Holding tank, San Diego County Jail
Jorge DeHorta’s life ended, for all practical purposes, late one Friday night in July of 1994, a few minutes before 1:00 a.m.. when a Chula Vista cop and his K-9 partner arrested him in a Price Club parking lot. DeHorta and a friend had just loaded 83 wooden pallets into a pickup truck. They were trying to figure a way to tie them down when the cop appeared. DeHorta started to run. but then he heard the police dog bark, and he stopped. The cop arrested DeHorta, but not his friend, who had hidden behind a cinder block wall.
Some guy offered us 50 bucks apiece to load up the pallets and haul them to the beach for a bonfire, DeHorta told the police. How were we going to say no to that kind of easy money?
If DeHorta and his buddy had been a couple of frat boys from a nearby college, a judge might have scolded them for their irresponsible behavior and that probably would have been that.
But Jorge DeHorta was an illegal immigrant with a criminal record that showed him to be nonviolent, but a prolific thief just the same. A district attorney calculated that at $10 to $20 apiece, the value of the 83 pallets meant DeHorta’s crime easily exceeded the $400 minimum for grand theft, a felony.
Because of his two previous convictions for “serious” felonies (burglaries), his new crime was charged under the three-strikes statute that had become law four months earlier. He was 37 at the time of the arrest. For the theft of 83 beat-up pallets, DeHorta was looking at a minimum of 25 years to life; he’d be eligible for his First parole hearing in the year 2015, just before his 60th birthday.
DeHorta’s case was assigned to a public defender named Jack Hochman. DeHorta was fortunate in his draw of counsel. Hochman is, by reputation, a sharp and aggressive advocate with nearly 20 years’ experience as a criminal defense lawyer. He’s a large man with thick, curly hair and hooded eyes, an Indiana native with a weary voice born, it seems, of years of fighting the good fight in an arena hardly sympathetic to the plight of his predominantly Hispanic and black clients.
He has an easygoing, laid-back manner that belies his demeanor when he is trying a case before a judge or jury. Colleagues and adversaries alike throw around terms like “street fighter” and “ball buster” when describing his courtroom style. That he is thoroughly committed to his job is apparent even in his choice of office accouterments. The only decoration on his walls is a chart illustrating the prohibitive costs of the prisonbuilding boom in California and across the country.
Hochman was assigned to the county’s South Bay courthouse in Chula Vista when three strikes became law in March of ’94. He immediately volunteered to handle all the three-strikes cases filed in the South Bay. He considered it an absolutely unjust law, and he was determined to do whatever he could to thwart its intent.
“Those first six months, I was working 80-plus- hour weeks,” Hochman says. “I was drafting these 30-page motions on every case and then arguing them for two or three hours in court. At one point I counted 15 open cases at once, with each one of these guys facing at least 25 to life. I mean, if someone’s looking at life, you need to see them in jail at least every other week. Just getting the background on these previous strikes would take hours. Most of these guys tend to be bad historians, and there’s a language issue as well. I had this one guy, I’m asking him about a previous strike, and then I look closer at the printout. This guy either grew five inches in the previous two years or this was a different Jesus Garcia. That was after I had spent several hours with him, talking . about his past record. I mentioned an arrest and plea on such-and-such date, but he didn’t even tell me that it wasn’t him.”
The relatively minor nature of DeHorta’s crimehardly made him unique. When the police arrested DeHorta in the Price Club parking lot, Hochman was already handling ten three-strikes cases. Among them was Brian Thomas, twice convicted on robbery charges, facing 78 years to life on three counts of petty theft; Thomas Silva, Jr., looking at 25 to life for stealing two radio knobs and an ashtray from a car; and Kendall Cooke, the only one of Hochman’s three-strikes clients who would gain even the slightest media attention, caught stealing one Coors beer (value $1.14) from a 7-Eleven in National City.
“The Kendall Cooke case was really eating me up,” Hochman says. “He was looking at 25 to life for a can of beer, but the D.A. wouldn’t budge on striking either of his previous strikes. Here was a guy who was working at the time. His pastor was there. He was doing well on parole.”
Another of Hochman’s clients, Edward Ruiz, was looking at 25 to life when he was busted inside prison (while serving time for burglary) in possession of one-third of a gram of marijuana. That is barely one one-hundredth of an ounce, not enough to roll even a decent-sized joint. “I got the D.A. to strike one of the priors in the Ruiz case, but that was only after I hung the jury,” Hochman says.
“The only other case where the D.A. agreed to strike a prior was in the case of a guy named David Moreno, who was arrested on petty theft with a prior for stealing two videocassettes worth maybe $10 apiece. And the only reason they struck that one was because it was a 1968 prior, and by the day the trial was starting, they hadn’t found the records they needed to prove it.”
Hochman’s newest client hadn’t given his counsel much of a foundation on which to build a defense. Jorge DeHorta had been caught dead to rights, his friend’s pickup stacked high with the pallets, his shirt soaked with sweat. The cops had a clean bust and something of a confession, since DeHorta essentially admitted to the crime as he was trying to explain his innocence. The best Hochman could hope for was a sympathetic judge or a jury unwilling to find a man guilty of a seemingly petty crime that would mean a life sentence.
“I found him to be a nice, soft-spoken man who had worked his entire life,” Hochman said of his client. Yet Hochman also had to confess that he was never even certain of his client’s true name. DeHorta had told the arresting officer his name was Juan Muro. “When we did a search of his priors, he had like 10 or 15 names,” Hochman says. “He used a different name every time he was picked up.”
