Metropolitan News-Enterprise


Monday, September 10, 2001


Page 1


Change in Three-Strikes Policy No Help to Defendants Already Convicted, Appeals Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


District Attorney Steve Cooley’s revised three-strikes policy doesn’t entitle  defendants convicted before he took office to have their sentences reconsidered, the Court of Appeal for this district has ruled.

Div. Five Thursday affirmed Arthur Roman’s 25-year-to-life sentence for possession of .25 grams of methamphetamine. Roman admitted at the time of sentencing by Los Angeles Superior Court Judge Robert Martinez that he had been convicted of three serious felonies, two of which resulted in prison terms.

Roman’s court-appointed appellate lawyer, William M. Duncan, argued that the case should be sent back for resentencing under the doctrine of abatement. The doctrine creates a presumption that legislation reducing the sentence for a crime is intended to be applied retroactively in cases not yet final on appeal.

The panel rejected the contention, holding that the doctrine doesn’t apply to changes in prosecutorial policy.

Duncan argued that his client was entitled to the benefit of Special Directive 00-02, which Cooley issued upon taking office last December. The district attorney, fulfilling a pledge made during his campaign to unseat two-term incumbent Gil Garcetti, instructed deputies to move for dismissal of third-strike allegations under certain circumstances.

The policy provides, among other things, that if the current offense isn’t a serious or violent felony or a large-quantity drug crime, the prosecution will move to treat it as a second, rather than a third, strike case unless it involves a firearm or deadly weapon, “injury to a victim,” or threats or violence, or unless other factors are determined by a district attorney bureau chief to warrant prosecution as a third strike.

But Justice Margaret Grignon, writing for the appellate court, said the doctrine of abatement only applies to legislative enactments.  

“If abatement were not applied in that situation, the courts would be forced to uphold a penalty which the Legislature had determined was too severe and thus unauthorized,” the justice explained. “This is not the case when the change is nonstatutory, but simply a policy implementing the exercise of a prosecutor’s discretion.  Regardless of whether the policy results in a more severe or more lenient sentence, any sentence imposed would be a sentence authorized by the Legislature.”

Grignon cited In re Winner (1997) 56 Cal.App.4th 1481, which held that a change in prison policy, depriving inmates of the opportunity to seek restoration of conduct credits that had been forfeited for serious infractions, wasn’t an ex post facto law. The court reasoned that since the applicable statute at all relevant times invested the Department of Corrections with discretion over the issue, it could change the policy at any time.

“The same rationale applies with respect to the doctrine of abatement,” Grignon said. “It is the statute setting forth the applicable punishment that is of significance, not the implementing policy.”

Besides, she wrote, the directive doesn’t change the penalty, it merely guides the prosecutor’s discretion in determining whether to move to strike the prior-conviction allegations. The prosecutor might not have made such a motion, she noted, and the trial judge still could have denied it.

In an unpublished portion of her opinion, Grignon concluded that Martinez didn’t abuse his discretion in declining to strike the priors.

Although his latest offense was relatively minor, the justice noted that he was on parole when he committed it, having been released from prison 18 months earlier. And his past record was quite serious, she said.

Grignon cited a string of offenses Roman committed between 1977 and his arrest on the methamphetamine charge in 1999—a petty theft for which he was placed on probation, a grand theft conviction after he was arrested while on probation, a prison sentence for robbery and assault, another robbery in which the victims’ car was taken at gunpoint, and another vehicle robbery accompanied by threats of retaliation if the victims reported the crime  and followed by a high-speed chase in the vehicle was wrecked.

Deputy Attorney General Thomas C. Hsieh argued the case for the prosecution.


Copyright 2001, Metropolitan News Company