'THREE STRIKES' RULED UNJUST IN SHOPLIFTING CONVICTIONS

U.S. Appeals Court Decision May Reduce Terms For 340 Inmates

In the latest blow to California's "three strikes" law, a federal appeals
court ruled yesterday that it is unconstitutional to sentence a felon to 25
years to life for shoplifting.

Yesterday's unanimous ruling held that even a record of violence doesn't
justify a life term for a minor crime that is punished much less severely
in all other states.

The sentences imposed on Earnest Bray Jr. and Richard Napoleon Brown "are
grossly disproportionate to their respective crimes -- stealing three
videotapes and a steering wheel alarm -- even in light of their criminal
records," wrote Judge Marsha Berzon of the U.S. Court of Appeals in San
Francisco.

The ruling, which goes beyond a similar decision by the same court last
fall, could bring reduced terms for more than 300 inmates whose shoplifting
convictions landed them in prison for as long as life.

It is also likely to bring new challenges by inmates sentenced to lengthy
terms for crimes such as minor drug possession -- and to increase pressure
on the U.S. Supreme Court to take its first look at the state law.

Laws elsewhere reflect "a considered national legislative judgment" that
California has gone too far, Berzon wrote. She said a history of violent
crime is important only if the "strike" -- the new crime punishable by up
to life -- is also violent, revealing a criminal who cannot control his or
her aggressions.

Earlier Case Overturned

In November, a three-judge panel of the same court overturned a sentence of
50 years to life for a San Bernardino man who stole nine videotapes -- but
in his case, the previous felonies were nonviolent, like the shoplifting.

That decision was the first time any court had declared a California "three
strikes" sentence unconstitutional. As in that ruling, the court said
yesterday that it was not overturning the entire "three strikes" law, but
curbing its application to particular crimes.

The 1994 law, enacted after the kidnapping and murder of 12-year-old Polly
Klaas by a repeat felon, defines various violent or serious crimes, ranging
from murder to residential burglary, as strikes. A subsequent conviction
for any felony requires a doubling of the normal sentence. A convicted
felon with two strikes must be sentenced to life, with no parole for at
least 25 years.

Shoplifting, or petty theft, is normally a misdemeanor punishable by six
months in jail. But under a unique California law, a shoplifter with a
previous conviction for shoplifting or any other theft can be convicted of
a felony and sentenced to 16 months to three years in prison -- or, if it
is a third strike, 25 to life.

The new ruling affects at least 340 inmates who, according to state prison
records, were convicted of shoplifting as a third strike, said Erwin
Chemerinsky, the University of Southern California law professor who
represented the defendants in both yesterday's and November's cases.

More broadly, he said, it might open the door for a larger number of
third-strikers convicted of "any other nonviolent offense that would likely
be regarded as trivial," such as minor drug possession or noninjury drunken
driving by a convicted felon.

The state has already appealed the November ruling directly to the Supreme
Court, bypassing the usual request for a rehearing by a larger appellate panel.

Any action by the high court would probably affect yesterday's ruling.

Lockyer Supports Law

Attorney General Bill Lockyer, who as a legislator sponsored an
unsuccessful bill that would have classified only violent crimes as third
strikes, believes that the current law has adequate safeguards, said
spokeswoman Hallye Jordan.

A state Supreme Court ruling that gave judges limited authority to reduce
"three strikes" sentences that they considered excessive "gives judges the
ability to mete out justice appropriately," she said.