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If you have been arrested for
a “third strike”– typically, but not always, a felony
– or if you know someone who is being investigated for a “third
strike” offense, you or they absolutely, positively need an attorney
who knows the law, who will pursue justice in your/their case, and who
can and will protect your or their liberty interests in a court of law.
At the MAYO LAW CLINIC we vigorously
defend individuals who are being investigated or who have been arrested
for a “third strike” offense. CALL US AT
(530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION!
ABOUT THE “THREE STRIKES” LAW
Although known as California’s infamous “Three Strikes”
law was initially enacted by the legislature (AB 971 (1994), Stats 1994,
chapter 12, effective March 12, 1994) and established an alternative term
scheme with dramatically increased punishment for recidivists with any
prior violent or serious felony convictions. This original Three
Strikes law is found in Penal Code (PC) §667(b)-(i). In the general
election of November, 1994, the voters enacted Proposition 184, which
reenacted essentially similar language as an initiative, but changed its
location to PC §1170.12. The relationship between these two
sections is unspecified. However, the two separate sentencing schemes
are created in this law, with the first, truly referred to as “Three
Strikes”, creates a life term for a defendant who has suffered two
or more prior strikes. The second scheme deals with a defendant
who has suffered a single prior strike, and doubles his sentence. With
respect to other limitations, the California Supreme Court has, regrettably,
not resolved the relationship between the two statutes, but the late Justice
Mosk and Justice Kennard expressed the opinion that the passage of Proposition
184 did not repeal or supersede PC §667(b)-(i).
The Three Strikes law applies on conviction of any felony. The new
felony does not have to be violent as defined in PC §667.5(c), or
serious as defined in PC §1192.7. However, in order for the
alternative scheme to apply, there must be at least one prior conviction
for either a violent or a serious felony, as included in PC §§667.5(c)
or 1192.7.
Language in PC §667(h), and uncodified language in Proposition 184,
created a "freeze date" of June 30, 1993 for all statutory references
in the Three Strikes law. Crimes added to the "violent"
(PC §667.5(c)) or "serious" (PC §1192.7) lists after
June 30, 1993 (e.g., carjacking) were not strikes until the passage of
Proposition 21 (see below). People v Nava (1996) 47 CA4th
1732, 55 CR2d 543. However, a subsequently added crime may be a
strike if it incorporates any of the specified qualifying enhancements
(e.g., personal use of dangerous or deadly weapon or firearm,
personal infliction of GBI on non-accomplice) under PC §§667.5(c)
or 1192.7(c). People v Nava, supra. If it is alleged that
a prior conviction constitutes a strike because of personal infliction
of GBI on a non-accomplice, the burden is on the prosecution to prove
the victim was not an accomplice. (People v Henley (1999) 72
CA4th 555, 82 CR2d 123.)
New law—Proposition
21. Proposition 21 was enacted March 7, 2000, and became effective
the next day. That law specifically changed the freeze date for
the Three Strikes law to March 8, 2000, and specifically includes the
substantial amendments to the Three Strikes law that were incorporated
in that Proposition. As a result, for crimes committed on or after
the new freeze date, those crimes added to the PC §1192.7 list after
the initial freeze date (e.g., carjacking) are now strikes.
In addition, Proposition 21 added a substantial number of crimes to PC
§1192.7. Those crimes are: PC §§136.1 (intimidating
victims and witnesses); PC §182(a)(1) (conspiracy to commit any violent
felony); PC §245 (assault with a deadly weapon or firearm; PC §246
(discharging firearm at inhabited dwelling, vehicle, or aircraft); PC
§245.2; PC §245.3; PC §245.5 (all forms of assault with
a deadly weapon or force likely to inflict GBI on a public transit employee,
custodial officer, or school employee); PC §422 (criminal threats);
PC §12034(c) and (d) (shooting a firearm from a vehicle); and PC
§12309 (exploding a destructive device with resulting bodily injury).
Also added was any felony that would also constitute a felony violation
of PC §186.22 (relating to gang activity). Deleted from PC
§1192.7 was one felony, PC §210.5 (false imprisonment of a hostage).
Despite language in Proposition 21 describing "any burglary of the
first degree" as a serious felony, residential second degree burglary
(pre-1983) remains a strike, according to the appellate court in People
v Garrett (2001) 92 CA4th 1417, 112 CR2d 643.
New violent felonies
added to PC §667.5(c). These crimes are also prior strikes
for new crimes committed on or after March 8, 2000. The statute
specifies that foreign convictions, otherwise meeting the definition of
a strike in California, qualify as strikes. PC §§667(d)(2),
1170.12(b)(1). Ambiguous language in the initiative version (PC
§1170.12) has been interpreted to mean that foreign priors qualify
as strikes for both the "single prior strike" and "multiple
prior strike" sentencing schemes. (People
v Avery (2002) 27 C4th 49; 38 P.3d 1; 115 CR2d 403 -
specific intent element of theft under Texas law (i.e., intent
to take property for long enough to deprive owner of majority of its value)
is functional equivalent of California's intent to permanently deprive;
therefore Texas burglary, in which theft was underlying felony, could
be used as a California strike). (People v Hazelton (1996)
14 C4th 101, 109, 58 CR2d 443 - Nevada attempted rape a strike in a "multiple
prior strike" case); People v Harbolt (1997) 61 CA4th 123,
126, 71 CR2d 459 (federal bank robbery a strike).
A prior conviction occurs on entry of plea; deferred entry of judgment
does not defeat the prior strike. People v Castello (1998) 65
CA4th 1242, 1254, 77 CR2d 314. The priors need not have resulted
in a prison sentence. The priors are not subject to any "washout"
period. People v Smith (1988) 206 CA3d 599, 253 CR 673.
A prior is determined to be a strike as of the date of the conviction,
and is unaffected by subsequent events. The fact that a successful
CYA commitment reduced a felony to a misdemeanor did not affect its status
as a prior strike. People v Franklin (1997) 57 CA4th 68, 66 CR2d
742. Successful discharge from CYA under Welfare & Institutions
Code (W&I) §1772 does not remove a strike prior. People
v Daniels (1996) 51 CA4th 520, 59 CR2d 395. A dismissal under
PC §1203.4 (on successful completion of probation) does not prevent
a prior from being a strike. People v Diaz (1996) 41 CA4th 1424,
49 CR2d 252.
Felony convictions predating the enactment
of the Three Strikes law are strikes if the Three Strikes law defines
them as strikes and the charged offense took place after the effective
date of the Three Strikes law. People v Reed (1995) 33
CA4th 1608, 40 CR2d 47; People v Sipe (1995) 36 CA4th 468, 42
CR2d 266; People v Hatcher (1995) 33 CA4th 1526, 39 CR2d 801.
