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Amendments to the Three Strikes law
By J. Richard Couzens and Tricia A. Bigelow

Please visit the MCLE section of the Daily Journal's website to take this test.

The objective of this article and accompanying self-study test is to familiarize readers with the most important aspects of the 2012 amendment to the Three Strikes law.


California's Three Strikes sentencing law was originally enacted in 1994. Before the enactment of Proposition 36, the essence of the Three Strikes law required a defendant convicted of any felony after already suffering two or more prior strikes to be sentenced to state prison for a term of at least 25 years to life. If the defendant was convicted of any new felony, having suffered one prior strike, the law mandated a defendant to be sentenced to state prison for twice the term otherwise provided for the crime.

The Three Strikes law remained unchanged for 18 years until Nov. 6, 2012, when voters approved Prop. 36. The initiative contains two primary provisions. The first requires the new felony to be a serious or violent felony to qualify for the 25-year-to-life sentence as a third-strike offender. The second major change is the addition of a means for certain defendants currently serving a third-strike sentence to petition the court for reduction of their term to a second-strike sentence.

Third-strike Sentences

Effective Date of Initiative

Section 10 of Prop. 36 specifies its provisions become effective on the first day after enactment by the voters. Accordingly, the initiative became fully effective on Nov. 7, 2012. There is no "savings clause" in Prop. 36 that would limit its application to crimes committed after its effective date. The applicable rule of statutory interpretation is stated in the seminal case of In re Estrada, 63 Cal.2d 740 (1965): "The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."

Sentencing a Multiple Strike Offender as a Second-Strike Offender

Prop. 36 amends Pen C Section 667(e)(2)(A) to provide that "[e]xcept as provided in subparagraph (C)," a person with two or more prior strikes must be sentenced to state prison for a term of no less than 25 years to life. Subparagraph (C) specifies that if the defendant has two or more prior strikes, but the new felony is not a serious or violent felony as defined in subparagraph (d) (i.e., a California adult conviction for a serious or violent felony, an out-of-state adult conviction that would qualify as a serious or violent felony under California law, or a designated juvenile adjudication), the defendant must be sentenced as a second-strike offender under Pen C Section 667(e)(1).

Under the new law, if a defendant with two or more prior strikes is convicted of a nonserious and nonviolent new felony, the court must sentence the defendant as a second-strike offender, irrespective of the number of prior strikes. The sentence is imposed in the traditional manner, taking into account all current charges and enhancements, and applicable rules regarding consecutive and concurrent sentencing of multiple counts. The court is free to select any term from the triad for crimes punished under the Determinate Sentencing Law.

It appears the new provisions apply on a count-by-count basis. Accordingly, if a defendant is convicted of a mixture of serious and violent crimes, as well as nonserious and nonviolent crimes, the defendant will receive a second-strike sentence for any qualified crimes.

Excluded Defendants

Certain defendants are excluded from the new provisions and will be sentenced to at least 25 years to life as a traditional third-strike offender, even though the new felony is not a serious or violent felony. There are four exclusions, three of which relate to the current felony, and one of which relates to the defendant's past crimes. The prosecution must plead and prove the disqualifying factor (Pen C Section 667(e)(2)(C)).

Defendants Excluded Because of a Current Crime

A defendant is excluded from the new sentencing provisions if the new felony is (a) a controlled substance charge, with an allegation under Health & S C Section 11370.4 (possession, possession for sale, or transportation or sale of designated substances in excessive amounts) or Section 11379.8 (manufacturing of designated controlled substances in excessive amounts); (b) the new felony is a designated sex crime, including any felony offense that results in mandatory registration as a sex offender pursuant to Pen C Section 290(c), but the registration exclusion has a number of exceptions and will likely not apply to offenses covered by People v. Hofsheier, 37 Cal.4th 1185 (2006), and its progeny; or (c) the new felony was one in which the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person. The amendment does not require that great bodily injury actually be inflicted. It also does not expressly require the defendant to personally use a firearm or personally be armed with a firearm or deadly weapon to be disqualified, but the wording "defendant used" may imply personal use.

Defendants Excluded Because of a Prior Crime

Defendants who have suffered a prior serious and/or violent felony conviction, as defined in Pen C Section 667(d), for any of the following felonies are excluded from the new penalty provisions: (a) A "sexually violent offense" as defined in Welf & I C Section 6600(b) (Sexually Violent Predator Law) (the defendant need not have been adjudicated a sexually violent predator to be disqualified); (b) designated sex offenses committed against children under the age of 14; (c) any murder or attempted murder, defined in Pen C Sections 187-191.5 (manslaughter convictions will not exclude the defendant); (d) solicitation to commit murder as defined in Pen C Section 653f; (e) assault with a machine gun on a peace officer or firefighter as defined in Pen C Section 245(d)(3); (f) possession of a weapon of mass destruction as defined in Pen C Section 11418(a)(1); and (g) any offense punishable in California by life imprisonment or death.

It is not clear whether the court is limited to consideration of only the punishment for the substantive offense, or whether the court also may consider enhancements or alternative punishments that make the sentence a life term. But the plain meaning of the statute suggests the court is limited to consideration of the base term.