San Diego County Jail
Three strikes and you’re out was an idea that had bounced around Sacramento since at least 1984, when Bill Lockyer, a Democrat from the San Francisco area, sponsored a bill that greatly enhanced punishment for repeat violent offenders. The state assembly and senate approved Lockyer’s measure, but then-governor George Deukmejian vetoed it, declaring it soft on crime because it also decreased the penalties on less serious offenses. In the ensuing years, elected officials in California occasionally spoke of a tougher bill, but it wasn’t until the spring of 1993 that Assemblyman Bill Jones, a Republican from Fresno, introduced legislation to make three strikes a reality.
Jones had found his motivation in the person of a bereaved father who had lost his daughter in a shooting. Kimber Reynolds was an 18-year-old Fresno girl killed during a purse snatching in June of 1992. The perpetrators were a pair of ex-cons out on parole. The police killed the gunman during a shootout, but his accomplice was caught and sentenced to nine years. With good behavior, he’d be out in half that time.
Pete Wilson happened to be in Fresno on business when the sentence was handed down, and he met with Mike Reynolds, Kimber’s father. “I’m going after these guys in a big way,” Reynolds supposedly told the governor. Wilson reportedly offered nothing beyond his tight-lipped condolences, but Reynolds was not the kind to let a noncommittal politician stand in his way. He was a regular Joe who had never before sought the spotlight. Later he would describe himself in an interview with the Los Angeles Times as “a short little fat guy” who shot wedding pictures and portraits for a living. But perhaps more than any other Californian, Mike Reynolds is responsible for legislation that’s been described as the toughest sentencing law in U.S. history.
Under the so-called Jones bill, previous convictions on “serious” or “violent” felonies — including murder, attempted murder, and rape, but also robbery (even when no weapon was used) and residential burglary (even if no one was home at the time) — would count as a first or second strike. The third strike could be any felony, whether a violent offense or a relatively minor crime such as shoplifting (with a prior shoplifting conviction), a minor drug possession charge, even passing a bad check.
The bill also doubled the sentence for a second-strike conviction; a low-term residential burglary sentence, for instance, would be increased from two to four years. It also mandated penitentiary time for any defendant convicted of a second strike, thereby excluding a locked drug-treatment facility, for example, as an alternative sentence for someone stealing to support a habit. And it increased the minimum incarceration time on a strikable felony from one-half to at least four-fifths of the sentence.
The Democratic majority on the assembly’s public safety committee offered to support the measure if Jones would limit its scope to violent offenders, but Jones refused. The bill never even made it out of committee.
The bill might have been forgotten then if it had not been for the murder of Folly Klaas in December of’93. Her accused killer, Richard Allen Davis, offered himself up as the perfect poster boy for advocates of a throw-away-the-key approach to crime. Davis was a 39-year- old ex-con whose violent record included two convictions for kidnapping as well as an assault and a robbery. When the police arrested him for the Klaas murder, he was free on parole after serving only half a 16-year prison sentence for his second kidnapping. His criminal record and his seemingly indifferent and smug attitude in court gave life to a number of law-and-order measures languishing in Sacramento, foremost among them Jones’s three-strikes proposal.
Among those looking to seize the moment was a San Diego deputy district attorney named Charles Nickel. Nickel is a throwback to a time when prosecutors were no-nonsense fellows who dressed in loud sports coats and clashing ties and tended to get along only with each other and the cops. There’s a humorless, just-the-facts manner about Nickel that he reveals even in a simple act like answering the telephone. He doesn’t say hello but instead barks his last name. He wears thick glasses. The day we met, he was wearing a short-sleeved white shirt and a wide tie that might have been fashionable 20 years ago.
Since 1982, lawmakers in Sacramento have approved no fewer than 1000 statutes aimed at tougher sentencing laws. There are people around California convinced that Nickel can name practically every one of them.
“As far as I was concerned, while there were a lot of problems that still needed to be addressed by the legislature, there were two major ones,” Nickel says. “One is that we had no effective habitual-criminal law in this state. The existing law was so narrowly drafted that it was not of much use. We prosecuted maybe 50 people in 12 years under that law. The second problem was the half-time credits that allowed criminals to get out after serving only half their sentence. In my view, that represented a scandalous situation. Yet every year since 1983, we asked the legislature to address this problem, but year after year they did nothing.
“Then a Pearl Harbor event occurred that changed everything — the police arrested Richard Allen Davis for the murder of Polly Klaas,” Nickel says. “He was your classic career criminal who very clearly demonstrated the need for both of these changes in the sentencing laws. Had there been an effective habitual-criminal law or had the legislature done something about the half-time-credit law, he’d have still been behind bars. Polly Klaas would still be alive today. It was obvious to everyone in Sacramento that something needed to be done. No one was going to return to his or her district without addressing these two issues.”
Nickel joined prosecutors across the state, working through the California District Attorneys Association, to offer a more sensible, better-written alternative to the Jones bill — the Rainey bill, as it came to be known, after its main sponsor, a Republican assemblyman (and former sheriff) from Contra Costa County, Richard Rainey. Colleagues credit Nickel with writing the Rainey bill virtually by himself, but he would only say, “I pitched in where I could.”
Under Rainey’s proposal, a person with two previous serious or violent convictions who was found guilty of a violent crime would be sentenced to life without the possibility of parole. In that regard, the Rainey bill was actually tougher than the Jones bill. On the other hand, Rainey’s proposal wouldn’t apply to those whose third felony was a relatively minor offense like shoplifting or drug possession — or the theft of 83 wooden pallets. Marc and Joe Klaas, Polly’s father and grandfather, spoke in favor of the Rainey bill. Rainey’s measure was renamed the Polly Klaas Memorial Habitual Offender Reform Act, to counter the emotional weight Mike Reynolds added to the Jones bill.
