COLUMN ONE : Courts Toss Curveballs to ‘3 Strikes’ : Times study finds only 1 in 6 eligible defendants gets 25 years to life as judges, prosecutors ease sentencing. But many get longer terms than they would have previously.

Los Angeles County judges and prosecutors have considerably softened the blow of California’s new “three strikes” law, sending only 1 in 6 eligible defendants to prison for the 25 years to life prescribed for three-time losers.

In the six months since the law was enacted, in fact, defendants in cases involving third strikes were just as likely to be sentenced to a year in jail as they were to be put away for life, a study by The Times found.

The Times reviewed all 98 third-strike cases that were resolved between March, when the law took effect, and Aug. 31. Defendants in most of these cases were shoplifters and drug abusers. Fewer than one in five were accused of crimes of violence.

Although most defendants were spared life sentences, many received longer terms than they would have before “three strikes” because the threat of life terms gave prosecutors more leverage to negotiate tougher plea bargains.

For example, a man who stole diapers from a supermarket was sentenced to eight years in prison, and another was sent away for eight years for possession of a rock of cocaine and a bag of marijuana.

Deciding whether repeat offenders should get life, a year in jail, or something in between can be a wrenching experience for judges and prosecutors. “When talking about a person’s life, there’s no such thing as an easy decision,” said Philip H. Wynn, head deputy district attorney in the Van Nuys office.

More than 500 crimes that are felonies under California law, ranging from placing a bet in an office pool to murder, can constitute a third strike under the law if an offender has been previously convicted of two or more serious or violent crimes.

The law makes no distinction between offenses. As a result, many judges and some prosecutors have tried to draw their own lines. Some have differentiated between violent and nonviolent crimes, while others have given special consideration to defendants whose most serious offense was far behind them, The Times found.

For example, Judge Carol J. Fieldhouse, a key member of the Los Angeles County Superior Court’s special committee to study the impact of “three strikes,” said that although violent criminals deserve to be sent away for life, people he considers to be “nuisances” do not.

“I refuse to dispense injustice,” Fieldhouse said, adding that judges must find ways to “outwit” the law. “I wasn’t put here to annihilate people because some politically hungry morons wanted (me) to.”

The “three strikes” law signed by Gov. Pete Wilson in March was intended to toughen sentencing of repeat offenders by limiting the discretion of judges and prosecutors.

Under the law, which voters will be asked to reaffirm on the Nov. 8 ballot in the form of Proposition 184, criminals with one prior conviction for serious or violent crimes are supposed to be sentenced to double the usual term. Criminals with two or more such “strikes” who commit any new felony are subject to a prison term of triple the usual amount of time or 25 years to life, whichever is greater.

The law, however, also preserves some discretion for prosecutors by giving them the authority to ignore a defendant’s past strike in the “furtherance of justice.” Judges were not explicitly given that authority.

A Times analysis of the 98 resolved third-strike cases found that although some felons are getting longer prison terms, judges and prosecutors have exercised their powers to moderate the impact of the new law. In court and in interviews, they emphasized their obligation to act in the interest of justice within the constraints of the law.

“You want to bend over backward to be fair to community, the intent of legislation, the spirit of the law and, at the same time, be fair to the person charged with the crime,” said Wynn of the district attorney’s office.

Dist. Atty. Gil Garcetti said in an interview that some of his prosecutors find it traumatic to seek a life sentence for a minor offense, even if a defendant’s criminal history is serious. But, he said, prosecutors have to adjust their “mind set” to the community’s growing impatience with business as usual.

What prosecutors “feel is justice may be at odds with what the community wants or expects in terms of justice,” he said.

The author of the “three strikes” law, Assemblyman Bill Jones (R-Fresno), indicated that he was not surprised by The Times’ findings. Acknowledging that district attorneys and judges retain considerable discretion, he said he never expected that everyone who was eligible would get life terms. But he said he believes the law is effective as a deterrent by telling would-be three-time losers: “Stop committing felonies in California.”

In the cases examined by The Times, judges and prosecutors largely agreed on how to handle more serious offenses, such as residential burglary, robbery or rape. But judges concluded that prosecutors did not show enough defendants the compassion they deserved. In those cases, judges acted on their own to reduce penalties.

Deputy district attorneys gave breaks to 25 defendants, while judges took action that benefited 27 more. In cases in which prosecutors ignored a strike, the average prison term was five years.

