Thefts Were Petty, but Ruling Won’t Be

Leandro Andrade, an unemployed veteran addicted to heroin, walked into a Kmart in Ontario and stuffed five videos, one by one, into the waistband of his slacks. His choices: “The Fox and the Hound,” “Casper,” “The Pebble and the Penguin,” “Batman Forever” and “Snow White.”

Gary Ewing, a drug addict who suffers from AIDS, walked into the pro shop of an El Segundo golf course and stuck three Callaway clubs down his pants leg. As a shop employee would later testify in court, the odd thing was that Ewing walked in normally but walked out with a limp.

Andrade, then 37 years old, is now serving a prison sentence of 50 years to life. Ewing, then 38, is in prison for 25 years to life.

Some term it draconian to give out such long sentences for petty crimes.

But others say the lengthy prison terms meted out under the state’s three-strikes law are justified for those with a long history of criminal activity.

Now, the U.S. Supreme Court will decide. The high court announced last week that it would hear the appeals of both Andrade and Ewing, who allege their rights have been violated by sentences that constitute cruel and unusual punishment. Although judges have some discretion under California’s three-strikes law--they can decide whether certain nonviolent crimes should be considered felonies or misdemeanors--it is the toughest such law in the nation.

The high court’s decision could have ramifications for 331 prisoners who are incarcerated for up to life in prison in California on third-strike convictions involving petty theft. Hundreds more are in state prison for other nonviolent third strikes, including drug possession.

“I just answered six letters from people in state prison who said, ‘How does that impact my case?’” said C. Christian Cruz, a San Bernardino County deputy public defender who represented Andrade at his 1996 trial.

Andrade, now in state prison in Tehachapi, grew up in East Los Angeles, married and then served in the military overseas, according to Cruz.

“He did try to support his family monetarily, emotionally and socially. He wasn’t just a bad guy out there living on the streets. He had continual problems with drugs. We keep incarcerating people who have drug problems,” Cruz said.

The transgressions that would come back to haunt Andrade started with a rash of Stockton residential burglaries in 1982, all of them nonviolent and all of which he pleaded guilty to at a court hearing in 1983. Andrade went to prison for those crimes and was paroled in late 1986. He later had a marijuana conviction, according to his appellate attorney, USC law professor Erwin Chemerinsky.

Then came the videotape incident. On Nov. 4, 1995, a Saturday, Andrade took the five children’s videos from the Ontario Kmart.

Two weeks later, he did much the same thing at a Kmart in nearby Montclair, stealing “Cinderella,” “Little Women,” “The Santa Clause” and “Free Willy 2”--all under the watchful gaze of a store employee standing 20 feet away.

The stolen videotapes were worth about $153 retail. “It was just before Christmas,” Cruz said. “You know who the videos were for? Family. I believe his sister had some kids.”

Because of Andrade’s prior convictions, the video thefts were considered felonies under the three-strikes law. Cruz tried to plead with and cajole the judge into not treating the crimes as felonies.

“Given that he hasn’t picked up any offenses, or not much, in the last 10 years,” Cruz told the judge in 1996, “it’s still worth consideration for a misdemeanor, given the total value and four wonderful videos which I’ve watched myself, and I think they’re all very good.”

San Bernardino Deputy Dist. Atty. Charles Blackwell said in opposing a motion by Andrade’s lawyers to have a prior conviction set aside. “Although the instant offense committed by this defendant is somewhat minor, he has shown his utter disdain for the law by his 15-year history of criminality.”

Cruz’s plea didn’t work. The petty thefts were deemed felonies--and therefore constituted Andrade’s third and fourth strikes. The judge sentenced him to 25 years to life for each theft.

After an unsuccessful appeal in state courts, Chemerinsky represented Andrade before the U.S. 9th Circuit Court of Appeals, contending that keeping him in prison until he was at least 87 was cruel and unusual punishment. The 9th Circuit agreed.

The state attorney general’s office then appealed to the U.S. Supreme Court, which is expected to hear the case in the fall.

Ewing took his challenge directly from state courts to the U.S. Supreme Court, which agreed to hear his case, too.

Ewing, who is incarcerated at the California Medical Facility in Vacaville has been ill with AIDS for several years. At the time of his 2000 trial in Torrance, he was blind in one eye. Deputy Public Defender Gail Bristo, who represented Ewing at his trial, says he is now losing sight in the other eye.

Ewing had nine prior convictions, one of them involving the use of a knife in a residential break-in. “To my knowledge, he scared them half to death but he didn’t physically hurt them,” Bristo said.

On the morning of March 12, 2000, Ewing walked into the shop at the Lakes golf course in El Segundo wearing a dark trench coat. He purchased a small bucket of golf balls and asked for directions to the driving range before walking out with three Callaway clubs, each valued at $399.

At sentencing, Bristo suggested the court consider striking some of Ewing’s previous strikes.

She painted a picture of a terminally ill man with a drug problem for which he was never treated.

“The likelihood of him committing violent offenses in the future is minimized,” Bristo told the judge.

The public defender noted that several people, including a jail chaplain, had written letters on Ewing’s behalf.

But the facts of his recidivism were grim.

“He has had 10 convictions in his lengthy criminal history for someone as young as he is,” argued Deputy Dist. Atty. Jodi Link. “He has repeatedly been placed on probation. He has repeatedly failed miserably at probation. He goes to state prison, he gets paroled. He fails miserably on parole.”

Ewing asked the judge for mercy--a suspended sentence and “a chance in a drug rehab to get my life together.”

He told her, “I don’t have very long, and the little time I do have left to live I want to do something, make myself better. When I came home [from prison], everything hit me at one time and I left drug rehab, you know. What really hit me was the loss of my mother, my brother. My family wasn’t there.”

But Superior Court Judge Deanne Myers was not persuaded.

She indicated she realized the gravity of the sentence she was about to impose but believed that Ewing deserved it. Ewing may not be a violent threat, she said, but he was a threat to society as a thief.

She noted that less than a year after he was paroled from prison in 1999, he stole the golf clubs.

“You have hardly been out of the state prison,” she said. “There is just consistent criminal activity.”

In deciding to hear the two cases, the U.S. Supreme Court will have the final say on whether such sentences for petty crimes are constitutional.

In Gail Bristo’s mind, the unfairness of the law is clear. “A life sentence for three golf clubs was something that really disturbed me.... He kind of invaded the country club and got a life sentence for it.”