“We wanted to put the focus on the current offense, which is the traditional approach to criminal prosecution,” Nickel says of the Rainey bill. “The focus is on what is bringing a particular defendant back to court. The lones bill aimed to put the focus on a criminal’s previous record. There isn’t much concern with the current offense, but instead it’s that this particular defendant is again back before the court. If he’s got two serious felonies in his past, including attempted serious felonies, or if his two prior felonies were from the same case, or even if his priors date back to when he was a juvenile — none of that would make a difference under the Jones bill. It wouldn’t make a difference if he never served any prison time for these previous offenses. If someone had two serious felonies on his record, no matter what the circumstances, then he’d be prosecuted as a three-strikes case if he commits another felony.”
The Jones bill was flawed, by anyone’s standards. Because of a drafting error, it inadvertently excluded felony convictions for crimes committed outside California. So, too, did it accidentally preclude the death penalty for anyone who had already been convicted of a violent or serious felony. Those were only two of the bill’s more glaring errors. The California District Attorneys Association complained that the bill left so many questions unanswered they would be in court litigating these issues for at least a decade.
Others tried adding a dose of reality to the debate. The California Department of Corrections estimated that to keep pace with the results of three-strikes legislation, the state would need to build 20 additional prisons (beyond the 12 already on the drawing board) over the next five years at a cost of $21 billion. The legislative analyst’s office estimated that, setting aside construction costs. Corrections would require an extra $2 billion a year on top of its already formidable S2.7 billion annual operating budget. According to the CDC’s own figures, in 1980, 1 in every 1006 California residents was imprisoned; shortly into the new millennium, under three strikes, that ratio would be 1 in every 146.
Police representatives feared that repeat felons would be more likely to shoot their way out when cornered if they knew they were facing life. Prosecutors complained that passage would further clog an already overcrowded court system with smalltime felons demanding jury trials when confronted by a 25-to-life sentence. James Fox, a Bay Area district attorney, imagined a young man who, as a juvenile, had two burglary counts on his record because of a bike theft and the theft of a basketball from a neighbor’s garage. “If he does anything else, no matter how serious the felony — stealing fruit from an orchard or stealing abalone are both felonies — he faces 25 to life.”
Despite the criticism and rival proposals, Mike Reynolds dug in his heels. At the start of the 1994 legislative session, Reynolds had threatened to put on the November ballot a three-strikes initiative duplicating the Jones bill if the legislature didn’t pas a measure at least as tough. To that end, he began collecting voters’ signatures. He made a point of showing up in hearing rooms whenever the Jones bill or a rival measure was debated. When a state senate committee approved an amendment that added a violence-prevention component to the Jones bill, Reynolds voiced his displeasure, and the committee voted to rescind it. In newspapers around the state, Reynolds was quoted as saying he’d accept absolutely no revisions to the Jones bill, “not even a spelling mistake.”
Pete Wilson jumped on this anti-crime bandwagon with more vigor than most. Perhaps he was moved by the senseless deaths of Kimber and Polly but, with a reelection bid less than 12 months away, he was likely also motivated by his sagging popularity. (Marc Klaas accused Wilson of “using my daughter’s casket as a stepping stone” to advance his career.) He threw his weight behind Jones’s proposal and other get-tough measures, such as a bill that would allow juveniles as young as 14 to be tried as adults. Wilson declared a special emergency session of the legislature to run concurrently with the regular session, a parliamentary maneuver that would allow three strikes to take effect immediately upon passage. A “publicity exercise,” said one Democratic senator.
Like Reynolds, Wilson declared he would reject any compromise that softened the Jones bill. Where critics tended to talk about the petty thieves and drug abusers who would get swept up in this gill-net approach to crime, Wilson focused on the “animals” like Richard Allen Davis. He dismissed as “partisan politics” the concerns voiced by those like Nickel who were mobilized behind the Rainey bill. “I will not participate in weakening the three-strikes law,” the governor said. “I really question the good faith of the people who are doing that.”
Wilson signed Jones’s three-strikes bill into law in a ceremony outside a Hollywood police station on March 7. His hang-’em-high rhetoric soared to new levels in a prepared statement that used “tough,” “tougher,” or “toughest” five times in two pages. That same day Reynolds submitted the last of the 800,000 signatures necessary to place his three-strikes measure on the November ballot. Despite the passage of the Jones bill, Reynolds decided to proceed with his ballot initiative (Proposition 184) because of the lingering support in Sacramento for Rainey’s bill and other alternative measures. “They’ve held [these other bills] like a trump card,” Reynolds was quoted as saying. “They’ve forced our hand.”
He had poured everything he had into his crusade, including the $70,000 he and his wife had set aside for their retirement, and he wasn’t about to trust its future to vagaries of the legislature.
Despite Reynolds’s earlier threats, lawmakers had made a few changes in the Jones bill. The most significant was one that allowed non-California felonies to count as a first or second strike, a revision wiped out when Prop. 184 passed with 72 percent of the popular vote, thereby superseding the Jones bill.
I’d have no problem with this law if it was for violent crimes,” says Linda Brown, a San Diego County public defender who’s represented about 20 defendants charged under three strikes. “You commit violent crimes, you ought to be kept out of society. But serious felonies? That’s where the problem lies.
“Residential burglary is in there as serious. Now, when you look at residential burglary, most people are thinking, ‘God, I’m lying in my bed at night and some guy’s going to stick a gun at my head.’ I can see why people say that should qualify as a strike, but most residential burglaries don’t occur like that. Residential burglary has been so greatly expanded that you don’t even need to enter the house. You can have a guy go into an attached patio and steal something, and that’s a residential burglary. You don’t have to break and enter anymore. You can walk into an open garage attached to a house—all it has to do is share a common wall, that’s good enough.
