DUANE SILVA
Charge: Residential burglary
Value of stolen goods: $1855 (VCR, jewelry and coins)

Baudelia Silva leans forward, crying, gesturing, pleading, the words tumbling 
out one on top of the other, some in English, some in Spanish. She is trying to
get someone to understand what she has told so many officials over the years: 
Her son, Duane, has "a head sickness ... loco ... he is mentally wrong." In 
prison, she says, "what will happen, how are they going to control it ... ?" 
She does not believe he will come out of prison alive. She wants to explain 
personally to the judge. She is sure that if she can make the judge understand,
the judge would not sentence her son to prison for 25 years to life.

But because Duane -- by all accounts a nonviolent, even passive young man -- 
has just been convicted of his "third strike," and because Tulare County 
prosecutors have been insisting on imposing the "three strikes" penalty, the 
judge may have little choice. 

The "head sickness" is not just Mrs. Silva's diagnosis. In the more measured 
and less compelling words of a psychological evaluation performed a year and a 
half ago, Duane Silva's test results on a Wechsler Adult Intelligence Scale 
showed "a Full Scale IQ of 71, placing present intellectual functioning within 
the low borderline range." The report seconded an earlier diagnosis of 
"Schizoaffective Disorder, Bipolar; with an Axis II diagnosis of Mild Mental 
Retardation (IQ 70)." Among the recommendations of the Central Valley Regional 
Center were that Silva "may benefit from placement in a residential facility 
geared to the needs of persons with mental disorders, and which can provide him
with the supervision he requires, and to assure that he complies with his 
psychiatric treatment regimen."

Duane Silva's criminal "career," all of it nonviolent, betrays the same random 
senselessness as other inexplicable incidents in his life. The 23-year-old 
acquired his first two "strikes" for arson when he was 20. He was convicted of 
those charges on the same day, as the result of a plea bargain. 
One conviction was for two trash-can fires in the town of Strathmore. According
to the police report, Silva acknowledged setting the fires, explaining that "he
was working for Tulare County Sheriff's Office as a patrolman, to walk the 
streets of Strathmore and burn down all the dope dealer's [sic] businesses. 
[He] stated he was in charge of Strathmore, Lindsay, Woodlake, and Woodville." 


Silva's second "strike" was for two small fires in trucks parked in 
Porterville. The more serious of the fires involved damage "to the area of the 
dash by the glove box." Silva awakened the owner of the truck by "banging on 
the door and ringing the doorbell" to alert him that the pickup was on fire. 
The owner then put out the fire with a garden hose. Silva subsequently told 
fire investigators that "he was working undercover for the Strathmore Fire 
Department" and spotted four young men setting the fires. He added that the 
four men "tried to sell him gum that they took from one of the vehicles but he 
refused."

After the arson arrests, Silva was declared incompetent to stand trial and was 
committed for a year to Atascadero State Hospital. Three months after his 
release from Atascadero, he was let out of jail as part of a plea bargain in 
which he pled guilty to two arson charges. 

Tulare County Deputy Public Defender Hugo Loza recalls the circumstances of 
that plea bargain. As the young man's attorney, he worked with the judge and 
the county director of mental health to get the troubled Silva some help. "We 
were intent," said Loza, "to let him out of custody and have him continue with 
his involvement with mental health. So he pled guilty basically because it was 
going to be credit for time served, and the only real condition was that he 
follow up with mental health and take the medicaiton that was prescribed."

"Who knew," Loza added, "what the ramifications were going to be in the future,
that this was going to be one of the stepping stones for a life sentence?" It 
was the "three strikes" legislation passed 2 1/2 years later that was 
responsible for the  unexpected use of Loza's carefully crafted plea bargain 
designed to get Silva appropriate care.

Silva had one subsequent conviction, in 1993, for arson in a trash bin in a 
sanitation yard. He was released with time served and three years' probation 
after 240 days in jail.

Silva's third "strike" is a burglary at a 17-year-old friend's family home in 
Strathmore, a home where Silva had visited frequently in the past. The burglary
occurred less than a week after the "three strikes" law went into effect, while
Juan Macias and his family were in Las Vegas. When the Macias family came home 
from their weekend outing, they noticed the house had been burglarized. Missing
were a VCR, about $25 in old coins and several pieces of jewelry that the 
family estimated were worth $1600.

