‘3 Strikes’ Loophole Can Give Offenders a Break : Law: Some felons’ new arrests are treated as parole violations, which at most draw one year in prison.

Scores of prison parolees arrested for felonies in Los Angeles County have slipped through a little noticed loophole in the “three strikes” law and avoided stiff new penalties prescribed by the measure.

Instead of striking out when arrested on new charges, these offenders have lucked out.

A loophole in the law allows a parolee’s new arrest--even for a brutal or serious crime--to be processed as an administrative parole violation, outside the reach of the get-tough crime law signed by the governor in March.

Rodney E. Hudson, for example, had already amassed six strikes when he was arrested for violently assaulting a fellow resident of a homeless shelter in April.

Hudson, who once burst into the quiet living room of a Riverside family and opened fire while absconding with his loot, could have faced 25 years or more in prison. But instead of pressing charges, the district attorney’s office referred him to parole officials, who imposed their maximum penalty--one year in prison.

The prosecutor said the most recent case was flawed, largely because police could not locate the victim for further questioning--even though he was subsequently found by parole authorities and The Times.

Deputy District Atty. David Traum, whose unit screens such cases, said his office refers felony arrests to parole officials only if the cases are very weak or the offenses are relatively minor.

“It’s not supposed to be a way to get rid of cases,” Traum said. “If they’re doing that, it’s wrong.”

Over the years prosecutors, especially those in Los Angeles County, have relied on parole revocations as a swift, sure and economical way to dispose of certain felony cases and send ex-convicts to prison for up to a year.

The practice has continued under “three strikes” but the stakes have changed dramatically: Now the courts can impose up to a life sentence for some crimes while a one-year prison term remains the maximum penalty for a parole violation, no matter how serious the offense or how many strikes the parolee has in his past.

The Times examined police, court, parole and prosecutor files for 100 of the 239 felony arrestees sent by the district attorney to parole authorities from mid-March through the end of August.

Records show that many parolees who were not prosecuted are violent, repeat offenders--the sort of criminals expressly targeted by the new “three strikes” law.

Los Angeles County Dist. Atty. Gil Garcetti said he has not studied the cases his deputies have referred to parole authorities. This area, he added, is “probably something I need to reflect on.”

Garcetti acknowledged that there is a potential for prosecutors to circumvent the “three strikes” law by referring prosecutable cases to parole authorities.

“I guess you could say it is (a loophole) if in fact there’s a concerted effort by the people in any D.A.’s office throughout the state to avoid ‘three strikes,’ ” he said.

The district attorney stressed, however, that his office is committed to following the letter and the spirit of “three strikes.”

The law, which does not even mention the word “parole,” is aimed at criminals with prior convictions for serious or violent crimes. The penalties are doubled for felons with one prior strike. Those with two or more strikes face terms of 25 years to life. Voters will be asked to affirm the new law on Nov. 8.

Although the new statute drastically reduces the discretion of judges in sentencing, prosecutors have retained great latitude in determining whether charges should be filed in the first place, or the case should be sent to parole officials.

In examining 100 felony arrests referred by prosecutors to parole authorities, The Times found:

In one out of five cases, the parolee had a petty or nonviolent criminal background with no prior strikes.

In one out of four, prosecutors lacked information in their files to determine whether the parolee had prior strikes or not, and was subject to an enhanced penalty if convicted.

More than half the parolees had accumulated at least one prior strike for serious or violent crimes, or were facing a strike as a result of their most recent arrests.

Many had multiple strikes for crimes including murder, rape, arson, robbery and residential burglary. For example, records show that:

* Norman Anthony Moore had one prior strike for setting fire to an apartment occupied by his ex-girlfriend and her two children.

Then he was arrested in July on suspicion of using a screwdriver to kill a man who had been flirting with a female friend. Deputy Dist. Atty. Theodore Loewen said that it was “clear” Moore committed the murder, but that the admissible evidence “may be insufficient” to convict him.

* Andre Juniel is a veteran gang member with five prior strikes for robberies, including the armed holdup of an elderly man.

Although several police officers observed Juniel fleeing with a gun in his waistband in March, they did not recover the weapon when they arrested him for possessing a gun. Juniel initially confessed but later retracted his statement. Deputy Dist. Atty. Traum said, “To be honest, some D.A.s might file this case,” but he added that he believes the case could not be won. “Maybe I’m wrong . . . but we’ll never know because we never filed it.”