“You take a kid in the neighborhood. Your garage is open in the middle of the day, and the kid looks in and sees a tool, grabs a wrench out of your toolbox. That’s a residential burglary. The exact same charge and punishment as for the guy who breaks into your home and steals your stuff while you’re sleeping in your bed. That’s what’s so ludicrous about it.
“It’s the same with a robbery. Someone who hits you over the head or commits a stickup at 7-Eleven is guilty of robbery; but what’s called an Estes robbery is also classified as a serious felony. An Estes robbery is basically a crime that’s elevated from a petty theft to robbery if there’s any force of coercion used to advance that theft. Like, if someone steals a CD from a store, they secret it in their jacket, and as they’re walking out the door, the store clerk says wait a minute and grabs him by the jacket. If you hit (the clerk’s] arm away, that’s a robbery, because you used force to accomplish the robbery.
“Sure, no one wants their home invaded, even if it’s some guy who knocks on the door while you’re at work to make sure you’re not home. It’s not okay to steal a CD from the store. But I don’t think those sort of crimes should be a strike. Crimes against a person are one thing. Crimes against property, though, shouldn’t be a strike.”
It fell to prosecutors around the state to make sense of this poorly drafted law forged in a climate of fear, grief, and political expediency. Reactions within the various district attorneys’ offices around the state were predictably varied. In liberal Alameda County, for instance, they decided against charging a defendant under three strikes unless the argument could be made that this was the kind of violent offender who deserved the hammer.
“To us, there are some crooks who aren’t very dangerous and some crooks who are, and the goal here should be to concentrate our resources on the dangerous people,” says Bill Baldwin, who oversees the felony crimes unit in the Alameda County district attorney’s office. “It’s our thinking that we can’t try them all, so why not go for the guys who show the real propensity for violence? The law clearly provides us the discretion to strike priors due to the interest of justice. Period.
“What’s in the interest of justice? It doesn’t say, so we figure we can define that as we see fit. A guy with two robbery convictions earlier in his life, we’re not going to send away for life because he’s caught shoplifting. So we strike the prior. Or we’ll strike two priors, what the heck, if we don’t think this guy should be getting double the term."
District attorneys in San Diego were similarly inclined to view the new three-strikes law as an intemperate use of money at a time when every dime is precious. Then-District Attorney Ed Miller even traveled to Sacramento to testify against the Jones bill and in favor of the Rainey proposal. Yet once the Jones bill was signed into law, prosecutors here pursued three- strikes cases as if on a mission, charging any and every case as if they had been true believers from the start.
The attitude of the district attorney’s office in San Diego is best captured by a training document Charles Nickel prepared for his fellow prosecutors shortly after the law’s passage. The document delves into the numerous ambiguities written into the law and notes several examples of the law’s “conflicting language.” Yet after seven pages of analysis of a bill riddled with errors and oversights, Nickel offered this conclusion, “It is the obligation of prosecutors to faithfully implement the ‘Three Strikes’ statute enacted by the legislature and signed by the governor. Some of its provision are uncertain and will require interpretation by the appellate courts.... [But] through it all, we endure as the representatives of the People of the State of California.”
At around the time Jorge DeHorta was arrested. Jack Hochman had just finished defending his first three-strikes case. A man named Santos Rosado was stopped for making an illegal right turn. “He had no driver’s license with him, so the cops searched him looking for identification,” Hochman says. “They went into the glove box, found an obviously fake ID with my client’s picture on it, but with a different name than the one he had given them. They also found a $1000 U.S. savings bond, which turned out to be stolen.
“Then the cop searched Mr. Rosado incident to arrest. The cop shook him down, and a syringe fell out. He shook him out, and a spoon fell out. He shook him again, and cocaine fell out.”
Rosado’s rap sheet showed that he had been convicted of burglary in 1986 and robbery in 1989, both strikable offenses, so he was charged under the three-strikes statute. A jury found Rosado guilty on two felony counts: drug possession and possession of a stolen savings bond. A month later, the judge sentenced Rosado to 50 years to life — 25 to life for each count.
“Rosado was 38 when he was sentenced,” Hochman says. “He’ll probably die in prison before he’s eligible for parole.” Which pretty much sums up Hochman’s mood last fall when he picked up the Jorge DeHorta case in earnest. He was exhausted from overwork and feeling anything but hopeful in the face of this law that many in the D.A.’s office saw as overkill, even as they were faithfully applying it with more gusto than just about any other county in California.
Jorge DeHorta was a Mexican national who, in search of work, first sneaked across the U.S. border at the age of 14. He found a job as a dishwasher; from there, he slowly moved up, from busboy to waiter to cook. In 1985, at the age of 27, he was working as a short-order cook in a Los Angeles restaurant when he broke into a Pomona home in search of marijuana, his first strike.
“It was just stupid,” DeHorta recalled, after his sentencing. “I didn’t want nothing. I didn’t need nothing. I was with a friend, and he said he knew a house where there was a pound of weed and no one was home. So he said, ‘Come on, let’s go. Let’s go get it,’ and I said, ‘Yeah, let’s do it.’ ” DeHorta said he was drunk at the time, as he invariably was, he claimed, whenever he found himself under arrest.
“We didn’t find anything. When we came out of the house, we didn’t have anything. No weed, no stuff, no nothing, ’cause we just wanted the weed, you know?” A neighbor saw them break in, though, and the police were waiting for them. DeHorta pled guilty to residential burglary and was sentenced to two years in prison.
