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'3 Strikes' Case Leniency Is Out in O.C. : Courts: Prosecutors tighten up policy of sometimes ignoring prior convictions if latest crime wasn't violent.

SIX MONTHS OF 'THREE STRIKES'. A tough new law meets reality in L.A. County courthouses. First of two parts

October 23, 1994|RENE LYNCH | TIMES STAFF WRITER

SANTA ANA — A petty thief with a long criminal history, Jesus A. Martinez was arrested in July at a Fullerton HomeBase, a wrench, some pliers and a pair of vice grips tucked in his waistband, police said.

The value of the items allegedly stolen: $42.52. But if prosecutors have their way, it will cost the 44-year-old man much, much more. Possibly the rest of his life.

Martinez is among the first 94 defendants charged in Orange County under "three strikes" legislation, a new law that aims to punish repeat offenders with lengthier prison terms.

If found guilty at trial next month, Martinez, who has prior convictions for assault with a deadly weapon and burglary, faces 25 years to life in prison--a harsher sentence than some murderers get.

The new sentencing law is the legacy of Polly Klaas, a Petaluma 12-year-old who was kidnaped and murdered late last year, authorities contend, by a newly paroled career criminal.

The case sparked a public outcry over the criminal justice system's seeming inability to keep habitual offenders behind bars, and prompted the state Legislature to resurrect a bill that mandates life sentences for third-time felons who have two or more convictions for serious or violent crimes.

Promising it would help make California residents safer from violent criminals, Gov. Pete Wilson signed the bill in March, and an initiative--Proposition 184--on the November general election ballot seeks to make "three strikes" part of the state Constitution.

In Orange County, however, the new law has thus far ensnared mainly drug users and burglars, underscoring the complaints of critics who say that the law targets the wrong defendants, threatens to create a logjam in the courts and will possibly bankrupt the state by forcing an unprecedented prison-building program.

Of the 94 men and women charged under the new law, fewer than 20 face new felony charges for crimes of violence, according to a list of "three strikes" defendants compiled by the Orange County district attorney's office.

But Orange County's cases also illustrate the argument advanced by supporters of the law: The majority of the defendants have prior convictions for crimes involving force or fear or face a third "strike" for a violent crime.

The full impact of the legislation has not yet been felt in Orange County, where only two defendants have been convicted and await sentencing under the new law.

But a 35% to 50% increase in jury trials scheduled for Superior Court this year has been attributed largely to the new law, and some fear that "three strikes" ultimately could cost Orange County taxpayers millions of dollars in expanded jail space, additional jury trials, more intensive investigation by law enforcement and other services. The public defender's office has already asked the county for $576,000 to handle the fallout.

In the meantime, some "three strikes" defendants have found an unlikely ally--the Orange County district attorney's office.

In preparing felony complaints against 10 of the 94 "three strikes" defendants charged so far, prosecutors have simply ignored one of the two prior convictions of the defendants, making them second- instead of third-strikers, and effectively sparing them the threat of a life sentence.

Some who benefited from this prosecutorial mercy had violent backgrounds, such as South County ex-convict Michael Marano, who once robbed a 71-year-old woman at knifepoint and was charged with battering his own mother.

Assistant Dist. Atty. Jan Nolan said prosecutors have since tightened up their policies regarding "three strikes" cases, and she acknowledged that prosecutors should have sought the harshest punishment against Marano. Nolan blamed the error on a gradually evolving policy, but noted that such discretion has been used in only about 10% of the "three strikes" cases.

As did the often-ignored 1982 habitual offender statute, the new law counts as "strikes" prior convictions for certain serious or violent crimes, ranging from residential burglary to murder. Defendants with one "strike" against them face prison terms for their most recent felony that are double the ordinary minimum sentences. And those with two "strikes" face 25 years to life in prison when convicted of a third felony--any felony, even petty theft.

Of the 94 men and women charged under the new law, only 18 face new felony charges for crimes of violence involving force or fear. Eleven of those 18 defendants are accused of robberies, and the remaining seven have been charged with crimes ranging from assault to sex crimes to making threats.

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