Some judges claimed pre-existing law gave them the power to ignore a past strike even though “three strikes” did not. More commonly, they used their well established authority to reduce certain felonies to misdemeanors, which are punishable by no more than a year in jail. In cases in which judges intervened, defendants went away for an average of 2 1/2 years.

Fourteen of the 97 defendants were sentenced to life and another is awaiting imposition of a life term. Thirty-one others had their cases dropped or settled because the prosecution did not have enough evidence against them.

Garcetti said he has been told by his staff that they are exercising their discretion to ignore strikes in fewer than 10% of all third-strike cases. He said the Times study overstated his office’s willingness to ignore strikes by looking only at resolved cases, and not the more than 800 third-strike cases filed in the same period that are still pending.

He added that he was troubled by the inconsistencies in sentences documented by The Times, but blamed them on judges.

“Why should one person get a one-year county jail sentence and the other get, in essence, a life sentence?” he asked.

In general, those who received the maximum sentence had committed more serious offenses as their third strike. They had burglarized a residence while a terrified homeowner watched, held up a gas station armed with a pellet gun or sodomized a cellmate at knifepoint.

But their ranks also included people who stole a bicycle, sold a single rock of cocaine to an undercover police officer or were seen by police in a parked stolen car.

The criminal history of those who got life and those who received lighter sentences appeared similar. Most were thieves with drug habits, according to probation reports and criminal histories, and most had been convicted in the past of at least one crime of violence, such as robbery.

At an average age of 35, they were a decade older than the age at which experts figure the average criminal is most active. Most were unemployed and many were homeless, such as John B. Fernandez.

One hot day in July, Fernandez--still on parole after a 1982 armed-robbery conviction--plucked two 40-ounce bottles of beer from a cooler in a San Fernando liquor store and told the clerk to call police; he’d be drinking the beer outside. Fernandez later told police he wanted to go back to prison because “he was hungry.”

Because of the nature of Fernandez’s offense, Deputy Dist. Atty. Mark Vezzani chose to ignore a strike--a 1981 robbery conviction. In turn, Fernandez pleaded guilty and was sentenced to two years and eight months in prison, a more severe penalty than he would likely have received prior to “three strikes.”

Vezzani wrote in the case file that he asked his superiors for permission to handle the case as a misdemeanor, but was denied. He complained that such decisions will cause the system to be flooded with trivial cases. “This is a classic example of why the law is doomed to destruction--the sooner the better,” he wrote.

Within the district attorney’s office, there are conflicting views as to how the law should be applied.

Like many of his colleagues, Dist. Atty. Garcetti favors a version of “three strikes” that would target only serious or violent offenders with life terms. But he has directed his deputies in written memos to enforce the law fully and to use their discretion to cut deals only in “rare” cases.

At a meeting in August, supervisors from the branch offices were split over whether that policy was just. Some said their scruples demanded that they be given greater discretion to ignore prior strikes.

Denis K. Petty, the head prosecutor in Torrance, said he told Garcetti that he intended to follow his own conscience in deciding when it was appropriate to seek life sentences on a third strike. According to him and others who attended the meeting, Garcetti said nothing. Petty said he took that to be tacit approval of his position, and said he has since shown mercy to more three-time losers than any of his colleagues.

Donald Isaac Peoples is a case in point. Petty said he could not bring himself to “put a guy away for 25 to life for stealing underwear.” So Petty ignored one strike and Peoples pleaded guilty. He was sentenced to four years in prison.

Other supervisors have said they feel obligated to follow Garcetti’s written policy.

“I don’t think it’s fair, but it’s the law, and I have a duty to enforce the law,” said Deputy Dist. Atty. Kenneth C. Wullschleger, a supervisor in the Downtown criminal courts building. He said he has sought life sentences against drug users even though he personally believes the punishment to be unjust.

Judges have criticized the district attorney’s office for failing to exercise discretion more often. Many have tried to make deals on their own, over the D.A.’s objection and despite the fact that the law does not empower them to ignore a strike.

Long Beach Superior Court Judge Arthur Jean decided to intervene in the case of Calvin Bailey, 29.

Bailey, who had been convicted in 1986 of two robberies, faced life imprisonment for walking out of K Mart with $225 worth of merchandise that included toothpaste, razors, a camera and a pair of jeans.

Jean decided to ignore one of Bailey’s strikes and sentence him to seven years in prison.

