Ruling a Victory for ‘Three Strikes’ Law’s Advocates : Sentencing: Court of Appeal declares that judges may not eliminate prior convictions of nonviolent felons to spare them the minimum term of 25 years to life in prison.

SAN DIEGO —  In a major victory for advocates of the state’s “three strikes and you’re out” law, an appeals court ruled for the first time Tuesday that judges have no power to disregard prior convictions of nonviolent defendants to spare them the minimum sentence of 25 years to life in prison.

Judges in San Diego and elsewhere in California have been “striking” prior convictions of some nonviolent felons so that they do not fall under the law, which requires the tough sentence upon conviction of a third felony.

But a three-judge panel in the 4th District Court of Appeal rejected the arguments of lawyers for a convicted burglar and drug user that subjecting him to the three-strikes provision is cruel and unusual punishment.

The panel also rejected an argument that the law gives too much power to prosecutors and illegally usurps power from judges to set the punishment for convicted criminals.

The case involved a San Diego drug addict named Jesus Romero, who had prior convictions for burglary and drug possessions when he was charged with possession of a small amount of cocaine.

Prosecutors had sought to have Romero charged under the “three-strikes” law, but the trial judge agreed with Romero’s public defender that this would constitute cruel and unusual punishment and that the law was never meant to apply to small-time, nonviolent criminals such as Romero. The San Diego County district attorney’s office then appealed the judge’s ruling to the appeals court.

In a strongly worded decision written by Justice Richard Huffman, a former prosecutor, the appeals court panel called Romero a habitual criminal who should face the minimum sentence of 25 years to life if convicted on the latest charge:

“For at least the last 15 years, Romero has continually preyed upon society. He has spent much of his adult life in county jail or prison with no apparent impact upon his behavior upon release.

“Considering the nature of the offenses for which Romero faces conviction and the nature of his criminal history, application of the ‘three-strikes’ law can hardly be considered to offend fundamental notions of human dignity or to shock the conscience.”

Once the trial judge had struck his previous convictions, Romero pleaded guilty to the cocaine charge. Under the appeals court decision, the case will be sent back to Superior Court and Romero will be allowed to rescind his plea and be tried under the “three-strikes” provision.

Tom McCardle, chief of the appeals division of the San Diego County district attorney’s office, called the decision “tremendously significant and tremendously correct.”

Romero’s case is one of 29 in which a San Diego County judge had struck prior convictions for nonviolent offenses so that the defendant would not face a “three-strikes” sentence if convicted.

District attorneys in several counties have filed appeals in cases where judges have struck prior convictions. Prosecutors have argued that the law gives judges no such authority. The San Diego appeal is the first to be decided by an appeals court, legal authorities say.

Sixty days after the publication of the decision, it becomes binding on trial cases throughout the state and could block Superior Court judges from striking prior convictions. The opinion covers both the “three-strikes” bill passed by the Legislature and an initiative passed by voters in November.

Elisabeth Semel, a leading San Diego criminal defense attorney and past president of California Attorneys for Criminal Defense, called the appeals court decision unfortunate and said it will lead to unfairly harsh sentencing for nonviolent defendants.

“I do not think that the public intends for someone convicted of petty theft to spend the rest of their lives in prison,” Semel said. “This is not a wise use of (criminal justice system) resources.”