DeHorta’s case was written up in a booklet put out by the San Francisco-based Center on Juvenile and Criminal Justice (the source of all DeHorta quotes in this story). In its report (“Three Strikes: The Unintended Victims,” October 1994), the authors express shock that DeHorta didn’t receive probation for what they describe as a first offense. “I was making more than $200 every week,” DeHorta said. “I told them I would pay a fine, but I don’t know. They just — boom.”
But this was hardly DeHorta’s first brush with the law. He had pled guilty to several petty thefts, a battery, and a burglary charge by the time he was sent to a minimum-security prison in Chino for what was a “first offense” only if counting those the law classifies serious felonies.
After his release, DeHorta found work as a cook in a Los Angeles-area coffeehouse. He had worked there a couple of months, he said, when the boss told him, “I’ve got to let you go. I know you’re on parole.” Apparently, DeHorta’s parole agent had called to verify DeHorta’s place of work. As DeHorta told it, his conversation with his former employer went something like this: “I told him you were a good worker and that you were doing okay.” “So why you letting me go?” “Well, he told me you were in prison for burglary and you’re a dangerous person and to watch out for you.”
DeHorta’s second strike came when he pled guilty to residential burglary in 1991. He had just been released from prison after serving time on a charge of receiving stolen property. As he told it, he was without a job and living in a friend’s truck when his buddy said he knew where they could lay their hands on some easy money. Again, the story has them drinking heavily. (“I’m such a bad drunk,” DeHorta said.) The pair ended up getting caught in the back yard before they even had a chance to break into the house. DeHorta pled guilty and was sentenced to another two years in prison.
DeHorta was deported upon his release, but by that time he didn’t really know anyone in Mexico except his mother. (“I tried working in Tijuana a couple of times,” he said, “but unless you sell dope or run people across the border, you starve.") He decided that this time he’d head for San Diego rather than Los Angeles and maybe change his luck. This was sometime in 1993.
DeHorta caught a break when he found work as a mechanic at a garage owned by a man named Vicente Via. He worked there for a year before the cops picked him up for stealing the Price Club pallets. Via told the authors from the Center on Juvenile and Criminal Justice that they considered DeHorta a reliable employee who did his work and did it well. Both he and his wife volunteered to testify as character witnesses, though whether that would do much good was doubtful.
Prosecution of DeHorta fell to Patricia Atwill, a district attorney in the Chula Vista office. Atwill is a former schoolteacher who took up the law after the death of her husband in 1980. She passed the bar just before turning 40. Before going to work for the district attorney’s office, in 1989, she worked as a deputy city attorney, prosecuting misdemeanors. Coincidentally, the opposing counsel in her first trial was Jack Hochman. With a coy smile, she’ll tell you proudly that it was also her first victory.
Atwill has a cheery and upbeat manner despite the depressing nature of her work. She has round cheeks and hair streaked with gray that she wears in bangs. On the day we met, on the third floor of the South Bay courthouse, she wore a blue silk blouse and a matching blue bow in her hair. She describes herself as politically conservative, yet her main motivation for joining the district attorney’s office, she says, wasn’t prosecuting the bad guys so much as doing trial work. “Realistically, that meant my doing criminal work, and my bent is much more inclined to the prosecutor side of things,” she says.
Atwill knew little about three strikes as the law was being applied in San Diego. DeHorta was her only three-strikes case. This past March, the judges, district attorneys, and public defenders agreed to set aside several courtrooms exclusively for three-strikes cases, staffed by P.D.s and D.A.s who would work solely on these cases. Before that time, Atwill says, they were distributed at random among the court’s attorneys. “Anyone doing.trials was likely to get one,” she says.
Atwill says she had no reservations about prosecuting DeHorta as a three-strikes case, despite the benign nature of his crime. “I mean, if you have a case where you’ve got a person who did a few burglaries or robberies when they were 18 and then have lived, like, a basically clean life for years and years and years and years and then did something stupid, then I think that would be different. Then I think people would have reservations and say, ‘Hey, wait a second, is that what we want to do?’ But our friend here, no. No. No.”
Atwill acknowledges that as far as she could tell, DeHorta had never shown a penchant for violence. But she quickly added, that’s beside the point in a case like his. “Here’s someone, he’s 37 years old, and for most of his adult life he’s just been committing crimes,” she says. “He’s committed crime after crime after crime after crime since 1975. I think that this is the sort of person the voters want subject to three-strike laws, even though the crime he committed is not the crime of the century. I mean, based on his background, he’s certainly not going to reform at this point.”
Before three strikes, DeHorta’s case would have been dispatched over the phone or in a chance meeting in a hallway. He would have been arraigned, and Hochman and Atwill would have started talking almost immediately. Atwill would have pushed for the maximum penalty allowed under California’s sentencing guidelines, six years. (Three years for the grand theft, plus an additional year for each of his three prison priors.) Hochman would have pushed for the low term on grand theft (16 months), given the minor nature of the crime and despite the dollar value of the pallets, but he probably would have settled on three years, which would mean, with good-time credits, DeHorta would be out in a year and a half. There may have been a preliminary hearing, but almost certainly there would have been no trial.
Before his latest arrest, Jorge DeHorta had been charged with crimes 11 times. Most of them were misdemeanors, but on at least four occasions he served prison time. Yet up to this point, he had never stood trial.
Hochman figures that, before three strikes, he used to settle roughly four out of five cases without a trial, and he’s an attorney known for his propensity to fight. He figures he settled anywhere between half to two-thirds of his cases even before the prelim. Yet in the year he worked the three-strikes beat, he represented 24 three-strikes defendants (and another 18 two-strikes defendants), and he went to trial with every one.