Similarly, felonies added to the list of serious felonies by the enactment
of Proposition 21 can be considered serious felonies, and therefore count
as strikes, if the current offense occurred after the effective date of
Proposition 21. People
v James (2001) 91 CA4th 1147, 111 CR2d 292.
Prior strikes need not have
been separately brought and tried. They may arise from multiple counts
in a single case. People v Fuhrman (1997) 16 C4th 930, 67 CR2d
1. An otherwise qualifying prior conviction stayed pursuant to PC
§654 is a strike. People v Benson (1998) 18 C4th 24, 74
CR2d 294. (Benson involved prior strikes that were stayed pursuant
to PC §654 because they arose from a continuing course of conduct.
The Benson court left open the question as to whether the same
rule will apply if the priors were stayed because they punished the same
act in different ways.) In People
v Ortega (2000) 84 CA4th 659, 101 CR2d 253, the defendant
was convicted of two "strike" offenses (attempted voluntary
manslaughter and assault with a firearm, both with personal use of a firearm).
The court concluded that the offenses were subject to PC §654, and
stayed punishment on the assault. It was held not to be an abuse
of discretion for the trial court to refuse to strike the assault offense,
even though the offense might in the future constitute an additional strike
prior.
In People
v. Wallace* (2003) 105 CA4th 250; 129 CR2d 292, the
Court of Appeals held that after the defendant was convicted of being
an ex-felon in possession of a firearm (PC §§667(e) and 12021), the trial
court found two prior conviction allegations- both strikes under the "Three
Strikes" law- to be true, but struck the second strike in the interests
of justice, sentencing the defendant as if he had only one strike against
him. (PC §1385.) The defendant was then sentenced to 16 months in state
prison for this offense. The People appealed, contending that the trial
court abused its discretion when it struck the prior conviction that constituted
defendant's second strike. (PC §995) The Court of Appeals agreed, holding
that the trial court abused its discretion when it struck his second strike
in the interests of justice and sentenced the defendant as if he had only
one strike against him. Because a "no contest" plea admitted all elements
of prior offense that constituted the second strike, "sufficiency" of
evidence adduced at preliminary hearing was irrelevant as factor supporting
exercise of discretion to strike the prior "strike". *Editor's
Note: This case was granted review by the Supreme Court on 3/26/03. Thus,
the case is not citable for the proposition that the trial court abused
its discretion in striking a "prior" strike.
In People
v. Flood (2003) (5/5/03; 03 C.D.O.S. 3820; ___CA4th
___), the Court of Appeals rejected a defendant's appeal wherein he contended
that the Three Strikes law did not apply to the defendnat since he did
not "commit [the present] felony after having previously committed" a
serious or violent felony, but rather, committed the serious or violent
felony after committing the present felony. The Court acknowledge
this was true, but held that the defendant could not prevail on his claim
that his 12-year term must be reduced by four years because he faced possible
life imprisonment and gained the benefit of his plea bargained sentence.
Editor's Note: This appears to be some form of
estoppel argument used against the defendant in this case.
Juvenile priors as strikes.
The Three Strikes statutes provide that, under certain circumstances,
prior juvenile adjudications may be treated as strikes. Those requirements,
from PC §§667(d)(3) and 1170.12(b)(3), are:
• The juvenile was age 16 or older at the time of the offense;
• The prior offense is listed in Welf & I C §707 or included
in PC §§667.5(c) or 1170.12;
• The juvenile was found to be a fit and proper subject to be dealt
with under the juvenile law; and
• The juvenile was adjudged a ward within the meaning of Welf &
I C §602 because he or she committed an offense listed in Welf &
I C §707(b).
Note: Proposition 21, effective March 8, 2000, has had
a major effect on Welfare & Institutions Code §707(b).
Two new felonies were added to the list: voluntary manslaughter and all
robberies. In addition, several serious felonies that were added
to the §707(b) list after the June 30, 1993 freeze date for the Three
Strikes law now constitute felony strikes for offenses committed on or
after March 8, 2000. Those crimes are: PC §451(a) (arson with
GBI) (W&I Code §707(b)(2)); Pen C §215 (armed carjacking)
(Welf & I C §707(b)(25)); former Pen C §208(d) (kidnapping
for forcible sex crime) (Welf & I C §707(b)(26)); Pen C §209.5
(kidnapping in commission of carjacking) (Welf & I C §707(b)(27));
Pen C §12034(c) (shooting from a vehicle) (Welf & I C §707(b)(28));
and PC §12308 (exploding destructive device with intent to murder)
(Welf & I C §707(b)(29)). The list also includes any crime enhanced
by PC §12022.53 (Welf & I C §707(b)(17)).
A juvenile adjudication may be a strike despite the lack of a jury trial.
People v Fowler (1999) 72 CA4th 581, 84 CR2d 874. An express
finding of fitness is unnecessary. An implied finding of fitness (i.e.,
the juvenile was adjudicated in the juvenile court) is sufficient. People
v Davis (1997) 15 C4th 1096, 64 CR2d 879.
Many crimes appear on the Welf & I C §707(b) list and on the
violent/serious lists in PC §§667.5(c) and 1192.7. As to such
offenses (e.g., murder), a juvenile adjudication clearly gives rise to
a strike. Some crimes, (e.g., residential burglary), are strike offenses
for adults but do not appear in Welf & I C §707(b). Is a juvenile
residential burglary a strike? The question was resolved by the supreme
court in People v Garcia (1999) 21 C4th 1, 87 CR2d 114. To create
a strike, a juvenile must be declared a ward of the Juvenile Court for
a Welf & I C §707(b) offense in the same proceeding giving rise
to a strike prior. Thus, if a juvenile is adjudicated a ward for a Welf
& I C §707(b) offense that is not a strike offense (e.g., assault
with force likely to inflict great bodily injury) in the same proceeding
as that in which the juvenile is adjudicated guilty of a residential burglary,
the statute is satisfied and the burglary is a strike. But if the juvenile
is adjudicated a ward for multiple counts of residential burglary without
any Welf & I C §707(b) offense, those burglaries will not be
strikes.
