Appeals & Resentencing in "Three Strikes" Cases:
(Reducing Prison Terms After Proposition 36)

 

Did your loved one get sentenced to life in prison under California's three strikes law? He or she may be eligible to get resentenced to have the prison time reduced and get released sooner.

In November of 2012, California voters passed Proposition 36 ("Prop 36"), which made a key change
to California's notorious anti-defendant three strikes law.1

Under the old law, a so-called "third striker"-a convicted felon with two or more previous convictions for
"serious" or "violent"  felonies-could be sentenced to 25 years to life in prison...even if his/her third felony conviction was for a relatively minor offense!2 But since the reform of three strikes, in most cases, a defendant will only get 25 years to life if his/her third felony conviction is also for a serious or violent crime.3

The best thing about the California three strikes reform initiative is that it applies retroactively. This means that, if you or your loved one were sentenced to a lengthy "third strike" sentence under the old law...and the third offense was not a serious or violent offense...you (or they) can now apply to be resentenced and have the jail or prison time reduced.4

We're a law firm of former cops and prosecutors that now helps people to appeal criminal convictions. In particular, we help prisoners to appeal three strikes sentences and apply for sentence reductions under the new (Proposition 36) three strikes law.

In this article, our California criminal appeals lawyers5 explain the appellate process as it pertains to "Three Strikes" sentences by addressing the following:

1. A Brief Overview of California's Three Strikes Law
2. Why Should I Appeal A Three Strikes Sentence in California?

2.1. To get your sentence reduced under the new three strikes law

2.2. In all other cases...

3. The History of California Three Strikes Appeals
4. Successful Appeals of Three Strikes Sentences in This State

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. A Brief Overview of California's Three Strikes Law

California's Three Strikes Law is a sentencing scheme that greatly increases the punishment for repeat felons.  If you are convicted of a crime that is classified as either

it will count as a "strike" on your record.6 These types of felony offenses generally involve

If you have a "strike" on your record...and are subsequently charged with any
felony ...the court can declare you a "second striker." Consequently, your sentence on your new charge may be twice the term that would have otherwise been allowed.8

If you have two "strikes"...and are subsequently charged with any felony...the court can declare you a "third striker." In the bad old days, before Prop 36 reformed California three strikes law, this would mean a minimum sentence of 25 years-to-life in the California state prison.9

But now, under the new version of California three strikes, that lengthy sentence only applies if:

  1. your third offense is another serious or violent felony;
  2. your third offense is a relatively serious drug crime -this does not include simple drug possession;
  3. your third offense involves a firearm or intent to cause great bodily injury to someone;
  4. your third offense is a relatively serious sex crime; OR
  5. one of your prior "strike" offenses was a particularly serious violent crime, including murder or manslaughter, sexual abuse of a child or sexually violent offenses.10

But let's say your third offense is a relatively minor felony...like a violation of California petty theft / shoplifting law or simple possession of a controlled substance (Health & Safety Code 11350 HS). In that case, under the new law, you will not get the 25-years-to-life sentence. Instead, you will be treated like a "second striker" and will receive double the normal sentence for your new offense.11

Example: Manuel has two strike offenses on his record-one for residential burglary and one for robbery. He is arrested for possession of cocaine under Health & Safety Code 11350 HS. The possession charge is a felony, but not a serious or violent felony.

Under the old three strikes law, Manuel would have been subject to 25 years to life in prison after his possession conviction. But under the new three strikes law . . . after the passage of Prop 36 . . . Manuel will not face this lengthy sentence, because his third offense was not a serious or violent felony.

However, because he does have two strikes on his record, Manuel will receive twice the normal sentence for cocaine possession.

2. Why Should I Appeal A Three Strikes Sentence in California?

2.1. To get your sentence reduced under the new three strikes law

When Prop 36 was passed, there were as many as 3,000 inmates in California prisons serving 25 years to life under the old law who would NOT receive that sentence under the new law.12 That's around one-third of the total of all third strikers in California prisons.13

These prisoners can petition the California courts to have their sentence reduced to what it would be under Proposition 36 (the reformed three strikes law). In some cases, this could mean immediate release.

