Defense Attorneys Wrestle With Appeal Requests

The letters started to arrive just days after the state Supreme Court gave judges leeway in sentencing three-strikes defendants.

Letters with postmarks from such places as Chino, Soledad and San Quentin were sent to the Los Angeles County public defender’s office.

Some writers begged, some demanded and others simply seemed confused. But the trickle of mail carried this common plea: Get me out of here.

“If you ask me, I’m a whole new person,” wrote a man sentenced to five years in prison for petty theft with a prior felony--his second strike. “All I want is to come home, get a job and start my own family. I’ve already lost my girlfriend because of my time.”

“Do I stand a chance?” wrote another prisoner with a similar criminal history, serving 32 months.

The trickle of letters has grown into a steady stream. Soon it could become a torrent.

More than 8,000 convicts have been dispatched to state prisons from Los Angeles County during the two years since the get-tough three-strikes law greatly increased sentences for repeat offenders. About 700 of them are serving sentences of 25 years to life as third strikers; the rest are second strikers. The public defender’s office represented three-fourths of those prisoners.

The June 20 court decision gave them dreams of leniency. Before the ruling, the three-strikes law was generally interpreted to mean that prosecutors could offer to disregard a prior felony so that a strikes defendant could get a lighter sentence, but that judges did not have the same authority. In addition to giving judges that power, the ruling theoretically could send back for review any second- or third-strike case unless the judge specifically said leniency was not warranted.

“Hope is the nature of criminal law,” said Deputy Public Defender Joel Jones, whose telephone in Torrance has been ringing with inquiries from clients’ girlfriends and relatives. “The glimmer of hope from an appeal always keeps prisoners going. The Supreme Court decision just intensified that.”

Assistant Public Defender Bob Kalunian said his office is trying to set countywide priorities: Which three-strikes cases should be brought back first for review? Defense lawyers said the cases most likely to result in the quickest release from prison should go first.

This could place inmates convicted of two strikes and serving shorter sentences at the head of the line and the lifers at the rear. Also, most defense attorneys said they would push for quick hearings for any client who is physically handicapped, ill or mentally incapacitated.

Anthony R. Enriquez could be a good example of the latter category. A burglar who was paralyzed in 1992 when he was shot in the head, he was sentenced in San Fernando Superior Court in November 1995 to seven years in state prison for shoplifting Tylenol. It was a plea bargain in which prosecutors ignored one of his convictions--he committed residential burglaries in 1987 and 1989--and sentenced him as a second striker.

Under the three-strikes law, Enriquez’s sentence was doubled, and he must serve at least 80% of the sentence, or nearly five years.

The public defender’s office is collecting the inmate letters, Kalunian said, and will determine which of several categories the clients might fall into: candidates for instant appeals, possible candidates for appeals, and clients who have little chance of winning on appeal.

The defenders have asked the state Department of Corrections to help find the clients who don’t write in, Kalunian said. They will be sent form letters.

And some clients who entered plea bargains for reduced sentences will be advised against appealing, he added. Many of those got good deals considering their records, he said, and would be better off not raising the issue again.

Deputy Public Defender Karen Richardson said she probably will not seek a hearing for one client who is serving a sentence of 25 years to life. She would not give details but said the crimes were serious.

“That particular third striker had quite a bit of violence in his background,” she said. “I don’t think the judge would react [well] to him. He probably wouldn’t be the best candidate.”

Most private defense attorneys are waiting to see how the defender’s office deals with the ripple effect of the high court’s ruling. And the public defenders have appointed a committee to decide how the appeals should proceed.

Meanwhile, public defenders are combing their files and compiling wish lists of the clients they think most merit quick reviews.

Kalunian said that guidelines issued to the county’s judges indicate the type of appeals that courts might hear. They do not include violent repeat offenders or repeat offenders who have not been able to stay out of prison for more than a couple of years at a time.

The guidelines show that appeals have the greatest chance for success if the third strikes are petty crimes, the prior convictions are old, or the judge had said he or she would eliminate a strike if only the law allowed it.

For Deputy Public Defender Jeff Zimel, the case of 36-year-old Theopheus Bennett leads the list. Bennett was arrested in Inglewood and tried downtown in March for possession of less than a tenth of a gram of cocaine.

His prior convictions were robberies of small sums, Zimel said. Bennett grabbed $20 from his mother’s purse and pushed his sister when she tried to stop him. He wound up with a robbery conviction in 1988 and was placed on probation. Then in 1992, he again was convicted of robbery when he got into a fistfight in a fast-food restaurant and took $1 from a man. He pleaded guilty in exchange for time already served in jail when his jury deadlocked.

“The judge said this would have been a prime case for him to have eliminated a prior strike,” Zimel said. “He just didn’t have the power at the time. Well, now he does.”

Michael M. Duffey, a deputy public defender in Van Nuys, expects all six of his clients convicted under the three-strikes law to pressure him to file court papers seeking a review. He has not decided which cases he might file for resentencing, he said, pending guidelines from the public defenders’ committee. But two men serving 25 years to life have the most realistic chance at winning a lesser sentence, Duffey said.

One, a convicted burglar, stole three bottles of liquor from a Ralphs market in Van Nuys as his third strike. “This is a guy who stole three bottles of booze. Let’s get real,” Duffey said.

But prosecutors want the judge and the public to look at the full record, said Deputy Dist. Atty. Philip H. Wynn of the Van Nuys courthouse. In this case, he said, prosecutors’ files indicate the man, who was 35 last year when he stole the liquor, had racked up six felonies since 1981, most of them for theft, and been to state prison five times before.

The other likely candidate for leniency, Duffey said, stole a power saw from a driveway in North Hollywood. His record included burglary convictions for stealing a bicycle from an open garage and a videocassette recorder from a home.

But Wynn noted that the 31-year-old man had a total of four burglary convictions and served three prior state prison terms.

In addition, Wynn said, the convict had been out on parole for just two months when he was arrested for stealing the saw.

“Ultimately,” he said, “it’s the defendant’s record and continuing threat to the public we look at along with the [current] crime.”

Duffey did not deny that the man deserved prison time. “This guy’s an opportunistic thief,” he said. “He deserves to be punished. He deserves to get time. But he doesn’t deserve 25 to life.”

Times staff writers Alan Abrahamson and Efrain Hernandez Jr. contributed to this story.