Proof of Prior Strikes
Issues have arisen as to how priors may be proved. In some cases, the
facts making a prior a strike may be an element of the offense itself.
Discharge of a firearm with gross negligence is a strike. People v
Leslie (1996) 47 CA4th 198, 54 CR2d 545. Grand theft of a firearm
is a strike. People v Rodola (1998) 66 CA4th 1505, 78 CR2d 735.
Hit and run driving with Great Bodily Injury is not a strike, unless the
GBI was caused by the flight. People v Wood (2000) 83 CA4th 862,
100 CR2d 115.
In some instances (e.g., residential burglary for crimes committed prior
to March 8, 2000) the convicted charge is insufficient to determine whether
or not a serious felony prior occurred. In such cases, the court may look
to the entire "record of conviction." People v Woodell
(1998) 17 C4th 448, 454, 71 CR2d 241. This also applies to foreign convictions.
People v Riel (2000) 22 C4th 1153, 96 CR2d 1. The "record
of conviction" may still, however, contain inadmissible hearsay that
cannot be considered. People v Stewart (2000) 77 CA4th 785, 91
CR2d 888. "Record of conviction" is defined as the record of
proceedings leading to imposition of judgment, including appellate court
documents up to finality of judgment. Included are:
• Charging documents. People v Moenius (1998) 60 CA4th
820, 824, 70 CR2d 579.
• Abstract of judgment. People v Gomez (1990) 219 CA3d
157, 159, 268 CR 50; People v Colbert (1988) 198 CA3d 924, 930,
244 CR 98.
• Clerk's minutes. People v Harrell (1989) 207 CA3d 1439,
1444, 255 CR 750; People v Moenius, supra.
• Change of plea form. People v Smith (1988) 206 CA3d 340,
345, 253 CR 522; People v Carter (1988) 204 CA3d 774, 778, 251
CR 458.
• Transcript of entry of plea. People v Sohal (1997) 53
CA4th 911, 915, 62 CR2d 110 (including factual basis for plea offered
by prosecutor without objection by defense); People v Abarca
(1991) 223 CA3d 1347, 1351, 285 CR 213.
• Preliminary hearing transcript, if conviction resulted from plea.
People v Reed (1996) 13 C4th 217, 223, 52 CR2d 106.
Note: If the conviction resulted from a trial, the preliminary
hearing transcript is not admissible. People v Houck (1998) 66
CA4th 350, 77 CR2d 837.
• Trial transcript. People v Bartow (1996) 46 CA4th 1573,
1580, 54 CR2d 482.
• Defendant's statement in probation report. People v Monreal
(1997) 52 CA4th 670, 676, 60 CR2d 737; People v Garcia (1989)
216 CA3d 233, 237, 264 CR 662.
Note: Other statements in the probation report, including
statements by witnesses or the probation officer's summary, are not admissible.
People v Reed (1996) 13 C4th 217, 230, 52 CR2d 106.
• PC §1203.01 statement by court or prosecutor. People
v Johnson (1989) 208 CA3d 19, 26, 256 CR 16.
• Appellate opinion. People v Woodell (1998) 17 C4th 448,
457, 71 CR2d 241 (North Carolina appellate decision used to determine
prior conviction was burglary of a residence); People v Harbolt
(1997) 61 CA4th 123, 126, 71 CR2d 459 (U.S. Court of Appeals decision
used to establish serious felony nature of federal bank robbery conviction).
But a foreign state's sworn probable cause statement by a percipient
witness, used in lieu of a preliminary hearing, could not be used to prove
the serious nature of that foreign conviction. People v Stewart
(2000) 77 CA4th 785, 91 CR2d 888.
• Uncertified "rap" sheets. People v Martinez
(2000) 22 C4th 106, 91 CR2d 687 (uncertified computer printouts of criminal
history information (CLETS) admitted under "official records"
exception to hearsay rule to prove fact of prior conviction, but not its
substance.)
In some cases, the record of conviction may be inadequate to show whether
a conviction for a serious or violent felony actually occurred. In such
a case, the court is bound by the "least adjudicated elements"
test in its determination. People v Cortez (1999) 73 CA4th 276,
279, 86 CR2d 234 (California prior); People v Jones (1999) 75
CA4th 616, 89 CR2d 485.
Prior strikes do not have to be proved at the preliminary hearing. This
remains true even subsequent to Apprendi v New Jersey (2000)
530 US 466, 147 L Ed 2d 435, 120 S Ct 2348. Thompson v Superior Court
(2001) 91 CA4th 144, 110 CR2d 89. The statutes require the district attorney
to plead and prove the prior strikes, but do not specify at what stage
this must occur. Miranda v Superior Court (1995) 38 CA4th 902,
45 CR2d 498. Strike allegations can be added after the defendant has been
convicted or after a guilty plea. People v Valladoli (1996) 13
C4th 590, 54 CR2d 695. Strikes cannot be alleged after the jury has been
discharged (People v Tindall (2000) 24 C4th 767, 102 CR2d 533),
even if jury trial on the prior strikes has previously been waived (People
v Gutierrez (2001) 93 CA4th 15, 112 CR2d 568).
Consequences of One or More Strikes
Both versions of the Three Strikes statute list a number of mandatory
consequences for a defendant with one or more strikes found true. They
include:
• Commitment to state prison is mandatory. Probation and diversion
are prohibited. PC §§667(c)(2), (4), 1170.12(a)(2), (4). See
People v Superior Court (Roam) (1999) 69 CA4th 1220, 82 CR2d
119 (trial court reversed for deferring sentence and releasing defendant
on "supervised own recognizance" to attend rehabilitation).
• The total amount of credits pursuant to PC §§2930-2935
may not exceed 20 percent, and do not accrue until the defendant is physically
placed in the state prison. PC §§667(c)(5), 1170.12(a)(5). The
defendant is entitled to PC §4019 presentence credits, but these
are subject to the 15-percent limitation of PC §2933.1 if the underlying
offense is a violent crime. The language in PC §2933.1 regarding
a life term does not make the 15-percent limitation applicable to all
multiple strike cases. People v Thomas (1999) 21 C4th 1122, 90
CR2d 642. The limitation of credits does not violate equal protection.
