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(A last-ditch motion filed this morning to try to save somebody from a three-strikes sentence of 25-years-to-life. Thought maybe some people might be interested, in what it's like, out here in the Real.)

                                                                             I.

The prosecutor complains bitterly that this case has consumed five years. Counsel is baffled as to why this should so agitate the prosecutor. For the prosecutor has not spent a single day, in all those years, locked away in a cage. It is Mr. W———, who has. He has been caged, every day, for every one of those days, in all those years.

The time he has thus far served is entirely sufficient, by any reasonable measure, to punish Mr. W———'s miscreancy in possessing a loaded 9mm semi-automatic, two syringes, .2 grams of methamphetamine, and .53 grams of cannabis, plus various assorted filters, funnels, bags, and plugs. Which is what he is charged with in this case.

To instead decree that, for this miscreancy, he should be locked away in a cage for the rest of his life: this is cruelty, and this is barbarism.

Intro

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                                                                      II.

The three-strikes law approved in 1994 is an expression of the worst instincts of the people of this state. It is atavism, rooted in fear and vengeance.

It is a law that is the result of great public ferment over Richard Allen Davis, a repeat and unrepentant killer, rapist, kidnapper, and torturer, who, while out on parole for one of his numberless violent crimes, kidnapped, raped, and killed a young girl.

The nation’s shameless and craven media, ever bloodthirsty for tales of young white girls in great peril—preferably young white girls missing, then later found sexually violated, and murdered—for weeks ceaselessly flogged every parent’s nightmare, of walking into a child’s bedroom, to find that child kidnapped. And, later, dead.

When once Mr. Davis was apprehended, the media frenzy turned to another favored yellowed subject: a justice system “soft on crime.”

How could it be, came the wailings, that such a man had been allowed out from behind bars, to prey again?

Those with vengeance, ever in their hearts, proceeded then to coldly use members of the murdered girl’s family, the Klaases, to place upon the state ballot, and ram through the state legislature, one of the toughest penal strictures in the world.

Various media personalities—such as Ronn Owens of KGO radio—made their bones, upon the bones of the dead girl, with such stunts as daily live broadcasts from the streetside tables of three-strikes signature-gatherers.

When once the measure had cleared the state legislature, and burst out of the voting booths, to become law, soon, even members of the Klaas family, they were publicly unhappy, with what had been wrought.

For this was not at all, what they had intended.

The three-strikes law quickly made California both a laughingstock, and an object of disgust, to all the civilized world. Under the law, people were sentenced to life in the state prison for such offenses as stealing a piece of pizza, or three golf clubs, or nine videotapes.

Then, the entire nation was rendered a laughingstock, and an object of disgust, when the United States Supreme Court upheld the three-strikes sentence in the latter two cases, in Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, respectively.

Meanwhile, the state’s prosecutors, ever avid to wrest control of the criminal-justice system from the judiciary, placing all power solely with the executive, had arrogantly argued that the law did not permit judicial review: that whether to three-strikes a defendant was a prosecutorial decision only.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, however, the California Supreme Court managed to assert that a trial court could, pursuant to its powers under PC §1385, dismiss prior convictions alleged under the Three Strikes law, “in furtherance of justice.”

The three-strikes law subsequently helped to transform the California prison system into such an amoral cesspool that an inmate might be locked away “in a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic.” This prison system was eventually condemned by the United States Supreme Court as “incompatible with the concept of human dignity.” Brown v. Plata (2011) 131 S.Ct. 1910. It was found in violation of the “cruel and unusual” clause of the Eighth Amendment to the United States Constitution, and the high court ordered the release of nearly 40,000 state prisoners.

These prisoners will of course not be released from cages at all. They will simply be transferred to different cages. County cages, rather than state cages. Until such time as lawsuits inevitably wind their way up the appellate chain, that will ultimately result in a finding that the county cages, too, are “cruel and unusual.”

This will occur, and is occurring, because the politicians of this state are craven, and they are cowards. For no one ever lost an election in this state by being “too tough on crime.”  A state politician looking to burnish his or her credentials with the voters can always toss to them as sop some punitive measure that satisfies the populace’s desire for blood and vengeance—a desire these politicians themselves stoke, together with their handmaidens in the media, by portraying the world as a bloodcurdling one, in which it is necessary, at all times, to live in fear.