* James Brewer had accumulated two strikes--for shooting into an occupied dwelling and for sodomizing an 8-year-old girl.

Police pulled him over for a traffic violation in April and observed a loaded gun on the front passenger floorboard of the car, a gun case on the seat next to him and 23 rounds of ammunition in the back seat. Brewer denied owning the gun or the vehicle, so Deputy Dist. Atty. Jaime Hernandez decided not to file charges. “If he’d confessed, we’d be home free,” said Hernandez.

* Cornell Stefin had one prior strike for murdering his grandmother, then stealing her car to escape and pawning her valuables.

In April, Stefin admitted to police that he stole his sister’s property, valued at $1,500, and pawned it for money to buy drugs. Loewen declined to prosecute Stefin for grand theft.

Loewen’s boss, Traum, reviewed the case after a reporter’s inquiry and concluded that charges should have been filed. “I think we could have convicted him,” he said.

Loewen said he was “not absolutely” certain but recalled that the victim had refused to testify. The victim said in an interview that she was willing to testify and was disappointed when prosecutors took no action.

In each of the above cases, parole officials determined that there was a preponderance of evidence supporting the alleged offenses and returned the parolees to prison for up to a year.

However, the new parole violation--regardless of its severity--is not recorded as a “strike” because, under the law, only court convictions can count as strikes.

Garcetti said he would like to review all the cases his deputies have referred to parole. “If we found, ‘Hey, these are some cases that could have been prosecuted,’ then we can change that,” he said. “We can tell our people, ‘You should be filing these cases within the system.’ ”

*

The central complaints unit of the district attorney’s office in Downtown Los Angeles is staffed by 12 veteran full-time and six part-time deputy district attorneys who rarely set foot in a courtroom.

They tediously screen dozens of arrests each day to size up which should be prosecuted or rejected, or referred to parole authorities.

Although deputies are obliged to file charges whenever there is sufficient evidence to prove a crime, Garcetti said his office is under “pressure from the courts and everyone involved in the justice system . . . to limit the number of cases.”

In the complaints unit, decisions must be made quickly, because arrestees must be charged or released within 48 hours of arrest. Often, police work on the case is unfinished.

“The workload is so great in some divisions,” said prosecutor Hernandez, “that patrolmen don’t even have time to get the names of witnesses.”

The complaints unit is described by one veteran deputy as “high-pressure, high-volume work with little recognition.”

During the first six months the new law was in effect, the district attorney’s various complaints units filed 33,000 felony cases, including 7,789 first- or multiple-strike cases.

They rejected 14,000 felony arrests for prosecution, including many cases referred to parole authorities by police or prosecutors.

In 239 of the cases rejected for filing, prosecutors filled out computerized forms specifically earmarking the matters for parole authorities. Additional cases were referred there by prosecutors, but were not listed as parole referrals, records show.

In rejecting cases, prosecutors often noted weaknesses such as insufficient evidence, unavailable witnesses, reluctant victims, or incomplete or sloppy police work.

“We don’t file just slam-dunks,” Traum said. “We file difficult cases, but we have to believe we can prove a case before we file it.

Sometimes, a case is bungled so badly by police that prosecutors decide it is doomed in the courtroom.

Deputy Dist. Atty. Richard Weber blamed inept police work in April for ruining any chance of convicting parolee Charles Carter, who was facing a third strike. Weber noted that police accidentally mixed cocaine recovered from the arrestee’s pocket with some other cocaine they found on the floor of the police station.

“A good case (‘three strikes’) turned to s---,” Weber said in a case summary.

Carter, 36, already had two strikes against him from a 1984 robbery and brutal beating of a sleeping 73-year-old man. In the latest case, parole authorities gave Carter nine months in prison, but he was released in half that time for good behavior.

In many cases, flawed police work or reluctant victims unquestionably left prosecutors little choice but to decline filing charges. But in others, the decision angered victims and police or surprised parole officials.

A carjacking victim said she was so distraught when prosecutors declined to press robbery charges against her assailant that she called and complained bitterly to the district attorney’s office.