People v Applin (1995) 40 CA4th 404, 46 CR2d 862. A defendant
does not need to be advised of the credits limitation that results from
a plea to a "strikes" case. People v Barella (1999)
20 C4th 261, 84 CR2d 248.
• Prior strike convictions may not be used in plea bargaining. PC
§§667(g), 1170.12(e).
• "Dual use" may be made of a strike prior. The same prior
can be used to elevate the present offense to a felony and to double the
base term. People v Hurtado (1996) 47 CA4th 805, 54 CR2d 853
(same prior burglary used as prior for ex-felon in possession of firearm
and as strike). The same prior conviction can be used to (1) elevate present
petty theft to felony; (2) double the term as a prior strike; and (3)
enhance the sentence as a prior prison term (Pen C §667.5(b)) enhancement.
People v White Eagle (1996) 48 CA4th 1511, 56 CR2d 749. The same
prior may be used to add one year for a prior prison term (PC §667.5(b))
and to double the base term. People v Cressy (1996) 47 CA4th
981, 55 CR2d 237 (prior burglary used as prior prison term and as strike).
The same prior can be used to double the present term and to add five
years for the prior under PC §667(a). People v Nelson (1996)
42 CA4th 131, 49 CR2d 361 (new residential burglary with prior residential
burglary). The same prior can be used as the basis of a PC §290 case
and to double the present term. People v Yarborough (1998) 65
CA4th 1417, 77 CR2d 402. The same prior can be used to elevate a sex crime
to a 25 to life term pursuant to PC §667.71, double (or triple) it
as a prior strike, and add a Pen C §667(a) serious felony enhancement.
People v Murphy (2001) 25 C4th 136, 105 CR2d 387.
• The court must impose
consecutive sentences for subordinate terms unless the counts were committed
on the same occasion or arose from the same set of operative facts. People
v Hendrix (1997) 16 C4th 508, 66 CR2d 431 (robbery of multiple victims
at a single location; trial court had discretion to impose consecutive
or concurrent sentences). The determination of "same occasion or
same set of operative facts" is not the same analysis as that for
PC §654. People v Deloza (1998) 18 C4th 585, 76 CR2d 255.
Nor, when sex crimes are involved, is it the same standard as that for
Pen C §667.6(c) and (d). People v Jeffries (2000) 83 CA4th
15, 98 CR2d 903. "Same occasion" is construed narrowly. A theft,
followed by flight and then by an assault committed within a few minutes,
makes consecutive sentencing mandatory. People v Lawrence (2000)
24 C4th 219, 99 CR2d 570. Consecutive sentences were found to be mandatory
when a defendant walking down a street tried and failed to enter two separate
residences and then successfully entered a third. People v Durant
(1999) 68 CA4th 1393, 81 CR2d 207. When a jury verdict can be based on
a number of unlawful acts, and the court cannot determine beyond a reasonable
doubt the particular acts selected by the jury, it must assume that the
jury based its finding on those acts that give the court the most discretion
to impose concurrent terms. People v Coelho (2001) 89 CA4th 861,
107 CR2d 729.
• A "second strike" offense (where a prior strike has
been found true) must be run consecutive to any other sentence. However
it does not run fully consecutive; the "one-third the midterm"
rule of PC §1170.1 applies. People v Riggs (2000) 86 CA4th
1126, 103 CR2d 890.
PC §654 applies to sentencing for multiple counts under the Three
Strikes law in cases where consecutive sentencing is not mandated by that
law. People v Danowski (1999) 74 CA4th 815, 88 CR2d 471.
One prior strike. If the defendant has one prior strike,
the determinate term for the present crime (or minimum term for an indeterminate
term) is doubled. In a multiple count case, this applies to both the base
term and any subordinate terms. All other sentencing computations remain
the same. Applicable enhancements, either specific (conduct) enhancements
or other prior enhancements, are still available but are not doubled.
Enhancements for prior prison terms (e.g., PC §667.5(b))
or for serious felony priors (PC §667(a)) are still imposed but are
not doubled.
Example: Defendant is convicted of one count of robbery
with a knife, with a single prior strike. The base term for robbery (2-3-4
years) is doubled, to a term of 4-6-8 years. The PC §12022(b)(1)
enhancement for the knife is not doubled—it remains at one year.
The defendant is additionally punished with a five-year enhancement if
(as in this example) the current offense is a serious felony as defined
in PC §§667(a) and 1192.7. People v Ramirez (1995)
33 CA4th 559, 39 CR2d 374. In this example, the total maximum punishment
would be 14 years, and the defendant's total credits both presentence
and postsentence would be limited to a total of 15 percent (PC §2933.2).
If the defendant is convicted of multiple counts in this situation, the
normal PC §1170.1 scheme will apply. This means consecutive terms
are calculated as one-third the midterm, which then is doubled under PC
§§667(e) and 1170.12(c)(1). People v Nguyen (1999)
21 C4th 197, 97 CR2d 198.
A defendant convicted of attempted willful, deliberated, premeditated
murder is subject to a sentence of life with the possibility of parole.
He is eligible for parole in seven years. If he has a prior strike, his
sentence becomes 14 years to life. People v Jefferson (1999)
21 C4th 86, 86 CR2d 893. Additionally, a 15-year minimum term before parole
established by PC §186.22(b)(1) is also subject to doubling. People
v Jefferson, supra.
There is a split as to whether or not a sentence of Life Without Possibility
of Parole, with a prior strike, is doubled to two consecutive terms of
Life Without Possibility of Parole. People v Hardy (1999) 73
CA4th 1429, 87 CR2d 279 (yes); People v Smithson (2000) 79 CA4th
480, 94 CR2d 170 (no).
Two or more prior strikes. If the defendant has two or
more qualifying priors, there are additional consequences:
• A defendant with two or more strikes receives no credits against
his or her indeterminate life term for good conduct/work conduct in prison.
In re Cervera (2001) 24 C4th 1073, 103 CR2d 762. The defendant does, however,
still receive Pen C §4019 presentence credits. People v Thomas (1999)
21 C4th 1122, 90 CR2d 642. It also appears from the concurring opinion
in In re Cervera (2001) 24 C4th 1073, 1088, 103 CR2d 762, that a Three
Strikes defendant does receive credits against any determinate portion
of his sentence. It is unresolved if this will include credits against
a determinate enhancement (e.g., personal use of firearm) to an indeterminate
life term.
