California Supreme Court throws three-strikes law a judicial curve.

California's highest court has ruled that judges may ignore the state's three-strikes law when they believe the mandatory jail time imposed does not fit the crime. (People v. Superior Court (Romero), No. S045097, 1996 WL 338203 (Cal. June 20, 1996).)

The unanimous ruling effectively takes the spin off the hardball law, which was enacted by the state legislature in 1994 to get repeat offenders off the streets. The law was sparked by public outcry over the murder of 12-year-old Polly Klaas by Richard Allen Davis, a paroled ax-convict.

Under the three-strikes law, a third felony violation imposes a mandatory prison sentence of 25 years to life. Second-time offenders receive twice the standard sentence.

The court found that the law violates the separation of powers doctrine by giving prosecutors--but not trial judges--the power to disregard prior convictions. This has become a sensitive issue in California, where trial judges have traditionally had the power to disregard, or strike, prior convictions "in the furtherance of justice." ( State Supreme Court Will Decide Three-Strikes Controversy, TRIAL, July 1995, at 111.)

The court's decision, which reinterprets but does not strike down the law, is retroactive, meaning that the estimated 17,000 defendants convicted under the three-strikes law may now appeal their sentences.

The ruling stemmed from the case of Jesus Romero, a San Diego man who had 24 prior convictions for nonviolent crimes. Romero's previous two strikes were for burglary and attempted burglary, which are considered serious felonies in California.

When Romero went to court on his third strike--for possessing less than a gram of cocaine base--Judge William Mudd brushed aside Romero's prior convictions so that he could plea bargain. Mudd's judicial strategy was clear: to remove Romero from the three-strikes jurisdiction. He sentenced Romero to only six years. At the sentencing hearing, Mudd commented that the three-strikes law "basically castrates a judge" by removing judicial discretion, a violation of the separation of powers doctrine.

Prosecutors objected. They argued that the judge lacked the right to dismiss prior felony allegations unless a prosecutor asked the court to do so and that the judge was required under the three-strikes law to give Romero the mandatory prison sentence of 25 years to life.

The court of appeals reversed, holding that the trial court had no power to dismiss prior felony allegations on its own motion in a three-strikes case.