Burke Strunsky, a Riverside County Superior Court judge who is one of two candidates challenging Hestrin, said it was highly unusual for a prosecuting attorney recently to suggest in a court document that a 7-month-old child might not have died had Strunsky mandated the boy’s father do jail time, in approving a plea agreement in a domestic violence case in September.
“Had the court followed the People’ s recommended sentence of a felony plea with 180 days custody time a life could have been spared,” Deputy District Attorney Barrett A. Von Esch wrote in a 10-page sentencing memorandum filed April 28.
Strunsky said he filed a misconduct complaint against Von Esch with the State Bar of California on May 18, writing that the memo contained false statements and “essentially accused me of being responsible for the death of an infant child.” He alleged in the complaint that the District Attorney’s Office had “weaponized a pleading in an active criminal case for political purposes” during an election.
“It’s a real problem when the district attorney uses the court process for political purposes,” Strunsky said in an interview this week.
Hestrin did not return a phone call. DA’s office spokesperson John Hall said in a written statement that “there is nothing political about the use of sentencing memorandums in criminal cases.” Deputy district attorneys are permitted to “strongly advocate for their position on behalf of victims,” Hall wrote.
Also running for district attorney is Lara Gressley, an appellate attorney with about 20 years experience in law.
The District Attorney’s Office has a $158.5 million budget and roughly 700 employees, including 252 prosecutors, who handle criminal prosecutions, victims’ services, crime prevention and civil cases filed on the public’s behalf in a rapidly growing county of 2.4 million people. The office averages roughly 52,000 criminal cases a year.
Gressley took aim at Hestrin and Strunsky this week.
“They are both fighting and blaming each other, but they are failing to look in the mirror,” Gressley said, saying both were lenient in handling cases involving the man accused of murdering the 7-month-old child.
Accused in the torture and killing of the boy is 31-year-old Palm Desert resident Jawhon Burts.
On Dec. 19, police were called to a home in the Coachella Valley and found the 7-month-old child not breathing and without a pulse. He was taken first to a local hospital, then to Loma Linda University’s medical center. According to the sentencing memorandum, Loma Linda records showed that the child suffered a skull fracture, bruising on the scalp and intracranial hemorrhage, among other signs of head trauma. The document states that the man hit the child in anger and placed a cord around his neck.
Burts’ attorney, Shaun Sullivan, characterized the sentencing memorandum in the domestic violence case as “bizarre” and called it “a disgraceful attempt by Mr. Hestrin’s office to attack a political rival as people are mailing in ballots.”
Sullivan, in an email, wrote that the document is “deliberately misleading and chocked full of scare tactics” and he intends to ask the state attorney general to step in and prosecute the case in place of the District Attorney’s Office.
Sullivan said Burts maintains he is innocent.
“He is the father of five children, and he has no history of child abuse whatsoever,” Sullivan wrote. “He was performing admirably in his Court mandated classes and only stopped going once incarcerated after Kyrie’s tragic passing.”
He pleaded guilty to felony domestic violence with the promise that the conviction would be reduced to a misdemeanor if he completed a year’s worth of domestic violence classes.
Sullivan said Burts called 911 and was trying to resuscitate the boy when authorities arrived.
An autopsy was conducted and does not indicate that strangulation occurred, Sullivan said.
In September, Burts entered his plea. That plea stemmed from an incident in January 2020 at a home in the unincorporated community of Bermuda Dunes. Burts was accused of assaulting the mother of two of his children, slamming her head “into a hallway wall with enough force to cause visible damage to the drywall” and choked her with both hands for one minute, according to court documents.
Unable to breathe, the woman’s vision “became black.” After that, the woman was thrown into the living room, where she tripped on a coffee table and hit her head on a tile floor, according to court documents.
In the sentencing memorandum, Von Esch wrote that the defense requested a conference with Judge Strunsky to discuss a potential resolution of the case that is called an “indicated sentence.” District Attorney’s Office prosecutors requested a plea to a felony, with a sentence of probation and 180 days of custody. That was rejected by Burts, the document states.
The memorandum states that the office cited a previous domestic violence case involving Burts and another female victim in July 2018. While driving a car, with the woman in the passenger seat, Burts is alleged to have grabbed her hair and attempted to choke her, while driving at a high rate of speed.
Strunsky said he doesn’t recall being told by prosecutors that the man had previously attempted to choke someone. He said that the record showed a disturbing the peace conviction, which the original offense had been reduced to from an original charge of misdemeanor domestic violence.
Saying the District Attorney’s Office bears blame, Gressley called the reduction in the 2018 case to disturbing the peace “less than a slap on the wrist.” She said the office should have filed that first case as a felony, rather than a misdemeanor, given the allegations of grabbing the woman’s hair and choking her while driving.
At the same time, Gressley said Strunsky was lenient in offering to reduce the felony domestic violence plea in the 2020 case to a misdemeanor, if he completed a domestic violence course. She suggested that arrangement was not in line with what judges typically provide in Riverside County.
Assistant Public Defender Tom Cavanaugh, who oversees cases from the Coachella Valley to Blythe, said Strunsky’s handling of the 2020 case was “not unusual at all.” He called the plea a “very intelligently designed sentence” that offered an incentive to attend classes, with the goal of increasing protection for victims and the community at large.
What is unusual, Cavanaugh said, is filing a sentencing memorandum in a domestic violence case in which there likely won’t be a sentencing for some time because the case of the 7-month-old child’s death will take precedence.
Cavanaugh alleged the deputy district attorney’s sentencing memorandum was filed “for political purposes” in an attempt to cast Strunsky as soft on crime, which he said is “not his reputation.” Cavanaugh said Strunsky is seen as a tough sentencer.
As for the 180 days in jail the District Attorney’s Office sought in September, in connection with the 2020 domestic violence case, Burts would have been in custody Dec. 19 — the day of the child’s death — had he accepted prosecutors’ offer, Hall wrote in the statement.“Even assuming credit for time served of 50 percent, and no additional time on the misdemeanor, the defendant ‘could’ have been serving the 82nd day of a 180-day county jail sentence on the date of the murder,” Hall wrote.
But Strunsky said Burts didn’t accept prosecutors’ offer, and as judge he did not have the ability to place him in custody because Burts had been out on bail for many months. Strunsky said it is unlikely Burts would have been behind bars.
Gressley also said that is unlikely.
“They are trying to blame Strunksy, saying he (Burts) would have been in jail if he would have taken the 180-day offer,” Gressley said. “But that’s not even true.”
In all likelihood, Burts would been released early because the jails are crowded, Gressley said.
“We can’t keep people in there to complete their sentences,” she said.
Staff writer Brian Rokos contributed to this report.