• The base term for each current conviction is an indeterminate
term of life imprisonment with the minimum term calculated as the greatest
of:
• (1) Three times the punishment for each current felony conviction;
• (2) 25 years; or
• (3) The term for the underlying conviction, or any period prescribed
by Pen C §190 (murder) or Pen C §3046 (punishment for life term).
• In a multiple count case, the court may have to calculate each
of the three options for each count, and then impose the greatest for
each, even if it means using a different formula for each count. People
v Thomas (1997) 56 CA4th 396, 65 CR2d 425. The resulting computations
can become very complicated.
• Specific (conduct) enhancements on subordinate counts are served
full term; they are not reduced by the one-third scheme of Pen C §1170.1.
People v Lyons (1999) 72 CA4th 1224, 85 CR2d 581.
• Prior enhancements (e.g., Pen C §§667(a), 667.5(b))
are then added to arrive at the aggregate sentence. People v Dotson (1997)
16 C4th 547, 66 CR2d 423.
In computing the possible sentence under option (1), the court is not
bound by the aggravated term for the crime. It first chooses the term
it would impose and then triples it, to see if this option results in
the largest term. People v Keelen (1998) 62 CA4th 813, 73 CR2d 250.
Option (3) was discussed in People v Dotson, supra. The entire "non-strike"
sentence, which includes any enhancements, goes into option (3) to determine
the punishment for the crime itself. Then any enhancements, even though
they were included in the computation of the minimum term, are added to
the punishment. In Dotson, the defendant was convicted of residential
burglary (2-4-6 years) with four separate prior convictions (five-year
priors under Pen C §667(a)) for the same offense. Under option (3),
his "term for the underlying conviction" would be 6 years (aggravated
term) plus 20 years for priors, or a total of 26 years. His term for the
crime is therefore 26 years to life. To that are added any enhancements,
which include four five-year Pen C §667(a) priors. His total sentence
was therefore 46 years to life.
Specific (conduct) enhancements are subject to the same treatment under
option (3), and can result in a highly complex sentencing scheme, as seen
in People v Byrd (2001) 89 CA4th 1373, 108 CR2d 243. Byrd was convicted
of 12 counts of robbery, each with the use of a firearm, and had three
Pen C §667(a) prior serious felony convictions. As to those counts,
the option (3) sentencing went as follows: aggravated term of 5 years,
plus 10 years for personal use of firearm (Pen C §12022.53), plus
15 years (prior serious felonies), for a total indeterminate term for
the robbery of 30 years to life. Ten years were then added for the firearm
use, for a total of 10 plus 30 years to life for each count. The 12 counts
resulted in a total of 120 plus 360 years to life, to which were then
added another 15 years for the three prior serious felony convictions.
With a few other counts, Byrd's total sentence was 115 years plus 444
years to life.
Where does a sentence of life with the possibility of parole ("straight
life") with two or more prior strikes fit into this scheme? People
v Dozier (2000) 78 CA4th 1195, 93 CR2d 600 held that the correct sentence
is 25 years to life.
Discretion To Strike:
Romero/Williams
The sentencing court must exercise its discretion carefully when sentencing
under the Three Strikes law. In some situations the court may have discretion
to strike one or more priors and significantly reduce the defendant's
sentence. In other situations it may be an abuse of discretion to strike
priors.
The court retains the discretion to reduce a "wobbler" offense
to a misdemeanor under Pen C §17(b), notwithstanding the allegation
of one or multiple prior strikes. People v Superior Court (Alvarez) (1997)
14 C4th 968, 60 CR2d 93. A strike offender is still eligible for deferred
entry of judgment under Pen C §§1000-1000.8. People v Davis
(2000) 79 CA4th 251, 93 CR2d 905.
The prosecuting attorney may move to dismiss or strike a prior felony
allegation in the furtherance of justice pursuant to Pen C §1385,
and the prosecutor or the court may dismiss a prior conviction allegation
for insufficient evidence. Pen C §§667(f)(2), 1170.12(d)(2).
The trial court has discretion under Pen C §1385 to strike a "strike"
in the interest of justice. People v Superior Court (Romero) (1996) 13
C4th 497, 53 CR2d 789. This decision is fully retroactive. It cannot do
so arbitrarily, to reduce calendar congestion, or because the judge just
does not like the strikes law. People v Ramos (1996) 47 CA4th 432, 55
CR2d 1, disapproved on other grounds in 16 C4th at 947 n11; People v Carter
(1996) 49 CA4th 567, 56 CR2d 689; People v Smith (1996) 50 CA4th 1194,
58 CR2d 9. The court must specifically articulate its reasons for doing
so in the court's minutes. People v Superior Court (Romero), supra. If
the record is clear that the court did not recognize its power under Pen
C §1385, remand for reconsideration is appropriate.
The court may exercise its discretion under Romero to strike priors as
to some counts, but to leave the priors intact as to other counts. People
v Garcia (1999) 20 C4th 490, 85 CR2d 280.
Even when a court exercises its discretion to strike a strike, that does
not result in a five-year prior under Pen C §667(a) being stricken.
People v Turner (1998) 67 CA4th 1258, 79 CR2d 740.
Where the trial court record is silent on the Romero issue, remand on
appeal is not necessary and the defendant must seek relief on habeas instead.
People v Fuhrman (1997) 16 C4th 930, 67 CR2d 1. On Romero remand for reconsideration,
the trial court must conduct a hearing at which defendant and counsel
are present. People v Rodriguez (1998) 17 C4th 253, 70 CR2d 334. As to
its exercise of discretion, the supreme court has ruled that (People v
Williams (1998) 17 C4th 148, 161, 69 CR2d 917):
[T]he court in question must consider whether, in light of the nature
and circumstances of his present felonies and prior serous and/or violent
felony convictions, and the particulars of his background character, and
prospects, the defendant may be deemed outside the scheme's spirit, in
whole or in part, and hence should be treated as though he had not previously
been convicted of one or more felonies and/or had not previously been
convicted of one or more serious and/or violent felonies.
In its review of the exercise of discretion by the lower court, the supreme
court held that the standard of review is whether the ruling in question
"falls outside the bounds of reason" under the applicable law
and the relevant facts.
A number of cases have found an abuse of discretion when priors were stricken.