Silva informed his longtime friend Juan Macias that he knew where a VCR like 
the missing one was located. After scouting out the location of the VCR with 
Macias, Duane Silva called 911 to summon deputies to his friend's house to 
inform them that the missing VCR had been spotted. The man in whose house the 
VCR was later found said he had bought it for $40 from Silva, and Silva 
acknowledged as much to the investigating sheriff's deputy, stating that he 
himself had bought the VCR in Porterville and then sold it because he knew it 
was stolen. Silva also told the deputy that he had sold the missing jewelry for
$10 and had spent the missing quarters playing pool and buying soda and candy. 
Under further questioning he admitted the burglary, saying he had entered the 
residence to take a video game.

Silva told still another version of the story to an interviewer from the Center
on Juvenile and Criminal Justice. In an interview at the sheriff's Bob Wiley 
Detention Facility outside Visalia, he denied selling the VCR and said he 
didn't think he had ever said that. "I didn't do nothing," he said. Silva 
claimed that the deputy who took the initial report "kept trying to tell me I 
did it and to say it, so I just gave up and let him write his own report." He 
said the officer "seemed to want me to say it."

"I have a TV and a VCR," he tells the interviewer. "Why do I need another one?"
Perhaps for the money he could get from selling them, he was told. He replied 
that he gets his disability money from his mom and "I don't spend much -- just 
soda and some munchies."

The inability to tell when Duane Silva was fantasizing was among the childhood 
signs of the mental problems that have haunted the young man's entire life. "At
home he would start inventing things. That's how he started," said Baudelia 
Silva, who, as a single mother of three, struggled to deal with her youngest 
child's aberrations. She recalls a day when she got home from work to find her 
house surrounded by police. Duane, who was about 7 or 8 years old at the time, 
had called the police and told them he had been kidnapped.

But the boy's problems were evident long before that. Mrs. Silva was told by a 
doctor once that Duane must have been hit when he was very young and that his 
brain was damaged, although she remembers no such accident. A psychological 
evaluation of the young man notes that "he reportedly did not sit until age 12 
months, and did not walk until 3 years of age. Speech was evident at 2 years of
age."

The problems with the boy accumulated as he grew older. Somehere between the 
ages of 5 and 7 he began running away from the house -- literally running -- 
with no idea where he was going, sometimes even in winter weather. Typically, 
he would be found hungry in a park a few days later.

Also from a very young age he would destroy everything around the house, from 
toys to expensive televisions. He would either take them apart or cut them with
scissors. Says his mother, "I've never said this is a toy that's been Duane's 
since he was small because everything he destroys. He still does that."

When Duane first got to school, officials noticed something wrong. They told 
his mother that they "didn't know what the problem was, but he wasn't a normal 
child." He was put in special education classes, which he seemed to enjoy. His 
mother says "he likes to draw and study and read a lot, but he can't learn."

The boy took to calling the police "when he's not right." Mrs. Silva said he 
would "tell different stories each time, and the police would never know what's
true."

She described the raging moods to which her son was given. "When he doesn't 
have the problems with his head, he's very calm and he has no problems with 
anyone and he's very quiet. But he gets mentally out of control from one moment
to the other, and he just leaves and goes into the street and starts doing 
things."

Strathmore High School student coordinator Jerry Hinkle remembers trying to 
help the young man a number of times. He recalls a succession of incidents -- 
bomb scares, an occasion when Silva thought he was a police undercover agent 
assisting a co-agent who ran a taco stand, other times when he wrote 
off-the-wall notes and acted out various TV fantasies. He said that Silva was 
"a pretty nice kid" when rational, "but you could always see it coming on when 
he was out of control."

Duane Silva was asked in the jail interview what he feels at times like that. 
With an impassive face, a monotone voice and as few words as he can use to 
answer questions, he ascribes those episodes to "my nervous system." He says 
it's something that comes over him "when it's hot." He describes his behavior 
at such times as "like a blackout." 

"I realize afterwards I did something wrong," he said. "At the time I just do 
it."

Mrs. Silva is proud of her independence. While raising Duane and his two older 
sisters, she says, she has worked hard in the fields and in an olive plant 
until it closed two years ago. She never took welfare or asked for it. But she 
did need some help with her son. She took him to institutions. "I took him from
one place to another," she said, speaking partly in English and partly through 
an interpreter. "And they would always shuffle me around, telling me, `Oh, no, 
you don't belong here, you belong in this other place,' and on it went."

At least, when he was young, the police understood the problems, Mrs. Silva 
said, "but when he grew up and got 18 years, the police start to punish him and
bring him to jails, but it is a big problem because it's a head sickness. And 
now he got two problems."

