Dog Beheading Case Illustrates Prop. 66 Battle

Prosecutors say James Andrew Abernathy once forced his sister to play Russian roulette. He has stabbed two men. And six years ago, they say, police stopped him in his car with a samurai sword that he was planning to use on his ex-wife’s new husband.

Reflecting on this history of violence, an Orange County judge on Friday used the state’s three-strikes law to give Abernathy, 43, a heavy sentence for the relatively lesser crime of animal cruelty. Convicted of beheading his dog to spite a girlfriend, Abernathy is to spend 25 years to life in prison.

But if state voters approve a Nov. 2 ballot measure that amends the three-strikes law, he will be released soon after the new law takes effect Jan. 1.

Orange County prosecutors and other Proposition 66 opponents say the case shows what’s wrong with the measure: If passed, hundreds of convicts such as Abernathy will be freed.

“Terrorizing people and animals is his form of entertainment,” said Deputy Dist. Atty. Heather Brown. “I believe that the three-strikes law was designed to protect the community from people like him.”

But one supporter of the measure said the case illustrates why the law needs to be changed.

“No one has ever said that 25 years to life is a suitable punishment for animal cruelty,” said Michael Vitiello, a professor at the McGeorge School of Law in Sacramento who has given legal advice to the Proposition 66 campaign. “If we’re punishing them for their past, that’s double jeopardy.”

Passed in 1994, the three-strikes law allows judges to impose life sentences on repeat felons. Proposition 66 would amend that law to require that all three crimes be violent or serious felonies. It would apply retroactively to everyone who has been prosecuted as a third-striker -- including Abernathy.

His felony animal cruelty charge, which would not count as a strike under Proposition 66, would then carry a sentence of three years, much of which he already has served since his Jan. 27, 2002, arrest.

The case also illustrates how the three-strikes law has complicated sentencing decisions. Judges have discretion to not count a third felony as a third strike. This can leave them torn between two options: a sentence they believe is too light, and one that is too heavy.

Superior Court Judge Kazuharu Makino said during Abernathy’s sentencing hearing Friday that the three-strikes law put him in a difficult position. If the judge counted the crime as a third strike, he would have to sentence Abernathy to 25 years to life in prison. If he didn’t, the most he could do was sentence him to six years.

“The sentencing options are just not very good,” Makino said. “I would like to select a sentence in between.”

In the end, the method Abernathy used to kill Marie, his year-old German shepherd mix, was “significant,” Makino said. Abernathy beat Marie with a golf club, shoved a stake through her heart and decapitated her with pruning shears, prosecutors said.

That, and Abernathy’s “life of violent conduct” made the longer sentence more appropriate, Makino said.

The dog killing at Abernathy’s Chinchilla Street home in La Habra came six years after prosecutors say he called his ex-wife and told her he was on his way over to chop off her new husband’s head. Police arrested Abernathy in his car, a sword at his side, but no charges were filed.

In a letter to the court, Abernathy’s sister provided examples of her brother’s disturbing behavior: Besides once forcing her to play Russian roulette after drinking a bottle of whiskey, as a teenager he prodded her to look in their toilet, where he had thrown the hacked-off head of his pet boa constrictor. When he was younger, she said, he would tuck the bodies of skinned animals in the refrigerator to scare their stepmother.

“He’s like a ticking time bomb waiting to go off,” wrote Lysa Pounds. “He needs to be locked up, either in jail or an institution.... He’s a dangerous, pathological sadist.”

The two stabbings that counted as Abernathy’s prior strikes occurred in 1986, both after he had been drinking. In one, at a party in Rowland Heights, Abernathy was fighting with another man when a fellow partygoer tried to break them up. Abernathy stabbed the man, puncturing his right lung, liver and diaphragm.

Proposition 66 backers contend that although the three-year imprisonment for animal cruelty may be too light, that reflects the need for a revision of state sentencing guidelines rather than the need for the three-strikes law.

Abernathy is one of hundreds given a “grossly disproportionate punishment” for a crime, said Vitiello.

Abernathy’s lawyer, Bill Morrissey, said his client is eagerly hoping the proposition passes. “Hopefully in a month,” Morrissey said after the hearing, “this won’t be a three-strikes case.”

Abernathy, stocky and pale with his long brown hair in a ponytail down the back of his orange jail jumpsuit, showed no reaction during the hearing in Makino’s Santa Ana courtroom.

Morrissey had asked the court for leniency because several of the prosecutor’s statements about Abernathy’s behavior were uncorroborated and because he has a history of mental illness.

“When properly medicated, “ Morrissey said after the hearing, “he’s not a threat. He’s one of the calmest, most rational people I’ve ever dealt with.”

An official with the California District Attorneys Assn., which opposes the ballot measure, confirmed that Abernathy and hundreds of other felons will be released within weeks if it passes. The measure requires new sentencing hearings for third-strikers; in 2003, there were 401.

“He and other very dangerous people would be out on the streets,” said Kate Killeen, the organization’s deputy director and a former Sacramento County prosecutor. “These are recidivists who have made a lifelong career of crime.”

Judges have as much leeway in sentencing now as they have ever had, Killeen said.

“The framework of three strikes provides broad discretion to the courts to either impose the maximum sentence where it’s warranted -- as indeed it was in [the Abernathy] case -- or choose a lesser one,” she said. “What Proposition 66 does is release the worst of the worst.”