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Ruling Lets ‘3 Strikes’ Defendants Challenge Previous Convictions : Courts: Dissenting judge says allowing claims of poor counsel in prior cases will weaken the law. Case may go to state high court.

TIMES STAFF WRITER

In a decision that “knocks a large hole” in the state’s “three-strikes” law, one justice warned, an appellate court has ruled that defendants facing their third conviction may seek to have prior ones erased by claiming that their earlier lawyers did a poor job.

The 2-to-1 decision by the state Court of Appeal in Santa Ana gives a new legal weapon to defendants charged under the state’s 1994 “three-strikes-and-you’re-out” law, which requires prison sentences of 25 years to life for convicts with two previous serious felonies.

The ruling, involving the case of a parolee arrested on suspicion of heroin possession, prompted a dire prediction from the dissenting justice.

“The majority opinion will turn every ‘three-strikes’ case into a long, drawn-out replay of strikes one and two,” wrote Justice David G. Sills in his dissent to the Nov. 22 decision. “Cases Clarence Darrow could not have won will be re-litigated in an attempt to clothe the poor defense attorney in the sackcloth and ashes of incompetence.”

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Sills warned starkly that the ruling by Justices Sheila Prell Sonenshine and Edward J. Wallin would mire the courts in “Monday morning quarterbacking” and “knocks a large hole in the three-strikes law.”

Wallin disagreed. “If our colleague thinks we have knocked a large hole in the law, it is because he believes there are a large number of invalid prior convictions,” Wallin wrote. “We are simply applying the law and letting the chips fall where they may.”

The Santa Ana ruling clashes with a decision in a separate case by a Los Angeles appellate court that denied defendants the right to challenge past convictions on grounds of inadequate counsel. Legal experts said the conflicting decisions probably will put the issue in the hands of the California Supreme Court, which already is considering other legal disputes stemming from the 19-month-old law.

“The stakes are very high. These issues need to be ironed out,” said Robert Pugsley, a law professor at Southwestern University School of Law. “These issues are coming to the table, front and center.”

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Pugsley agreed that the Santa Ana decision probably would lead to more defense lawyers challenging their clients’ prior convictions by saying that their lawyers in those cases were ineffective.

“Of course, people facing third strikes are going to be looking at every avenue of avoidance and escape,” Pugsley said. “Once you open the door, people are going to go through it.”

Deputy Dist. Atty. Carl Armbrust, who is prosecuting the heroin possession case, said, “Everybody and his brother charged with [third strikes] can come in and say he didn’t have a fair trial back in 1972.”

But in the majority opinion, Sonenshine was skeptical of prosecutors’ worries of a flood of pretrial motions seeking to challenge prior convictions. The justice noted that the Orange County district attorney’s office said it sees only about one motion a week.

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“The district attorney has not demonstrated motions to strike have burdened the prosecution or court systems, or affected the speedy resolution of cases in any way,” Sonenshine wrote.

The decision arose in the case of a Stanton man arrested by Orange County deputies last year allegedly with a teaspoon of heroin in his possession. The defendant, 32-year-old David John Garcia, had two prior serious felonies.

His court-appointed lawyer sought to erase one conviction--a 1990 case in which Garcia pleaded guilty to residential burglary--by arguing that the former attorney gave his client bad advice. But Superior Court Judge Richard L. Weatherspoon refused to hear the motion, setting the stage for the appellate court to step in.

The court cited a 1967 California Supreme Court ruling that said a trial judge must hear a defendant’s motion to strike prior convictions based on denial of counsel. A later decision expanded that right to include ineffective counsel. But Weatherspoon chose to follow a subsequent ruling by the U.S. Supreme Court denying federal defendants that right.

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Armbrust said he will ask the Santa Ana appellate court to hear the matter again, taking the Los Angeles decision into consideration. If denied, prosecutors will appeal to the California Supreme Court, he said.


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