In A Rare Move, Judge Fall Exercises His Discretion to Strike A Defendant’s Prior Strike

When California originally put in the Three Strikes Law, back in 1994, judges had little to no discretion at all to remove past strikes.  However, a Supreme Court decision in 1996 changed that.  In what became the Romero Decision, the sentencing court was granted the discretion to strike prior conviction allegations (strikes) “in the interest of justice.”

While a Romero motion gives judges the right to strike prior strikes, depending on the judge, that discretion may rarely be exercised.  Last week, Yolo County Judge Timothy Fall, in ruling on a Romero motion, noted that since 1996, the year after he was appointed to the bench, he had granted a Romero motion just once in a contested hearing (meaning the prosecution opposed the motion), and that decision was later overturned by an appellate court.

This would be only the second such action, he announced.

On May 11, 2011, Lonnie Hawkins pulled his vehicle over into a dirt turnout on Old River Road near County Road 126.  The registration on the vehicle was expired and false.

The passenger was on probation and, when contacted, consented to a search. The passenger had a pipe containing rock cocaine in it. She advised the officers that Mr. Hawkins had handed it to her as the police pulled up. The officers also located a baton behind the driver’s seat, which, according to the officer’s statement, was there to protect Mr. Hawkins when he purchased drugs.

According to Deputy Hallenbeck of the Yolo County Sheriff’s Department, Mr. Hawkins “admitted to putting the current registration sticker on the vehicle.  He admitted that the rock cocaine belonged to him, that he had just purchased the rock cocaine at a motel in West Sacramento, and that he and the passenger had come to the particular location along River Road to smoke the rock cocaine and have sex.”

“He told Deputy Hallenbeck that he has been using rock cocaine for the last year and that he had smoked approximately one hour prior to his contact with Deputy Hallenbeck. He also stated that the wooden baton belonged to him and that he has it for protection when he is buying rock cocaine from people in the motel rooms.”

The rock cocaine had a total net weight of .2 grams.

Mr. Hawkins had previously been convicted of armed robbery in 1981 and served six years in prison.  Since that time, Mr. Hawkins has neither been arrested nor convicted of any crime.

This would not have been his third strike.  However, under California’s Three Strikes law, Penal Code 667 (e)(1): “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”

Attorney Robert Spangler argued under existing case law, “The trial court should give more weight to the current charges against the Defendant than the prior convictions.”

“Consequently, the significant and perhaps predominant, consideration in determining whether to strike prior convictions is the nature of the present offense,” Mr. Spangler continued.

He argued, “As such, a Defendant whose current offense is not violent or life-threatening is obviously far less culpable then one who is charged with a more serious crime, and the Court is justified in striking the prior convictions when the current charge is minor.”

He argued that in this case there was “no evidence of any force or violence associated with the underlying drug offense.” Moreover, while there was a baton located in the vehicle, there was “no suggestion that Mr. Hawkins used the item.”

Mr. Spangler continued, “Considering the remoteness of his strike prior (nearly 30 years ago), the nature of the current offense, and Mr. Hawkins’ apparent problem with illegal drugs, Defendant Hawkins could not be described as a person for which the three strikes sentencing scheme was designed.”

As Mr. Spangler points out, other factors that support the Court’s dismissal of priors include the minor nature of the current offense, the lengths of each sentence that will be imposed, the remoteness and time of the prior conviction and other miscellaneous factors, including the fact that a defendant whose current offense is not violent or life-threatening is less culpable than one whose current crime involves these factors.

Mr. Spangler thus concludes, “The three strikes sentencing scheme is intended to ensure longer prison sentences for serious/violent repeat offenders who pose a heightened threat to society. Although Mr. Hawkins has been convicted of a serious/violent felony, it occurred almost thirty years ago when he was twenty-eight years of age.”

He adds, therefore, “The current offense does not demonstrate recidivist tendencies toward violent or serious acts, but simply an occurrence of substance abuse which would be better addressed in the community than in prison.”

He notes, “The lack of any other significant criminal activity since 1996 does not demonstrate any recidivist tendencies towards violent or serious crimes, and in fact demonstrates the contrary.”

The prosecutor in this case, Deputy DA Caely Fallini, saw it differently.

She argued, “The nature and circumstances of his present offense do not warrant dismissing his strike. The defendant admitted to purchasing, transporting, and possessing rock cocaine and he made that rock cocaine available to the passenger in his vehicle. He admitted to having used rock cocaine for approximately a year. He also admitted to arming himself with a weapon, a wooden baton, when he purchases rock cocaine from a motel in West Sacramento.”

She added, “Finally, the defendant placed a current registration sticker on his vehicle, although the registration on his vehicle was expired. While this is ‘misdemeanor conduct’ it shows that the defendant was actively seeking to deceive law enforcement so that he could continue driving his vehicle.”

She argued, “This conduct does not show that the defendant falls outside the spirit of the three strikes law.”

She also argued that, given the fact that the defendant’s prior strike was serious and violent – as he was convicted of armed bank robbery, “the nature and circumstances of his prior felony convictions do not warrant dismissing his strike.”

Ms. Fallini added, “Based on the defendant’s criminal history, this Court should find that this factor in fact weighs against the defendant as the defendant has engaged in conduct that is violent and indicates a serious danger to society. Further, the defendant continues to engage in that conduct as evidenced by the facts in the present case and that the defendant arms himself when he goes to purchase illegal narcotics.”

Finally, she argued, “The defendant’s background, character and prospects do not warrant striking his prior strike.”

In the end, Judge Fall disagreed with the prosecution, arguing that the remoteness of the prior strike which occurred nearly 30 years ago and his lack of serious criminal record since were significant.

He argued that, while the defendant has not been perfect since that conviction, the length of time plus the nature of the current offense presented a compelling case that this case does indeed fall outside of the spirit of the three strikes law.

—David M. Greenwald reporting

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