As example, even as the prosecutor demands that Mr. W–––– be placed in a cage for the rest of his life, the local airwaves are befouled by the bleatings of Doug LaMalfa, a certified horse’s behind, grown fat on more than $4 million in government welfare payments—raked in, with claws like dredges, for his “farm”—who is running for a seat in the United States Congress, but is doing so by ululating that the state should allocate mountains more money so that its prisons may forever live long and prosper.

And so, state legislators will not amend the three-strikes law. They haven’t the temerity; they haven’t the morality. Despite the fact that even Polly Klaas’ own father and grandfather, blood kin of the young girl upon those bones the three-strikes law was erected, have repeatedly and publicly stated that they always intended that the law should apply to violent felons alone.

Not “serious” felons. Which is what Mr. W——— is. His strike-qualifying offenses in this cause a 1992 conviction in CM——— for a felony violation of PC §459, First Degree Burglary, and a 1998 conviction in CM0——— for a violation of PC §422, Criminal Threats.

These are classified as “serious” felonies, under the state’s three-strikes laws. Not “violent” ones.

The very people coldly used to push the three-strikes law through the fear-whipped populace of this state, do not believe that Mr. Wasson should be subjected to its penalties.

Meanwhile, fear-whipping has, in the years since the passage of the initial three-strikes law, stampeded state voters into approving bringing even more people under the ambit of the three-strikes barbarism, than were dragneted into the original measure.

Mr. W——— is one such person.

For in CM———, the 1998 case wherein he pled no contest to a violation of PC §422—at that time, that offense was not a strike. Which is why Mr. W——— pled to it, as represented in this cause by Mr. D——— H———, then Mr. W———’s attorney.

On November 19, 1988, as reflected in a plea form filed November 19, 1998, and previously attached as an Exhibit in pleadings submitted in this case, Mr. W———, through his then-attorney, Dennis H———, entered a plea of no contest, after he was informed by counsel that he was not pleading to strikes, within the meaning of the state’s “three strikes law.”

The plea form stated: “I have not been induced to enter the above plea by any promise or representation of any kind, except: Strike allegation (strike) alleged pursuant to Penal Code Section 1170.12(a) through (d) and Penal Code Section 667(b) through (I).” At the top of the plea form, under the case number, there are two places to enter “yes” or “no.” The first one states: “PC Section 667.5(c) offense?” It is answered “NO.” The second states: “STRIKE?” It is answered “NO.” According to the plea form, Count 1, PC §422 was not filed as a strike; these are the reasons Mr. W——— took the “deal.” Avoiding strikes was the motive of the plea.

As the appellate court stated in the unpublished opinion in People v. W——— (2009) No. G0———:

In 1998, defendant pled no contest to three felonies: making criminal threats (§ 422), felon in possession of a firearm (§ 12021, subd. (a)), and possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)). He received a prison sentence of five years and four months. The plea agreement provided that the possible consequences of the plea included that the conviction could result in a prison prior, but the provisions that it could result in a serious felony or strike were crossed out.

In 1998, a violation of section 422 was a serious felony under section 1192.7 only if the defendant personally used a firearm or inflicted great bodily injury. (Cf. People v. Rodriguez (1998) 17 Cal.4th 253, 261-262 [discussing § 245, subd. (a)(1) ]; People v.. James (2001) 91 Cal.App.4th 1147, 1149 [discussing same and § 246].) In 2000, the electorate passed Proposition 21, which added section 422 to the list of serious felonies in section 1192.7, subdivision (c). (§ 1192.7, subd. (c)(38), amended by electorate (Prop.21) at the March 7, 2000, Primary Election, operative March 8, 2000.) . . . .

However, the appellate court then blithely brushed aside any contention that it was unfair or untoward to retroactively strike Mr. W———, once the populace had again been driven like lemmings into the voting booth to lay some more three-strikes lash on some more “criminals.”
Unlike the statutory changes at issue in Arata and Paredes, under which defendant could not expunge his conviction or defendant faced deportation, here the change making defendant's 1998 section 422 conviction a strike will have no effect unless and until defendant is convicted of a felony. The change simply punishes defendant's recidivism, a matter within defendant's control.
Appellate court judges in this state, too, have never had to quail in their boots, come election time, for being “too tough on crime.”