In many other California counties, D.A.s routinely offer deals to those for whom the third strike is a non-serious felony. Accept a stiff sentence, a defendant would be told, and we’ll strike one of the strikes. As the San Diego district attorney’s office interpreted the law, however, there was no middle ground. DeHorta would go down for 25 to life or he’d go free. There were no pretrial negotiations because Atwill had nothing to offer.
Not surprisingly, criminal trials in San Diego County increased more than 20 percent in 1994 when compared to 1993, though the crime rate actually fell in ’94. The backlog of cases grew as well. At the end of 1993,2700 criminal cases were pending; 3650 were pending at the end of ’94, a 35 percent increase. The new law wasn’t even a year old when retired judges and those working the civil courts were brought in to pick up the pace of trial work.
Nowhere was this backlog more acute than in the South Bay courtrooms. While the criminal case backlog in the downtown courthouse was 47 percent greater at the end of 1994 than ’93, the backlog jumped 175 percent in the South Bay. The supervising judge there told a reporter for the Union-Tribune that he was forced to shut down the civil calendar for the last three months of 1994 and might just have to shut it down again to accommodate criminal cases.
The irony, Hochman says, is that this law aimed at repeat offenders devours so many resources that it’s provided a break to newcomers to the system who’ve actually committed more violent felonies than most of those charged under three strikes. “The practical impact has been judges making their own deals on first-time offenders, on serious felonies, in order to clear their calendar as much as possible to deal with cases they had to deal with,” he says. “A judge has all these prelims in front of him while he’s already got five trials pending, so he’s going to try and settle all those prelims, and he’s going to make everybody a good offer.
“I saw serious felonies, like 245s [assault with a deadly weapon], getting [changed] to misdemeanors by judges so a guy’d plead rather than go into a preliminary hearing. I saw one guy get a no-time felony on a shooting out of a moving car, which is prison presumptive. That’s the craziness of this law. The system is so busy beating up on guys with these minor offenses that there’s no time to punish these first-time serious offenders.”
Jorge DeHorta went to trial in November of 1994. By that time, San Diego was already gaining a reputation around the state for its zealous pursuit of three strikes. The Center on Juvenile and Criminal Justice report that featured DeHorta profiled nine others whose stories were meant to underscore the severity of the three-strikes law. Though the authors had 58 California counties from which to gather their tales of woe, three of the ten men they chose had been charged in San Diego County.
At around that same time, the state legislative analyst’s office reported that 70 percent of those charged under three strikes in the law’s first six months were being tried on a nonviolent third offense. That figure was even higher in San Diego — just under 80 percent. Property crimes, including petty theft, would account for one-third of the county’s three- strike cases by the end of 1994, and drug-possession cases another 30 percent, according to figures provided by the San Diego County district attorney’s office.
In some California counties, D.A.s choose to ignore juvenile strikes because juveniles are not accorded the same rights as adults (for instance, jury trials are not permitted in the juvenile court system). Consequently, counting juvenile convictions as strikes, when a defendant has been denied due process, has led to costly appeals. San Diego, though, counts juvenile strikes, according to Gregory Thompson, the number- two man in District Attorney Paul Pfingst’s office.
Before three strikes, someone found guilty of a serious felony, with a serious felony prior, would be slapped with a 5-year enhancement for every serious felony on his record. So if someone was found guilty of first-degree burglary with a single burglary prior, they’d receive anywhere from 2 to 6 years for the burglary and another 5 years for the prior. Under the three-strikes law, the burglary sentence for this same two- time loser would be doubled — say, twice the mid-term, or 8 years. But drafters of the law failed to spell out a policy on the application of the 5-year enhancement. Charles Nickel, in the training manual he wrote for his fellow D.A.s, notes that existing case law precludes a D.A. from using the same prior to both double the base term and also apply the long-standing 5-year enhancement clause. Yet the San Diego D.A.’s office is doing just that in its two-strike cases, Greg Thompson asserts. (In San Diego, then, the 8-year burglary sentence could become 13 years, including the enhancement.)
“The district attorney, Mr. Paul Pfingst, has said that we will aggressively implement three strikes,” Thompson says- “The people made it very clear they wanted this law to enhance punishments for repeat offenders. And we intend to do that.
“Now I’ll admit to you, it’s a pretty bold experiment. I don’t know if the public understands the full impact of what they’ve passed here. But we’re determined to make it work. To really implement the public’s intent here.”
Prosecutors around California have another way to give a break to three-strikes defendants like Kendall Cooke, facing 25 to life for a can of beer. They can file certain cases, called “wobblers,” as misdemeanors rather than felonies, depending on the circumstances. Yet, based on interviews with prosecutors in nearly a dozen California counties, prosecutors in San Diego have apparently been far more reluctant to do this than have D.A.s elsewhere. Three public defenders and three district attorneys from San Diego County, between them, could name only a single example of a D.A. voluntarily wobbling down a case in the law’s first year on the books.
Two of Hochraan’s three-strikes defendants were spared a trial when their crime was wobbled down to a misdemeanor. But relief in both cases came from a judge granting Hochman’s motion to reduce the charges, not from a district attorney. That’s how Tom Silva, the man accused of stealing two car radio knobs and an ashtray, was spared a life sentence, and also Raul Saenz, caught shoplifting $75 worth of merchandise from a Target store.
Saenz’s case had been assigned to Judge Thomas Duffy, called out of retirement to help with the South Bay court’s case backlog. Although Duffy, while still on the bench, was known as a “hanging judge” (“he had a terrible reputation among defense attorneys,” Hochman says), he reduced the charge against Saenz because, he said, 25 to life for so relatively petty a crime “shocks the conscience and offends the fundamental notions of human dignity.”