See People v Thornton (1999) 73 CA4th 42, 86 CR2d 84 (ATM robbery of disabled
victim; prior separate prison terms for burglary and robbery with multiple
parole violations on each; still on parole when committed present crime);
People v Gaston (1999) 74 CA4th 310, 87 CR2d 829 (auto theft; robbery
and kidnapping 15 years earlier; four separate prison terms within the
prior decade); People v McGlothin (1998) 67 CA4th 468, 79 CR2d 83 (robbery
of two elderly victims; criminal history since 1972 including juvenile
robbery and seven adult felonies including two robberies, battery on a
peace officer, and drugs).
A sentence of 25 years to life for possession of methamphetamine and violation
of Pen C §69 (resisting officer) is not cruel and unusual punishment,
given an extensive criminal record. People v Martinez (1999) 71 CA4th
1502, 84 CR2d 638.
However, it was held in People v Cluff (2001) 87 CA4th 991, 105 CR2d 80
that the trial court abused its discretion by refusing to strike one or
more priors under Romero. Cluff involved a charge of Pen C §290 (failure
to register as a convicted sex offender), which the court viewed as a
"technical" violation of that statute. The defendant had failed
to update his registration as required on his birthday, although he had
not moved from the address at which he had previously registered.
Eighth Amendment Considerations
In a very recent series of cases, the Ninth Circuit has ruled that there
are situations in which it is cruel and unusual punishment for the court
to impose a life sentence under the Three Strikes law. In Andrade
v Attorney General (9th Cir 2001) 270 F3d 743, cert granted sub nom
Lockyer v Andrade (2002) 152 L Ed 2d 379, 122 S Ct 1434, the
United States Court of Appeals for the Ninth Circuit ruled that a defendant
who was convicted of two counts of petty theft with a prior (PC §666)
could not be sentenced to 50 years to life in state prison without offending
the Eighth Amendment's prohibition against cruel and unusual punishment.
Andrade's qualifying prior strikes were residential burglaries.
Although the defendant had a significant criminal record, none
of his offenses was violent. The United States Supreme Court granted
the California attorney general's petition for writ of certiorari on April
1, 2002. Andrade v Attorney General (9th Cir 2001) 270
F3d 743, cert granted sub nom Lockyer v Andrade (2002) 152 L
Ed 2d 379, 122 S Ct 1434.
Andrade was followed by Brown v Mayle (9th Cir 2002)
283 F3d 1019, in which the Ninth Circuit addressed the companion cases
of defendants Brown and Bray. Each defendant had been convicted
of petty theft with a prior (PC §666) with multiple prior strikes.
Bray's priors included four counts of robbery (PC §211), including
one in which a codefendant had fired three shots at the victim.
Brown had a total of five strikes: one robbery (PC §211), two burglaries
(PC §459), and two assaults with a deadly weapon (PC §245).
Both were sentenced to terms of 25 years to life under the Three
Strikes law; both convictions were affirmed by the California court of
appeal, and the California Supreme Court denied review in both cases.
The court in Brown carefully reviewed its holding in Andrade.
Concluding that the presence of violent prior crimes did not change the
analysis, the court held that a punishment of 25 years to life for petty
theft is unconstitutional as cruel and unusual punishment, regardless
of the extent of the defendant's prior violent crimes.
On March 5, 2003, the U.S. Supreme
Court reversed the Ninth Circuit (what a surprise!) and upheld California's
infamous three-strikes law, the toughest such law in all of the states,
on the grounds that this law did not violate the federal Constitution's
8th Amendment's prohibition against cruel and/or unusual punishment.
In Lockyer
v. Andrade (2003) (3/5/03; 537 U.S. ___) and again in
the companion case, Ewing
v. California (2003) (3/5/03; 537 U.S. ___), a sharply
divided court (a classic 5/4 liberal vs. conservative split) saw the Court
render another plurality decision wherein the Court deferred to the State's
Legislature for purposes of enacting such tough sentencing laws (25 years
to life).
Justice O'Connor delivered the
decision for the Court, citing the Court's 1991 holding in Harmelin
v. Michigan, 501 U.S. 957, 996-997 (which affirmed a life sentence
without the possibility of parole for the possession of 650 grams (about
1.5 lbs.) of cocaine) for the prosposition that “The primacy of the legislature,
the variety of legitimate penological schemes, the nature of our federal
system, and the requirement that proportionality review be guided by objective
factors” inform the final principle that the “Eighth Amendment does not
require strict proportionality between crime and sentence [but] for-bids
only extreme sentences that are ‘grossly disproportionate’ to the crime.”
Apparently, a 25 years-to-life sentence for stealing a couple of golfs
clubs is not "grossly disproportionate to the crime."
Editor's Note: Of
course, the irony of these two rulings won't go unnoticed by those same
Legislators who are now reeling under the weight of a massive state budget
deficit caused in no small part by State laws such as California's three-strikes
law. In turn, this extraordinary expense will call for either higher state
taxes on every taxpayer, or will compel these same brain-dead Legislators
to start emptying the state's prisons of non-three-strike felons. There
can be little doubt that any Legislator with half of a brain was desparetly
hoping that the High Court would show a little mercy on the State and
strike the law down, as these two decisions now give the Court's blessing
to putting away at the cost of some $50,000+ per year, persons who have
been found guilty of stealing the likes of golf clubs or video tapes. Should
the rate of three-strike prosecutions continue at its current pace, it
appears that by 2010, California will be spending more on housing prison
inmates than the entire country will be spending on the cost of higher
education. Leave it to "law enforcement" to single-handedly bankrupt the
State of California!
Due Process (14th Amendment)
Considerations Well, seemingly as fast as the Supreme Court
can possibly reverse the Ninth Circuit, the Ninth Circuit can likewsie
keep up the pace. In another reversal of a California three-strikes conviction
based upon the granting of a federal writ of habeas corpus, the Ninth
Circuit in Gill
v. Ayers (2003) (3/6/03; 03 C.D.O.S. 2039; ___ F.3d
___) held that the trial court's refusal to permit the defendant the right
to testify at the time of his sentencing violated the defendant's federal
rights to due process of law. The Court went on to hold that becuase
this violation of the defendant's rights was in clear violation of long-standing
U.S. Supreme Court law on the subject, the Court reversed the defendant's
conviction.