Some California three strikers may be eligible for immediate release thanks to
Proposition 36.

Example: Let's return to Manuel from our previous example. Let's say Manuel's third conviction-for cocaine possession-occurred in 2002, which means he was sentenced under the old law. So in 2012, Manuel is serving his tenth year of a 25-year-to-life sentence.

But under the new law, Manuel should only have been sentenced to twice the normal sentence for possession of a controlled substance...not 25 years to life. The normal maximum sentence for simple possession is three (3) years.14 So Manuel should have been sentenced to a maximum of six (6) years in prison.

Manuel hires a lawyer and successfully petitions the court to reduce his sentence to what it would be under the new, post-Prop 36 three strikes law. He has already served 10 years...more than the 6 years he should have served under the new three strikes law. So Manuel is eligible to be released immediately.

If you or your loved one are in a situation like Manuel's, that person has the right to get their sentence reduced as soon as possible.

But the new law does have exceptions, and prosecutors in some counties might fight attempts by inmates to get the sentence reductions they are entitled to. Because of this, California courts may be overwhelmed with three strikes sentence reduction cases for some time to come. One expert estimates that it could take up to a year for most people to get their sentences reduced.15

Because of this, it's absolutely essential that you hire a skilled California three strikes appeals lawyer to guide you through the process...and help you get justice done as soon as possible.

2.2. In all other cases...

Should you appeal a three strikes sentence even if you were not sentenced under the old law and eligible for a sentence reduction under the new law?

YES...because even with the reform of California three strikes, there are vast problems with this sentencing scheme that render it inherently unfair.

One major problem with this law is the fact that...because our society is still plagued by racism...this law disproportionately affects Latino and African American men.  These racial groups are the target of more arrests and more convictions than any other.

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Racial composition of inmates serving second or third "strike" sentences in California state prison population as of June 30, 2010

This includes young Latinos and African Americans as well.  Many juvenile convictions also count as a "strike" on one's record.16

Another major problem with California's Three Strikes law is the fact that its application is often unconstitutional.  Many of the sentences imposed on third strikers can be construed as cruel and unusual punishment...which is strictly forbidden by the Eighth Amendment of the United States Constitution. Even under the new law, for example, someone can still receive a life sentence for a third strike that is a drug crime like drug possession for sale.

And these problems are why we must continue to appeal criminal convictions that lead to "Three Strikes" sentences in California.

3. The History of Appeals for Three Strike Sentences in California

Historically, appeals courts upheld Three Strikes sentences with little hesitation.  The problem is that under the old law, due to other flaws in California's laws...for example, the law that allows an individual charged with petty theft to be convicted of a
felony rather than a misdemeanor17 ...persons who were convicted of relatively minor third offenses could nonetheless face a life sentence under California's Three Strikes law.

Two key United States Supreme Court cases, Lockyer v. Andrade and Ewing v. California, involved defendants whose third strikes were non-violent theft offenses...something that occurred far too often under the old law.  Lockyer was sentenced to two consecutive 25-years-to-life sentences for stealing $150 worth of video tapes from two different stores.18 Ewing was sentenced to 25-years-to-life for stealing three golf clubs.19 The Court held that neither of these sentences violated the Constitution's prohibition on cruel or unusual punishment.20

Under the old law, these types of cases weren't so unusual.  There were many stories of people who are ordered to serve life sentences under California's Three Strikes law for these types of crimes.  But if this isn't cruel and unusual punishment, what is?

4. Successful Appeals of Three Strikes Sentences in California

As San Bernardino criminal defense attorney Neil Shouse21 explains,

"Even before Proposition 36 was passed, courts were beginning to evaluate these types of cases a bit differently.  The imposition of the three strikes law was repeatedly appealed and overturned. There's no doubt that these cases helped with the push to get the law reformed."

Examples of successful appeals of Three Strikes sentences in California that have been based on a "cruel and unusual punishment" theory include (but are not limited to):

    1. Gonzalez v. Duncan:  Here, the defendant failed to update his annual sex offender registration required under Penal Code 290 PC.  As a result, he was sentenced to 28-years-to-life under California's Three Strike's law.

