State Supreme Court to Rule on ‘3 Strikes’

The California Supreme Court, accepting its first “three strikes” case, voted Thursday to determine whether judges can spare some criminals tough sentences by overlooking prior convictions.

By accepting the San Diego case, the high court has thrust itself into the middle of a fierce judicial debate over how to apply the voter initiative that requires 25-year-to-life sentences for many third convictions. The court’s ruling, expected within a year, should establish whether judges can make exceptions for criminals whose records are nonviolent.

The court’s interpretation of the law is considered critical because of inconsistencies and contradictions in the wording of the initiative and in a Legislature-passed statute that preceded it.

“Both of them are a nightmare,” said San Diego Deputy Public Defender Gary Nichols, who will argue the defendant’s case before the court.

Some judges have decided to ignore prior qualifying convictions rather than hand down 25-year-to-life sentences for minor crimes that trigger the “three strikes” law.

In the case before the court, a San Diego judge dismissed two previous convictions for burglary and attempted burglary when sentencing Jesus Romero, 32, for cocaine possession. Instead, the judge sentenced him to six years in prison for possessing a small amount of cocaine.

But the San Diego district attorney’s office appealed. The Court of Appeal in San Diego ruled in the prosecution’s favor, holding that judges have no such discretion in “three-strikes” cases.

Responding to a petition by the defendant, the California Supreme Court voted unanimously to take the case. The vote means that the San Diego appellate ruling cannot be cited as precedent pending the Supreme Court’s decision.

“You would think that the judicial branch would jealously guard its turf and not allow other branches of government to tell it how it can or cannot exercise its traditional discretion,” said Nichols, adding that he has 25 years of Supreme Court precedent to support his case.

The conservative high court will be deciding whether the state’s constitutional guarantee of separation of powers gives judges the right to use their judgment under “three strikes.” The initiative did not specifically address the point, although it allowed judges to disregard prior convictions upon a prosecutor’s motion.

San Diego Deputy Dist. Atty. Charles Nickel said the court’s decision to review the ruling puts prosecutors at a disadvantage because they can no longer cite it to support their cases. However, the prosecutor said he expects the Supreme Court to affirm the Court of Appeal ruling.

He noted that Romero had a “15-year history of crime: burglary and theft and drugs.” The Legislature in recent years has curtailed the discretion of judges in sentencing, he said, and the precedents cited by the defense no longer apply.

The California Supreme Court has not been asked to rule on the law’s constitutionality, despite claims by some that it amounts to cruel and unusual punishment. Deputy Public Defender Nichols said he will not cite that argument because U.S. Supreme Court rulings make it impossible to prevail.

Elisabeth Semel, a prominent San Diego criminal defense lawyer, said the court’s acceptance of the Romero case should not be interpreted as a sign that it will reverse the appellate ruling.

“If it wanted to depoliticize the issue and strike a blow for the power of judges to do equity in a particular case,” she said, “it could do so. But that has not been the bent of this court.”

The “three-strikes” law applies to felons who have two prior felonies considered serious or violent, including burglary, rape or murder. A second violent or serious felony is punished by doubling the usual sentence.