Assessing Hits, Errors of ‘3 Strikes’ Crime Bill in O.C. : Justice: The felon-fighting bids are seen as long overdue by the D.A. and the public, but others warn of pitfalls.

Each time he comes home to Santa Ana from his latest stint behind bars, Jose Hilario tells his mother the same thing: “I’m not going to get into trouble again.”

And each time, he winds up proving himself a liar, his mother says, led away by the cops for gangbanging, or doing drugs, or even helping in a drive-by murder.

One week shy of his 19th birthday, the high-school dropout is heading off this week for his first trip to the big house--state prison--after he allegedly threatened someone with a screwdriver and stole a car.

It’s just another turn in what Hilario’s friends and family members fear is an endless cycle of crime.

But under a slew of new proposals that have gained momentum in Sacramento after the murder of Polly Klaas, a 12-year-old Petaluma girl kidnaped from her home by a habitual criminal on parole, Hilario and people like him may not get many more chances to screw up; three “serious” or violent felonies could land them behind bars for life.

The idea passed a key hurdle this past week when the state Assembly approved five versions of the legislation, sending the bills along to the Senate. Supporters, led by a man whose daughter was killed by a parolee outside a Fresno restaurant in 1992, are also trying to get a statewide measure put before voters on the November ballot.

The “three strikes and you’re out” proposals, as they’ve become popularly known, have met with some resistance from district attorneys around the state who question whether the legislation would accomplish what proponents claim. Los Angeles Dist. Atty. Gil Garcetti, for instance, says lawmakers are overreacting to public “fear” with legislation that may be too severe.

But in Orange County, Dist. Atty. Michael R. Capizzi sees the proposed legislation as long overdue.

“I think (the measure) is going to pass, either through the legislative or the ballot initiative process. It’s pretty evident from the speed with which it’s now driving through the Legislature that they’re finally doing something,” Capizzi said in an interview.

Capizzi says the Klaas tragedy has fueled legitimate public concerns about putting dangerous felons in prison and keeping them there.

“The public does not want to live with that potential danger, and there’s no reason they should,” he said.

Indeed, those pushing for tougher sentencing requirements are quick to point to numbers demonstrating a “revolving door” of habitual criminals in the system. Several recent studies have shown that more than 60% of prison inmates are rearrested within a span of several years. And with each passing conviction, the odds of reincarceration grow higher.

A startling 84% of voters surveyed in a recent poll said they supported the “three strikes” concept. Yet amid a wave of public support for the idea, there are pitfalls.

Critics say the measures could reverse gains made by Orange County officials in two key areas.

At a time when the county has spent hundreds of thousands of dollars on programs to help delinquents straighten out their lives, the “three strikes” measure would eliminate any chance of reform for some felons. And at a time when the county has trumpeted successes in cutting down on the time and expense of trials, the measure could clog up the system.

“It’s difficult to believe that anyone who’s considered this doesn’t believe it’s going to have a significant impact on the caseload (in the courts). It doesn’t take a rocket scientist to figure that out,” said James L. Smith, presiding judge for the Orange County Superior Court.

The thinking is this:

Only about 5% of the more than 8,000 felony cases moving through the Orange County courts each year actually go to trial, because the overwhelming majority of criminal defendants agree to plead guilty in plea-bargained deals with prosecutors.

But if three serious or violent felonies are bound to land a criminal in prison forever, offenders will be far less likely to cop a plea, and would instead insist on time-consuming jury trials where a “reasonable doubt” by only 1 of 12 jurors could set them free. Facing life behind bars, the thinking goes, these defendants would have little to lose.

“It could arguably be malpractice for (a defense) attorney to plead out a case that could mean life in prison for the defendant,” Smith said. He estimated that the “three strikes” measure could mean twice as many trials in Orange County, increasing demands on public defenders, prosecutors, judges and other facets of the court system.

“In a lot of ways, I tend to be sympathetic, and agree with the philosophy that’s behind the legislation,” Smith said. “But for (lawmakers) to stick their heads in the sand, and ignore the practical results of the legislation. . . . To me, that’s absolutely ridiculous.”

Officials say they aren’t sure how many Orange County felons might be “thrown out” under the “three strikes” measure.