Gregory Daniels, a parolee with two prior strikes for robbery, was arrested on suspicion of attacking her April 14. He allegedly held a gun to her head, choked her and stabbed her foot with a screwdriver before tearing the jewelry off her ears and fingers and fleeing in her car. Daniels had been convicted of a strikingly similar robbery a decade ago.

LAPD Detective Richard Record said he objected when the district attorney’s office declined to press charges in the carjacking. However, he said, it was the victim who finally persuaded prosecutors to reverse themselves.

“I can’t believe how hard I had to push these people just to do their job,” said the victim.

Deputy Dist. Atty. Loewen said he initially rejected the case for prosecution because the victim appeared to lack credibility. But he said he changed his mind after they talked on the phone.

A 19-year-old student who was jumped and badly beaten in August by gang members is another victim upset with prosecutors. He was allegedly insulted racially and attacked with rocks and sticks.

“Due to my injuries, I couldn’t walk, could barely see because of dizziness and had aches and pains in my legs,” he said in a written statement from his hospital bed. He asked for prosecution “to the fullest” of parolee Manuel Sanchez, 20, who had a prior strike for using a gun to steal a car.

Deputy Dist. Atty. Lucienne Coleman said that because the victim was not hit in the head or beaten severely, it would be difficult to prove felony assault charges against Sanchez.

Coleman referred his case to parole officials, but the police detective did not alert parole authorities because he said he did not think he was required to, and Sanchez was mistakenly released.

Contacted by a reporter, parole authorities did not know of Sanchez’s arrest or his whereabouts.

Police usually notify parole officials when a parolee is arrested. While the alleged violator remains in custody, parole authorities must investigate but have the discretion to release him and take no action.

Parolee Michael Hilliard, who already had three strikes, was simply ordered by parole officials to stay 100 feet away from a woman whom he allegedly terrorized in May.

Police said Hilliard broke through her door, demanded food stamps and ransacked the kitchen, while she and her children cowered.

He already had amassed two strikes for armed robberies and a third for forcing a woman to perform oral copulation on him at knifepoint.

But Deputy Dist. Atty. Wendy Moss said that since Hilliard did not take anything, she could not prove that he intended to commit felony burglary. “He may have trespassed or committed malicious mischief,” Moss said, “but that’s not a felony.”

Another parolee, Daniel Rodriguez, who already had one strike for shooting at a police officer, suffered no consequences whatsoever from his illegal weapons arrest in April.

Police observed Rodriguez standing at a corner brazenly swinging nunchukas, martial arts fighting sticks that can be used for striking or strangling people. The weapon was booked into evidence.

“It was a cut-and-dried case and it got rejected,” said Police Officer Victoria Shroyer.

Deputy Dist. Atty. Hernandez said he declined to prosecute Rodriguez in part because judges typically reduce cases involving nunchukas to misdemeanors punishable by a maximum of one year in county jail.

But when Hernandez referred the case to parole officials, they took no action and Rodriguez remained free.

*

Unlike court trials that cost taxpayers an estimated $6,000 a day and can last for weeks, parole revocation hearings are inelegant, low-budget proceedings that rarely take more than about an hour.

They are held amid tight security in the cramped hearing rooms of state prisons or county jails.

Presiding are a dozen hearing officers, without gavels or robes, who travel the state like the circuit judges of yesteryear.

They typically finish six cases a day with the proceedings memorialized by a cassette tape recorder instead of a stenographer.

Usually no attorneys are present, but testimony is given under oath. Parolees are warned that what is said at the hearing can later be used against them in court. They frequently make rambling statements to deny or explain their behavior.

Hearsay evidence is allowed, which means that when victims or witnesses do not attend, police officers or parole agents are allowed to relate their accounts.

The case of parolee Rodney Hudson--the six-strike man accused of attacking a fellow resident in a homeless shelter--was heard May 16.

Hudson had racked up strikes for armed robberies and assaults as well as convictions for burglary, drugs and battery, various parole violations and a lengthy juvenile record.

Deputy Dist. Atty. Debra Starr said she declined to prosecute Hudson for assault with a deadly weapon because police were unable to locate the victim and failed to book into evidence Hudson’s alleged weapons--a telephone and bug spray. She said it “certainly would have made a difference if the victim were available.”

Police reported that Hudson punched the victim and dragged him across a parking lot, suspecting that he had stolen his watch.