“In a basic shoplifting situation, to commit somebody to prison for life appears to me to be foolish, foolish and unfair--terribly, terribly unfair and wrong,” Jean said in court.

Prosecutors have appealed his decision, arguing that only they have the power to ignore a strike.

“Maybe the appellate courts will make me do these things,” Jean said from the bench. “I hope not. I hope to God not.”

Many predict that pressure will grow to make deals. With “three strikes” still in its infancy, much of the debate within the judiciary and the district attorney’s office has focused on issues of fairness and justice. But, with time, more practical concerns may dominate the discussion.

By the end of August, 800 cases involving a third strike remained unresolved. Most of those cases will go to trial unless prosecutors and judges cut deals. If they don’t, there will be a shortage of courtrooms, judges, public defenders and prosecutors.

The math is simple but powerful: Prior to “three strikes,” an overburdened court system resolved its caseload because district attorneys and judges used plea bargains to settle nine of every 10 felony cases before trials. A “three strikes” defendant facing 25 years to life is unlikely to plead guilty unless someone offers him a better deal.

“A huge wave (of trials) is building and building and building,” said Los Angeles County Public Defender Michael P. Judge.

Already, criminal cases are trickling into civil courtrooms. One judge reported that he has interrupted civil trials--sending home plaintiffs, defendants and witnesses--to make room for criminal defendants who are entitled to speedy trials.

“When the system reaches the point where it is bulging and exploding, which it will . . . I think D.A.s will exercise more discretion,” said Deputy Dist. Atty. Peter Berman, a supervisor in the Downtown criminal courts building.

Garcetti, however, said he has no intention of giving his deputies greater leeway to settle cases.

“I expect there will be more judges who will feel the pressure of the number of cases that the criminal system has to deal with and start exercising their discretion,” he said, promising to fight those who intervene too often.

In the meantime, judges and district attorneys are searching for standards of fairness to apply to the myriad cases they handle daily. The six cases detailed here illustrate the variety of solutions that have emerged from that collective search.

The Rapist

While many prosecutors and judges wrestle with their consciences over sending shoplifters and drug abusers to prison for life, none expressed such concerns for Hilton Booker.

Booker, 37, began getting in trouble as a teen-ager when he was convicted of robberies, burglaries and drug possession. Over the next two decades, the criminal justice system was a revolving door that repeatedly put him back on the street.

Without fail, Booker would be arrested within months of his release from prison--for robbery, stealing a car, shooting at a house or fighting, according to probation records. He accrued 10 aliases and came to be known in prison as “Prince.”

A month after his release in June, 1993, Booker was arrested for the rape of a prostitute in Lancaster. While serving a prison sentence in that case, he and a partner beat up and repeatedly raped a fellow cellmate at knifepoint.

A sentencing report prepared by the Probation Department said Booker “could easily fit the description of the type of convict the community has been talking about who should probably spend, if not the rest of his life, at least 25 years (in prison).”

Booker was sentenced in August to 42 years to life by a judge who piled on extra penalties.

The Shoplifter

Terrence J. Carello had been shoplifting meals three or four times a day from his neighborhood Lucky’s in Long Beach.

The 6-foot, 5-inch Carello had more than one conversation with the store’s much-smaller security guard about his habit of not paying for food. He informed the guard that he planned to continue stealing food for his family.

In May, however, a police officer happened by soon after one of Carello’s visits and caught him with pilfered pancake mix, syrup, sausages and Kool-Aid.

Carello had racked up six shoplifting convictions during one three-year period in the early 1980s. As a teen-ager and young adult, he had committed a robbery and a burglary.

As a result, he faced 25 years to life until Patricia Ryan, who heads the district attorney’s Long Beach office, agreed to ignore one of the previous offenses. She said she was willing to accept less than life in prison because Carello had not been violent or even threatening in this case.

Carello will go to state prison for more than 10 years. Prior to “three strikes,” the offense probably would have gotten him no more than a few months in jail.

The Drug Abuser

Dennis Allen Lyon had been arrested for jaywalking. Then the deputy who stopped him found he was carrying enough methamphetamine to get him high, or send him to prison for life.

Lyon, 39, had been in and out of jails and prisons for 20 years on drug and theft charges related to his almost daily use of marijuana, heroin, cocaine and speed, according to a probation report.

Two of his thefts--a robbery and residential burglary he had committed 12 years ago--were classified as “serious,” and the charge of drug possession was his third strike.

