State appeals panel provides clarity on three-strikes resentencings

A state appeals court panel ruled Tuesday that three-strikes inmates serving life in prison for being armed cannot ask for shorter sentences under a 2012 ballot initiative that softened the state's tough sentencing law.

The published opinion provides at least a temporary measure of clarity to a thorny legal issue that has led judges around the state to hand down conflicting decisions on whether prisoners given life terms for gun possession can qualify for shorter sentences.


The decision also deals a blow to many of the more than 280 third-strikers serving at least 25 years to life for firearms possession who hope to qualify for shorter sentences under Proposition 36. The voter initiative allowed most inmates serving life terms for relatively minor third strikes to ask courts to resentence them to shorter prison terms. But the measure excluded inmates who carried a firearm or deadly weapon during the commission of their last crime.

Lawyers representing inmates with gun-possession third strikes have argued that courts should accept their resentencing requests and reduce the prison terms for those who do not pose an unreasonable risk of danger to public safety.

In deciding the issue, the three-judge panel of the fourth appellate district rejected an appeal by Mark Anthony White, who was convicted of possessing a firearm in San Diego County.

The justices concluded that third-strikers are disqualified from seeking shorter sentences if they were armed but left open the door for prisoners who did not have ready access to a gun at the time they were legally in possession of a firearm. Keeping a firearm in storage, for example, or giving a gun to a friend for safekeeping can be considered weapon possession.

In White's case, the justices concluded that there was ample evidence he had been armed. El Cajon police, who were surveilling White's home in March 1995, said they saw him throw an object into his truck as he ran from officers. Police said they recovered a loaded Taurus .357 revolver from the vehicle. White's previous convictions included three strikes: robbery, burglary and assault with a deadly weapon on a police officer.

White's appellate attorney, Richard Jay Moller, said he will ask the panel to reconsider its opinion and is prepared to ask the state Supreme Court to review the case.

In Los Angeles, Superior Court Judge William C. Ryan, who is handling all of the county's resentencing requests, said he has been awaiting a decision in White's case to help him decide how to handle resentencing requests from about 120 prisoners whose third strikes involved firearms possession.

"It's an important case ... because it affects a big block of cases," Ryan said.

The judge said he is still waiting for an appeals court to decide at least one Los Angeles case to help resolve the legal disputes over the issue.

Attorney Michael Romano, who helped write the ballot measure, said he was disappointed with Tuesday's ruling but added that the state Supreme Court will ultimately decide the legal issues.