She described how she sent letters to judges pleading for help with her son so 
he wouldn't end up in jail, "and no one helped me." She said she would go to a 
clinic and ask for help when Duane got out of control, "and the lady at the 
clinic tells me, `Well, we're taking care of him by order of the judge, so go 
talk to the judge. And I went to talk to the judge, and the judge says, `Take 
him to the clinic.' One sends me one way and the other sends me back, and my 
problem runs out into the street. And the next day the police take Duane. It's 
not right."

Now, she says, "when he's in trouble, they put him in jail. He's sick, and he 
gets worse and worse and worse. It's hard for a person like that. No one 
understands me."

Her fears are far greater for her son if he is sent to state prison. In a 
typical year, she says, he has "two or three problems." She adds, "In prison, 
what will happen, how are they going to control it with a bunch of other 
inmates that are really criminals? So when he starts yelling and getting 
disorderly, they will kill him." The translator adds, "She doesn't believe that
he will come out of a prison alive because he needs medical attention." 
The mother's fear is echoed by the only other person who knows Silva well, on a
day-to-day basis. Dan Hogan is a retired special education teacher at 
Strathmore High School. Silva was in his classes for four years, and Hogan 
often tried to help the young man and his mother on his own time. In a 
telephone interview, he reacted with horror to the idea that Silva might be 
sent to state prison at all, let alone for a minimum sentence of 25 years. 
"They would chew him up," he says, and goes on to explain.

He described a polite, gentle and calm young man who "really wanted to please 
everyone, and he ended up by pleasing no one. All he's ever wanted to do was 
get along with people, to love and be loved." But, continued Hogan, in his 
anxiety to please, he destroyed the very things he was yearning for.

For years, Hogan said, the kids in school made fun of Duane -- "he was easy 
pickins." Mrs. Silva says it started even before he got to Hogan's classes. 
"They called him dummy, crazy, and hit, a bunch of kicks and everything." It 
was very hard on Silva, Hogan adds. He recalls incidents in high school when 
other kids would "go to his home when his mother was not at home, make Duane 
let them in and then eat all the food in the kitchen and play his video games. 
They used him to do these things that kids do. They take advantage of other 
kids, especially if they see that they're easy." They'd also "go out of their 
way to push him, thinking that was funny, but Duane would never retaliate. He 
didn't know how to retaliate to violence." Hogan speculates that perhaps the 
arson fires were the only way Silva could express his frustration at the abuse 
he suffered.

Now, says Hogan, he can imagine the fate that awaits Silva. "In state prison," 
he says, "he would probably be dead in a year, because this is a nonviolent, 
unaggressive, very open-to-everyone person. So they would destroy him shortly 
-- very, very soon."

Silva himself recognizes the danger he faces in prison, but he is typically 
laconic as he explains it. He was asked about his fears, and he answered only: 
"gang-related stuff." Indeed, in the rigid Hispanic gang structure in 
California prisons, the young man has good reason for his fears.

Another special ed teacher at Strathmore High has particularly strong feelings 
about criminals, and with very good reason. "The person who viciously raped me 
should be in prison for life," said Mary Jo Lichty, but "I think that Duane is 
hopefully corrigible. His problems are mental. I don't think he's in the same 
category as people who commit violent crimes."

The "three strikes" law, however, does put Silva in the same category, and it 
appears to give the judge no options in sentencing him. Both the judge and the 
prosecutor have rejected previous attempts to remove this case from the scope 
of the "three strikes" law and to challenge the law on constitutional grounds. 
One of the rejected constitutional challenges, said Silva's energetic public 
defender, Michael Sheltzer, was a "separation of powers" argument based on the 
fact that, under the law, judges do not have the discretion to dismiss "three 
strikes" cases in the interests of justice unless district attorneys ask them, 
thus giving essentially judicial powers to prosecutors.

Constitutional challenges aside, without this new legislation, said one veteran
defense attorney, "no judge would send Silva to prison. This guy would get 
probation, no doubt about it."

Just about everyone who knows Silva, including his mother, thinks he needs some
kind of institutional care, but not a prison. Mrs. Silva, who for years has 
lived with the strain of dealing with her unpredictable son, wants to continue 
to help him but recognizes that she is unable to do so while he is on the 
streets. She said she would like to volunteer in any mental institution in 
which her son is placed.

Dan Hogan shares Mrs. Silva's hopes. "He just needs to be put somewhere where 
he would get gentle care ... where he can be looked after, and certainly not in
a state prison," said Hogan. "He's just a docile young man. He would step out 
of his way to avoid an ant. That type, you know. Something is wrong. Somebody 
didn't do their work. Or it's the system. ... With all due respect to the law, 
this should not be."

The troubled young man summed up his own views on the "three-strikes" law: "It 
doesn't seem right."


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