                                                                 III.

The history of law is a history of human beings slowly struggling to emerge from cruelty and barbarism.

Down through the ages, there has never been a time when a particular punishment or practice, no matter how inhuman or insane, was not endorsed and enabled, and indeed avidly pursued, by the majority of law-enforcement officers, prosecutors, and judges, enmeshed in the system.

This has been true of tearing flesh from living bodies with white-hot pincers, disembowelment, burning eyes from out of heads, lopping off hands and genitalia, setting people afire at the stake, branding disfiguring marks onto various body parts, forced lobotomies and sterilization, heaving Japanese-Americans into concentration camps, countenancing “third-degree” interrogation techniques to extract confessions, chaining Benjamin Franklin’s nephew to the floor of a barn for 30 years because he was “mad,” or decreeing that people should be caged in the federal prison because circulating leaflets encouraging young men to resist the draft represents “a clear and present danger” akin to “falsely shouting fire in a theatre and causing a panic.” Schenck v. US (1919) 249 U.S. 47.

In later days, of course, looking back, law-enforcement officers, prosecutors, and judges, enmeshed in the system, smugly assure themselves that things are now, not what they once were, and that they would never have countenanced such barbarities.

But in this they are lying to themselves. Because they are meanwhile countenancing, and propagating, barbarities of their own.

For instance, today, in the industrialized world, the United States is one of a very small number of countries to still inflict the barbarism of the death penalty. Together with such garden spots as China and Iran. It proves very difficult, these days, to extradite to the US even a suspect from neighbor Mexico, until concrete assurances are provided that the person will not, in the US criminal-justice system, be subjected to the barbarism of taking his or her life.

In this, the rest of the world has passed the US by. In the rest of the world, this country is considered a backwater, inhabited by savages.

So too in the barbarity of America’s incarceration rate, which is the highest in the world. With 730 people imprisoned for every 100,000 residents. As compared to, say, 525 for Russia, 450 for Rwanda, 122 for China, or 62 for Afghanistan.

People are not incarcerated at a higher rate in the US because the US produces more criminals. They are incarcerated at a higher rate because the American people are an extraordinarily punitive and vengeful people. And because they insist on imprisoning people whose crime is, that they are sick.

Mr. W——— is one such person. He is a methamphetamine addict. That is what underlies all of his offenses. And that is what will send him into a cage for the rest of his life.

The rest of the world, it has moved beyond this.

The nation of Portugal, as but one example, more than 10 years ago decriminalized all drugs. And the crime rate went down. As they proceeded to treat sick people, as sick people.

This nation’s president recently traveled to a conference of all the countries of the Americas, there to, in part, push this nation’s “war on drugs.” He was politely informed that the nations of Latin American are no longer interested: that they are intent on legalizing all drugs, as several of them have already.

No one looks to the United States as a model, in matters of crime and punishment, anymore. Not even members of the United States Supreme Court. Who increasingly rely on international law, and the laws of other nations, in crafting their opinions.

Associate Justice to the United States Supreme Court Ruth Bader Ginsburg, recently visiting Egypt, informed the people there that they should not look to the Constitution of the United States as a model, but instead to the charters of Canada, or South Africa, or to the European Convention of Human Rights.

This nation's Constitution is, as they say, old, and it's in the way.

No decent, civilized nation, has anything like California’s three-strikes law. As no decent, civilized nation, has a death penalty, or an incarceration rate even remotely approaching that of the US.

All of these things, in times to come, will be regarded, from a distance, as barbarism. Akin to tearing flesh from living bodies with white-hot pincers, branding disfiguring marks on various parts of the body, heaving Japanese-Americans into concentration camps, countenancing “third-degree” interrogation techniques to extract confessions, or decreeing that people should be caged in the federal prison because circulating leaflets encouraging young men to resist the draft represents “a clear and present danger” akin to “falsely shouting fire in a theatre and causing a panic.” Schenck v. US (1919) 249 U.S. 47.