      The United States Court of Appeals held that, "The disparity between Gonzalez's technical violation of a regulatory crime of omission and the 28-years-to-life sentence imposed is so extreme that ...it is objectively unreasonable".22
    1. Ramirez v. Castro:  Here, the defendant stole a $199 VCR.  His prior two "strikes"...and entire criminal history...were for two counts of second-degree robbery which were obtained through a single guilty plea, for which his sentence was one-year in county jail and three years of probation.  Under California's Three Strikes law, Ramirez was sentenced to 25-years-to-life in the state prison.

      The U.S. Court of Appeals held that...based on the factual record of this case...Ramirez's sentence violated the cruel and unusual punishment principle of the Eighth Amendment.  The sentence was grossly disproportionate to the gravity of his minimal, nonviolent offenses and was therefore objectively unreasonable.23
  1. Banyard v. Duncan:  In this case, the defendant's third strike offense was for possession of a single-use quantity of rock cocaine.  He was sentenced to 25-years-to-life under the Three Strikes law.

    The appeals court held that Banyard's sentence was grossly disproportionate to the crime and therefore violated the Eighth Amendment.  It pointed out that the maximum statutory penalty for simple drug possession is only five years in prison while the minimum sentence resulting from the application of Three Strikes law is 25-years with no possibility of reduction for good behavior or working while in prison.  It further addressed the fact that California punishes far more serious and violent crimes much less severely than the sentence that the trial court imposed on Banyard.24

Fortunately for California defendants and taxpayers, some of the most oppressive and unconstitutional features of California three strikes-the ones the courts objected to in these cases-have now been overturned by voters.

But even after Prop 36's reform, the three strikes law still threatens to punish defendants far more harshly than justice demands. And thousands of prisoners sentenced under the old law still need to go through the courts to get the three strikes sentence reductions they are entitled to under the new three strikes law.

Call us for help...

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If you or loved one is in need of help with appeals and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Online Resources:

Stanford Law School Three Strikes Project

California Courts of Appeal

Legal References:

1 San Jose Mercury News, California Prop 36, Measure Reforming State's Three Strikes Law, Approved by Wide Majority of Voters, Nov. 7, 2012.

2 California Penal Code 667 PC - Habitual criminals; enhancement of sentence; amendment of section [Three strikes law-old version]. ("(d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. . . . . (e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.")

3 California Penal Code 667(e)(2)(C) - Three strikes law - new version. ("(C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following: (i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true. (ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314. (iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person. (iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: (I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.")

4 San Jose Mercury News, California Prop 36, Measure Reforming State's Three Strikes Law, Approved by Wide Majority of Voters, Nov. 7, 2012.

5 Our California criminal appeals lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.  Contact us at Shouse Law Group for a free consultation about how we can help you appeal your California Three Strikes sentence.

6 California Penal Code 1192.7(c) PC -- California serious felonies [for three strikes purposes].  ("(c) As used in this section, "serious felony" means any of the following: (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm [using firearms and/or other dangerous or deadly weapons provides the basis for many of these serious felonies]; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or any explosive with intent to murder; (18) any burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used a dangerous or deadly weapon; (24) [certain California drug crimes including] selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22 [California's street gang enhancement law]; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022. 53; (41) a violation of subdivision (b) or (c) of Section 11418; and (42) any conspiracy to commit an offense described in this subdivision.")

See also Penal Code 667.5(c) PC -- California Violent felonies [for three strikes purposes].  ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (1) Murder or voluntary manslaughter. (2) Mayhem. (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262. (4) Sodomy as defined in subdivision (c) or (d) of Section 286. (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. (6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288. (7) Any felony punishable by death or imprisonment in the state prison for life. (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. (9) Any robbery. (10) Arson, in violation of subdivision (a) or (b) of Section 451. (11) Sexual penetration as defined in subdivision (a) or (j) of Section 289. (12) Attempted murder. (13) A violation of Section 12308, 12309, or 12310. (14) Kidnapping. (15) Assault with the intent to commit a specified felony, in violation of Section 220. (16) Continuous sexual abuse of a child, in violation of Section 288.5. (17) Carjacking, as defined in subdivision (a) of Section 215. (18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code. (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code. (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. (22) Any violation of Section 12022.53. (23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes [that is, these felony offenses] merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person.")

