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Santa Rosa man convicted under 'three strikes' law seeks freedom

Published: Monday, January 21, 2013 at 5:57 p.m.
Last Modified: Tuesday, January 22, 2013 at 7:00 a.m.

Dale Curtis Gaines didn't kill or rape anyone. He wasn't in a gang and he didn't get caught selling drugs to kids.

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Dale Gaines, shown in an undated photo, is seeking his freedom following the passage last November of Proposition 36, which eased the state's mandatory sentencing law.

California Department of Corrections

The Santa Rosa man was convicted in 1998 of possession of stolen property after he tried to sell computer equipment taken in a burglary from a local charity.

Because of his long rap sheet, he received the maximum prison sentence -- 27 years to life -- under California's tough "three strikes" sentencing law targeting career criminals.

Now, Gaines has joined a half-dozen other inmates from Sonoma County who are seeking their freedom following the passage in November of Proposition 36, which eased the state's mandatory sentencing law. The voter-approved initiative amended the law to require third strikes be violent or serious.

Gaines, 55, was sent to prison at least two previous times for burglaries dating back to 1986, but he's never been convicted of a violent act. A legal team from Stanford Law School is preparing to ask the courts to reduce Gaines' sentence. They are expected to file a request for resentencing that lays out a plan for his return to society.

"We believe that he can come out and be a successful member of the community," said Michael Romano, director of Stanford's Three Strikes Project. "He's certainly not a threat to public safety."

Since last year, the team has been seeking his release on grounds that his trial attorney failed to tell the judge that Gaines was "mentally retarded" and suffered mental illness, according to court records. They cited a letter from his prosecutor, who condemned the punishment as too harsh.

Jill Ravitch, Sonoma County's district attorney, is opposing Gaines' initial bid, arguing in court papers that he had an extensive criminal history, was mentally fit and met the spirit of three-strikes sentencing.

She has not said if she will try to block his release under Prop. 36. She didn't return calls last week seeking comment.

In a previous interview, Ravitch said she would consider an inmate's criminal history and prison behavior in taking her position. She expressed concern about supervision once inmates were freed.

But already, Judge Shelly Averill has signaled an interest in Gaines' case. She ordered the district attorney to show good cause why his petition shouldn't be granted and asked whether Prop. 36 makes it moot.

A hearing is set for March 1.

Gaines is one of a handful of North Coast residents serving life prison sentences under the old three-strikes law, enacted in 1995 to target repeat criminals.

Since its adoption, critics said it unfairly punished people convicted of minor third felonies and contributed to prison crowding. They point to lower maximum sentences for the most serious crimes such as rape, which is eight years, and second-degree murder, which is 15 years to life.

In November, the state's voters overwhelmingly approved a key change. Now, in order to be eligible for a 25-to-life sentence, the third strike must be violent or serious.

Convicts serving life sentences for less serious offenses can apply for resentencing and in some cases be released.

Getting out won't be automatic, lawyers say. State prison officials have not given prosecutors access to key records requested for the first Sonoma County inmate to seek freedom. Jeff Michael Porter, 49, is serving a 27-to-life sentence on his 1999 car theft conviction.

His lawyer, interim Public Defender Kathleen Pozzi, said prosecutors need proof of good prison conduct. Porter's case will go before Judge Allan Hardcastle on Jan. 30.

"They're trying to make an informed decision," Pozzi said.

Lawyers for Gaines believe he qualifies. His first two strikes were daytime burglaries where no weapon was used and less than $200 in property was stolen. He received 27 years to life in prison for his third conviction -- receiving stolen property.

Jurors found him guilty of trying to sell computer equipment stolen from American Cancer Society offices in 1997. Each piece was affixed with metal tags showing who owned it.

In court papers, Romano argued Gaines was an exception to three strikes because of his mental capacity. He had a kindergarten reading level and suffered "mental retardation" and mental illness, according to court documents.

Romano detailed a childhood of horrific abuse at the hands of his mother and grandmother, who he said forced him to eat his own feces when he soiled his bed. He was taunted by the Ku Klux Klan as a child in Louisiana and was often homeless as a teenager on the North Coast.

Despite his disabilities -- acknowledged by at least two court-appointed doctors -- Romano said neither the judge nor jury was ever presented any evidence of his mental capacity by Charles Ogulnik, the deputy public defender handling the case.

"Nor did Mr. Ogulnik call a single witness in Mr. Gaines' defense," Romano said in his petition.

Court records show a slightly different history. Ogulnik filed pre-sentencing papers calling Gaines "either retarded or at best on the low end of normal functioning." Ogulnik told the judge he had no record of violence.

Still, Judge Elaine Rushing sentenced Gaines to 27 years to life in prison, agreeing with prosecutor Ann Gallagher White that he was exactly the kind of criminal who was envisioned under the three strikes law.

"(Gaines) is an opportunist of a more sophisticated caliber than is being, I believe, represented by counsel," White said at sentencing.

He's been locked up ever since and is now in a medical prison in Vacaville.

In 2010, Gaines' prosecutor apparently had a change of heart. White wrote Gaines a letter expressing doubt about the fairness of the sentence and offered assistance in an appeal. She referred Gaines to a "group of law students" who had success in three strikes litigation.

"I have always felt your case was harsh, given your crime," White wrote.

White's letter, written in 2010 during her stint as a Sonoma County public defender, has become a key exhibit for Gaines. Ravitch has since hired White as a deputy prosecutor but assigned the case to someone else.

In papers filed before the passage of Prop. 36, prosecutor Anne Masterson said there has been no showing of a miscarriage of justice.

A person's mental capacity is relevant in sentencing, but it is not the only factor, she said.

"Defendant had a significant criminal history, including two felony burglaries and multiple violations of both probation and parole," Masterson said. "He is the very definition of the recidivist criminal."

You can reach Staff Writer Paul Payne at 568-5312 or paul.payne@pressdemocrat.com.

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