Then Hudson allegedly followed the victim into the shelter and pummeled him in the office of the supervisor, pinned him to the floor, struck him with a telephone, and sprayed his mouth with a can of ant and roach spray.

“That man is dangerous,” the victim told The Times.

The victim missed Hudson’s parole hearing. He called in to say he was late and had missed the bus.

Police officers and a principal witness, the shelter’s supervisor, also failed to attend. Hudson admitted fighting with the victim but denied striking him with the phone or spraying him.

Nevertheless, based on a parole agent’s summary of the case, the hearing officer found good grounds to believe that Hudson had committed battery and attempted to commit assault with a deadly weapon.

Hearing officer Monica Smith said in an interview that she could not remember Hudson’s case, but that she hears matters every day involving violent crimes.

Often prosecutors filed no charges in these cases, she said, because “certain information hadn’t surfaced until the (parole) hearing, or the investigation wasn’t completed or something just fell through the cracks.”

Occasionally, she said, a parolee makes an admission or a victim or witness comes forward to provide a break in the case. But she said it is unusual for a prosecutor to display interest at that point in a case.

Records show that out of 9,000 parole revocation hearings held statewide during the first six months of this year, the tapes of only 38 were subpoenaed by prosecutors, including just three by the Los Angeles County district attorney’s office. None involved cases filed since “three strikes” went into effect.

“It’s pretty rare you get something you can use,” explained Traum.

Nevertheless, he is considering developing a new policy to help prosecutors “follow up” on parole hearings on the chance that new evidence surfaced, he said.

Veteran parole hearing officer Richard Washington sees up close the cases that prosecutors have declined to pursue, he said.

“They (prosecutors) let us revoke them instead of prosecuting,” Washington said, adding that this has been common practice for years.

Pontrell Williams was arrested July 5 after an off-duty police officer observed him and another suspect gun down a man who owed them money. Though Williams was not the triggerman, he was identified as an accomplice and driver of the getaway car.

Over the objections of the homicide detective, Deputy Dist. Atty. Coleman declined to prosecute Williams, mainly because of the difficulty in proving he knew a murder was going to take place. Instead, she referred the case to parole authorities because Williams had admitted selling drugs at a rock cocaine house.

After a parole hearing that lasted about half an hour Aug. 19, hearing officer Washington concluded that Williams had not only sold cocaine and acted as an accessory to the murder, but attempted to commit murder as well.

Williams, 24, who had already served three prison terms for stealing cars and evading police officers during a dangerous high-speed chase, received the maximum penalty of one year in prison.

Washington said he is frustrated that he cannot impose any greater punishment.

“We see more murder cases than the average Superior Court judge sees in a lifetime,” he said. “I saw six in one day. It’s not unusual to see two in a day.”

“They (the unprosecuted parolees) are delighted, because they’ve beat the big rap. We give them just a year and they say, ‘Oh, I can do that standing on my head!’ ”

The Paths Back to Prison

Instead of prosecuting parolees for new felony arrests, the district attorney can send parolees to state parole authorities, who operate out of reach of the new “three strikes” law. The maximum penalty parole officials can impose on parolees arrested for new crimes is one year in prison, no matter how serious the parolee’s new offense or how many strikes the parolee has accumulated. The chart below illustrates two paths back to prison for parolees, and the vast difference in length of prison terms that can be meted out by the courts and by authorities.

Parolee arrested

Case referred to the district attorney

PAROLE PATH

No charges filed

Parole agents review arrest

Parole revocation hearing held

Parole revoked

Maximum penalty: ONE YEAR IN PRISON

PROSECUTION PATH

Charges filed in court

Court trial or plea bargain

Court conviction

Maximum penalty: LIFE IN PRISON

About 24,000 parolees returned to prison by parole authorities for parole violations and new arrests in 1992. These include 6,000 parolees arrested for violent crimes, 4,000 arrest for property crimes and 4,000 arrested for drug offenses.

About 18,000 parolees returned to prison by the courts with new sentences for new crimes in 1992. These include 2,800 parolees convicted of violent crimes, 8,200 convicted of property crimes and 5,400 convicted of drug offenses.

Sources: State Corrections Department, California Commission on Police Officer Standards and Training, state Department of Justice’s Law Enforcement Information Center.

