The Counsellor's Corner

How do you feel about the Three-Strikes Law? Are you for it? Are you against it? Even if you are a supporter of the law, you may find yourself having sympathy with David DeLaRosa who recently became the first criminal defendant to get the 25-years-to-life sentence consistent with a third strike because he was convicted of FAILING TO APPEAR IN COURT. Mr. DeLaRosa had a matter set for trial in Sacramento in which he was charged with burglary. When he did not appear for his trial, the judge decided to conduct the trial without him, and the D.A.'s office added a "failure to appear" count along with the very serious first-degree residential burglary count. With Mr. DeLaRosa not present, his girlfriend testified that she was the culprit and he had tried to talk her out of committing the crime. While the prosecutor, the judge, and perhaps the defense lawyer as well thought the jury would convict DeLaRosa of the burglary, they actually hung seven to five in favor of conviction on the burglary charge. Unfortunately for DeLaRosa, they did convict him of felony failure to appear, and this is now his third strike.

Counting against Mr. DeLaRosa is the fact that his prior strikes were for assault with a deadly weapon and burglary. Also not in his favor is the fact that he deliberately did not come to court, hoping that a warrant would be issued for his arrest and his burglary trial would be postponed. The alleged burglary, by the way, dealt with approximately $3,000 worth of electronic equipment, and while I am inclined to disbelieve the girlfriend's testimony, the fact is that five out of twelve jurors did believe it and that caused a hung jury. Unfortunately for Mr. DeLaRosa, while failing to appear can be charged as either a felony or a misdemeanor depending on the underlying offense, the D.A. chose to charge it as a felony in this matter. On top of this, even if one is convicted of felony failure to appear as in this case, the judge can either treat it as a third strike and sentence you to 25 years to life, or sentence you to straight probation with NO TIME IN JAIL.

The judge decided that due to Mr. DeLaRosa's prior history and the fact that he intentionally did not come to court in order to hopefully force the postponement of his trial, he was going to view this as a third strike and give the above sentence.

As fate would have it, at one time Mr. DeLaRosa's girlfriend was convicted of failing to appear and paid a $95 fine. The disparity between her sentence and his exemplifies the unfairness.

No, I don't like Mr. DeLaRosa; he may well have committed the burglary, he attempted to thwart the system by not appearing in court, and he had a 1978 robbery conviction from Texas that was not used in this case because Texas and California define robbery differently. There is no doubt here that Mr. DeLaRosa is not a nice guy, and while I think a $95 fine would not be appropriate in this circumstance, 25 years to life is much too much. Please remember that the jury hung on the underlying charge, the burglary. Almost half of the jurors believed that the prosecution had not proved beyond a reasonable doubt that Mr. DeLaRosa had committed the burglary. To then have him convicted of a count added on later that can be charged as a misdemeanor, and even if it is charged as a felony can be sentenced as straight probation; to turn that into 25 years to life is just not fair. The judge talked about the fact that if he did sentence differently, he would not be acting within the spirit of the three-strikes law and he thought that the legislature was the appropriate forum for any complaints.

I obviously disagree. The judge has discretion, he is choosing not to exercise it, and Mr. DeLaRosa is now facing life in prison for not appearing in court. This is not justice.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.