‘3 Strikes’ Case Before High Court

Some members of the California Supreme Court, reviewing the court’s first “three strikes” case, appeared reluctant Tuesday to deny trial judges the ability to spare some defendants lengthy sentences.

The court will decide within 90 days whether a San Diego judge acted properly when he dismissed two prior convictions for burglary and attempted burglary against a defendant he sentenced for cocaine possession. By overlooking the two prior crimes, the judge enabled Jesus Romero to receive a six-year sentence rather than the 25-years-to-life term prescribed by the state’s 1994 “three strikes” law.

The Supreme Court’s decision will determine whether judges can make exceptions for criminals whose records are nonviolent. Under “three strikes,” a defendant with two prior felonies faces a life sentence for a third felony, even if it is not violent or considered serious.

In oral arguments Tuesday in Los Angeles, Justice Kathryn Mickle Werdegar seemed particularly troubled that the court was being asked by prosecutors to deny judges flexibility even though the Legislature did not explicitly do so when it passed the “three strikes” law before the voter initiative was approved.

“It is silent on the subject,” she said. “It doesn’t say the court can’t” strike prior convictions in the interest of justice.

Prosecutors contended that the Legislature intended to punish recidivist criminals harshly and did not want to give judges options to spare defendants.

Why should the California Supreme Court have “to struggle with implications and inferences when the Legislature knows how to be very plain in an area that is highly contentious?” Werdegar asked.

“Because [the law] is plain enough,” said Sausay T. Kumar, a supervising state deputy attorney general. That “remains to be seen,” Werdegar replied.

Prosecutors have the option of removing a prior “strike” or conviction in “three strikes” cases but contend that judges can only do so if the prosecutor agrees. The law does not specifically give or deny judges the option of striking prior crimes to produce a more just result.

Justice Joyce Kennard also seemed reluctant to accept the prosecution’s arguments. She noted that the “three strikes” law allows judges to remove a prior strike in response to a prosecutor’s motion. If lawmakers intended to strip judges of all discretion, she said, then the jurists would not have the ability to rule on such prosecution motions.

She also pointed out that the Legislature specifically declined an opportunity to dilute judges’ prerogatives and suggested that the court would have to reject precedent to deny judges such flexibility.

The ruling the court is reviewing came from San Diego Superior Court Judge William Mudd, who complained at the time that the “three strikes” law “basically castrates a judge.”

“It takes away all of the discretion and it places it squarely in the hands of the D.A.,” a violation of constitutional guarantees of separation of powers, Mudd said in 1994.

The prosecution appealed Mudd’s decision, and a Court of Appeal in San Diego reversed it. The appellate court, ruling against Romero, contended that giving him a life sentence for cocaine possession would simply be punishing him for a litany of crimes.

San Diego Deputy Public Defender Gary Nichols, who argued before the Supreme Court on behalf of Romero, said afterward that he felt “confident” of his case, although he refused to speculate on how the various justices would vote.

Deputy Atty. Gen. Kumar also declined to assess the justices’ inclinations in the case. “It’s always so hard to say,” Kumar said. “You never know until the end.”