San Francisco -- A San Francisco man who could have faced 25 years to life under the "three strikes" law for beating his puppy to death was instead sentenced to five years yesterday, after prosecutors did an about-face on pursuing the harsher penalty.

Joey Trimm, 29, will be released from state prison within five months under the sentence agreed to in connection with the May 14, 1997, beating death of his 4-month old puppy, a shepherd-mix named Guinness.

Trimm has said he spanked the pet because it was eating cat food. The dog then bit him, so he punched it. He later put the dead dog in a laundry bag and dumped it in the garbage. His live-in girlfriend reported the death.

Trimm had two felony convictions for child molestation on his record, stemming from a 1990 case in Humboldt County involving a 3-year-old boy. If convicted of felony cruelty to animals, Trimm could have been sent to prison for at least 25 years as a three strikes offender.

Trimm has already been jailed for three years awaiting trial, as District Attorney Terence Hallinan's prosecutors fought for the right to pursue the case under the three strikes law. They successfully appealed Superior Court Judge Robert Dondero's decision to throw out the child molestation offenses as strikes.

But on May 2, the day Trimm's puppy-killing trial was to start, Hallinan's office abruptly changed course. On that day, prosecutors told the court that they no longer wanted to pursue the three-strikes case. Hearing that, Trimm entered a plea of guilty directly to the judge. Prosecutors then recommended a sentence of seven years.

Hallinan's office decided to count the two child molestation convictions as one strike. Thus, Trimm pleaded guilty to felony cruelty to animals and could not be sentenced to a third strike.

Assistant District Attorney Chuck Haines, the prosecutor on the case, said the decision to change strategy was made by a committee in Hallinan's office. He said the molestation convictions arose from a single case, so it was logical to consider them as one strike instead of two.

Trimm isn't getting a free walk, Haines said, adding, "He has at least another five months in state prison."

"A puppy was maliciously killed," Haines said. "Our position is that he should have been given the maximum of seven years in state prison."

Haines said Judge John Marlow made the decision to hand down the five-year term. Trimm got four years for the dog beating and an additional year because of his previous conviction.

Animal rights activists were puzzled as to why prosecutors decided not to pursue the case as a third strike after all this time, but said they were pleased that Trimm got as long a sentence as he did.

"I'm as confused as everyone else," said Leroy Moyer of Voices for Pets, a group that had pushed for a harsh sentence. Still, he said, "The fact is that he has done three years. That's more than anyone else has done for cruelty to animals, so we're happy with that."

David Wise, Trimm's attorney, said the case was politically motivated and lamented that prosecutors had waited three years to decide not to pursue his client as a three strikes offender. But he said the offer was acceptable.

"My client wants to be done with this," Wise said.

As for the fight to have the case considered a three strikes matter, he said: "It was a tremendous waste of resources, that's for sure."

A rare San Francisco three-strikes prosecution has been derailed by a judge's decision rejecting two prior convictions as constitutionally flawed, a move that could mean freedom as early as today for a man jailed more than two years ago for allegedly killing a dog.

San Francisco Superior Court Judge Robert Dondero's action struck two 1990 Humboldt County child molestation counts against Joey Loid Trimm that had served as the underpinnings of San Francisco's efforts to impose a lengthy prison sentence on Trimm as a result of the dog's death.

Chuck Haines, the San Francisco deputy district attorney who has pursued the three-strikes case against Trimm, said his office may appeal Dondero's decision.

The ruling made by Dondero on Monday leaves Trimm facing only a simple felony animal cruelty charge stemming from the killing of a 4-month-old German shepherd puppy that Trimm allegedly beat during an outburst in May 1997. Standing alone, that charge would bring a maximum prison term of three years, if the former night gymnasium clerk is ultimately convicted.

If the conviction were counted as a third strike, however, Trimm could have faced 25 years to life in prison under the state's 5-year-old law allowing for the enhancement of criminal sentences.

Trimm has pleaded innocent to the animal cruelty charge. A trial in the case, People v. Trimm, 175890, is scheduled for early next year.

David Wise, Trimm's lawyer, said he will ask Dondero today to release Trimm on his own recognizance, based on the fact that since his arrest Trimm has already spent as much time in jail and mental institutions awaiting trial as he would have if he had been convicted of killing the 30-pound dog. Trimm's bail has been set at $50,000.

"I felt so happy that [Trimm] was not looking at life in prison for something no person deserves life in prison for," Wise said.

Wise said he already has arranged for psychiatric treatment for Trimm upon his release.

Wise successfully challenged the two prior convictions, for which Trimm spent more than eight years in prison, after discovering that Trimm's defense attorney in the 1990 case apparently never voiced agreement with Trimm's decision to waive a jury trial. Such consent "in open court" by both the defendant and his counsel is required under Article I, Section 16 of the state constitution.

Wise said he discovered the omission after poring through transcripts of the 1990 proceedings.

"There it was, or should I say, there it wasn't," Wise said.

Haines said his office is "trying to decide whether to pursue appellate remedies" in response to Dondero's ruling. That decision should be made next week, the prosecutor said.