But not now, though. Now, the majority of law-enforcement officers, prosecutors, and judges, enmeshed in the system, believe that, in these matters, they are doing the right thing.

They always do.

They’re always wrong.

                                                                 IV.

Justice is most often the exception, rather than the rule.

And, too often, it is simply a farce.

We see that in one of the lengthiest United States Supreme Court decisions ever inscribed, Dred Scott v. Sandford (1857) 60 U.S. 393. Which decreed that no person of African ancestry could ever become a United States citizen.

Some 150 years later, a person of African ancestry was elected President of the United States.

Not that the nation has really come all that far. Because, even as counsel drafts this brief, the 2012 Republican nominee for president, who will oppose that president of African ancestry, is appearing at a fundraising event with Donald Trump, a certified horse’s behind who ceaselessly prattles that the president, Barack Obama, is not really a United States citizen.

Prattle that that Republican nominee, Mitt Romney, refuses to denounce. Because he knows such dark racist lunacy will get him votes. From the very same people who believe that lashing people like Mr. W——— into a cage for the rest of his life, will somehow “conquer crime.”

The prosecutor in her briefs several times scoffs at counsel’s invocation of Wall Street-treatment of methamphetamine addicts. Yet is a fact that people on Wall Street suffer from a serious methamphetamine scourge, and that, because these people are considered of “value” to society, the cutting edge of medical research in the field is occurring there. And because these people are considered “valuable,” they are not lashed into jail, for the rest of their lives, like Mr. W———. But are instead treated, medically.

If Mr. W———were not an Indian, in Butte County, but rather a Yalie, on Wall Street, he would be shielded from the law, and diverted into treatment.

That’s just the way “justice” works.

Wall Street traders, in playing with money, specifically derivatives, in the late 2000s generated six times as much debt, as exists money in the world.

This is a theft unprecedented in the history of world. Yet, somehow, none of these people seem to be facing three-strikes punishment.

Neither does Mr. Trump. A lifelong, inveterate, congenital liar and thief, who is rhythmically found to have defamed and robbed people. While sucking from various governments, vast quantities of monies, which he uses to personally enrich himself. While meanwhile making of himself a TV star, in a program that ends each week with public humiliation, with deliberate cruelty, smugly and gleefully inflicted upon some powerless sadsack, to whom he says: “you’re fired.”

Mr. W——— has not robbed people of six times as much money as exists in the world. He is not a lifelong, high-stakes, perpetual thief and liar who delights in appearing upon national television to cruelly destroy people.

Neither has Mr. W——— ever tortured deliberately and repeatedly fellow human beings.

The former president and vice president of the United States have publicly and repeatedly boasted that they ordered the waterboarding of human beings, up to 180 times for each victim, though waterboarding is a clear violation of both national and international law.

One of the people they waterboarded, Abu Zubaydah, was certified by his CIA and FBI interrogators as not only innocent of any crime, but grievously mentally ill.

Yet neither of these men seem to be facing prosecution.

The prosecutor in this case is perfectly empowered, under expansive federal law, to bring charges against them.

Yet there is not a chance in the world, that she will do so.

She’s after caging a powerless Indian.

That’s what she’s about.

Enmeshed in the system, she can see no farther than that. Nor does she want to. The white-hot pincers of her age: that seems right, to her.

                                                                 V.

PC §1385(1)(a) provides, in relevant part, that “[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

Consent of the prosecutor is not required, and the court is empowered to strike prior convictions under the Three Strikes law over the prosecution’s objections. Dismissal may occur “before, during or after trial, up to the time judgment is pronounced.” Id., at 524.

A court, in exercising its discretion to dismiss prior convictions alleged under the Three Strikes law, “must explain its reasons for striking a prior.” In re Large (2007) 41 Cal.4th 538, at 500. However, “no similar requirement applies when a court declines to strike a prior.” Id., at 550.

“[A] person subject to the Three Strikes law is entitled to a genuine exercise of sentencing discretion by the trial court, and that [] court’s decision either way is subject to review for abuse of discretion.” Id., at 550 (internal citations omitted).

On review, a trial court’s decision to dismiss prior convictions will receive deference, disturbed only if “the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” People v. Williams (1998) 14 Cal.4th 148, 162.

