Justices Deal Blow to ‘3 Strikes’ : Lower Courts Allowed Discretion in Sentencing


In a major blow to the state’s tough “three strikes” law, the California Supreme Court decided Thursday that judges have the power to spare defendants lengthy sentences by overlooking prior convictions.

The unanimous ruling is expected to have major ramifications for defendants sentenced under the 1994 law, potentially sparking a deluge of nearly 20,000 appeals in an already crowded court system.

Victims rights activists and state Republican leaders condemned the ruling, with some calling on voters to vent their anger on the court--which is dominated by conservative Republicans--as individual justices face confirmation. But civil libertarians and other critics of the “three strikes” law praised the seven justices for their courage and independence.

Gov. Pete Wilson called the decision, written by one of his appointees, “potentially dangerous to public safety.”


“We cannot tolerate a situation which permits judges who are philosophically unsympathetic or politically disinclined to ‘three strikes’ to reduce the strong sentences that the voters intended to impose on habitual criminals,” said Wilson, who promised to help pass amendments to the law that would restore tougher sentencing mandates.

The “three strikes” law, passed partly in reaction to the murder of 12-year-old Polly Klaas by a repeat offender, mandated a doubling of the usual sentence for a second felony conviction and a minimum 25-year sentence for third felonies if the earlier convictions were for violent or serious crimes. But the court ruled that the law did not eliminate a judge’s discretion in sentencing and even if it had, that would have been unconstitutional.

Secretary of State Bill Jones, one of the authors of the “three strikes” law, said he was “disgusted” by the “appalling” ruling.

“This is a war,” he said. “It is costing us lives across the country. And I do not believe this is the appropriate time for a turf war--which is what I believe this is--over judicial discretion.”

But just as conservatives were condemning the court, which typically rules in their favor, liberals found themselves defending the law-and-order justices.

“I think the cornerstone of our system is the independence of the judiciary,” said Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, “and that is exactly why we have that branch of government--to keep the tyranny of the majority from taking away constitutional rights from people.”

She said the ruling underscored the court’s independence, and she predicted that many will support the decision. “When people in this state voted for ‘three strikes,’ ” she said, “they were unaware of the implications, and now that people have been more educated, opinions will change.”

The court’s ruling came in its first examination of the 2-year-old law, which also had been approved by 72% of the voters. Justices held that a trial judge can disregard prior felonies and reduce a potential sentence from life to just a few years “in furtherance of justice.”


Under the law, such authority was granted specifically to prosecutors, but judges have traditionally enjoyed discretion in sentencing and many bristled at the inflexibility.

The court, however, said that the law did not eliminate a judge’s discretion just because the statute was silent on the subject and that even if the law had barred judicial involvement, that would have been unconstitutional. With the ruling, prisoners convicted of second and third felonies now may file petitions asking trial judges to reduce their sentences. In many cases, trial judges had told defendants that they would have discounted prior felony convictions if the law had allowed it.

“The potential is that 20,000 cases may be coming back,” said San Mateo County Dist. Atty. James P. Fox, who also is president of the California District Attorneys Assn. “I think there will be some congestion” in the courts.

Prosecutors and defense lawyers predicted that many trial judges now will be willing to disregard a prior conviction for defendants whose records are largely nonviolent.


Writing for the court, Justice Kathryn Mickle Werdegar said that “the disposition of a charge is a judicial responsibility.”

Werdegar noted, however, that judges cannot dismiss prior felonies simply to relieve a congested court calendar or because of “antipathy” toward the sentencing law. They must explain their reasoning, and appellate courts can decide whether the decisions are sound, she wrote.

Assembly Speaker Curt Pringle, a Republican, and Senate Republican Leader Rob Hurtt, both of Garden Grove, said the justices must now answer to the voters.

“If they make bad decisions, they [the justices] should be voted out,” Pringle said. “It is one of the worst decisions I have ever seen.”


Victims’ rights activist Harriet Salarno, who was among leaders of the successful effort to oust former Chief Justice Rose Elizabeth Bird in 1986, complained that the high court still is “not listening to the will of the people.”

Salarno called for crime victims to organize and campaign against the current seven justices, six of whom are Republicans. Wilson appointed three of the seven who signed the ruling, and former Gov. George Deukmejian appointed three. Only Justice Stanley Mosk, appointed by the late Gov. Edmund G. “Pat” Brown Sr., is a Democrat.

An official with one civil rights group in Los Angeles said it is hypocritical for Republicans such as Pringle to attack a decision from a court built by conservatives.

“This is their Supreme Court--this is primarily Deukmejian and Wilson appointees,” said Vina Camper, intake coordinator for Police Watch, a nonprofit group that monitors complaints of law enforcement abuse. “These people [who dislike the ruling] are just out for their own political agendas. When we get a unanimous decision, we should go and change the rules? Is that the way we do business?”


The decision, she said, “is a breath of fresh air. It’s a move in the right direction, and it gives the judges the power that they were meant to have.”

Even before the court ruled, the Legislature had been considering amendments to the “three strikes” law to preclude judges from evading its tough provisions.

