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Victims' Bill of Rights Provision Overturned : State Supreme Court Says Judges Need Not Add Five Years to Sentences for Repeat Offenders

October 29, 1985|DAN MORAIN | Times Staff Writer

SAN FRANCISCO — In a ruling that will affect hundreds of pending cases, the state Supreme Court overturned on Monday a section of Proposition 8, the Victims' Bill of Rights initiative, that required judges to add five years to the prison terms of offenders for each past serious felony conviction.

By a 5-2 vote, the court ruled that judges retain the discretion to add or not to add the extra time to the sentences of felons who had previous convictions for certain felonies. The court issued the ruling despite what it called "mandatory language" in Proposition 8 ordering judges to impose the heavier sentences.

Writing for the majority, Justice Otto Kaus acknowledged that the statute "does contain mandatory language." But the court added that past cases "plainly hold that such language alone is not sufficient to eliminate a trial court's power to strike," or ignore, past convictions.

In essence, the court said, the statute should have included a specific statement that it was eliminating judges' discretion in such circumstances. The ruling leaves open the possibility that the Legislature can rewrite the statute.

The dissenting justices charged that the majority "wholly ignores the clear intent of the people that such prior convictions shall be used 'without limitation.'

'The Obvious Intent'

"Once again, through a strained and unrealistic statutory construction, the majority has thwarted the obvious intent of the framers of, and voters for, Proposition 8," said dissenting Justice Malcolm M. Lucas. He was joined by Justice Stanley Mosk, who in past cases has been among the strongest critics of the initiative's various provisions.

Prosecutors immediately denounced the ruling. Deputy Atty. Gen. Martin S. Kaye, echoing the dissenters, said the court "once again is thwarting the will of the people."

The opinion does not say if the ruling applies retroactively to completed cases. Lawyers involved agreed, however, that Monday's case would affect large numbers of cases, including pending ones.

Chief Assistant Atty. Gen. Steve White estimated that at least 5%, or roughly 500, of the pending criminal appeals raise the issue that was decided Monday.

"This is the most significant sentencing issue in Proposition 8," White said. "This one will certainly have a measurable effect."

The pending cases will return to the trial courts, where defendants will be resentenced.

Monday's case involved Robert C. Fritz Jr., who was sentenced to 15 years for a 1982 armed robbery of a grocery in San Bruno in San Mateo County. As he left the store, he was confronted by two police officers and reacted by firing his gun four times.

Included in the 15-year term was five years for Fritz's prior conviction of armed robbery. He also served time in prison for grand theft and receiving stolen property. At the sentencing hearing, the Superior Court judge said he had no choice but to add five years to the term.

The case focused on a statute created by Proposition 8 that says felons who face sentencing for a crime "shall receive" an extra five years in prison if they were convicted previously of any of about 25 serious felonies ranging from child molestation and murder to armed robbery and residential burglary.

Related Amendment

The majority opinion did not address a related constitutional amendment that also was enacted by Proposition 8. The amendment says in part that judges "shall" use prior felonies "without limitation" when deciding what sentence to impose.

Chief Justice Rose Elizabeth Bird and Justices Allen Broussard and Cruz Reynoso signed Kaus' opinion. Joseph Grodin wrote a concurring opinion critical of the majority for failing to interpret the related constitutional provision. (People v. Fritz, crim. 23838)

Despite prosecutors' loss Monday, law enforcement appears to be emerging victorious before the court over the interpretation of Proposition 8's many provisions, lawyers familiar with the anti-crime proposition said.

In 1982, shortly after the measure passed, the court upheld the initiative against a general constitutional attack by defense attorneys and civil libertarians.

Last February, the court upheld the measure's most far-reaching section, which requires that state judges rely on federal rather than state law when deciding whether to allow into trials evidence that was improperly seized. Federal standards allow greater leeway in the admission of evidence.

'Done Quite Well'

"I'll guarantee you that has saved many convictions," said Deputy Atty. Gen. William Weisman, who coordinates Proposition 8 cases for the state Department of Justice.

"We've done quite well," he added. "I disagree with some of their opinions. But we are still better off than we were before."

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