Prosecutors Told to Object to ‘3 Strikes’ Leniency

All county prosecutors are duty-bound to object every time a judge opts for leniency in sentencing under the “three strikes” law, according to an internal district attorney’s office memorandum issued Monday.

Responding to Thursday’s landmark ruling by the state Supreme Court that gives judges leeway in sentencing defendants convicted of a second or third strike, Dist. Atty. Gil Garcetti’s top assistant instructed deputies to formally object in court when a judge chooses to use that authority.

In addition, the memo says, a deputy should stand up and tell the judge that the intent of the 2-year-old law is “to better protect the community by increasing punishment for recidivist offenders.”

The memo was written by Chief Deputy Dist. Atty. Sandra L. Buttitta, who guides office policy on implementing the “three strikes” law. It was circulated Monday to the 1,000 deputies who make up the nation’s largest prosecution agency.

The memo was issued in the wake of the high court’s decision to give judges the power to disregard a prior conviction when sentencing a defendant under the 1994 “three strikes” law.

As written and ratified by 72% of California voters, the law had mandated sentences of at least 25 years to life in state prison for any third felony conviction. It also directed double the usual sentence for a second strike.

The law says a third strike can be any felony, even relatively minor ones such as possession of minuscule amounts of cocaine. Prior convictions, however, must be “serious” or “violent” to qualify as strikes. Such crimes include murder, robbery, kidnapping and burglary.

In a second strike case, the first conviction must be for a “serious” or “violent” felony. The second conviction can be any felony. Traditionally, a judge has enjoyed the authority to disregard a prior conviction in a case in which he or she believes leniency seems appropriate. The 1994 law, however, said that only prosecutors had that power.

The Supreme Court decision said judges did have the power to eliminate a strike at sentencing “in the furtherance of justice.”

If a judge opts to wield such power, Monday’s memorandum instructs that a deputy must first object and then make a point of noting for the record the facts of the current conviction and a defendant’s “criminal history and failure to reform”--so that an appeals court can consider the appropriateness of the sentence.

“The whole point of this is to make a record for the appeals courts,” Buttitta said in an interview. “Then they can decide who was right.”

Judges were unsurprised by the memo.

“It’s nothing other than what I would expect from them,” said Superior Court Judge John H. Reid, assistant supervising judge of the county’s criminal courts.

The memo also makes the obvious point that deputies may no longer argue that a judge lacks discretion at sentencing. “However,” the memo says, “in all other respects our office policy on ‘three strikes’ remains in effect.”

Under that policy, each of the head deputies in the downtown and outlying courts still has the authority to decide whether to disregard a prior conviction before or during a trial.