Man Facing 15 Years Rejoices at New Lease on Life

As badly as Kevin James Sherbondy of San Clemente had screwed up his young life, his worst nightmare did not come until 5 months after he had decided to straighten himself out.

That was on Nov. 17, 1986, when the Saddleback College sophomore was arrested for possession of a handgun--even though it was an old, frontier-style long barrel considered an antique. It cost him a 15-year mandatory federal prison sentence--without parole--because of his past history of felony convictions.

But while Sherbondy stewed in disbelief at the federal prison at Lompoc, a group of San Francisco elite who read about his case and considered the sentence too harsh went to work on his behalf.

Their efforts helped result last week in a federal court ruling that Sherbondy should not have received that sentence. The 9th Circuit Court of Appeals upheld his conviction for illegal possession of the handgun. But the justices said Sherbondy’s past crimes did not include enough violent acts to warrant the mandatory, 15-year sentence.

Though he must now be resentenced, with a new 5-year maximum, the appellate court ruling could mean Sherbondy’s release from prison as early as next month.

“You just can’t send a young man off to prison for 15 years for owning an antique gun,” said one of his main supporters, Edward LeClair, vice president of Software Pursuits Inc., in the San Francisco Bay Area.

Prison rules at Lompoc prevented any telephone interviews with Sherbondy. But Serena Kahn of San Juan Capistrano, a longtime friend, said Sherbondy called her family, ecstatic at the news.

“He was so happy,” she said. “He just can’t believe any of this has happened to him.”

Sherbondy’s own lawyer, prominent San Francisco barrister Dennis P. Riordan, called his client “an ass who deserves to be in prison for being anywhere near a gun, with his record.”

But Riordan called the 15-year sentence “a terrible injustice.”

“That law was meant for violent criminals who are caught running around the streets with guns,” Riordan said. “Kevin was just a wild kid who was finally growing up when he got this last bad break.”

Sherbondy’s life began as a struggle. He never knew his father, and his mother died when he was 8. He and his brother Danny were raised by their maternal grandparents, Art and Ethel Sherbondy.

Serena Kahn’s brother, Michael Kahn, was Sherbondy’s best friend and calls him “a great guy, one of the best.”

But when Sherbondy was 19, he was convicted of selling cocaine and robbing a suspected drug dealer at gunpoint. He was placed on probation, but less than a month later he robbed another suspected drug dealer at gunpoint and received a 6-year prison sentence. He was also found guilty in 1984 of possessing a weapon in prison.

“Kevin was a fine boy, but he just sort of drifted in the wrong direction,” said Ethel Sherbondy. “You know how it is in those beach cities.”

In August, 1986, he was charged with trying to intimidate a witness in an acquaintance’s drug case and pleaded guilty in exchange for probation.

Sherbondy then sat down with his grandparents, whom he calls Mom and Dad, and told them that he wanted to turn his life around, friends said. He enrolled full time in the fall session at Saddleback College, taking business management courses and a drama class. He made the dean’s honor list.

His new troubles began, according to his lawyers and court records, when he split up with his girlfriend. She called the police soon afterward and told them that he was on probation and about a gun he kept on his bedpost.

That was Nov. 12, 1986, a Wednesday. Law enforcement authorities, accompanied by his probation officer, searched the condominium where he was living the next Monday, Nov. 17, and found the gun.

That was the first day the new federal “career criminal” law took effect. It mandated a 15-year sentence for anyone with a firearm who had been convicted of three violent crimes or three serious drug offenses.

Assistant U.S. Atty. Kendra S. McNally pointed to Sherbondy’s two armed robbery convictions and called the third violent act his intimidation of the witness.

U.S. District Judge Harry L. Hupp told Sherbondy that he did not think the young man deserved the 15-year sentence but that he felt Congress had given him no choice.

Sherbondy was incredulous. Lawyers had told his family that he might get a 60-day probation violation, at most.

