Dutra sentencing takes 'tortured route'

Series of court rulings have woman grasping for early release
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Sarah Dutra looks over to her family during a courtroom appearance in March. She is set to be resentenced for her role in a 2001 slaying.Craig Sanders/The Record

STOCKTON - At the end of her sensational trial, Sarah Dutra on April 21, 2003, sat before a packed courtroom and listened to a judge detail what he called her "chilling" and "sociopathic" role in the slaying of Woodbridge man Larry McNabney.

She helped McNabney's wife, Laren Sims, poison the attorney with horse tranquilizer, stow his body in a refrigerator and bury him in a shallow grave outside Linden. Sims killed herself after confessing, leaving Dutra the lone defendant.

For Dutra's crime of voluntary manslaughter, San Joaquin County Superior Court Judge Bernard Garber sentenced her to the maximum state prison term of 11 years, causing those seated in the gallery on that April date to erupt in applause.

Dutra timeline

• April 21, 2003: San Joaquin County Superior Court Judge Bernard Garber sentences Sarah Dutra to the maximum prison term of 11 years for her role in the slaying of Woodbridge attorney Larry McNabney.

• June 22, 2004: The U.S. Supreme Court in a Washington man's case rules that a jury must find that the crime was callous or vicious or that the victim was especially vulnerable before a judge issues a maximum prison term. These are aggravating factors.

• May 18, 2005: California's 3rd District Court of Appeal orders San Joaquin County prosecutors either to give Dutra the middle term of six years or have a jury find aggravating factors, upholding the maximum term.

• June 20, 2005: The California Supreme Court rules that the Washington case did not apply to California.

• Sept. 12, 2005: Garber refuses to give Dutra a new hearing, saying the recent California Supreme Court case validated his sentence.

• Jan. 22, 2007: The U.S. Supreme Court rules in a California man's case that a jury must find aggravating factors for a judge to issue the maximum term.

• March 30, 2007: California legislators pass a law giving judges discretion to impose the upper term. The law is not retroactive and does not apply to Dutra.

• Oct. 29, 2007: Dutra set for a new jury hearing for sentencing before Superior Court Judge Cinda Fox.

Yet five years short of serving out her term, Dutra, 26, is awaiting a new sentencing hearing that could potentially set her free on time served. Many onlookers are asking how this could happen.

Local attorneys and legal scholars explained that Dutra's grasp at an early release results from a series of state and federal court rulings upholding and overturning each other. California legislators eventually settled the state's topsy-turvy sentencing laws.

"It did go a tortured route," said Robert Himelblau, a spokesman for the San Joaquin County District Attorney's Office, describing Dutra's case. It's difficult to predict, but Dutra's could be the first of several local cases that will have to be retried, Himelblau said.

Thousands of California inmates sentenced on felony convictions now wonder if their prison terms, too, could be appealed and their prison time shortened.

The shakeup came in a debate over California's sentencing laws that judgprison once convicted of felonies such as manslaughter, robbery and rape.

Historically, California judges could sentence somebody like Dutra to a low, middle or maximum prison term. Dutra received the upper sentence of 11 years, but Garber could have given her three or six years.

In 2004, the U.S. Supreme Court ruled in a Washington man's case that judges can't order a maximum sentence unless jurors also find aggravating factors, such as the crime was callous or the victim was especially vulnerable.

The debate arose because it appeared judges were making decisions in cases that looked like something jurors should be deciding, said Michael Vitiello, law professor at University of the Pacific's McGeorge School of Law in Sacramento.

Dutra's attorneys appealed her conviction, saying jurors made no such finding. Dutra is scheduled for a new sentencing hearing in October during which a new jury will hear an abbreviated trial to decide if the crime was callous or if McNabney was especially vulnerable.

To make sure no more cases like Dutra's arise, state Sen. Gloria Romero, D-Los Angeles, authored a bill returning discretion to judges. Yet there remains a three-year window in which these convicted felons can argue their maximum term was illegal.

Superior Court Judge Cinda Fox, who is now hearing Dutra's case, will decide if Dutra's term stands or if she should receive a lesser sentence. If Dutra receives a middle term, she would be free on time served.

A spokesman for Romero's office estimated some 2,000 convicted felons in California like Dutra could appeal their sentences.

That number seems high, said Pete Fox, assistant San Joaquin County public defender. Fox said he's received about 10 letters from prison inmates claiming they might have a good case, he said."It isn't really something that should cause a lot of panic," Fox said.

The difference between a middle and maximum sentence in most crimes, such as robbery, is one or two years. Only voluntary manslaughter - Dutra's conviction - has a disparity of five years, which is a significant amount of time, Fox said.

Dutra's sentencing hearing may prove to be confusing, Fox said. Most of the time, jurors have to decide if the defendant is guilty, but now they'll have to determine if the crime was callous.

San Joaquin County Deputy District Attorney Thomas Testa, Dutra's prosecutor, has said in court that Dutra's crime was clearly callous. She helped poison McNabney, who died slowly while aware of his fate, incapacitated by paralyzing drugs, Testa said.

Prosecutor spokesman Himelblau agreed that attorneys in Dutra's sentencing hearing are treading into new legal territory.

It's difficult to say if more of these cases will arise and what his office will do to handle them, he said.

"We'll have to decide if we're going to seek the upper term or let it revert to a middle term," Himelblau said.


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