STATE HIGH COURT RULING TOUGHENS 3-STRIKES LAW

Justice: Two felonies can stem from a single criminal act, majority finds.
Three justices issue strong dissent.

SAN FRANCISCO--In a ruling that affects scores of criminal defendants, the
California Supreme Court decided Thursday that a single criminal act can
count as more than one crime under the state's three-strikes law.

The 4-to-3 ruling upheld a sentence of 25 years to life given to Russell
Benson, a Lancaster man who was convicted of stealing a carton of
cigarettes from a Target store. He had been convicted 15 years earlier of
two felonies that stemmed from a single knife attack on a neighbor. Had his
earlier conviction been considered as only one strike, Benson would have
faced a maximum six-year sentence.

The court's ruling--its first decision on how the three-strikes law affects
such cases--held that multiple felonies can be punished as separate strikes
even if they arise from a single criminal act. A 100-year-old law prohibits
multiple punishment for a single act, but the majority held that the
three-strikes measure supersedes that law.

Chief Justice Ronald M. George, who wrote the majority opinion, cited
language in the 1994 ballot initiative that said the three-strikes measure
applied "not withstanding any other provision of the law."

"The Legislature and the voters, through the initiative process, clearly
intended that each conviction for a serious or violent felony counts as a
prior conviction," George wrote, "even where the convictions were based
upon conduct against a single victim committed at the same time with a
single intent."

Under the court's ruling, a single car hijacking could produce two strikes
because defendants in such cases are often convicted of both car hijacking
and robbery.

In an example cited by the dissenting justices, a person who stops a
pedestrian at knifepoint and demands a watch could be convicted of three
felonies or strikes: felony false imprisonment, assault with a deadly
weapon and attempted robbery.

"The question before us has major practical consequences," Justice Ming W.
Chin, a court conservative, wrote in a dissent. "Multiple convictions can
often arise out of a single act."

"We should not transform one strike into two," said Chin, who was joined by
Justices Stanley Mosk and Kathryn Mickle Werdegar.

The ruling has "abrogated the fundamental promise that . . . has been made
for over a century," Chin wrote, adding that prosecutors may eventually
regret their victory. Trial judges, now realizing that felonies from a
single crime count as separate strikes, may decide simply to dismiss them.

"Dismissal, of course, is exactly what should not happen," Chin wrote. If
the defendant's primary conviction is overturned on appeal, the prosecutor
would have no other convictions to keep the defendant in prison.

But the majority said the ruling was required by the clear language of the
three-strikes law. "The courts of this state on occasion have found fault
with the imprecise nature of language contained within statutory
enactments," George wrote for the court. "We find it difficult, however, to
imagine language clearer, or more unequivocal" than the words of the
three-strikes initiative.

The three-strikes law, designed to put repeat offenders behind bars,
doubles a sentence for a second violent felony and carries a
25-year-to-life term for anyone convicted of a third felony.

The court's ruling drew praise from law enforcement officials.

Atty. Gen. Dan Lungren said the court had interpreted the three-strikes law
"as it was intended."

"We have a pretty tough three-strikes law, and that is the reason we have
seen such a dramatic drop in the crime rate," Lungren added.

A spokesman for Gov. Pete Wilson pronounced the governor "pleased with
today's strong law-and-order decision."

"This ruling puts the teeth back into the three-strikes law and brings us
back to the intent of the voters," he said.

"There is no doubt this is a strict interpretation of the three-strikes
law," said Deputy Atty. Gen. Ellen Birnbaum Kehr, who argued the case
before the Supreme Court. The ruling was necessary because it "affects a
lot of defendants," she added. "This was not a rare case."

But Russell S. Babcock, who represented Benson, called the decision
"absurd" and a "shocking result that is going to cause a lot of problems
for both the prosecution and the defense as well as the judiciary."

"It parts company with 100 years of prior case law," Babcock said. "I don't
think voters had a clue that this is what they were getting when they
enacted this."

Judges have been trying to avoid deciding how to handle multiple felony
convictions involving single acts pending the outcome of the current case,
Babcock said.

With the ruling in place, defendants who were convicted of two prior
felonies but received probation could now face life in prison for a
relatively minor crime, he said. "It is a really frightening result."

Benson was arrested in 1994 and convicted of petty theft with a prior. The
judge, assuming the two prior felonies counted as separate strikes,
sentenced Benson to 25 years to life.

Benson's prior conviction stemmed from a 1979 attack on a woman in his
apartment building. Benson had borrowed a vacuum cleaner from her and later
returned, saying he had forgotten his keys inside. He stabbed the woman 20
times. The victim identified him to police, and he turned himself in the
next day.

A jury convicted Benson of burglary and assault, but he was sentenced for
only one crime because the felonies stemmed from a single course of
conduct--he had entered the apartment not to steal, but to stab the woman.
His appellate attorney said Benson was upset with the neighbor for reasons
that are now unclear.

Under a law passed in 1872, an act that is punishable in different ways is
still only subject to a single penalty, regardless of the number of
convictions, so long as the criminal violations are all part of a single
course of conduct. A man who both rapes and robs a woman, for example,
could be punished twice for two criminal acts, but a person charged with
rape and lewd conduct would be subject to only one punishment even though
the conduct violated two laws.

Courts, as in Benson's case, have routinely "stayed" multiple felonies
stemming from one act. This allowed the secondary convictions to be
resurrected if the primary case was overturned on appeal. Otherwise, the
separate convictions would not be used.

Benson will now return before the trial judge, who has the option of
striking one of the two prior felonies if the judge believes a life
sentence would be unjust. At the time Benson was originally sentenced, it
was unclear whether judges had that option.

Copyright Los Angeles Times

Checked-by: jwjohnson@netmagic.net (Joel W. Johnson)