But clearly, said defense attorney Gary Pohlson, the newly installed president of the Orange County Bar Assn., “it’s going to jam up the courts in some ways, because people are going to fight these things instead of making a deal. That’s a real problem for the court system.”

But Capizzi argued that the measure could end up saving the court system time and money, eliminating the prospect of seeing the same offenders over and over.

“Rather than have 30 arrests, 30 prosecutions and 30 victims” for the same offender, the district attorney said, “it might be far more economical to put him in prison for life for three convictions.”

Then there is the issue of fairness.

Beyond the cost of the measure, both Smith and Pohlson maintained that lawmakers should give prosecutors and judges some discretion in setting punishment on a case-by-case basis, instead of putting every defendant who qualifies behind bars for life.

“You could get some guy in a situation where it’s not appropriate to end up in prison for life,” Pohlson said. “Suppose somebody’s had some ticky-tack burglaries, and all of a sudden he gets convicted of a violent crime. There could be situations where it’s just not as serious as people (drafting the legislation) had contemplated.”

The measures now being considered in Sacramento clash on some critical points, centering on the issue of what types of felonies should count as “strikes” against an offender.

While some of the proposals would send a three-time loser away only for violent felonies, such as murder, rape or aggravated assault, others are broadened to encompass other nonviolent felonies. As defined in the state Penal Code, these serious crimes include residential burglary or selling drugs to a minor.

Judge Smith sees the distinction as crucial, saying only violent crimes should be included. “I just don’t find (sending away nonviolent offenders) to be an acceptable solution to the problem. That’s just a Jean Valjean approach--you know, (steal) the bread and send them away for life. If you’re going to do that, you might as well just execute them.”

The wording of the broader proposals would mean, for instance, that someone like Brian (Flaco) Martinez, 26, would not have any strikes against him--even though he entered guilty pleas in connection with nine separate burglaries in Santa Ana, Orange and Anaheim in 1990 and 1991.

And 30-year-old Ronald Gene Herndon, who has been convicted of four felonies--one each year between 1989 and 1992--would only have one strike against him, for a residential burglary in Anaheim, even though he has been convicted of felony narcotics crimes in both San Clemente and Anaheim, as well as an escape from the prison where he had been sentenced for the burglary.

That’s because the proposals regard residential burglaries as “serious felonies,” but not commercial break-ins. And narcotics crimes are only viewed as serious under the three-strikes initiative if someone is caught selling narcotics to a minor.

Martinez admitted to having stolen tens of thousands of dollars in cash, stereos, computer equipment and other items at a church, a realtor’s office, a flower shop, hair salons and several other commercial locations, but never at a home.

He was also charged in 1991 with assaulting a man with a stun gun, but that charge was dropped as part of a plea bargain that Martinez struck with prosecutors. He was released from state prison in September, 1992, and completed his probation four months ago.

For someone like Jose Hilario, however, the prospects of avoiding the reach of the “three strikes” legislation appear dimmer.

Now 18, Hilario has been in trouble with the law for the past several years, getting into trouble too many times to count, says his girlfriend, 18-year-old Claudia Miranda. “Most of the time he gets picked up (by police), they don’t even take him to jail. They just take him home to his parents,” she said.

After several stints in the juvenile correction system, Hilario’s first conviction as an adult felon came in 1992 after he and two friends went looking for rival gang members who they thought had painted over their graffiti. One of his friends shot another man dead outside a house, and Hilario served less than a year in County Jail as an accessory to murder.

He stayed clean only a few months. Last July, he was arrested in Santa Ana after he allegedly threatened a man with a screwdriver, robbed him of $20 and stole a car, court records show. Police also found crack on him, Miranda said.

Convicted on a probation violation, he was sentenced to 16 months behind bars. Now in custody in the Orange County Jail, he is heading this time for his first stint in state prison--perhaps as early as Monday.

With or without a “three strikes” law working against him, Lilia Hilario worries that her son may have already lost any hope he once held for the future.

Even at the young age of 18, life on the outside appears bleak for an ex-con, she said. “He says to me, ‘Mom, how am I going to find a job after this? They might as well keep me here.’ ”