One Strike Sex Crime Law, and Others
In addition to the Three Strikes law, there are a number of other statutes
in which alternative sentencing schemes are invoked by a defendant's recidivism.
Note: The relationship between Pen C §§667.61
and 667.71 and the Three Strikes law is exceedingly complicated. Because
each law deals with each prior and each present offense in a slightly
different fashion, the permutations are endless. The laws may apply in
various combinations to a particular case. Repeat and multiple sex offenders
may expect sentences measured in centuries, not years.
Penal Code §667.51(d) (lewd and lascivious
acts with minor, with priors). This statute, which mandated a
15-to-life term for a qualifying offender, has been overtaken by Pen C
§§667.61, 667.71, and the Three Strikes law. A defendant who
meets the qualifications for this statute will also qualify under one
or more of the newer, harsher statutes.
Penal Code §667.61 (One Strike sex crime law). This
statute applies to persons convicted of one or more sex crimes specified
in Pen C §667.61(c). Those crimes are: Pen C §§261(a)(2)
(forcible rape); 262(a)(1) (forcible spousal rape); 264.1 (rape, etc.
in concert); 286 or 288a (forcible sodomy or oral copulation); 288(a)(1)
(lewd and lascivious conduct with child under age 14, unless defendant
eligible for probation under §1203.066); 288(b) (forcible child molestation);
and 289(a) (forcible penetration with foreign object). The statute is
constitutional. People v Crooks (1997) 55 CA4th 797, 64 CR2d 236. The
statute does not apply to a conviction of Pen C §288.5 (continuous
sexual abuse of a child). People v Palmer (2001) 86 CA4th 440, 103 CR2d
301.
A person convicted of any of the above crimes is subject to a sentence
of 25 years to life if one or more of the circumstances ("major factors")
specified in Pen C §667.61(d) exist, or if two or more circumstances
specified in §667.61(e) ("minor factors") exist. If a single
§667.61(e) ("minor factor") circumstance exists, the defendant
is subject to a sentence of 15 to life.
The §667.61(d) list of major factors includes:
(1) A prior conviction for a §667.61(c) offense.
(2) The defendant kidnapped the victim,
and that movement substantially increased the risk of harm to the victim.
The movement must be more than incidental to the sex crime. People v Diaz
(2000) 75 CA4th 243, 92 CR2d 682.
(3) The defendant inflicted aggravated mayhem or torture on the victim
or another person.
(4) The defendant committed the crime in the course of a residential burglary,
which was committed with the intent to commit a sex offense.
The §667.61(e) list of minor factors includes:
(1) The defendant kidnapped the victim, other than as specified in §667.61(d)(2).
(2) The crime was committed in the course of a residential or commercial
burglary, other than as specified in §667.61(d)(4).
(3) The defendant personally inflicted great bodily injury on the victim
or another person.
(4) The defendant personally used a dangerous or deadly weapon, including
a firearm. (Whether a weapon was used in the course of a sex offense is
broadly construed, and is not restricted to Pen C §654 analysis.
People v Jones (2001) 25 C4th 98, 104 CR2d 753.)
(5) The defendant is convicted in the present case or cases of §667.61(c)
crime against more than one victim. This allegation must be specifically
pleaded and proved. It is not enough that the defendant is convicted of
specified offenses against more than one named victim. The charging documents
must specifically allege that there are multiple victims, so that the
defendant will have notice that the enhanced sentence of Pen C §667.61
may be imposed. People v Mancebo (2002) 27 C4th 735, 117 CR2d 550.
(6) The defendant tied or bound the victim or another person.
(7) The defendant forcibly administered a controlled substance to the
victim.
The 15-to-life or 25-to-life sentence may be imposed only once per victim.
If there are multiple victims, the specified sentence is imposed once
for each separate victim. Terms for any other offenses committed during
a single occasion are imposed as authorized under any other law, including
§667.6. Pen C §667.61(g). For purposes of this statute, "single
occasion" is defined as occurring "if there was a close temporal
and spatial proximity between offenses." People v Jones (2001) 25
C4th 98, 104 CR2d 753. This standard is different from the standard used
to determine "separate occasions" for purposes of Pen C §667.6(c)
and (d).
A defendant subject to this section may not be granted probation, and
may not receive more than a 15-percent credit against the prison sentence.
Pen C §667.61(j).
The trial court may be required to obtain special findings from the jury
as to the allegations that bring a defendant within this law. See People
v Estrada (1997) 57 CA4th 1270, 67 CR2d 596.
It has been held that a defendant can be subject to both this statute
and the Three Strikes law. See People v Ervin (1996) 50 CA4th 259, 57
CR2d 728, disapproved on other grounds in 16 C4th 930 at 947. In Ervin,
the defendant received a life term under §667.61, which was then
tripled under the provisions of the Three Strikes law. The supreme court
will review this issue. See, e.g., People v Davis (review granted Aug.
25, 1999, S079736; superseded opinion at 71 CA4th 1492). The court cannot
strike the allegation of a circumstance that brings the defendant within
this section. People v Espino (1997) 53 CA4th 92, 61 CR2d 350; People
v Estrada (1997) 57 CA4th 1270, 67 CR2d 596. People v Espino, supra, distinguished
People v Superior Court (Romero) (1996) 13 C4th 497, 53 CR2d 789 (which
grants the court in a Three Strikes case the power to strike a strike
in the interest of justice) and held that the legislative intent was clear
that the court may not strike a circumstance under Pen C §667.61.
This law permits multiple indeterminate terms for offenses against multiple
victims on multiple occasions. People v Desimone (1998) 62 CA4th 693,
73 CR2d 73. Consecutive indeterminate terms may be mandated under Pen
C §667.6(d). See People v Murphy (1998) 65 CA4th 35, 76 CR2d 130;
People v Jackson (1998) 66 CA4th 182, 77 CR2d 564.