‘The trial court's decision is reviewed deferentially.” People v. Smith (2012) 2012 WL 593397. A “trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” People v. Carmony (2004) 33 Cal.4th 367, 369.

Striking priors can be necessary, as “the sentencing norms [established by the Three Strikes law may] produce[ ] an arbitrary, capricious or patently absurd result under the specific facts of a particular case.” People v. Smith, supra, 2012 WL 593397, at 8.

“A court in exercising its discretion under the Three Strikes law ‘must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” In re Large, supra, 41 Cal.4th at 552 (citation omitted). See also People v. Williams, supra, 17 Cal.4th 148, at 161.

In determining whether to exercise its discretion, the trial court should consider “the defendant’s background, the nature of his present offenses, and other individualized considerations.” People v. Superior Court (Romero) supra, 13 Cal.4th at 531.

Undo emphasis should not be placed on a defendant’s prior record and recidivism: while it is relevant, it is not “singularly dispositive” in the exercise of PC §1385 discretion. People v. Garcia (1999) 20 Cal.4th 490, 501. Further, as “the penalty is imposed for the current offense, the focus must be on the seriousness of that offense.” People v. Carmony (2005) 127 Cal.App.4th 1066, 1079.

The Garcia court approved the trial judge’s dismissal of five “strike” priors pursuant to PC §1385 based on the following reasons: “defendant’s prior [strike] convictions all arose from a single period of aberrant behavior for which he served a single prison term. Defendant cooperated with police, his crimes were related to drug addiction, and his criminal history does not include any actual violence. Cumulatively, all these circumstances indicate that ‘defendant may be deemed outside the [Three Strikes] scheme’s spirit’ at least ‘in part,’ and that the trial court acted within the limits of its section 1385 discretion.” People v. Garcia, supra, 20 Cal.4th at 503.

The Garcia court further noted that a defendant whose current offense was not violent or life-threatening is less culpable than one who is accused of more serious and violent crimes. Id., at 499.

Even when a defendant has an extensive record of serious or violent offenses, the minor or non-aggravated nature of the current offense is a powerful factor that can support dismissal of “strike” priors. In re Saldana (1997) 57 Cal.App.4th 620; People v. Bishop (1997) 56 Cal.App.4th 1245.

The defendant’s sentence is relevant in considering whether to strike a prior conviction allegation; in fact, it is the overarching consideration, because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. People v. Gaston (1999) 74 Cal.App.4th 310.; People v.  Ortega (2000) 84 Cal.App.4th 659.

As the Garcia court observed, “although a primary purpose of the Three Strikes law was ‘to ensure longer prison sentence . . . this purpose is not a mantra that the prosecution can invoke in any Three Strikes case to compel the court to construe the statute so as to impose the longest possible sentence.” People v. Garcia, supra, 20 Cal.4th at 500.

                                                                         VI.

The prosecution hallucinates Mr. W——— in a Reality where “the [] pending cases indicate that the defendant is a large scale dealer and manufacturer.” A charge it repeats several times in a brief of July 11, 2008 alone.

Counsel fails to see how a loaded 9mm semi-automatic, two syringes, .2 grams of methamphetamine, and .53 grams of cannabis, plus various assorted filters, funnels, bags, and plugs—all the evidence against Mr. W——— in the case at bar—transforms one into “a large scale dealer and manufacturer.

To the prosecution, Mr. W——— is a sort of boogeyman. Counsel suspects that a similarly constructed Boogeyman Reality is what drove the law-enforcement officers in this case to descend to such base behavior in “finding” the “probable cause” that, in the course of things, brought Mr. W——— before this Court.

Mr. W——— is not here charged with being “a large scale dealer and manufacturer.” If that is what he is, let the State bring charges, and prove it, onto a conviction. That the State has not done so, renders that particular Reality a figment. It does not exist.

Instead, Mr. W——— is but what he has been convicted of before this Court, in this case: a man who possessed a loaded 9mm semi-automatic, two syringes, .2 grams of methamphetamine, and .53 grams of cannabis, plus various assorted filters, funnels, bags, and plugs, and who ran from law-enforcement officers, because he is a drug addict, who did not want to return to prison, this time, potentially, for the rest of his life.

