Lawyers Say D.A. Breaking Three-Strikes Pledge

Dist. Atty. Steve Cooley has described his new three-strikes policy as a means of reserving 25-years-to-life mandatory sentences for the most serious of felonies.

But in recent weeks, the D.A.’s office has pursued the 25-year penalty in the case of one defendant who received two bottles of stolen ArmorAll auto body treatment and another defendant charged with possessing a small amount of cocaine.

The defendants’ attorneys complain the cases show that the newly elected Cooley is not keeping his promise of third-strike reform. In the end, they say, his new policy is not much different from that of former Dist. Atty. Gil Garcetti, which led to the highly publicized sentencing of a man in 1995 to 25 years in prison for stealing a slice of pepperoni pizza in Redondo Beach. The sentence, in what became known as the “pizza thief case,” was later reduced by a judge.

Defense attorneys in the two new cases said they had delayed trial until Cooley was sworn in last month in the hopes that their clients wouldn’t face sentences similar to that of the pizza thief.

“I was very upset. I think one of the reasons [people in] our office supported his election was because of the three-strikes policy,” said public defender Haydeh Takasugi, who is representing the client in the cocaine case. “We didn’t want to see someone get 25 years on a minor dope case.”

The district attorney’s office, which says it is reevaluating the three-strikes decision in the cocaine case--which involved one-tenth of a gram--says that both have been difficult calls. But officials insist the new policy is nonetheless a marked improvement from the past.

In California, a defendant automatically faces 25 years to life in prison if convicted of a third felony. Prosecutors, however, can decide not to pursue a new felony as a third strike by “striking a strike.”

Cooley’s new policy calls for most third felonies that do not involve violence or a large quantity of drugs to be handled as second-strike cases. That means prosecutors, under supervision of head deputies, would remove one of the defendant’s strikes.

But Jacquelyn Lacey, newly appointed director of the office’s Central Bureau of Operations, said that in deciding to strike a strike, her prosecutors are evaluating the entire history of a defendant, not just the latest crime. As a result, in rare cases, prosecutors will still seek a 25-years-to-life sentence for defendants whose third crime doesn’t appear to be extremely serious, she said.

“In general, [the violence and large quantity of drugs] will be the rule of thumb,” said Lacey, who must approve every third-strike case. “When that third crime is a petty crime, we’re usually not going to send him away for life. But you have to evaluate the whole package.”

Lacey said the ArmorAll case involving Joey Morgan, 44, who was arrested in July on charges of petty theft and receiving stolen property, was a difficult decision.

Lacey said the reason the office proceeded with a three-strikes prosecution was Morgan’s extensive--and continuing--criminal record.

Morgan has been behind bars off and on since 1972, she said. And although his adult crimes have been nonviolent, involving mostly burglary and receiving stolen property, they also have been numerous.

“I suppose you could look at it and say no one ever got hurt. He never used a weapon,” Lacey said. “But his problem was, he didn’t give us much of a reason to strike a strike. I know two bottles of ArmorAll wasn’t the crime of the century. But he has seven felony convictions, three misdemeanor convictions. Because of those, five times he has been to state prison.”

Public Defender Lauri Brenner, who represented Morgan, contends that the D.A.’s action was unfair because every defendant facing a third strike is going to have a blemished history.

Brenner said she delayed the trial until after Cooley won election in November. Her client even waived his right to a speedy trial.

The trial was finally set for Jan. 8. But days earlier, she was informed by Deputy Dist. Atty. Sergio Gonzalez that it would remain a three-strikes case.

“I really felt shocked and disappointed, because I did vote for Cooley for this reason,” Brenner said. “I am not saying he’s not doing it in other cases, but I was surprised he wouldn’t do it in this case.

Morgan “wouldn’t be the citizen of choice, but to seek 25 years to life is not right.”

On Jan. 10, Morgan was acquitted on the petty theft charge and convicted of receiving stolen property. Brenner said the day the verdict came in, Superior Court Judge Mark Mooney told her that, despite the prosecution’s refusal to strike a strike, he would use his own discretion and probably sentence him to eight years. The sentencing is scheduled for Feb. 1.

In the cocaine case of Willis Vaughn, 45, Lacey said the decision to pursue a third strike could still change.

Vaughn, charged with possessing one-tenth of a gram, is due to stand trial later this month.

Takasugi, Vaughn’s attorney, said she delayed the case until after Cooley took office. “I told the judge the reason, and he thought that was a good idea,” she said.

But earlier this month, she was told by Deputy Dist. Atty. Donald Jakubowski that he had discussed it with his superior and that it would remain a third-strike case.

Lacey said Friday that the case has been moving forward based on a decision made before Cooley’s election. Until contacted by The Times, she said, she had not reviewed the case nor given final approval for it to proceed as a third-strike prosecution.

“It just never crossed my desk. But it is here now, and we’re going to take a look at it,” said Lacey.

Although Vaughn’s crimes have not been as frequent as Morgan’s, they have been more serious. They started in the 1970s, when he robbed three people at gunpoint. In 1987, he accidentally stabbed his mother while trying to stab his girlfriend, she said.

Lacey said: “We may agree with the prior decision. I don’t know yet what we are going to do with this.”

She added that because the policy has been in place only about a month, prosecutors are still working out the kinks.

“It is like reading the Bible. Every time you read it, there is something new you get out of it,” she said of the new policy. “But we’re really trying to implement the spirit of the policy. Is the crime and record worth sending this person to prison for the rest of his life? It is a tough call in some of these cases.”