7 See same.

8 California Penal Code 667(e)(1) - Three strikes law-new version. ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony convictions: (1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.")

9 California Penal Code Section 667(e)(2) PC - Three strikes law-old version. ("For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction... (2) (A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:  (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.  (ii) Imprisonment in the state prison for 25 years.  (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.")

10 California Penal Code 667(e)(2)(C) - Three strikes law - new version. ("(C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following: (i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true. (ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314. (iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person. (iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: (I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.")

11See same.

12 See Softer 3-strikes law has defense lawyers preparing case reviews, Los Angeles Times, Nov. 8, 2012.

13 A ballot initiative that could reduce the number of lifers in California prisons qualified for November's elections, KPCC.org, June 12, 2012.

14 See California Health and Safety Code 11350 HS -- Possession of controlled substances.

15 California Prop. 36: Families of some three-strikers hope for early release or shorter sentences, San Jose Mercury News, Nov. 8, 2012.

16 Penal Code 667(d) - Three strikes law-new version. ("(d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a serious and/or violent felony shall be defined as: . . . (3) A prior juvenile adjudication shall constitute a prior serious and/or violent felony conviction for purposes of sentence enhancement if: (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense. (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony. (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law. (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code."

17 People v. Terry (1996) 47 Cal.App.4th 329, 331-332.  ("Petty theft (§§ 484, 486, 488) is ordinarily a misdemeanor. Pursuant to section 490 it is "punishable by fine not exceeding one thousand dollars ..., or by imprisonment in the county jail not exceeding six months, or both." An offense punishable in this manner is, by definition, a misdemeanor. (See § 17, subd. (a) ["A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions."]; see also People v. Shoaff (1993) 16 Cal.App.4th 1112, 1114, 20 Cal.Rptr.2d 464.) However, petty theft can be punished more harshly under certain circumstances. Section 666 states, "Every person who, having been convicted of petit theft, grand theft, auto theft ..., burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution ..., is subsequently convicted of petit theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison." Offenses that are punishable by imprisonment either in the county jail or in the state prison are called "wobblers." (See, e.g., People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355, 45 Cal.Rptr.2d 107.) In the case of wobblers, the characterization of the crime is dependent upon the actual punishment imposed. ( Ibid.) When a defendant is sentenced to state prison, the offense is a felony; when the defendant is sentenced to county jail, the offense is a misdemeanor. ( Ibid.; see also People v. Trausch (1995) 36 Cal.App.4th 1239, 1246-1247, 42 Cal.Rptr.2d 836.) Here, the court sentenced appellant to state prison. By doing so, the court characterized the offense as a felony. Accordingly we conclude petty theft with a prior can be deemed a felony under the three strikes sentencing law"...which is why such a Three Strikes sentence should be appealed under California law).

18 Lockyer v. Andrade (2003) 538 U.S. 63, 66-68.

19 Ewing v. California (2003) 538 U.S. 11, 18-20.

20 Lockyer v. Andrade (2003) 538 U.S. 63, 77 ("The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for § 2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's [three strikes] sentence of two consecutive terms of 25 years to life in prison."); Ewing v. California (2003) 538 U.S. 11, 30-31 ("We hold that Ewing's sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments.")

21 San Bernardino criminal appeals attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on cases ranging from DUIs and drug charges to complex, high profile murders. Mr. Shouse is an expert on criminal and constitutional law, including the three strikes law, who frequently appears as a guest legal commentator on national television.

22 Gonzalez v. Duncan (2008) 551 F.3d 875, 891.

23 Ramirez v. Castro (2004) 365 F.3d 755, 775.

24 Banyard v. Duncan (2004) 342 F.Supp.2d 865, 873-74, 881-82.

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