SUPREME COURT CURBS `THREE STRIKES' SENTENCING

Some Juvenile Cases Will Not Be Counted

The California Supreme Court yesterday limited the reach of the "three
strikes" sentencing law, ruling that a residential burglary conviction in
juvenile court cannot be counted as a strike.

By a unanimous vote, the court threw out an eight-year prison term for a
San Diego man who was sentenced under the three-strikes law because he had
a previous conviction in juvenile court for residential burglary.

The decision is a rare setback for prosecutors and could have a far-
reaching impact because burglary is one of the most common offenses in
juvenile court. Minors account for 40 percent of all burglaries, according
to FBI statistics.

The court is "backing off" from its previous strict interpretation of the
law, said Frank Zimring, a criminal law professor at Berkeley's Boalt Hall
School of Law. "I think they're more comfortable in the current political
culture, so they don't have to look over their shoulder," he said.

It is uncertain exactly how many cases will be affected because the state
Department of Corrections does not have a breakdown on the types of prior
convictions that have been counted as strikes.

Gary Nichols, the San Diego deputy public defender who challenged the law,
said the ruling could affect "potentially thousands of cases throughout the
state." He said that his office is expected to challenge the sentences of
dozens of people because of the court's decision.

But the impact of the decision may vary, depending on the county. The San
Diego district attorney's office is one of the most aggressive enforcers of
the three-strikes law. Lawyers in Alameda and San Francisco counties, where
the law is used sparingly, say that the decision will not have a big impact
on their cases.

"We normally don't charge nonviolent offenses as strikes anyway," said
Alameda County District Attorney Tom Orloff.

The law originated after Mike Reynolds of Fresno, whose daughter was
murdered by a repeat felon, urged lawmakers to find a way to end the
revolving-door syndrome in state prisons. After the murder of Polly Klaas,
the measure sailed through the Legislature and was signed into law by
then-Gov. Pete Wilson in 1994.

Under the law, a defendant who has two prior convictions for a serious or
violent felony can receive 25 years to life if convicted of any third
felony -- or strike. A felon with one prior strike can receive double the
normal sentence.

Only adults can be prosecuted under the law.

Since its passage in 1994, 47,861 felons have been sentenced under the law,
including 5,419 who have received sentences of at least 25 years to life in
prison.

More than a third have been for property-related crimes.

But there has been a dispute over whether all juvenile offenses count as
strikes.

The court cleared up the ambiguity yesterday by ruling that only those
juvenile offenses that are serious enough to be tried in adult court
qualify as strikes, including the sale of certain drugs, rape, robbery and
other violent crimes. Those not on the list include residential burglaries,
theft of a firearm and unarmed robberies.

The justices rejected the state attorney general's argument that they
interpret the law broadly to ensure longer prison terms for anyone with a
prior conviction for a serious or violent felony.

The court said that would mean rewriting the three-strikes law.

"We must limit ourselves to interpreting the law as written, and leave for
the People and the Legislature the task of revising it as they deem wise,"
wrote Justice Kathryn Mickle Werdegar in the court's opinion.

In a separate opinion, Justice Marvin Baxter said that authors of the law
made a "drafting error" and did not intend to limit juvenile offenses that
count as strikes. He said he would not be surprised if the Legislature
responded to the court's ruling by amending the law.

Nonetheless, he agreed with the majority that it is up the lawmakers and
not the court to rewrite the statute.

Justice Janice Rogers Brown also disagreed with the majority's reasoning,
saying that the law would require minor revisions. But she agreed with the
final result.

Legal scholars say that the decision is important because it shows that the
state Supreme Court is exercising more flexibility in interpreting the law.

In the leading case on the law, the high court ruled in 1997 that judges
have the authority to reduce sentences under the three-strikes law if they
feel it would be just. But since then, most of its decisions have favored a
tough interpretation of the law.

The court is "pulling back" on the three-strikes law, said San Francisco
Public Defender Jeff Brown. "The last thing you need is the Supreme Court
rewriting legislation so that we can include more people in the
three-strikes net," he said.

In the San Diego case, Edwin Garcia was barely 18 years old when he was
arrested and convicted of burglary. He was facing a sentence of four years
in prison. But because he had a prior residential burglary conviction in
juvenile court when he was a minor, the prosecutor charged him under the
three-strikes law. As a result, he received an eight-year prison sentence,
double the usual term.

He has already served more than four years in prison. Nichols said that he
will immediately seek Garcia's release.