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SAN JOSE — Facing a likely overhaul of the state’s Three Strikes law, the Santa Clara County district attorney’s office is asking authorities to identify Three Strikes offenders that could be released unless they are pegged as sexually violent predators. “We have to abide by the law, but we also have an obligation to public safety,” said Deputy District Attorney James Cahan, who handles the sexually violent predator, or SVP, cases. “Usually, you have all the time in the world. But now we have a very short period of time before an offender could get released,” he said. The move is the latest development in preparation for Proposition 66, a ballot measure hailed by defense attorneys and decried by prosecutors statewide. Recent polls suggest that the initiative is likely to be approved by a wide margin. Santa Clara has aggressively opposed changes to the state’s Three Strikes law outlined in the measure. Last month, it held a press conference to criticize the proposal. Under Prop 66, only offenders with violent records would face second- and third-strike prosecutions. The proposed law would also toughen sentences for certain sex crimes against children. The law would apply retroactively. Criminals sentenced for second- and third-strike nonviolent offenses could see their sentences reduced — a prospect that has prosecutors worried. Consequently, Santa Clara is seeing if any sexual offenders that might otherwise be released under Prop 66 could be fast-tracked into the SVP program, which calls for civil confinement after a prison stay. “This is a public safety strategy,” Assistant District Attorney Karyn Sinunu said. “If we know that someone has committed multiple violent sex acts, they are going to be a danger to the community. So if there’s another way to hold them, we’re going to explore it, and we’re going to do it.” REACHING OUT Authorities usually have six months before an offender is released to determine if that person can be held and treated as an SVP. If the law changes, three-strikers that might qualify for SVP confinement and treatment could be released sooner, Cahan said. Many three-strikers are held for an indeterminate life sentence, so the SVP program doesn’t enter the picture. Cahan said the office is making “some very gentle inquiries” about potential SVP cases. He said prosecutors have reached out to the state’s Department of Mental Health and the Department of Corrections. If the Board of Prison Terms recommends an individual for the SVP program, the Department of Mental Health does an initial review. Two evaluators meet the offender; those evaluations and a preliminary report are sent to the appropriate DA who makes a final decision. But a law change could mean that three- strikers with sex crime backgrounds could leave prison before they could be evaluated as potential SVPs. So prosecutors are seeing if the state could speed things up while adhering to the law. MORE CHANGES LIKELY Edward Swanson, a defense lawyer and partner with Swanson & McNamara, said the push represents just one of many changes and challenges in store if Prop 66 passes. “There is going to be a real period of readjustment because the system will have to take a look at excessive sentences,” he said. “But it’s clearly something that most people don’t stand behind anymore and want to see changed. In the long run, this will be a heck of a lot less costly than having people locked up for decades.” Swanson said that Santa Clara may be trying “to get out in front of the statute” to avoid future litigation. Cahan said there could be problems with the office’s request. He did not, for example, know if the prison system has the technical capability to identify three-strikers that are also SVP candidates. Still, he said, “it’s incumbent on us to see if it’s possible.” Santa Clara Deputy Public Defender Brian Matthews defended Brian DeVries, a serial pedophile and the first graduate of the state’s SVP program. Matthews said that prosecutors normally don’t start the SVP process but was not surprised by the push. “I suppose they could be making calls to see if they can start the process on some guys. But it’s a self-executing process,” he said. Prosecutors in San Francisco and Alameda counties did not immediately return calls requesting comment.

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