Consecutive Sentencing

Prop. 36 also amends Pen C Section 1170.12(a)(7) to mandate consecutive sentencing when there are multiple serious or violent felony convictions. The new statute appears to abrogate People v. Hendrix, 16 Cal.4th 508 (1997), which held that mandatory consecutive sentencing only was required if the crimes did not occur on the same occasion or out of the same operative facts. The intent of Prop. 36, however, is unclear on this point because the initiative failed to amend the parallel provisions of Pen C Section 667(c)(7). It appears the omission was due to drafting error.

Petition for Resentencing

The second major part of Prop. 36 is the enactment of Pen C Section 1170.126, which gives many inmates now serving a third-strike sentence an opportunity to request resentencing as a second-strike offender if their "sentence under [Prop. 36] would not have been an indeterminate life sentence" (Pen C Section 1170.126(a)). Viewed at its basic level, the process involves the inmate petitioning the court for the requested relief and, when found appropriate, a hearing to determine whether the inmate qualifies for resentencing.

The process under Pen C Section 1170.126 contemplates four distinct phases: (1) the filing of a petition for relief; (2) an initial screening of the petition to determine whether the inmate meets the minimum statutory requirements for relief; (3) if a prima facie basis for relief has been shown, a qualification hearing to determine whether the inmate has met all of the statutory requirements for relief and, if so, whether the resentencing of the inmate will pose an unreasonable risk of danger to public safety; and (4) the order of the court on the issue of resentencing.

The Petition

An inmate who is serving an indeterminate life sentence as a third-strike offender as a result of a "conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent" by Pen C Section 667.5(c) or Section 1192.7(c) "may file a petition for a recall of sentence, within two years after the effective date of" Prop. 36, "or later upon a showing of good cause ... ." (Pen C Section 1170.126(b).)

Initial Screening of the Petition

An inmate states a prima facie basis for resentencing as a second-strike offender if (1) he is currently serving a third-strike life term for a nonserious and nonviolent felony, (2) the current felony is not an excluded offense, and (3) the inmate is not otherwise excluded because of a prior conviction. To state a prima facie basis for relief, the inmate must show that each of the requirements is satisfied (Pen C Section 1170.126(e)). The rules governing the statutory qualification for resentencing are exactly the same as for third-strike sentences under the new law.

The Qualification Hearing

The qualification hearing has two components: (1) a review of the inmate's past and current convictions to determine whether the inmate meets the statutory qualifications for resentencing, and (2) if the inmate is statutorily eligible for resentencing, whether to do so would "pose an unreasonable risk of danger to public safety."

The resentencing hearing is considered a "post-conviction release proceeding" under Article 1, section 28(b)(7) of the California Constitution (Marcy's Law) (Pen C Section 1170.126(m)). As such, the victim is entitled to notice of and, if requested, participation in the resentencing proceedings.

Prop. 36 expressly provides that the petitioner may waive his or her appearance in the court for resentencing, notwithstanding Pen C Section 977(b), "provided that the accusatory pleading is not amended at the resentencing, and that no new trial or retrial of the individual will occur" (Pen C Section 1170.126(i)). The waiver must be in writing and signed by the petitioner.

The court must first undertake a second review of the petition and the inmate's circumstances to confirm whether the inmate satisfies the statutory requirements for resentencing. The parties may present additional documentation relevant to determining whether the inmate meets the minimum requirements of eligibility for resentencing. If the inmate fails to show that he or she meets the minimum statutory requirements, the court may deny the petition without considering whether resentencing would pose an unreasonable risk of danger to public safety.

If the petitioner satisfies the statutory eligibility requirements, "the petitioner shall be sentenced" as a second-strike offender, "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." The language in Pen C Section 1170.126(f) is strong: the petitioner "shall" be resentenced as a second-strike offender "unless" there is the finding of dangerousness. In determining the dangerousness of the inmate, the court may consider the petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; the petitioner's disciplinary record and record of rehabilitation while incarcerated; and any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety (Pen C Section 1170.126(g)).

The hearing itself would likely be conducted in the same manner as an original sentencing proceeding. There is nothing in Prop. 36 that suggests the rules of evidence and procedure would be any different than those applicable to traditional sentencing proceedings.

Order of the Court on Resentencing

If the court grants the resentencing petition, the court must state the full new sentence to be served, together with any statement of reasons supporting any sentencing choices. The court is free to select any term on the triad for crimes sentenced under the Determinate Sentencing Law. The sentence should be a standard second-strike sentence, taking into account all crimes of which the defendant is convicted, any applicable conduct and status enhancements, and any special rules regarding consecutive and concurrent sentencing. But the defendant may not be resentenced to a term longer than the original sentence (Pen C Section 1170.126(h)).

If the petitioner has completed the new sentence after application of all credits, he or she will be ordered discharged from actual custody and directed to report to the local parole office for processing of the discharge. Depending on the circumstances, the inmate may be required to submit to a period of Postrelease Community Supervision under Pen C Sections 3450-3465. The parole office will determine whether the defendant is subject to this requirement.

J. Richard Couzens is a judge of the Placer County Superior Court (Ret.).

Tricia A. Bigelow is presiding justice of Division 8 of the 2nd District Court of Appeal.

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