In San Diego County, the judges, even conservatives like Judge Duffy, have proven to be the rebels standing against three strikes in the face of the D.A.’s inclination to go for the maximum penalty. However, the law doesn’t grant a judge any right to ignore previous strikes; only prosecutors are granted that power. There have been isolated cases of judges doing the same elsewhere in the state, but nowhere has there been anything comparable to the small insurrection here among a group the local defense bar tends to view as shills for the prosecution, dressed in black robes.
Typical is the case of Jesus Romero, charged under three strikes after he was busted with 0.13 grams of rock cocaine (around $40 worth). “All I can do is fall back on my experience,” said the judge assigned the case, William Mudd. “And my experience is that up until this year, this case is worth 16 months regardless of what the record of the person is....
“Given the history of this defendant, with his last what we would call serious felony, which was a residential burglary, was in 1986, 0.13 grams of rock cocaine — a sentence for that offense of 25 years to life constitutes cruel and unusual punishment.” Mudd instead sentenced Romero to six years in prison.
Judges have been similarly bold in no less than eight of Hochman’s cases. Those saved (at least temporarily) from a 25-to-life sentence by a judge striking a strike include Eddie Jordan, a self-described junkie caught shoplifting a $32 shirt from a JCPenney; Alfredo Moreno, for theft of a $31 shirt; and Ramon Lopez, facing 50 to life after he was busted twice in one week for possession of minuscule amounts (0.07 and 0.08 grams) of methamphetamine. Jordan was instead sentenced to four years in prison, Moreno was remanded to a strict drug- treatment facility, and Lopez was sentenced to 32 months in jail. Kendall Cooke, the man facing life for stealing a beer, was similarly spared just before his case was to go to trial. The judge struck Cooke’s two prior strikes, sentencing him to 16 months in county jail.
It’s unclear whether Hochman’s eight clients and another two dozen or so defendants around the county have caught a real break or have merely been granted temporary relief. The district attorney’s office has challenged a judge’s right to strike priors.
“It’s simple, really,” says Greg Thompson. “It’s a matter of enforcing the law. We’re challenging a judge’s right to strike strikes, because we don’t believe the law gives them that power.”
A state appellate court in San Diego agreed when it heard the D.A.’s appeal of Judge Mudd’s decision on the Jesus Romero case. In January, a three-judge panel ruled that judges can’t dismiss prior felonies, even in the interest of serving justice. The appellate court focused not on Romero’s latest bust but a history of crime that dates back to 1979.
“For at least the last 15 years, Romero had continually preyed upon society,” the court wrote. “He has spent much of his adult life in county jail or prison with no apparent impact upon his behavior upon his release. He is an addict who finances his habit by theft and burglary. He dropped out of school and has never maintained steady employment. 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 shock the conscience....
“Romero contends a first-degree murderer actually has an earlier possible parole date than he does for possessing 0.13 grams of cocaine. Romero misses the point that he is subject to 25 years to life imprisonment not because he possessed 0.13 grams of cocaine but because of his recidivist behavior.” (The county public defender’s office appealed the decision to the California Supreme Court, which has agreed to hear the case. A ruling isn’t expected until late fall or early 1996.)
Charles Nickel says, “The issue here is judges’ discomfort level relative to the fact they are accustomed to focusing on the nature of offense rather than a criminal’s past. They’re not used to giving 25 to life for auto theft. When judges are used to giving 4, 6, 8 years on an offense, and then someone says 25 to life, they’re uncomfortable with it.
“But the legislature has spoken,” Nickel says. “The voters have spoken. A lot of judges believe that ultimate power in the courtroom shall remain with them. But first the legislature and then the people said no, we won’t allow you to continue to stand in the way of prosecutors.
“So there’ll be an adjustment period, but over time, judges will grow used to this.”
Jorge DeHorta’s trial lasted only three days. That’s the ironic thing about these cases that can end in a life sentence. They’re petty thieves caught on a video or guys like DeHorta who confess to their sins without realizing the impact of their confession. There are no DNA experts, no psychiatrists, no exploration of motive. The defendants are poor or they are addicts so they steal. By and large, the trials are relatively routine matters that don’t require much in the way of casemaking on the part of the prosecution.
Before DeHorta’s trial even began, Hochman opted to have the judge read the defendant’s priors aloud in front of the pool of potential jurors. That would be the first hint he’d provide that this was a three-strikes case, without having to use the term. His gambit may have backfired, however; the first potential juror to be examined said, “This sounds like a three-strikes case to me. If it is, you better disqualify me right away, ’cause I’ll vote not guilty.” The man continued with something of a tirade about this wrong-headed law that makes no sense.
“Finally the judge stopped the man, and we went sidebar,” Patricia Atwill says. “And we all agreed to flat-out tell the jury that it was a three-strikes case, and if anybody else had reservations about this, step forward. Seven people raised their hands. Seven out of around 24 people, which really surprised me.”
DeHorta testified on his own behalf. “I wanted to show the jury that he was this soft-spoken, nice man who’s worked his entire life,” Hochman says. “I wanted the jury to see that. My client had never been convicted of a violent crime. His record was mainly a lot of misdemeanors.”
That decision also allowed Atwill to hammer away at DeHorta’s past record. “I had a great time with him on cross- examination,” she says. “He had used something like 25 AKAs, four Social Security numbers, and 12 different dates of birth. Something like that. He had pled guilty to his priors, so I had his signatures on the change of plea forms. So I would show him his signature and ask him, ‘Is that your real name?’ ‘No.’ ‘So when you were doing this, you were lying?’ ‘Yes.’