The prosecution was unusual not only because of the nature of Trimm's crime, involving violence against an animal, but because three-stikes enhancements are only rarely sought in San Francisco.

While the law is popular elsewhere in California, Department of Corrections figures this summer showed San Francisco sent only 29 people to prison under the statute since it was passed in 1994. That number put the city on a par with some small rural counties.

-- San Francisco Daily Journal, Friday, December 10, 1999. "Three-Strikes Reversal Means Dog-Killer Won't Get 25 Years" by Dennis Pfaff.

For a lawyer, David Wise can be a little bit unconventional. For example, to help him focus while working, he likes to listen to punk rock music. But then maybe that's not so strange for Wise, 30, who plays in punk rock and bluegrass guitar around San Francisco.

Sporting slicked-back hair and the requisite polyester lounge suit--complete with embroidered flowers on the lapels--Wise and his band, The Solvents, played last week to a modest yet enthusiastic and familiar crowd at a South of Market bar. Wise, his fingers flying across the strings, and the drummer, the other member of the band, fit together like hand and glove and appeared to be having fun.

"Our music is kind of like Velvet Underground meets Hazel Atkins; hillbilly blue-grass kind of punk-riff stuff," said the sole practitioner. The band has had a favorable review in the San Francisco Bay Guardian and is working on a CD.

Wise started playing guitar in high school, following a grade-school musical education of piano and clarinet.

He continue playing through college but didn't play in a band until he was a lawyer.

"I was never into advertising and looking for a band," he said. "It seemed contrived, and I was busy. Plus, I wanted it to be something I was doing to have fun with friends."

As fate would have it, one night he was drinking with some colleagues at a trendy Mission-area bar and talking to one of them about music. Wise and the acquaintance agreed, "we ought to get together and jam sometime," Wise said.

"I always had a dream that because I play guitar so much that it would make sense to be in a band."

The two jammed together around the city playing "wacky, super-experimental noise." They hooked up with a local drummer--the best drummer in San Francisco, says Wise--and The Solvents were born.

He says he's not trying to make a point by being a lawyer and a musician.

"I always like keeping them separate. In terms of the law, it's a conservative realm. I've never been into trying to stand out and make some kind of statement vis-a-vis being a lawyer.

"My music has nothing to do with the law: I was a person long before I was a lawyer," he said.

But this attitude didn't provide him with a fair view of the legal profession, he admitted.

"I had the notion of lawyers being bullies and intimidating people that had less power," said Wise, who lived with his working single mother.

In his school days, that notion was challenged when he participated in a mock trial in junior high. He played a defense attorney who "fought for the little guy and got him off." He liked seeing how the law could protect the underpriviled and also enjoyed the theater of being in the courtroom.

He followed that interest and graduated from the University of San Francisco School of Law in 1993.

He handles a variety of cases, including domestic violence, divorce, juvenile delinquency, criminal and even personal injury.

"I have to pay my student loans," he said, in defense of his PI work.

Moonlighting as a musician does seem to help him in working with clients, who sometimes represent the underbelly of society, he said.

"I see the late-night, gritty nightlife, night crawlers. It takes a lot to rock my boat."

He says the only thing about being a lawyer that helps him with his musical career is "on occasion, being able to afford a musical instrument." It also gives him the "freedom to do whatever I want to do with my music. I don't feel like I have to get the attention of [a] record company."

Which is probably a good thing because as a lawyer, Wise said he doesn't have the time to woo record companies.

"There's a lot at stake, especially if I'm doing felony cases. I'm more established now as a legal practitioner," said Wise, who also enjoys listening to Jimmy Hendrix, old Rolling Stones, the Beastie Boys and old country music.

"I want to keep doing both [music and the law], but when push comes to shove, law is my priority.

"The last thing I want a client to think is that I could have exonerated him had I not played guitar last night. One thing people deserve is a good lawyer."

Movers & Shakers appears every Monday in the Daily Journal. Send items of interest to Jennifer Byrd via fax at (415) 252-0599, or E-mail to jennifer_byrd@dailyjournal.com.

--San Francisco Daily Journal, Monday, October 19, 1998. "Counsel Plays Away in Parallel Life," by Jennifer Byrd.

A San Francisco defense lawyer who took a risk in his first felony trial by leaving a county prosecutor on a jury in a "three strikes" case won an acquittal Wednesday.

"You've always got to make gut level decisions and trust your instincts," the attorney, Dave Wise, said. "Three strikes is demanding more of us and requiring us to take some risks."

San Francisco Assistant District Attorney Paul Henderson joined 11 other jurors to find Shawn Stith, 22, not guilty of being a convicted felon in possession of a firearm -- a 1915 sawed-off rifle. A conviction could have carried a 25-years-to-life prison term under5 the "three strikes" sentencing law.

Police arrested Stith in May 1994 -- two months after the "three strikes"law went into effect -- during a traffic stop two blocks from the Hall of Justice, where Stith had just met with his parole officer. The rifle was found in a knapsack in the trunk of the vehicle.

Stith argued that an alleged admission by the defendant that he owned the weapon wasn't sufficient to convict him, because it had not been recorded by police and was contradicted by the owner of the car, a woman who claimed the rifle as her own.