Wilson said Thursday that the law can be amended by either the Legislature or by voters without revising the state Constitution. That, he said, can be done by removing the discretion of both prosecutors and judges, which would eliminate the separation of powers argument.

Fox, who like many other prosecutors supports eliminating judicial discretion in “three strikes” sentencing, was not hopeful that the Legislature would act once its initial outrage over the ruling ebbs.


“There will be little incentive for the Legislature to change the ‘three strikes’ law because, quite frankly, they are looking for ways to deal with prison overcrowding,” Fox said. “This may be a godsend for them. The judges can now take the heat.”

Some lawyers were uncertain how courts would handle the onslaught of appeals from “three strikes” convicts. Because of its size, Los Angeles County will receive the brunt of the petitions.

More than 39% of all state inmates serving protracted sentences for third strikes were sentenced in Los Angeles County, and about 44% of all second-strikers in prison came from the county.

Alex Ricciardulli, head of the “three strikes” unit at the Los Angeles County public defender’s office, estimated that 80% of nearly 8,000 inmates sentenced in Los Angeles under the law may now file petitions to have their sentences reconsidered.


He said his department already was organizing meetings to find a way to expedite the appeals.

The Supreme Court’s ruling stemmed from a San Diego case in which a judge dismissed two prior felony convictions for burglary and attempted burglary when sentencing Jesus Romero, 34, for cocaine possession.

San Diego Superior Court Judge William Mudd, reviewing Romero’s case, complained that the “three strikes” law “basically castrates a judge.” By giving all discretion to prosecutors, the law violated constitutional guarantees of separation of power, Mudd contended.

Instead of sentencing Romero to 25 years to life for possession of 13 grams of cocaine, Mudd gave him six years.


Prosecutors appealed Mudd’s ruling, and a Court of Appeal in San Diego held that Mudd had no authority to spare Romero from the full impact of the law. The Supreme Court ruling reverses that decision.

Deputy San Diego Public Defender Michael Butler, who defended Romero, hailed the court’s decision as “a victory for everybody in the system--defendants, judges, even prosecutors.”

Romero has been assigned to a state inmates fire camp in Yucaipa in San Bernardino County. With credits earned for good behavior, he could be released within a year.

First, however, Romero must return to Mudd’s court, and Mudd must provide a written ruling explaining why he dismissed the two prior convictions. Romero has 24 previous criminal convictions and used 14 aliases over his criminal career.


San Diego County Dist. Atty. Paul Pfingst called Romero precisely the kind of criminal the public had in mind when it passed “three strikes.” Romero, who committed his crimes when he was high on drugs, began his criminal career at 18, the prosecutor said.

But defense lawyers noted that Romero’s record includes no violence. “This a not a guy who needs by any standards to be behind brick and mortar to protect society,” said Frank Bardsley, chief public defender for San Diego County.

“Even the prison people realize that and have him out fighting fires.”

A recent study by a liberal advocacy group found that blacks make up nearly half of all people sentenced under “three strikes,” but compose only about 7% of the state’s population. The Center on Juvenile and Criminal Justice also found that 85% of those sentenced under the law were convicted of nonviolent crimes.


“The good news is that judges will be able to use their discretion to weed out some of these outrageous cases,” said Vincent Schiraldi, executive director of the center. “I think a lot of people have said, ‘You know what? I am mad at [convicted Polly Klaas killer] Richard Allen Davis. But I am not that mad at the guy who stole the pizza.”

Conservatives, however, have attributed California’s falling crime rate to the law.

“The strength of the law was in the perception of the criminal element that the law would apply to them,” Pfingst said. “Once that perception is gone, I think the law loses its deterrent.”

Dolan reported from San Francisco and Perry from San Diego. Also contributing to this report were Times staff writers Henry Weinstein, Max Vanzi, Dan Morain, Greg Krikorian, Stephanie Simon, Carl Ingram and Ken Ellingwood and researcher Norma Kaufman.



The Ruling’s Impact

The effect of Thursday’s state Supreme Court ruling giving judges discretion in “three strikes” cases is expected to have the greatest impact by far in Los Angeles County. Statewide, 1,655 people have been convicted of a “third strike” since the law took effect in 1994.




State % Rank County Cases of Total 1. Los Angeles 652 39.4% 2. San Diego 216 13.1% 3. San Bernardino 91 5.5% 6. Orange 65 3.9% 7. Riverside 64 3.9% 14. Santa Barbara 21 1.3% 17. Ventura 16 1.9%





“The disposition of a charge is a judicial responsibility.”

--Justice Kathryn Mickle Werdegar in the court’s opinion

“I’m very concerned that what criminals can read into this is that they can somehow squirm their way out of [‘three strikes’] in front of soft-on-crime judges.”


--Mike Reynolds, sponsor of “three strikes” initiative

This particular decision will make sure trial judges work to see that justice is done.”

--Los Angeles Superior Court Judge James Bascue

Source: state Department of Corrections (figures as of April 30)