'3-STRIKES' SENTENCE UPHELD

Man Stole Money, Food From Hillsborough Home

California's tough "three-strikes" law survived a narrow court test Tuesday
when a federal appeals court upheld a sentence of 25 years to life for a
man convicted of stealing $63, some ice cream, tortilla chips and coffee
from a Hillsborough home.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San
Francisco ruled Matthew Holgerson was subject to the stiff penalty even
though two of his felony convictions happened in another state.

The decision came on the same day that the U.S. Supreme Court heard
arguments on the larger question of whether the law is constitutional. The
"three-strikes" law, one of the toughest of its kind in the nation, was
passed by the state's Legislature and California voters in 1994. It
requires a sentence of 25 years to life for anyone convicted of two serious
felonies followed by a third felony of any kind.

Attorneys for two Southern California men who were sentenced under the
"three-strikes" law -- one for stealing videotapes and the other attempting
to steal golf clubs -- argued before the U.S. Supreme Court on Tuesday that
the punishment is cruel and unusual, and therefore unconstitutional. The
high court's ruling is expected next year.

Other convictions

The ruling in the San Francisco appeals court addressed only the narrow
issue of whether out-of-state convictions could count as "strikes" before 1996.

The case involved an October 1995 burglary in which Holgerson broke into a
Hillsborough home and told the resident he was desperate for money. The
person gave him $63 and showed him to the door. But Holgerson said he was
hungry and went to the kitchen and took the ice cream, chips and coffee,
then left the house.

Holgerson pleaded no contest to a count of first-degree burglary. A court
also found he had also been convicted of three prior felonies, including
two in Washington state. Holgerson was handed the "three-strikes" penalty.

Sentence is upheld

He appealed the sentence, saying that it was unclear at the time he broke
into the house that convictions from other states counted as "strikes."
During his appeal, the state Supreme Court ruled in 1996 that out-of-state
convictions should count.

Even though the court's clarity came after the burglary, the federal
appeals court Tuesday upheld the sentence. The judges said the state's
sentence did not violate federal doctrines of due process.

Appeal is likely

Holgerson's attorney Mark Shenfield declined to comment on the ruling,
saying he had not yet read it. But he did say he will probably appeal to
the U.S. Supreme Court.

"My client has a life sentence, so his only hope is the Supreme Court,"
Shenfield said.

Stanford Law School Professor Miguel Mendez said the most likely change in
the "three-strikes" law could be whether misdemeanors can count as a "third
strike."

Mendez, who opposes the law, said it can be inconsistent: For example, if
someone's first crime is stealing a book, the person might be fined, jailed
or forced to perform community service. But if that person stole the same
book after a series of crimes, it could be prosecuted as a "third strike,"
prompting a 25-years-to-life sentence.

"The court will only get involved if there's a gross mismatch between
punishment and crime," he said.

Stanford law Professor Robert Weisberg agreed it appears unlikely the
"three-strikes" law will be modified by the court. The U.S. Constitution
doesn't weigh in on sentencing guidelines, he said.

Weisberg added it would be up to legislators to soften the law, and that
seems unlikely, too.

"There is nothing to be won," he said, "and everything to lose if you look
like you're soft on sentencing."