'Three Strikes" ruled unjust in shoplifting convictions

In the latest blow to California's "three strikes" law, a federal appeals court ruled yesterday that it is unconstitutional to sentence a felon to 25 years to life for shoplifting.

Yesterday's unanimous ruling held that even a record of violence doesn't justify a life term for a minor crime that is punished much less severely in all other states.

The sentences imposed on Earnest Bray Jr. and Richard Napoleon Brown "are grossly disproportionate to their respective crimes -- stealing three videotapes and a steering wheel alarm -- even in light of their criminal records," wrote Judge Marsha Berzon of the U.S. Court of Appeals in San Francisco.

The ruling, which goes beyond a similar decision by the same court last fall, could bring reduced terms for more than 300 inmates whose shoplifting convictions landed them in prison for as long as life.

It is also likely to bring new challenges by inmates sentenced to lengthy terms for crimes such as minor drug possession -- and to increase pressure on the U.S. Supreme Court to take its first look at the state law.

Laws elsewhere reflect "a considered national legislative judgment" that California has gone too far, Berzon wrote. She said a history of violent crime is important only if the "strike" -- the new crime punishable by up to life -- is also violent, revealing a criminal who cannot control his or her aggressions.

EARLIER CASE OVERTURNED

In November, a three-judge panel of the same court overturned a sentence of 50 years to life for a San Bernardino man who stole nine videotapes -- but in his case, the previous felonies were nonviolent, like the shoplifting.

That decision was the first time any court had declared a California "three strikes" sentence unconstitutional. As in that ruling, the court said yesterday that it was not overturning the entire "three strikes" law, but curbing its application to particular crimes.

The 1994 law, enacted after the kidnapping and murder of 12-year-old Polly Klaas by a repeat felon, defines various violent or serious crimes, ranging from murder to residential burglary, as strikes. A subsequent conviction for any felony requires a doubling of the normal sentence. A convicted felon with two strikes must be sentenced to life, with no parole for at least 25 years.

Shoplifting, or petty theft, is normally a misdemeanor punishable by six months in jail. But under a unique California law, a shoplifter with a previous conviction for shoplifting or any other theft can be convicted of a felony and sentenced to 16 months to three years in prison -- or, if it is a third strike, 25 to life.

The new ruling affects at least 340 inmates who, according to state prison records, were convicted of shoplifting as a third strike, said Erwin Chemerinsky, the University of Southern California law professor who represented the defendants in both yesterday's and November's cases.

More broadly, he said, it might open the door for a larger number of third- strikers convicted of "any other nonviolent offense that would likely be regarded as trivial," such as minor drug possession or noninjury drunken driving by a convicted felon.

The state has already appealed the November ruling directly to the Supreme Court, bypassing the usual request for a rehearing by a larger appellate panel.

Any action by the high court would probably affect yesterday's ruling.

LOCKYER SUPPORTS LAW

Attorney General Bill Lockyer, who as a legislator sponsored an unsuccessful bill that would have classified only violent crimes as third strikes, believes that the current law has adequate safeguards, said spokeswoman Hallye Jordan.

A state Supreme Court ruling that gave judges limited authority to reduce "three strikes" sentences that they considered excessive "gives judges the ability to mete out justice appropriately," she said.