THE AMENDMENT OF THE THREE STRIKES SENTENCING …

1 1 Rev. 5/17 THE AMENDMENT OF THE THREE STRIKES SENTENCING LAW J. RICHARD COUZENS Judge of the Superior Court County of Placer (Ret.) TRICIA A. BIGELOW Presiding Justice, Court of Appeal, 2nd Appellate District, Div. 8 May 2017 2 Rev. 5/17 New to This Edition The previously posted version of this memo was dated May 2016. This May 2017 version includes technical, non-substantive changes and the following updates: Pages 6 9 Effective date People v. Conley Page 17 Automobile as a deadly weapon Page 18 Arming with weapon (People v.)

2 Valdez); intent to cause harm Page 21 Assault with intent to rape as disqualifying crime People v. Cook Page 22 Persons with life terms People v. Hernandez Page 52 Automobile as a deadly weapon Pages 52 - 53 Arming with weapon (People v. Valdez); intent to cause harm Pages 56 57 Persons with life terms People v. Hernandez Page 63 Timing of prior conviction People v. Spiller Pages 66, 70 71 Availability of original judge People v. Rodriguez Page 78 Burden of proof People v. Buford Page 102 Excess custody credits People v.

3 Morales Page 105 Constitutional challenge to disqualifying conviction People v. Clark 3 Rev. 5/17 TABLE OF CONTENTS I. INTRODUCTION .. 5 II. AMENDMENT OF PROVISIONS GOVERNING THIRD strike SENTENCES .. 6 A. Effective Date and Application of the New SENTENCING Provisions .. 6 1. Effective date, generally .. 6 B. SENTENCING a Multiple strike Offender as a Second strike Offender .. 9 1. SENTENCING of mixed counts .. 10 C. Defendants Excluded From the New SENTENCING Provisions .. 11 1. Defendants excluded because of current felony.

4 11 2. Defendants excluded because of a prior crime .. 21 3. No exclusion for dangerousness .. 30 4. Second strike offenders .. 30 III. AMENDMENT OF OTHER SENTENCING PROVISIONS .. 31 A. AMENDMENT of Sections (a)(7) and (8) Regarding Consecutive SENTENCING .. 31 1. AMENDMENT to section (a)(7) .. 31 2. Deletion of section (a)(8) .. 32 3. Interpretation of conflicting code sections .. 33 4. Statutes otherwise mandating consecutive SENTENCING .. 35 5. Summary of rules regarding consecutive SENTENCING .. 35 B. Other Amendments .. 37 1.

5 Dismissal of STRIKES by the court .. 37 2. Date of interpretation .. 38 IV. PETITION FOR RESENTENCING .. 39 A. The Petition .. 40 B. Initial Screening of the Petition .. 40 1. Service of a life term .. 41 2. Excluded felonies .. 41 3. Excluded inmates .. 55 C. The Qualification Hearing .. 69 4 Rev. 5/17 1. The hearing officer .. 70 2. The setting of the hearing; notice; presence of petitioner .. 71 3. Qualification hearing: confirmation of eligibility .. 72 4. Qualification hearing: determination of unreasonable risk to public safety.

6 75 5. The effect of Proposition 47 .. 86 6. AMENDMENT of the pleadings and retrial of the petitioner .. 96 D. Order of the Court on Resentencing .. 97 1. If resentencing is granted .. 97 2. If resentencing is denied .. 103 E. The Right to Counsel .. 103 1. Preparation of the petition and initial screening .. 103 2. The qualification hearing .. 103 3. The 104 F. Successive Petitions .. 104 G. Constitutional Challenge to Disqualifying Prior Conviction .. 105 H. Appellate Review .. 105 APPENDIX A: FULL TEXT OF PROPOSITION 36 .. 107 APPENDIX B: RESOURCES AVAILABLE FROM CDCR.

7 122 APPENDIX C: CDCR TABLE OF DEFENDANTS POTENTIALLY ELIGIBLE FOR RECONSIDERATION OF SENTENCE .. 124 APPENDIX D: PROPOSED PETITION FOR RESENTENCING .. 126 APPENDIX E: PROPOSED ORDER DENYING PETITION FOR RESENTENCING AFTER INITIAL SCREENING .. 128 APPENDIX F: PROPOSED WAIVER OF PERSONAL APPEARANCE BY PETITIONER .. 130 APPENDIX G: PROPOSED ORDER RE HEARING ON REQUEST FOR RESENTENCING .. 132 APPENDIX H: TABLE OF CRIMES THAT WILL QUALIFY FOR THIRD strike SENTENCING .. 133 Copyright 2017 Barrister Press Permission is granted to copy and distribute these materials to the judges and staff of the California judiciary 5 Rev.

8 5/17 I. INTRODUCTION California's THREE STRIKES SENTENCING law was originally enacted in 1994. The Legislature s version of the law was created by amending Penal Code1 section 667 to add subdivisions (b) through (i); the AMENDMENT became effective March 7, 1994. Thereafter, on November 8, 1994, the voters approved Proposition 184, which enacted a second version of the law by adding section Prior to the enactment of Proposition 36, the essence of the THREE STRIKES law was to require a defendant convicted of any new felony, having suffered one prior conviction of a serious felony as defined in section (c), a violent felony as defined in section (c), or a qualified juvenile adjudication or out-of-state conviction (a " strike ")

9 , to be sentenced to state prison for twice the term otherwise provided for the crime. If the defendant was convicted of any felony with two or more prior STRIKES , the law mandated a state prison term of at least 25 years to life. Although the list of serious and violent crimes was altered from time to time, the THREE STRIKES law itself remained unchanged for 18 years. However, on November 6, 2012 the voters approved Proposition 36 which substantially amended the law. The initiative contains two primary provisions.

10 The first provision changes the requirements for SENTENCING a defendant as a third strike offender to 25 years to life. While the original version of the law applied to any new felony committed with two or more prior STRIKES , the new law requires the new felony to be a serious or violent felony with two or more prior STRIKES to qualify for the 25 year-to-life sentence as a third strike offender. The second major change made by Proposition 36 is the addition of a means by which designated defendants currently serving a third strike sentence may petition the court for reduction of their term to a second strike sentence, if they would have been eligible for second strike SENTENCING under the new law.