Counsel respectfully suggests that, in this case, striking one or more of Mr. W———’s priors would be a decision that would not be disturbed on appeal. For a trial court’s decision to dismiss prior convictions receives deference, overturned only if “the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” People v. Williams, supra, 14 Cal.4th at 162.

And striking one or more of Mr. W———’s priors certainly does not “fall[] outside the bounds of reason.” It would not be “so irrational or arbitrary that no reasonable person could agree with it.” People v. Carmony, supra, 33 Cal.4th at 369.

Counsel suggests that “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, [Mr. W———] may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” In re Large, supra, 41 Cal.4th at 552.

For Mr. W——— has been convicted of “serious” crimes only, not “violent” ones. He is a drug addict, who has never been treated for his addiction. Cleansed of his addiction, his prospects are good. He has close and long-standing ties to the community, a good support system, people in his life who have passed through the nightmare of addiction that has so ensnared him, he is bright and ambitious and hard-working.

The cases teach that undo emphasis should not be placed on a defendant’s prior record and recidivism: while it is relevant, it is not “singularly dispositive” in the exercise of PC §1385 discretion. People v. Garcia, supra, 20 Cal.4th at 501. Further, as “the penalty is imposed for the current offense, the focus must be on the seriousness of that offense.” People v. Carmony, supra, 127 Cal.App.4th at 1079.

And what is the “seriousness” of the current offense?

A loaded 9mm semi-automatic, two syringes, .2 grams of methamphetamine, and .53 grams of cannabis, plus various assorted filters, funnels, bags, and plugs, and dashing away from law-enforcement officers, because he is a drug addict.

In this case, as in Garcia, Mr. W——— “cooperated with police, his crimes were related to drug addiction, and his criminal history does not include any actual violence.” Therefore, as in Garcia, counsel suggests Mr. W—— “may be deemed outside the [Three Strikes] scheme’s spirit’ at least ‘in part.’” People v. Garcia, supra, 20 Cal.4th at 503.

The Garcia court further noted that a defendant whose current offense was not violent or life-threatening is less culpable than one who is accused of more serious and violent crimes. Id., at 499. Mr. W———’s crimes here were neither serious, nor life-threatening.

Further, the charged strikes are 20 years old, and 14 years old respectively, which place them as remote in time to the present offense.

Even when a defendant has an extensive record of serious or violent offenses—which Mr. W—— does not—the minor or non-aggravated nature of the current offense is a powerful factor that can support dismissal of “strike” priors. In re Saldana (1997) 57 Cal.App.4th 620; People v. Bishop (1997) 56 Cal.App.4th 1245.

The defendant’s sentence is relevant in considering whether to strike a prior conviction allegation; in fact, it is the overarching consideration, because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. People v. Gaston (1999) 74 Cal.App.4th 310.; People v.  Ortega (2000) 84 Cal.App.4th 659.

As the Garcia court observed, “although a primary purpose of the Three Strikes law was ‘to ensure longer prison sentence . . . this purpose is not a mantra that the prosecution can invoke in any Three Strikes case to compel the court to construe the statute so as to impose the longest possible sentence.” People v. Garcia, supra, 20 Cal.4th at 500.

That is what is occurring here. The prosecution does not like Mr. W———. Neither do the police. They seek to use this Court to “impose the longest possible sentence,” to deploy the state’s three-strikes statutes so that they can put this man, that they do not like, into a facility that is “incompatible with the concept of human dignity,” until he is dead.

However, no one, inside the criminal-justice system or out, can possibly reasonably believe that possessing .2 grams of methamphetamine, .53 grams of cannabis, a semi-automatic firearm, the ammunition in it, plus various assorted filters, funnels, bags, and plugs, and fleeing in fear from law-enforcement officers, is enough to condemn a man to live his life, unto death, in the state prison.

Mr. W——— should in the case at bar be punished for the crimes he committed on April 24, 2008. Not for all the crimes of his life. All of which were committed because of his narcotics addiction. Then, and now.

The prosecution claims that Mr. W——— is not capable of rehabilitation; that he cannot be redeemed.

The prosecution is wrong. Mr. W——— can be rehabilitated. And, counsel respectfully suggests, would have been, if the criminal-justice system had earlier worked to address the drug addiction that rhythmically brings Mr. W——— before it.

