody, where he was able to illegally obtain another gun, attempt to pass a counterfeit $20 bill at Taco Bell on Jan. 8, 2022, and shoot and kill Mr. Garcia.
The Purpose of Bail Is to Protect Public Safety
When a five-time felon who has been to prison three times unlawfully possesses a gun, he is dangerous to public safety. The law states, “In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration.” PC 1275(a)(1); Cal. Const. Art. I, Sec. 28(f)(3).
The courts have a bail schedule which sets presumptive bail for each crime and allegation. The bail schedule takes into account the enhancement allegations for additional facts of the crime such as the infliction of great bodily injury (PC 12022.7), use of a deadly weapon (PC 12022(b)(1)), use of a gun (PC 12022.53), or when the crime was committed at the direction of a gang (PC 186.22). The bail schedule also takes into account enhancement allegations based on prior criminal convictions of recidivist offenders. The law requires a judge to consider the following when setting bail: the defendant’s prior record including convictions for serious or violent felonies (PC 667(a)(1) and 1170.12(a)-(d)); prior prison commitments; and the commission of new felony crimes committed while out on bail (PC 12022.1).
Gascón’s blanket policies ignore the law and public safety. Gascón’s elimination of cash bail policy states: “The presumption shall be to release individuals pretrial. All individuals shall receive a presumption of own recognizance release without conditions. … DDAs shall not request cash bail for any misdemeanor, non-serious felony, or nonviolent felony offense.”
Literally, within moments of taking office and an oath to uphold the law, Gascón issued blanket policies that violate the law and the will of the voters. In 2020, California voters overwhelmingly rejected Proposition 25 which would have replaced current bail laws requiring monetary bail by establishing a risk assessment tool designed to ensure the public is protected. Gascón’s policy permits neither. Prosecutors are prohibited from asking for monetary bail. Nor have they been provided with any tool to conduct a meaningful risk assessment to ensure the public is protected.
In the Madden case, but for Gascón’s policies, prosecutors would have filed allegations for Madden’s prior cases and asked for appropriate bail to ensure public safety by keeping Madden in custody. Instead, Madden bailed out on a felon with a gun charge, committed new felony offenses, bailed out again, illegally obtained another gun and, tragically murdered Mr. Garcia.
Madden should have been in custody. Had Madden been in jail. Mr. Garcia would not have been murdered. Mr. Garcia’s wife would still have her husband and his children would still have their father. Instead, Gascón’s policies are responsible for Madden being out of custody which allowed him to again illegally obtain a gun and murder Mr. Garcia.
Kathleen Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.