‘3 Strikes’ Law Being Used to Challenge Death Penalty

Criminal defense lawyers around the state are using the “three strikes” law to file long-shot challenges to the death penalty, contending that the new sentencing scheme preempts capital punishment.

A motion to preclude a death sentence for an accused triple murderer already has been filed in San Francisco, and defense lawyers elsewhere in the state say they will cite the new law in making similar motions in the near future.

“Just because you think you may lose doesn’t mean you shouldn’t be filing it,” said San Francisco Deputy Public Defender Grace Suarez.

But some prosecutors believe that such challenges will only tie up the courts and run up costs.

“The biggest downside is that it will produce years of litigation and add significant issues to each death penalty prosecution,” said Ventura County Dist. Atty. Michael D. Bradbury, who had warned the Legislature that the bill could endanger death penalty prosecutions. “We will win the issue, but at tremendous cost of time and money and people power.”

A survey of seven counties shows that most of the defendants so far charged with third-strike offenses are alleged robbers and burglars. They range from a thief charged with breaking into a car in San Francisco to a convicted robber believed to have shot and wounded his wife and her boyfriend in Sacramento County.

But some defense lawyers argue that the hastily passed law can be read in a way that could benefit defendants charged with the most brutal of crimes.

Under “three strikes,” third-time felons who have been convicted of two serious or violent crimes must be sentenced to at least 25 years. A second felony doubles the basic sentence. The law says its prescribed sentences must prevail, “not withstanding any other law.”

Defense attorneys say defendants with prior felonies therefore must be sentenced under the provisions of “three strikes,” which does not provide for the death penalty. A judge has yet to rule on such a motion.

The state legislators who passed the bill had been warned that it could lead to death penalty challenges. Legal analysts believe the challenges will almost certainly fail because “three strikes” was intended to stiffen penalties for criminals, not diminish them.

The debate probably will reach the California Supreme Court and the federal courts. When the wording of a law is ambiguous, appellate courts interpret it by examining the intent of the Legislature.

But defense attorneys contend that the law’s language is not ambiguous, so the intentions of the Legislature need not be considered.

“The statute is very, very clear in what it says the sentencing scheme should be,” said San Francisco defense attorney Mark Goldrosen, who filed a motion on behalf of a man accused of killing three elderly people in 1987.

Defense attorneys are debating when to file such motions. Los Angeles County Deputy Public Defender Charles Gessler argues that such an appeal should not be made until after a client has been sentenced to death.

Gessler said the new law has not overruled the death penalty initiative, although an identical measure on the November ballot may. Rather, in his view, the statute “bypasses” the death penalty.

“If the effort is to keep people in prison longer and make the terms longer,” said the coordinator for capital cases, “death is totally counterproductive. It shortens the term.”

Others say they will file when their clients are charged with offenses that could bring a death sentence or life in prison without parole.

“It is our duty to point out anything in the law that helps our client,” said San Bernardino County Deputy Public Defender David Negus, “and certainly if you read the statute as it is written, it helps our client.”

Negus’ office intends to file a motion March 30 on behalf of Johnny Miles, who is charged with murder in the course of a rape and robbery. He has at least two prior felonies. The public defender’s office will argue that, if convicted, Miles can only be sentenced under the “three strikes” provisions.

The California Supreme Court affirms more death sentences than any state high court in the country, and few believe the court would rule in favor of such challenges.

But Suarez, the San Francisco public defender, said the Supreme Court may “get sick and tired of coming in and patching up these badly drafted statutes and say, ‘We are not going to do it this time.’ ” She is trying to preclude a death sentence for one of her clients.

Apart from its potential impact on capital cases, the “three strikes” law has been criticized for imposing hefty prison terms for offenses that may not be all that serious.

But some county prosecutors simply are not charging prior felonies if they think a third strike would produce an unjust sentence, said Ventura County’s Bradbury. He contended that prosecutors have such discretion under the California Constitution.

“Who is going to tell me I can’t do that?” said the former president of the California District Attorneys Assn. “Is it the attorney general? We’ll kick his backside out of the county. . . . The only risk a prosecutor runs is at the ballot box.”

In Los Angeles County, a Municipal Court judge in Van Nuys reduced a third strike felony against a defendant--possession of a small amount of drugs--to a misdemeanor, allowing him to escape the terms of the law, said Sandi Gibbons, a spokeswoman for the Los Angeles County district attorney’s office.

She said at least 13 people have been charged with “three strikes” in the county. Most of their prior convictions were for burglary or robbery. The third strikes ranged from receiving stolen property to sexual assaults and kidnaping.

In Sacramento, a man with two felony convictions for robbery and two for possession of a weapon is being charged under “three strikes” with the attempted murder of his wife and her boyfriend. The woman had tried to divorce the defendant when he was in prison.

“It makes my job easier,” said Sacramento County Deputy Dist. Atty. Robert Morgester. “For me to get a life sentence under the old law, I needed to prove that he intended to kill, and that he premeditated and deliberated. . . . Under the new law I just have to prove that he committed a felony. If I get him on possession of a weapon, he goes 25-to-life.”

In Kern County, one of six defendants charged with a “third strike” is a 48-year-old man with two prior robbery convictions. His third strike: allegedly stealing five cartons of cigarettes.

“He is an inveterate burglar who is also dangerous,” said Kern County Dist. Atty. Edward Jagels.

Under the old law, the defendant would have received a maximum four-year sentence. Under “three strikes,” he faces at least 20 years.

Jagels said the six defendants are habitual criminals who have been churned in and out of prison over the years. Although prosecutors generally opposed the statute passed by the Legislature, Jagels said he sees merits.

“We have a lot of prisoners here in Kern County,” said Jagels, “and the word I am getting from correction officials is that this (‘three strikes’) is virtually all the inmates who are close to release are talking about.”

But San Francisco Dist. Atty. Arlo Smith said his office is prosecuting a man who is probably not the kind of criminal that lawmakers had in mind when they passed the sentencing law.

The 45-year-old allegedly broke into a locked automobile--his “third strike.” He was convicted many years ago of two residential burglaries.

“Auto burglary is not something we approve of,” Smith said, “but it is not a violent or serious felony.”

Times researcher Norma Kaufman contributed to this report.