No Delay in Ruling on Dog Killer

An Orange County judge refused Friday to postpone sentencing until November for a La Habra man convicted of beheading his dog. On election day, voters could amend the three-strikes law and shave years off of James Andrew Abernathy’s potential life term.

“I’m not going to wait for Proposition 66,” Superior Court Judge Kazuharu Makino told the third-strike candidate, who turned 43 on Friday.

Abernathy was convicted in June of beating his German shepherd mix with a golf club in January 2002, shoving a wooden stake through her heart and decapitating her with pruning shears. He has two previous convictions for assault with a deadly weapon.

The judge set sentencing for Oct. 8 after reminding Abernathy’s lawyer, Bill Morrissey, that he could revise the sentence if the proposition passes.

Morrissey said he will ask the judge not to consider the last crime a strike. Animal cruelty, he said, is not one of the specified “serious or violent” offenses specified under the 1994 three-strikes law that imposes sentences of 25 years to life on repeat felons.

If Makino does not deem the dog killing a strike, he could sentence Abernathy to six years in prison -- twice the maximum term for the crime.

But if Proposition 66 passes, amending the three-strikes law to require that all three crimes be violent or serious to qualify as strikes, Abernathy could be sentenced to a three-year term. He has been in custody since being arrested for killing the dog, Marie, to get over a breakup with the woman he had named the pet after.

Abernathy’s sentencing limbo is not unique, his lawyer said outside court. “There are a multitude of three-strikes cases currently on hold waiting for Nov. 2,” Morrissey said.

Deputy Dist. Atty. Heather Brown objected to Abernathy’s request for a sentencing delay.

“Why don’t we stop all sentences in the whole courthouse and wait for all the propositions that could possibly help defendants to pass?” Brown asked the judge. “The wheels of justice would stop.”

Courts can adjust sentences accordingly, even for third-strike offenders, Brown said. In Abernathy’s case, she added, the man is prone to violence and should receive the longest sentence possible.

“If he’s back out on the streets, there’s no telling what he could do,” she said.

Morrissey said his client doesn’t pose a danger to anyone.

“My client is mentally ill,” he said, “and as long as he’s on medication, he’s fine.”