And Mr. W—— can be redeemed. As one Talmudic scholar has observed: “Rabbi Nahum said no man was beyond redemption. He said redemption was established before the creation of the world itself, that’s how important redemption is. No one can take it away.”

Sentencing Mr. W——— under this state’s three-strikes law—that would take it away. “[O]utside the scheme’s spirit,” People v. Garcia, supra, 20 Cal.4th at 503, and outside of what is true and just and right.

                                                              VII.

This county’s criminal-justice system has been run by the district attorney’s office for more than 20 years. This is a fact that everyone who works in the system, knows. It is impolite to speak of it, but it is the Reality that underlies all that occurs here. If a new member of the Court displeases the district attorney, that member is most often papered off the criminal calendar, until s/he reforms. At least one current member of the county bench has openly stated that he was “broken” by the district attorney, and now rules from the bench in a fashion which he believes will please that man who truly runs the system. Today, the county bench is infested, by former members of his office.

This is not the way it is supposed to be. The Court is a judicial body, and it is to be run by the judges. The district attorney is merely a contending party, no more, no less, of weight, than members of the defense bar.

It is clear that the district attorney’s office, in concert with members of law-enforcement, have embarked, and long ago, upon a jihad directed at locking Mr. W—— into a cage for the rest of his life. They have attempted here to tar him with the wildest of charges, which they have not bothered, in this cause, to prove.

Here, it is proved only that he possessed .2 grams of methamphetamine, .53 grams of cannabis, a semi-automatic firearm, the ammunition in it, plus various assorted filters, funnels, bags, and plugs. And that he was previously convicted of two serious—not violent—felonies, of the sort that the progenitors of the three-strikes law do not believe should put a man away for the rest of his life.

This Court served in the district-attorney’s office during periods when Mr. W——— fell afoul of the law. If the Court was then ever privy to any discussions, or ever heard any discussions, or heard of any discussions, regarding Mr. W———, or ever made any appearances, or signed off on any documents, pertaining to Mr. W———, then this Court should recuse herself from this cause.

If any such thing occurred, then, once Mr. W——— has entered the appellate system, and is no longer plagued by the ineffective-assistance that has hobbled him at the local level, surely it shall come to light.

                                                                      VIII.

The reason why, in the criminal-justice system, white-hot pincers are no longer employed to tear flesh from living bodies, is because somewhere along the line, somebody balked at such a thing. And then so did somebody else. And then so did somebody else. And so on. Until what once seemed normal, and okay, became repugnant, and outré.

Occasionally in this county, there is a Court that refrains from the dutiful, rote employment, of white-hot pincers.

Not so long ago, a member of the county bench regarded the case of a man whose strike offenses included a rape and a stabbing. And whose current offense included holding the knife to a neck of a man.

This judge dismissed the two strike priors against the defendant, and sentenced him to a term commensurate with the offenses he had actually committed.

Lightning did not strike: this judge was not burned to a crisp. He was not bodily yanked off the bench. He was not papered. He continues to hear criminal cases, to this day. True, the case made it into the newspapers, but no mob arrived at his house, bearing torches and pitchforks.

He simply did the right thing. Really, did the right thing.

                                                                            IX.
Mr. W——— should be afflicted with a prison sentence commensurate with the offenses committed in the instant case. And the charged priors should be dismissed, “in the furtherance of justice.”

So much of the time: we’re just lost. We say: “Please, God, tell us what is right; tell us what is true.”

And there is no justice.

The rich win; the poor are powerless.

We become tired, of hearing people lie.

And after a time, we become dead. We think of ourselves as victims. And we become, victims. We become . . . we become weak.

We doubt ourselves. We doubt our beliefs. We doubt our institutions.

And we doubt the law.

But today, you are the law. You are the law.

Not some book. Not the lawyers. Not some marble statue, or the trappings of the court.

See: those are just symbols. Of our desire, to be just.

They are, in fact, a prayer. A fervent, and a frightened prayer.

In my religion, they say: “Act as if ye had faith. And faith will be given to you.” If we are to have faith in justice, we need only to believe in ourselves. And act, with justice.

I believe there is justice in our hearts.

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