Third strike being reconsidered |

Third strike being reconsidered

Megan Marshack, Mountain Democrat

A review of court documents reveals more about the three-strikes defendant who will be resentenced today in South Lake Tahoe.

Jeffrey Howard Gautier, 35, will appear before El Dorado County Judge Suzanne Kingsbury after he was granted a petition for a writ of habeas corpus.

Gautier was sentenced in 1998 to 25 years to life in prison by Superior Court Judge Eddie T. Keller. Gautier was found guilty of a felony — smuggling 5.9 grams of marijuana into the El Dorado County Jail — when he reported to serve his sentence Oct. 29, 1997, for driving with a suspended license.

He was sentenced to the felony under California’s Three Strikes law. For a second serious or violent felony, conviction means a sentence can be doubled. A third strike — any felony — and a defendant can be sentenced for the minimum 25 years to life.

District Attorney Gary Lacy said he would appear today asking for the court’s reconsideration on the resentencing because the court of appeals already considered the issue.

In granting the petition for the writ, Judge Kingsbury wrote: “The Court believes that possession of 5.9 grams of marijuana, even if brought into a jail, does not present a significant danger to society.

“While petitioner has a long criminal history, 28 years to life for possession of this small amount of marijuana does shock the conscience of this Court.”

The U.S. Supreme Court has said the justices will be looking at two California three-strike cases where the third felony appeared to be relatively minor. The constitutional issue is the Eighth Amendment barring cruel and unusual punishment.

Gautier admitted to two prior convictions for first-degree burglary, one prior conviction for assault with a deadly weapon and three prior prison terms.

But he appealed on the grounds that a motion to suppress could not be fully litigated, and the motion was not granted.

“He denied that any of his prior convictions were serious or violent felonies within the meaning of the Three Strikes law,” wrote Daniel M. Kolkey, one of the three associate justices of the California Court of Appeal, Third Appellate District, who ruled on Gautier’s appeal.

The trial court found that Gautier’s prior assault conviction qualified as a serious felony within the meaning of the Three Strikes law, Kolkey wrote.

The appeals court found Gautier’s sentence of 28 years to life did not constitute cruel and unusual punishment.

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