“He had his story, that some guy had come up to him and offered him work,” Atwill says. “And his story was that he just stood there drinking beer while his buddy did all the work. But...the story just didn’t make sense. Also...when I was reading his probation report, he used the exact same story [before]. Some guy just offered him work in one of his other theft cases.”
Atwill conceded that Hochman offered a rather clever closing argument. “He was precluded from flat-out saying, ‘Look, do you want to send this man away forever because he stole $800 worth of pallets?’ ” she says. “He wasn’t permitted to do that. But he kept saying, ‘This is a very serious case for my client, a serious case.’ So he subtlety argued the same thing. But his client was not sympathetic, not with all those AKAs. He flat-out lied, that’s all there is to it.”
The jury agreed with Atwill. A month later, DeHorta was sentenced to 26 years to life — 25 to life for the grand theft, and an additional year on a prison prior.
“To me, [DeHorta] fits into that same category like Romero,” Atwill says. “You can say he doesn’t deserve life for this crime, but I say it’s not the current crime that’s getting him 25 to life, but his life of crime.”
In his 12 months on the three-strikes beat, Jack Hochman amassed an enviable record. Only 2 of his 24 clients charged under three strikes (DeHorta and Romero) fell on a life commitment. Yet nearly half those who caught a break may end up losing anyway, depending on appeals now pending before higher courts. The public defender’s office will appeal the Romero decision before the California Supreme Court, arguing that the three-strikes law violates the “separation of powers doctrine” that holds that one branch of government can’t strip away fundamental rights from another, as the legislative branch has arguably done when it gave prosecutors but not judges the right to strike strikes.
“I’m hopeful we’ll win, but I’m expecting eight of these cases back on appeal if Romero is upheld,” Hochman says. “I have another two that are misdemeanor reductions, wobblers. Those I expect will also come back if the appeals court finds that judges’ reduction of a felony to a misdemeanor is improper.” Hochman no longer works out of the South Bay courthouse. He’s back downtown, where he’s handling non-three-strikes felonies. There are those inside the P.D.s’ office who say he’s there because he was too aggressive in his representation of his three-strikes defendants.
In March, Greg Thompson sent out new three-strikes guidelines to all the deputy D.A.s. “A deputy may, in rare instances [emphasis in original], move to dismiss a prior felony conviction allegation under the ‘in furtherance of justice’ standard,” Thompson wrote. In case any of his deputies missed the point, he referred to those “exceptional cases” where such action is taken and laid out a procedure that includes a supervisor’s prior approval and the forms that must be completed. There may be more exceptions than in the new law’s first year, but not many.
“It’s our view that there are instances where, if the law were implemented to the max, there would be miscarriages of justice,” Thompson says. “In those instances, we will exercise our discretion to avoid miscarriages of justice. But at the same time, the public has spoken on this.”
Thompson is an affable man with dark eyes, a creased face, and an easy smile. His hair, dark with touches of gray, is worn slicked back. Wall Street-style. Before coming to San Diego, he served as the number-two man in Los Angeles and Sacramento. He declined to discuss any specific cases, though he would say that defendants like Kendall Cooke, say, or Jorge DeHorta probably would not benefit from this new policy.
“I draw the line in maybe a slightly different place,” Thompson says. “You’re talking about people who are your low-level drug addicts. They’re living on the periphery. They’re not committing violent crimes but instead are going into Mervyn’s to steal Levi’s they’ll sell for ten bucks. The class we’re trying to carve out of three strikes aren’t those folks; it’s those I call the ‘mopes.’ The people who are pushing shopping carts down the street, the folks who sleep under bridges. They steal on occasion. They have long histories of substance abuse. But they’re not career criminals. No one feels threatened by them — except they may not like them in their neighborhood. But on the other hand, they don’t merit the 25-to-life sentence based on the theft of a package of bologna from the 7-Eleven. They don’t represent that same kind of threat to the public like the defendants you’re talking about.
“Some of the people you’re talking about — the guys who are involved in drugs, the ones you’re calling a sneak thief — those people do represent a continuing threat to the public. People want those folks off the street. These are people who continue to commit crimes, even if it’s not with a gun.” The first exception under this new rule, Thompson says, was a man caught stealing $30 in steaks from a local grocery store. In the interest of justice, he says, everyone agreed to charge the man with a misdemeanor rather than a felony.
“We’ve already gotten a letter from an irate citizen angry that we didn’t prosecute this man,” says Pfingst spokeswoman Gayle Falkenthal. “The letter writer asks, ‘How are we going to explain to our child that you permitted this man, a common thief, to get away with this crime?’ This is our one exception so far, and we’ve already gotten heat for it.”
The public defender’s office has enlisted a private attorney to handle DeHorta’s appeal, but it’s likely he’ll spend anywhere from 20 years to the rest of his life in prison at a cost of at least $26,000 a year to California taxpayers.
“That’s what’s incredible about this law,” Hochman says. “Forget for the moment that it’s an absolutely unjust law. It’s also going to bankrupt the state.” Within the next ten years, according to the Santa Monica-based Rand Corporation, the Department of Corrections’ proportional share of the state budget will double, from 9 to 18 percent. “To support implementation of the law, total spending for higher education and other government services would have to fall by more than 40 percent over the next year,” Rand’s researchers concluded. “If the three-strikes law remains in place, by 2002 the state government will be spending more money keeping people in prison than putting people through college.”
And Jorge DeHorta? “I screwed up bad, I got to admit,” he said. “But for taking some pallets to make a bonfire, it’s too much time. Not 25 years just for some wooden pallets. I never beat nobody up, I never use a knife or a gun or nothing like that. No, I don’t think I’m dangerous to anybody — except maybe to myself, with the alcohol and the weed.”