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Three-striker denied new prison sentence
June 29, 2013, 05:00 AM By Michelle Durand Daily Journal

A San Mateo robber serving 25 years to life in prison is still a dangerous public risk if released, according to a judge who refused to resentence the county’s first petitioner since voters changed the Three Strikes guidelines.

Dwain Everett Davis, 46, is the first San Mateo County prisoner to have his request for reconsideration be heard. Davis testified Wednesday, contradicting his original statements in the 1997 case, before Judge Barbara Mallach ruled that he posed “an unreasonable risk of danger to the public” if resentenced as a second-striker and released. The decision returns Davis to prison with the original 25 years to life term intact.

Davis had two priors, including robbery, when he was convicted in December 1998 of being a felon in possession of a firearm. The previous April, San Mateo police officers saw Davis lurking outside a store. When confronted, he reportedly fled and was spotted throwing a handgun away. The situation was similar to the conduct in the previous robbery, according to prosecutors.

Mallach was also the judge who sentenced Davis originally in 1999. At the time, the law stated a person convicted of two violent and serious felonies could automatically be sentenced to 25 years to life if convicted of a third crime regardless of severity. Prosecutors did have the option of not seeking a third strike and judges did have discretion not to count it in sentencing but the variances in application statewide increased the support for the November measure.

The changed law states third strikes will only be imposed for serious and violent crimes and already sentenced inmates must also abide by the same guidelines for reconsideration. Statewide, approximately 2,800 prisoners were projected to qualify including roughly a dozen from San Mateo County. The responsibility is on the prisoner rather than the court to petition for resentencing.

Davis’ criminal history began with incarceration at the California Youth Authority in 1984 followed by multiple convictions in the ensuing years for possessing drugs for sale, battery on a peace officer and numerous robberies.

District Attorney Steve Wagstaffe said his office did not think Davis qualified for reconsideration because he used a weapon, but Mallach felt otherwise.

Although Davis is the first to have a suitability hearing, another former three-striker is the first to be resentenced under the new guidelines. Henry Lowe, serving 25 years to life for drug possession after eight prior robbery convictions, petitioned the court and Wagstaffe said his office agreed based on the non-violent nature of the offense and his good conduct while in prison. Mallach resentenced him to eight years which he had served more than and he was released.

Lowe was convicted as a three-striker during the 1990s when felons with a long history of going in and out of prison were often prosecuted as such, Wagstaffe said.

“The world has changed since then,” he said.

More than 20 felons have petitioned for reconsideration but most aren’t eligible, he said.

Five more cases are currently in the pipeline although only one is presently scheduled for an Aug. 2 hearing to determine if he is still a danger. Wagstaffe said his office opposed Gary Valentine’s release because he is still dangerous. Valentine was sentenced as a three striker for unlawfully burning property, a lesser offense than arson and not considered a serious or violent felony.


(650) 344-5200 ext. 102



Tags: davis, years, violent, mateo, wagstaffe, sentenced,

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