Pasadena Superior Court Judge Dino Fulgoni thought a life sentence in Lyon’s case was inappropriate. Such a penalty would have been an “unconscionable way to treat the defendant, who is a pathetic drug addict, and an unconscionable way to treat the people of California, because they need the prison space for people who are more violent, currently, than he is,” Fulgoni said in an interview.

“I think this guy belongs in prison; don’t get me wrong,” Fulgoni said. “But he comes far from belonging in prison for life.”

Fulgoni said he does not believe he has the authority to ignore a strike. So he exercised another option: He reduced Lyon’s drug charge to a misdemeanor. Misdemeanors, by definition, carry a penalty of no more than a year in jail. That’s what Lyon got.

“Without the cooperation of the D.A., the statute gives me the option of putting him in jail for a year for a misdemeanor or committing the injustice of putting him in jail for life,” Fulgoni said.

The Diaper Thief

The case against Rudy Roman Rodriguez was simple. “He told officers that he had been drinking a little, he remembered that he needed some diapers at home, so he went and took some,” a probation officer wrote.

Rodriguez, 31, who had been convicted of robberies in 1982 and 1990, was caught this time shoplifting a $29.99 pack of Huggies from a Downey supermarket.

Norwalk Superior Court Judge Robert W. Armstrong, who could not see sentencing Rodriguez to life, maneuvered prosecutors into a compromise by threatening to reduce the charge to a misdemeanor.

Prosecutors agreed to ignore a strike, which allowed Armstrong to sentence Rodriguez to eight years.

“If they were not willing to back down on this . . . I would have taken it into my own hands and he’d have gotten a year,” the judge said in an interview.

Armstrong said he felt it was his “obligation to temper justice with mercy. . . . I’m not going to be cowed by politicians who I think are pandering to the public to take advantage of the public’s fear of crime.”

The Abusive Boyfriend

In Christopher Renault Kinsey, prosecutors had a chance to lock away forever someone they thought was a menace. But they also had a problem: a weak case.

Kinsey, 30, was accused of attacking his live-in girlfriend days before she was to give birth to their second child. But the victim wasn’t willing to cooperate, even though Kinsey had served prison time for assaulting her while she was pregnant with their first child.

With their key witness shaky, prosecutors offered Kinsey six years in return for a guilty plea. He wasn’t interested.

Kinsey decided to try his luck with a jury. If his gamble failed, he would almost certainly face life because of his long, violent record. He had been convicted of two attempted robberies at ATM machines and the robbery of a woman pushing a baby stroller.

According to his lawyer, Deputy Public Defender Mitchell Bruckner, Kinsey changed his mind 15 minutes into jury selection, but the prosecutor told him that her supervisor said the deal was no longer on the table.

“ ‘You’re 15 minutes too late,’ ” Bruckner recalled the prosecutor telling him.

The prosecutor, Deputy Dist. Atty. Meredith Rust, remembered it somewhat differently. It was more like two hours, she said.

Kinsey was convicted and sentenced to 29 years to life.

The Tire Thief

Girmai Gabremahdin, 27, was headed for life in prison until Long Beach Judge William T. Garner stepped in.

During a monthlong, cocaine-driven crime spree that began in December, 1986, Gabremahdin was a notorious “bump and run” bandit in Santa Monica. He pleaded guilty to robbing 21 women, most of them lone motorists whose cars he had intentionally hit so he could grab their purses.

He served four years of an eight-year sentence, then stayed out of big trouble until 2 a.m. one rainy night last March, a week after the “three strikes” law became effective. Gabremahdin’s car got a flat tire and he didn’t have a spare.

He was caught taking one from a Wilmington junkyard; a jury convicted him of theft.

Garner acknowledged Gabremahdin’s violent criminal past but refused to sentence him to life. Instead, he sentenced him to a year in jail.

“This is a misdemeanor,” Garner said. “It should have been prosecuted as a misdemeanor.”

Deputy Dist. Atty. Dolores (Dee) Turner, who prosecuted the case, called Garner’s decision outrageous.

“Whatever we think about the statute, the Legislature clearly intended this guy when they passed it,” she said.

NEXT: Parolees slip through a loophole in the law.

