WESTMINSTER : Public Defender Tests 3-Strikes Law

In the first local challenge to the “three strikes” law, the Orange County Public Defender’s Office claimed Friday that that the new legislation unfairly punishes defendants for past convictions.

Only convictions racked up after the law went into affect last month should be counted as strikes, said Deputy Public Defender Kevin J. Phillips, who helped formulate the challenge that takes aims at the heart of the legislation.

“You can’t just grandfather these (prior convictions) in,” Phillips said.

The public defender’s office filed its challenge Friday in the case of Mario V. Rodriguez, 30, of Garden Grove, who last month became the first Orange County resident charged under the new law. Rodriguez pleaded not guilty Friday to felony assault and weapons charges stemming from a barroom brawl during which Rodriguez allegedly shot a man in the face with a flare gun.

Rodriguez’s two prior “strikes” came when he was convicted of assault with intent to commit murder and second-degree robbery, according to court records. A preliminary hearing on the new charges was scheduled for April 25, according to a court clerk.

In Rodriguez’s case, the public defender’s office argued in its court filings Friday that only charges filed after the law went into effect in March should count against him.

Deputy Dist. Atty. Arnold D. Westra, who is prosecuting Rodriguez, could not be reached for comment Friday.

Phillips said a judge must decide whether the prior convictions should count against the defendant.

Supporters hail the “three strikes” law as a way to crack down on repeat offenders.

The law mandates a sentence of 25 years to life for a third-time felon whose earlier convictions included serious or violent felonies. Any third felony conviction, however, can trigger the sentencing enhancement, regardless of whether it is considered violent or serious.

Opponents say the law is overly broad, and unfairly allows juvenile convictions to count as “strikes.” Critics, including Phillips, say the law also restricts a judge’s discretion.

“I don’t have a problem with enhancing sentences for past conduct, but this law has no wash-out period and doesn’t give any leeway for people in the prosecutor’s office or judges to use their discretion to decide whether a defendant should go away for life,” Phillips said.

“That seems a little Draconian,” he added.

Other legal challenges to the law are mounting statewide.

Meanwhile, officials on both sides of the issue are debating whether the new law will clog criminal courts and prisons, or whether it will save money by cracking down on crime and criminal activity caused by repeat offenders.