SLO County DA offers ‘slap on the wrist’ deal for 5 protesters — but not Tianna Arata
A county prosecutor made a surprise announcement Wednesday during a court hearing for Tianna Arata and six other San Luis Obispo Black Lives Matter protesters, telling a judge that the District Attorney’s Office supports a diversion program in lieu of taking the cases to trial.
But there’s a catch: The offer only applies to five of the defendants.
It’s not being offered to Arata — who faces 13 misdemeanors as the alleged leader of the July 21 protest that blocked Highway 101 for 40 minutes — or to Robert Lastra, who is accused of breaking a car’s back window with a skateboard and is the only defendant among the seven facing a felony.
Citing community division over the high-profile cases to explain the reasoning, deputy district attorney Delaney Henretty said Wednesday that the District Attorney’s Office is now encouraging the possible resolution “so that the individuals involved and the broader community can move forward in a more peaceful manner.”
Assistant District Attorney Eric Dobroth told The Tribune Wednesday that Henretty was inviting and recommending that the court consider the program as an option, and that prosecutors have no authority to grant diversion.
If agreed upon by a judge and defendant, the court’s misdemeanor diversion program allows the defendant to participate in some type of community service, classes, or restorative justice option, based on the charge, rather than serve jail time.
The program, created under a law signed by Gov. Gavin Newsom in September, would also allow a defendant to have the conviction expunged from their record.
Misdemeanor charges carry a maximum penalty of six months in County Jail and a $1,000 fine.
None of the defendants in court Wednesday expressed interest in the District Attorney’s Office’s proposition, though Henretty agreed to meet with the Public Defender’s Office to discuss specifics.
In fact, the attorney for one of the defendants appeared so unmoved, he wrote in an email to Henretty afterward saying that his client would only agree to diversion in exchange for the resignation of elected District Attorney Dan Dow.
Prosecutor says protesters had ‘a worthy goal’
Arata and Lastra were in court Wednesday with co-defendants Marcus Montgomery, Amman Asfaw, Joshua Powell, Sam Grocott, and Jerad Hill, to discuss several issues in their two separate criminal cases, which are currently stalled while the District Attorney’s Office appeals a previous judge’s order disqualifying the agency from participating in the case.
The state Attorney General’s Office, which would have to take over the cases, has also appealed the ruling by Superior Court Judge Matthew Guerrero, who found that Dow and his entire office have a “clear conflict” due to Dow’s political fundraising and participation in events with groups who vocally oppose the Black Lives Matter movement.
The defendants have asked for a hearing to persuade a judge to order the District Attorney’s Office “to show cause as to why they should not be held in contempt of this court and sentenced to fines and incarceration in the County Jail for failing to comply” with another order by Guerrero to turn over records related to prosecutors’ decision-making process in charging the protesters.
As Superior Court Judge Michael Duffy — who is temporarily hearing the case while its newly assigned judge, Rita Federman, completes a special assignment in appellate court — attempted to find a workable date to schedule a hearing on that motion Wednesday, Henretty asked to briefly address the court.
“These divisions and allegations are much like the divisons that have of late gripped our country,” Henretty told the court via Zoom. “We are a nation of laws, not men. The laws should apply to all people equally.”
He continued: “It’s not our place to judge the content of the defendant’s speech. The First Amendment is precious to all of us as Americans, and it should be zealously perfected. We have 200 years of jurisprudence that tells us simply that our right of free speech ends when we begin trampling on the rights of others.”
“Although the defendants in this case endangered the safety and/or liberty of the members of the community, law enforcement officers, and other protesters on July 21 of last year,” Henretty said, “in consideration of their lack of prior criminal history —”
“Your Honor, I object to this,” Grocott’s attorney, Vincent Barrientos interjected. “This is not an opening statement for trial.”
Duffy told Henretty to continue.
“In consideration of their lack of prior criminal history, and because they were ostensibly acting on the belief that their actions were done to stop racial discrimination — a worthy goal — we urge the court to offer (Montgomery, Asfaw, Powell, Grocott, and Hill) pre-trial diversion,” Henretty said. “We are hopeful for a resolution to these cases so that the individuals involved and the broader community can move forward in a more peaceful manner. Thank you.”
“Your Honor, just for the record, I would urge all defendants to reject that offer,” Curtis Briggs, one of Arata’s attorneys, said.
Duffy told Henretty that the court “would be pleased” to consider diversion, which he said could be “helpful to everyone.”
With no defendant directly responding to the proposition, Duffy scheduled a hearing on April 9 for all parties to argue on the motion to hold the DA’s Office in contempt.
“In this Never Never Land (while the case is stalled under appeal), the defense should be able to get their discovery so they can move forward,” Duffy said, ordering the District Attorney’s Office to file its opposition by March 24. “The defense does have a right to go forward with this motion.”
It is unclear whether Duffy will preside over that hearing due to Federman’s ongoing assignment in appellate court. He told attorneys Wednesday that he would get clarification on which judge will be presiding over the case moving forward.
Arata left out of deal because ‘she’s the leader,’ attorney says
Henretty’s support for diversion wasn’t well-received by the defendants, whose attorneys say for the most part face relatively low legal and financial stakes in the criminal cases compared to the DA’s Office, which records show is facing intense pressure from some in the community, including Dow’s political supporters, to secure convictions against the local protesters.
“Mr. Henretty’s speech confirms that the San Luis Obispo District Attorney’s Office is scared,” Barrientos wrote in an email to The Tribune following the hearing. “Dan Dow only offered diversion to Mr. Grocott because Dow has conceded that he is going to lose at trial.”
Barrientos wrote that, in the interest of “removing a right-wing extremist from office, Mr. Grocott would be willing to accept diversion in exchange for Dan Dow resigning from office.”
“I would fully support you replacing Dow as DA,” Barrientos wrote to Henretty in an email after the hearing. “I appreciate the tough position you’re in, but at this point, I have no respect for Dan Dow or the SLO DA’s Office.”
Barrientos has filed a motion to dismiss the case against Grocott, arguing that his right to a speedy trial has been violated. That motion will be discussed April 9.
“As counsel for (Hill), we have officially REJECTED Mr. Henretty’s offer,” attorney Tyler Smith tweeted following the hearing. “Jerad stands in solidarity with his #BLM co-defendants and looks forward to proving his innocence at trial.”
Arata’s attorneys have argued in past court filings that police and the District Attorney’s Office were politically motivated in arresting her immediately following the protest from among the roughly 300 people who participated because she was an outspoken leader of the local Black Lives Matter movement.
After the defense made those allegations in court, prosecutors then filed more charges against Arata’s now-co-defendants. The DA’s Office has denied that there was any bias in their filing decisions.
“We were pointing out that Ms. Arata had been singled out by this office among hundreds of other similarly situated protesters. And what did they do? They filed against the other protesters. It shows their motivation,” Patrick Fisher, one of Arata’s attorneys, told The Tribune on Wednesday when asked for reaction to her exclusion from the proposed diversion deal.
“(The diversion proposal) shows that our interpretation was appropriate, that they filed those other charges to counter our (argument),” Fisher said. “I feel bad for these other defendants because it shows they were charged needlessly. Why not offer (diversion) to Ms. Arata? Because it’s political — she’s the leader.”
Asked whether he thought any defendant would jump at the offer, Fisher said he didn’t think so due to the solidarity among the group.
Still, Fisher said, accepting misdemeanor diversion in place of going to trial would be a good deal for any defendant.
“It’s the next best thing to flat-out dismissal,” Fisher said. “Essentially, it’s a slap on the wrist.”
This story was originally published March 3, 2021 at 1:50 PM.