Routed Around ‘Three Strikes’

After felony arrests, these parolees with prior strikes were referred by the Los Angeles County district attorney’s office for administrative parole hearings:

DERRICK BOWIE

In late March, Bowie was arrested for assaulting a woman motorist with a broomstick and taking her property from her car after a traffic collision and brawl.

Bowie already had one strike for brandishing a firearm at a peace officer, as well as arrests on suspicion of murder and kidnaping that had not been prosecuted. As a juvenile, he was convicted of murder and four counts of assault with a firearm arising from a drive-by shooting.

During the March incident, police got statements from various witnesses and recovered the broomstick that Bowie allegedly used as a weapon. Deputy Dist. Atty. Rebecca Lewis, who reviewed the arrest, was the same prosecutor who had won the murder conviction against Bowie 13 years earlier. In declining to file assault charges against him, she noted that witnesses gave conflicting accounts and that Bowie had claimed self-defense. She referred the case to parole authorities. They returned Bowie to prison for one year.

TONY WASHINGTON

Washington was arrested in mid-March on suspicion of grand theft auto when he was spotted driving a car reported stolen.

At the time, Washington had already piled up six strikes for residential burglaries and one for robbery, as well as convictions for selling narcotics and numerous parole revocations for alleged offenses that were not prosecuted.

When he was arrested in March, he told police that he had borrowed the car from a friend.

Noting that Washington had keys to the ignition, Deputy Dist. Atty. Ellen Berk declined to file charges. “If somebody has the keys and makes no incriminating statement and doesn’t run, it’s normally not a filing,” she said.

However, parole officials concluded that Washington had committed grand theft auto and returned him to prison for nine months. He did not contest their findings.

ALGIMANTOS ENREKUS

Enrekus was arrested but not prosecuted in May on suspicion of setting fire to a halfway house. Enrekus, a Russian immigrant who spent 35 years in Siberian prisons, had one prior strike for attempting to commit arson. Probation officials identified him as the suspect in 11 blazes set in two Lithuanian communities where he lived.

In May, residents of the halfway house said the fire broke out just a few minutes after Enrekus was rattling the windows to get in after curfew.

Deputy Dist. Atty. Ellen Berk declined to press charges against Enrekus, despite strenuous objections from arson investigator Derek Chew, who said in an interview: “We’ve convicted people with less (evidence).”

Berk characterized the evidence against Enrekus as “less than circumstantial,” and urged investigators to try to locate an unnamed witness who reportedly had seen him fleeing.

Enrekus asked through an interpreter at the parole hearing: “If I am really considered to have started an arson, and this is a criminal offense, why am I not being tried in a court of law?” He was returned to prison for a year by parole authorities.

WALTER AUSTIN

Austin was arrested in April on suspicion of assault with a firearm.

He had previous convictions for drugs and weapons, and a prior strike for firing a semiautomatic weapon, point-blank, at a victim who backed away begging for his life. One of the bullets lodged in the victim’s neck.

Deputy Dist. Atty. Theodore Loewen decided that Austin’s April arrest would be “better handled as (a) parole violation” because the victim failed to make a timely report of shots that Austin allegedly fired during a dispute over money.

Police Officer Christopher Amador, who arrested Austin, agreed that proving an assault charge in court would be difficult, but said prosecutors could have charged a lesser offense--ex-convict in possession of a gun--that could have subjected Austin to a seven-year prison term.

At his parole hearing, Austin was returned to prison for 10 months, after the hearing officer concluded that he had violated parole by possessing a gun.

HUGO LICEA

Licea was arrested in May for robbery after he allegedly approached a car, reached in the window and grabbed a gold chain from the driver’s neck. Licea admitted to police that he had asked the victim for money but denied taking anything.

Licea already had a conviction for selling drugs and one prior strike for pulling a knife on a pedestrian, robbing him of his wallet and tearing off his gold necklace.

Deputy Dist. Atty. Loewen declined to prosecute Licea in May, noting that police did not recover the chain and that the only witness was a friend of the suspect’s.

The victim was cooperative and testified at Licea’s parole revocation hearing, where it was determined that Licea had committed robbery. He was returned to prison for 10 months.

Licea’s parole agent, Michael Mays, said, “If the D.A. had . . . convicted him in court he’d have a second strike, and he could get life next time” that he is convicted of a felony.

Sources: District attorney’s records, court records and interviews.