The Orange County District Attorney wanted a sentence based on California’s 3 Strikes law—25 years to life, the defendant pleaded guilty, and the victim didn’t, but certainly could have, died from the knife assault. The judge, whose legal prowess has been seriously questioned (more on that below) is retired, but he dismissed the DA’s requests and issued lighter sentences.

If you are old enough to remember all the way back to 1994, you might recall that voters passed Proposition 184 by an overwhelming majority--72% in favor and 28% against. That proposition presumably meant that if a person was convicted for a third felony, if the first two qualified as either "violent” or "serious," or both, the public would be protected from the bad guy for at least 25 years. You might also remember that 60.8% of California voters decided in 2000 that sentence might be a little harsh for drug possession, and thus the law was modified. Even though there have been some notorious cases where the three strike sentences were issued for what would seem to be minor crimes, in 2003 the U.S. Supreme Court upheld these mandatory sentencing laws.

According to a release from the DA’s office, “at approximately 2:00 a.m. on July 14, 2009, the 38-year-old victim was walking home on the north side of McFadden Avenue near the intersection of Orange Avenue in Santa Ana. Nicholas Duran, Alejandro Duran, and Mauricio were tagging a wall with graffiti located on the north side of the same intersection. The victim told the defendants to stop tagging the wall. About five or six individuals, including the defendants, chased the victim, stabbed him twice, and repeatedly punched and kicked him. The defendants fled the scene. A witness called 9-1-1 and Santa Ana Police Department (SAPD) officers responded to the scene. The victim was transported to the hospital and treated for two stab wounds to his abdomen and multiple contusions.”

Nicholas Duran was a third-striker with three prior strike convictions for a 1994 robbery, 1994 aggravated assault, 1999 criminal threats, and sentencing enhancements for prior violent crime convictions and for not remaining free for five years after serving a prison sentence.

Alejandro Duran, who is Nicholas Duran's brother, had one 1995 prior strike conviction for first degree burglary and faced a sentencing enhancement for a prior violent crime conviction, and for not remaining free for five years after serving a prison sentence.

Nicholas Alex Duran, 35, Alejandro Justin Duran, 34, and Manola Mauricio, 17, all of Santa Ana, pleaded guilty to the court on Friday, Jan. 15, 2010, to one felony count of aggravated assault, one felony count of street terrorism, and a sentencing enhancement for criminal street gang activity.

On Tuesday, Superior Court Judge Robert Fitzgerald sentenced Alejandro Duran to seven years in state prison out of the maximum sentence of 20 years in state prison, and placed Mauricio on probation and gave him 206 days credit for the time he has served awaiting trial out of the maximum sentence of nine years in state prison. The District Attorney objected to Alejandro Duran and Mauricio's sentence based on the nature of the current crime, namely an unprovoked crime of violence, and Duran's prior history.

But, that was nothing when compared to what Judge Fitzgerald did for Nicholas Duran. He was sentenced to 13 years in state prison out of the maximum sentence of 47 years to life in state prison. The DA “objected to this sentence because this crime was a gang-motivated unprovoked crime of violence and the defendant's prior history did not merit a break.”

According to Susan Kang Schroeder, Public Affairs Counsel in the Orange County District Attorney’s Office, with regard to the mandatory sentences, “The DA had discretion and the court had discretion, and they have to make a specific finding that it {setting aside the mandatory sentences} is in the interest of Justice. The court made that finding.” In other words, there should have been some mitigating factors. But, according to Schroeder,”We don’t believe there were any mitigating factors.”

With regard to Judge Fitzgerald, Schroeder said “He’s retired and sitting on assignment.” Supreme Court judges are supposed to be answerable to the people—every six years when they come up for election. But, Judge Fitzgerald is not on the list of judicial officers to be reelected by the voters, according to Brett Rowley, spokesperson for the Orange County Registrar of Voters.

Click here if you would like to read more on Judge Fitzgerald.