Judge Dismisses Felony Complaint--and Third Strike : Courts: Due to lack of evidence, Cypress man instead faces two misdemeanor allegations involving the abuse of his former girlfriend.

In what is believed to be the first time a “three strikes” case has been dismissed in Orange County, a municipal judge on Wednesday said he threw out a felony complaint against a convicted felon because he believed prosecutors filed the wrong charge.

Westminster Municipal Judge Dan C. Dutcher said he did not want to minimize the allegations against Lance Powell, who was arrested on suspicion of felony stalking involving a former girlfriend. A felony conviction would have made the Cypress man eligible for a life prison sentence under California’s new “three strikes and you’re out” law.

But Dutcher said there was insufficient evidence to support the more serious felony charge and that he used his discretion to instead charge Powell with two misdemeanors, accusing him of abusing his former live-in lover.

“I’ve seen hundreds of these cases and this was not a felony stalking case,” Dutcher said.

Deputy Dist. Atty. Jane Shade, head of the special prosecution unit that handles spousal abuse and stalking cases, said she is considering whether to refile a felony stalking charge against Powell, 33.

“At this point we’re still reviewing the case,” Shade said, declining further comment.

Chief Assistant Dist. Atty. Maurice Evans said Wednesday that he believes the Powell case marks the first time a local judge has reduced a felony charge in a “three strikes” case.

According to court records, Susan Kirkpatrick suffered bruises and feared for her safety after at least two violent confrontations with Powell in May, when the two lived together. Kirkpatrick has since been “backing away” from what she initially told police, Shade said in court records.

In court records, Shade also said she believes the appropriate charge was filed because the defendant repeatedly harassed the victim and left her fearing for her safety.

Dutcher said the felony stalking law is more properly applied to cases where a victim is harassed and followed, not in an instance that is considered a domestic violence case. The judge reduced the charge July 15 and previously signed a restraining order to keep Powell away from his former girlfriend.

The judge said he based his decision on the evidence before him because he believes it would be improper to give the defendant’s prior record weight in the decision.

Powell has a 1979 conviction for assault with intent to commit murder and assault with a deadly weapon and a 1985 conviction for kidnaping. In 1987, he was also charged with improperly possessing a firearm while on parole.

For Powell, the judge’s decision means he no longer faces a potential sentence of 25 years to life in prison--the equivalent of a first-degree murder conviction. Misdemeanors carry a maximum penalty of one year in jail.

Gov. Pete Wilson in March signed the “three strikes” legislation into law. The measure increases prison time for defendants convicted of felonies and counts as “strikes” certain violent or serious felonies. After two strikes, a defendant is eligible for a life prison sentence upon a third conviction of any felony.

Supporters say the measure will help fight crime and keep streets safe, while opponents say the law unfairly lumps together nonviolent and violent offenders and will lead to prison overcrowding.

In court records, Deputy Public Defender Joel M. Garson argued that the felony stalking case against Powell was unfounded. The dispute between Powell and Kirkpatrick involved two isolated incidents in May and reflected heightened passions between two people--not a typical stalking case, he said.

Garson also said in court records that if the felony stalking charge were upheld in this case, it could arguably be used in every domestic violence case, an application he felt was unreasonable.