Legal Paths

California’s “three strikes” law was intended to toughen sentencing of repeat offenders by reducing the discretion of judges and prosecutors. In the six months since the law was enacted, however, judges and prosecutors have frequently reduced the penalty that can be imposed on “three strikes” defendants. The law, which calls for 25-years-to-life prison terms for anyone with two prior “serious” felony convictions, gives prosecutors power to seek lesser penalties in the “furtherance of justice.” Judges also have claimed similar power or found other ways to give defendants a break. Such discretion can be exercised at various points in the court system.

CASE FILING: A prosecutor decides whether a crime qualifies as a third strike. If the case is filed as a felony, a preliminary hearing is held in Municipal Court.

LEGAL OPTIONS

Misdemeanor charge: Prosecutors can charge some crimes, such as shoplifting as felonies or misdemeanors. If filed as a misdemeanor, the case drops out of the “strikes” pipeline.

PRELIMINARY HEARING: The Municipal Court can send the case along to Superior Court for trial or dismiss it.

LEGAL OPTIONS

Misdemeanor charge: The judge has authority to decide that a felony third strike is really a misdemeanor.

PRETRIAL HEARING: Superior Court judges rule on motions and see if cases can be settled.

LEGAL OPTIONS

Prosecutor plea bargain: Under “three strikes,” a prosecutor can ignore a prior strike “in the furtherance of justice” and negotiate a plea bargain.

LEGAL OPTIONS

Judge plea bargain: Some judges also are stepping in to strike deals. Some are relying on another statute that gives them general power to act in the interests of justice and ignore a strike; others are using their power to reduce felonies to misdemeanors.

TRIAL: Defendants face a judge or jury. If convicted they face 25 years to life.

LEGAL OPTIONS

Judge Intervenes: Even after convictions, some judges are ignoring prior strikes or reducing charges to misdemeanors.

CASE SNAPSHOTS

Misdemeanor charge

Defendant: Edward Crowell, 32

Offense: Shoplifted 30 batteries worth $119.34 from a Ralph’s grocery store in Hollywood on March 22.

Criminal history: Robbery in 1987 and residential burglary in 1989.

Outcome: Over district attorney’s objection, Municipal Court Judge Isabel Cohen reduced the felony charge to a misdemeanor. She sentenced Crowell to 180 days in jail.

Reason: Judge believed a 25 years to life sentence was inappropriate.

Prosecutor plea bargain

Defendant: Luis Barajas, 36

Offense: San Fernando police found him with three balloons of heroin March 11.

Criminal history: Prior convictions for 1987 and 1988 residential robberies.

Outcome: Deputy Dist. Atty. Steve Cooley ignored one prior conviction in return for a guilty plea. The drug charge became a second strike and he was sentenced to seven years.

Reason: Cooley said the drug charge was a “low-grade,” victimless crime. “He’s just an addict . . . and seven years is substantial.”

Judge plea bargain

Defendant: David Oliver Brown, 35

Offense: Breaking into a parked car and stealing 39 cents.

Criminal History: 1979 rape, 1982 assault with a deadly weapon, 1986 and 1987 burglaries.

Outcome: Superior Court Judge Margaret Hay ignored a previous strike, making the case a “two-striker” over D.A.’s objections. Brown was sentenced to 9 years.

Reason: Defense urged Hay to show mercy because the strikes were old.

Trial

Name: Johnny Lee Williams, 36

Offense: A homeless drug abuser, Williams was arrested for attempted residential burglary in South Gate.

Criminal History: 1976 car theft, burglaries in 1978, 1979, 1980, attempted burglary in 1982, and 1986 assault with deadly weapon.

Outcome: Found guilty by jury and was sentenced to 35 years to life. Five years for each “serious” prior conviction.

Reason: Williams refused to discuss a plea bargain.

Judge Intervenes

Defendant: James Anderson, 45

Offense: Shoplifting

Criminal History: Long record, including robberies in 1970 and 1983, receiving stolen property in 1976, and misdemeanor theft in 1984.

Outcome: After conviction, Judge Steven Suzukawa reduced the shoplifting to a misdemeanor and sentenced him to a year in jail.

Reason: Suzukawa said he felt the defendant’s theft of four candy bars and two bottles of whiskey amounted only to a misdemeanor.

Source: District attorney files

Burgeoning Caseload

The number of “third strike” cases filed has grown steadily since the law took effect March 7. Ordinarily, most of the cases would have been settled already through plea bargains. However, more than 800 remained unresolved because defendants have no incentive to plead guilty to charges that carry life prison terms.

This is a cumulative caseload March 7-April 1: 109 August: 937 Source: Los Angeles County district attorney