State supreme court will decide three-strikes controversy.

The California Supreme Court has agreed unanimously to decide whether trial judges can avoid imposing stiff criminal sentences mandated under the state's three-strikes law by striking one or more of a defendant's prior convictions from the record. (Phillip Carrizosa, High Court to Decide First 3-Strikes Case, L.A.D.J., Apr. 14, 1995, at 1.)

The controversy arises from changes made to the California Penal Code during 1994. Legislative changes to [sections]667 were signed into law on March 7, and almost identical changes were approved by voters in proposition 184 on November 8 and added to the code as [sections]1170.12 the next day. The new measures call for a maximum sentence of 25 years to life for a third felony violation and twice the standard sentences for second offenders.

In August of that year, a judicial strategy for coping with apparently too-stern sentences for nonviolent offenders was demonstrated by trial judge Lawrence Antolini of Sonoma County Superior Court. Antolini avoided sentencing a petty criminal to a long prison term for possession of marijuana by striking an earlier burglary conviction from the record, effectively removing the man from three-strikes jurisdiction. (Judge Pitches Strike, Defendant Walks, TRIAL, Dec. 1994, at 91.)

The three-strikes law grants the district attorney authority to strike prior felony convictions but does not extend that power to judges. This has become a sensitive issue in California, where trial judges have traditionally had the power to strike prior convictions "in the furtherance of justice."

The 1st District Court of Appeals refused to overturn Antolini's decision. But the 4th District Court of Appeals reversed a San Diego County judge who brushed aside two prior felony convictions of a drug dealer and sentenced the man to a 6-year term instead of the mandated 25 years to life. That is the case the supreme court has agreed to review. (People v. Superior Court (Romero), 37 Cal. Rptr. 2d 364 (Ct. App.), appeal granted, No. SO45097 (Cal. Apr. 13, 1995).)

In Romero, Judge William Mudd refused to impose an effective life sentence on a man charged with possession of cocaine, whose most recent felony conviction was for burglary in 1986. The judge commented at the sentencing hearing that the three-strikes law "basically castrates a judge" by removing judicial discretion and that the law violates the separation of powers doctrine.