`THREE STRIKES' LAW TAKES HIT : STATE HIGH COURT RULING GIVES JUDGES DISCRETION TO BYPASS REQUIRED SENTENCES.

Byline: Janet Gilmore Daily News Staff Writer

Dealing a blow to the state's tough ``three strikes, you're out'' sentencing law, the California Supreme Court ruled Thursday that judges can disregard a defendant's prior offenses if they believe a life prison term for a third felony is too harsh.

The unanimous decision is retroactive, meaning that thousands of people who were sentenced under the 1994 law because they had multiple felony convictions can now appeal.

``It's a disaster,'' said Greg Totten, executive director of the California District Attorneys Association. ``From a practical standpoint what it means is somewhere between 15,000 and 20,000 defendants are going to be entitled to come back for resentencing hearings and that is going to impose an extraordinary burden on local government.''

Almost immediately, lawmakers infuriated by the decision went to work in Sacramento to counteract it.

The law's proponents, supported by the state Attorney General's Office, fear that judges increasingly will give criminals sentences far less than the 25-years-to-life sentence required when a defendant is convicted of a third felony.

``We are very disappointed in the arrogance of the court, that they would choose to oppose the view of 72 percent of the public,'' who approved the measure in 1994, said Secretary of State Bill Jones.

``We're going to do all we can to see that this is corrected,'' he said.

Thursday's ruling found that denying judges their traditional say over sentencing violated the separation of powers guaranteed in the state constitution.

Only prosecutors, who are part of the executive branch, had had the right under the ``three strikes'' law to disregard prior convictions. This effectively allowed them to determine sentences, which the high court ruling determined was taking on judicial powers that rightfully belong to judges.

Judges, civil libertarians and defense attorneys hailed the decision.

``I think the judges are going to use this very, very discreetly and in the appropriate cases to see that justice is done in the appropriate cases,'' said James A. Bascue of Los Angeles Superior Court.

``Trial judges are very concerned about limitations on their discretions, they're very concerned about granting prosecutors too much discretion. After all, they are advocates.''

Bascue said previously most judges here have steered away from striking prior offenses in ``three strikes'' cases, instead waiting on an appeal court ruling for direction.

The Los Angeles County District Attorney's Office declined comment on the ruling. But prosecutors previously held the position that judges could not dismiss a ``strike'' and any such attempt would be handled by its appellate attorneys.

Bascue and Los Angeles County Public Defender Michael Judge said they already are thinking ahead to the anticipated influx of perhaps thousands of briefs from convicts seeking a rehearing on their convictions.

The public defender said he has requested to meet with judges, prosecutors and Sheriff's Department officials to discuss the matter.

Judge, who has joined some African-American leaders in arguing that the ``three strikes'' law unfairly targets African-American and nonviolent offenders, said the court's ruling is a step in the right direction.

``It will provide judges with the capacity to exercise discretion to avoid some of the abuses that we have seen,'' he said. ``However, the judges are operating in an environment that is intimidating with respect to judicial independence.''

Gov. Pete Wilson said the court's decision left the door open for legislative corrections.

``I understand that it is possible in the view of the court to remedy this with a statute,'' Wilson said. ``If that's the case we should do that.''

Assembly Speaker Curt Pringle, R-Garden Grove, said he would help push legislation to restore the full ``three strikes'' law.

``The court's decision drives a dagger into the very heart of the `three strikes' law,'' Pringle said. ``This decision is outrageous, high-handed and will be opposed.''

In the two years since the law was enacted, proponents say, the ``three strikes'' law - which also doubles prison terms for second felony convictions - has fueled a 13 percent drop in crime statewide.

And the law has been copied in nearly two dozen other states.

But in recent months stories have surfaced about jurors having a change of heart upon learning that their verdict sent a small-time drug user away for life.

Legally, some observers said there is little that can be done to attack the ruling, given its references to the constitution and because it came from a conservative, Wilson-appointed court.

Lawmakers, however, could try to seek a constitutional amendment, or propose legislation in which discretion to strike strikes would be taken away from prosecutors and judges.

``The ability of the Legislature to pander to the fears of the public knows no bounds so that may indeed happen,'' said Vincent Schiraldi, head of the Center for Juvenile and Criminal Justice.

``What would hold that back, I think, is how singularly disappointing the `three strikes' law has been up to this point.''

The law costs too much, he contends, and does too little.

Community activist Mary Lou Holte of Van Nuys said she feels less safe under the new ruling.

``My thoughts are that this is a green light to someone out there with two strikes, he can do anything he wants to now,'' she said. ``I felt the law was working big time and I talked to felons in the community and they were afraid of `three strikes.' ''

The high court's decision stemmed from a San Diego case in which a repeat offender, Jesus Romero, was charged with possessing a small quantity of cocaine.

He previously had been convicted on three burglary charges and another drug charge.

When the Superior Court judge moved to strike Romero's previous convictions so he could plea bargain, the prosecutor objected, saying the judge lacked that right.