Penal Code §667.7 (habitual violent offender). This
statute has been largely, but not completely, overridden by the Three
Strikes law. A defendant convicted of a felony in which the defendant
inflicted great bodily injury (GBI), or personally used force that was
likely to produce great bodily injury, and who has served two or more
prior separate prison terms for listed violent offenses, including murder,
forcible sex crimes, kidnapping, carjacking with a deadly weapon, or any
felony in which defendant inflicted GBI as provided in Pen C §12022.7,
must receive an alternative term as defined in Pen C §667.7(a)(1)
or (2). Penal Code §667.7(a)(1) provides that when a defendant served
two prior separate prison terms for listed violent offenses, his or her
new term must be life in prison. In addition, the defendant's minimum
parole date will be determined by the greater of a minimum of 20 years
or the term that would have been imposed in the absence of the enhancing
statute. This means that, in the absence of the statute, if the defendant
would have received a 15-year term, his or her term under the statute
would be 20 years to life. Had the term in the absence of the statute
been 25 years, the term under the statute would be 25 years to life. People
v Skeirik (1991) 229 CA3d 444, 466, 280 CR 175; People v Victor (1991)
227 CA3d 518, 524, 278 CR 7. For a discussion of the applicability of
this statute to a defendant convicted of murder, see People v Jenkins
(1995) 10 C4th 234, 40 CR2d 903.
Section 667.7 does include some qualifying priors (e.g., assault with
a deadly weapon) that are not strikes under Pen C §§667(b)-(i)
and 1170.12.
Under Pen C §667.7(a)(2), when a defendant has served three or more
prior separate prison terms for the listed violent offenses, the punishment
is life without possibility of parole. This exceeds the punishment available
under the Three Strikes law.
Penal Code §667.71 (habitual sex offender). A person
who has previously served at least one prison term for specified sex offenses,
and who is again convicted of one of these offenses, is a habitual sex
offender. The specified offenses include Pen C §§207(b) (kidnap
for child molestation); former 208(d) or 209 (kidnap for sex offense);
261(a)(2) (forcible rape); 262(a)(1) (forcible spousal rape); 264.1 (forcible
rape or foreign object penetration in concert); 269 (aggravated child
molestation); 286(c) or (d) (sodomy by force or in concert); 288(a) or
(b) (child molestation); 288a(c) or (d) (oral copulation by force, in
concert, or with victim under 14); 288.5 (continuous child molestation);
289(a) (forcible foreign object penetration); or any offense in foreign
jurisdiction meeting each of the elements of any of the listed offenses.
Such a person is punishable by 25 years to life in prison, and may not
be released on parole prior to serving at least 85 percent of the minimum
term of 25 years.
The statute provides that at the request of the prosecutor, a habitual
sex offender may be punished under an alternative punishment scheme.
A defendant convicted under PC §667.71 is also subject to the Three
Strikes law if he or she has one or more qualifying prior convictions.
People v Murphy (2001) 25 C4th 136, 105 CR2d 387. In Murphy,
the defendant was charged with two counts of lewd and lascivious conduct
with a child. He had one prior conviction of two counts of similar offenses.
His two prior convictions were used repeatedly: to elevate the terms for
each of his present crimes to 25 to life under §667.71; to triple
each term to 75 to life under the Three Strikes law (these terms were
run consecutively to total 150 to life); and as a prior serious felony
conviction under Pen C §667(a), to add another five years, for a
total of 155 years to life.
Note: The same prior was used repeatedly: to invoke §667.71; to triple
the punishment under the Three Strikes law; and to impose the five-year
enhancement. This same scenario will apply to many cases in which Pen
C §667.71 is applicable.
If a qualifying defendant has multiple offenses against a single victim,
§667.71 may result in a larger sentence than would §667.61.
Penal Code §667.72
(habitual child molester). This section was repealed, effective
October 10, 1999. It was essentially overridden by PC §667.71
and the Three Strikes law.
PC §667.75 (drug offenses involving minors). A defendant convicted
of certain drug offenses involving minors who has previously served two
or more prior separate prison terms as defined in PC §667.5 for violation
of those crimes may be punished by imprisonment for life and will not
be eligible for release on parole for 17 years, or for the term determined
by the court normally under PC §1170.
Proposition 21—life term for criminal street gang crimes.
Proposition 21, effective March 8, 2000, creates a number of street gang
crimes that are punishable by an indeterminate life term, with the minimum
term set as the greater of two specified formulas. PC §186.22(b)(4).
The minimum term for the indeterminate life term is the term under PC
§1170 for the underlying conviction, including enhancements; or the
term specified for the crime in the following list, whichever is greater.
A minimum term of 15 years is prescribed for the following crimes:
home invasion robbery (PC §213(a)(1)(A)); carjacking (PC §215);
felony violation of PC §246; and violation of PC §12022.55.
There is a minimum term of seven years for the offenses of extortion
(PC §519) and threats to victims and witnesses (PC §136.1).
Pen C §12022.1: Felony Committed While on Bail or Own Recognizance
A defendant released on bail or on his or her own recognizance who commits
a second offense any time before his or her conviction on the primary
offense becomes final may be punished under Pen C §12022.1.
Effective January 1, 1999, this definition of "primary offense"
was expanded to include a felony offense for which the defendant is out
of custody between the pronouncement of judgment and the time the person
actually surrenders or is otherwise returned to custody. The terms
for the primary offense, the secondary offense, and the two-year term
for the enhancement must be imposed consecutively. PC §12022.1; People
v Burnes (1990) 224 CA3d 1222, 274 CR 466, overruled on other grounds
in 3 C4th at 860.
The enhancement is linked to the number of separate prior cases for which
the defendant is on bail or own recognizance. If the defendant commits
a crime while released on multiple previous cases, his or her sentence
is subject to one enhancement for each such prior. Thus, a defendant on
bail in two separate cases who commits a new felony is subject to two
enhancements. People v Mackabee (1989) 214 CA3d 1250, 1262, 263
CR 183; People v Warriner (1988) 200 CA3d 1352, 1355, 247 CR
197. The enhancement is not multiplied if the defendant commits
multiple felonies while on bail for a single prior offense. People
v Nguyen (1988) 204 CA3d 181, 196, 251 CR 40.
For crimes committed prior to January 1, 1998,
PC §12022.1 enhancements are subject to the double-the-base-term
limit. People v McClanahan (1992) 3 C4th 860, 12 CR2d 719. See
§37.29.
If you have been arrested for a “third strike”– typically,
but not always, a felony – or if you know someone who is being investigated
for a “third strike” offense, you or they absolutely, positively
need an attorney who knows the law, who will pursue justice in your/their
case, and who can and will protect your or their liberty interests in
a court of law. As stated above, at the MAYO LAW CLINIC
we vigorously defend individuals who are being investigated or who
have been arrested for a “third strike” offense. CALL
US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION! |