In seeking help from Orange County Superior Court Judge Linda H. McLaughlin, who had sentenced him on the witness intimidation case, Sherbondy wrote that the gun he owned was “a Western-style non-operational .44 revolver in a holster that tied to your leg for, I suppose, the ultimate in quick draws--something I was not doing in high school, when I bought the gun as a mantelpiece. Hardly a pubescent desperado.”

Sherbondy had no money, and his family was not happy with lawyers they had tried to hire. Then a year ago, a fellow inmate at Lompoc, Dannie M. Martin, wrote an anguishing, if one-sided, article that was published in the San Francisco Chronicle about Sherbondy’s plight.

It resulted in dozens of letters to Sherbondy. Two of the writers were LeClair and Connie Lurie, former president of Friends of the San Francisco Police Department. LeClair and Lurie got in touch with each other and formed the Sherbondy Action Assn.

LeClair was the director, and the letterhead he and Lurie put out had some impressive names: William A. Newsom, an associate justice of the Court of Appeal in San Francisco; former San Francisco Police Chief Cornelius P. Murphy; Al Rosen, general manager of the Giants baseball team, and James Austin, vice president of the National Council on Crime and Delinquency.

“Connie Lurie asked me to look into it, so I did,” said Murphy, the retired police chief. “There was no doubt in my mind that this kid just didn’t fit the bill of a career criminal and that the 15-year sentence did not fit the crime.”

The group raised more than $10,000 and used the money to hire Riordan to represent Sherbondy. Riordan stayed with the case after the money ran out.

“The Martin article sugarcoated Kevin’s past crimes and made it sound like he had never done anything to hurt anybody,” Riordan said. “There is no doubt he is responsible for some very violent crimes. I don’t have any sympathy for him being in prison and I’ve told him so.”

Even so, Riordan said, 15 years was unduly harsh.

While there is some question whether the gun on Sherbondy’s bedpost was even operable, that was not the central issue under the new federal statute.

Riordan argued that Sherbondy’s intimidation of a witness did not constitute a violent crime. That meant that Sherbondy was one violent conviction short of falling under the federal statute. The appellate justices agreed.

“There is an interesting political issue here beyond the legal question,” Riordan said. “It’s quite clear that the police deliberately waited until after the new federal law took effect before confiscating that gun.”

Orange County Deputy Sheriff Otis Weichum, who had taken the original call from Sherbondy’s ex-girlfriend, said he waited until that next Monday because he was trying to coordinate the search with Sherbondy’s probation officer, who had not been available earlier.

“Yet on that Friday before the arrest, Sherbondy met with his probation officer in his office; so we know he was available,” Riordan said.

Riordan said he and Barry A. Bisson, an Orange County lawyer still on the case, will probably ask Judge Hupp the first week in January to set reasonable bail for Sherbondy so he can be released pending re-sentencing.

“That will be a bellwether decision,” Riordan said. He explained: If Hupp agrees to the bail, it probably means that he does not plan to give Sherbondy any sentence that will require him to return to prison at all. If he refuses the bail, Riordan said, it probably means that he plans to give Sherbondy the maximum possible sentence, which is 5 years.

But because Sherbondy already has been incarcerated for more than 2 years, even a 5-year sentence will probably make him eligible for parole almost immediately, he said.

Once Sherbondy is released, he has an offer to go to work for his brother Danny in Northern California.

“I think it might be good for Kevin to keep away from Orange County, where there were bad influences on his life,” Riordan said.

In a letter to Serena Kahn, written just hours before the appellate court ruling in his favor, Sherbondy joked:

“Whatever the outcome of my case . . . I’m quite ready to be released and start my life again. Needless to say, operating a gun shop is out of the question. I don’t even want to be near a squirt gun.”

Art and Ethel Sherbondy are more concerned about how soon their grandson will be released than his long-term future.

But they are already buoyed by the appellate court decision.

“No doubt about it: This will be our best Christmas ever,” Ethel Sherbondy said.