Did your loved one get sentenced to life in prison under California’s three strikes law? The situation is not hopeless.
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.
In this article, our California criminal appeals lawyers1 explain the appellate process as it pertains to "Three Strikes" sentences by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
In addition, you may also find helpful information in our related articles on California’s Three Strikes Law; How to Appeal Criminal Convictions in California; Grounds on Which to Appeal a Criminal Conviction in California; Felony Offenses; Jury Trials; Felony Appeals; Timeframes and Deadlines to Appeal a Criminal Conviction in Californian; and The chances of Overturning a California Conviction on Appeal.
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.2 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.4
If you have two "strikes"…and are subsequently charged with any felony…the court can declare you a "third striker" and you may serve a mandatory minimum sentence of 25 years-to-life in the California state prison.5
Because 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.
This includes young Latinos and African Americans as well. Many juvenile convictions also count as a "strike" on one’s record.6
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.
And these problems are why we must continue to appeal "Three Strikes" sentences in California.
Historically, appeals courts upheld Three Strikes sentences with little hesitation. The problem is that 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 misdemeanor7…persons who are convicted of relatively minor 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 theft offenses. Lockyer was sentenced to two consecutive 25-years-to-life sentences for stealing $150 worth of video tapes from two different stores. Ewing was sentenced to 25-years-to-life for stealing three golf clubs. The Court held that neither of these sentences violated the Constitution’s prohibition on cruel or unusual punishment.
These types of cases aren’t so unusual. There are 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?
In fact, other states that impose their own Three Strikes laws are much more lenient when it comes to imposing third strike sentences. California is frequently criticized for being too inflexible and too harsh. Outside of this state, a 25-year-to-life sentence would be reserved for someone who committed a violent offense…not something along the lines of shoplifting.
As California criminal appeals attorney Al Amer explains8, "Thankfully, today California courts are beginning to evaluate these types of cases a bit differently, which is why appealing a California Three Strikes sentence is so critical. The more the imposition of this law is appealed and overturned, the more likely it is to get 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):
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".9
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 violates 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.10
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.
Perhaps the most poignant statement the court made is the following: "The importance of assessing the triggering offense cannot be ignored or minimized. The triggering offense provides the sole justification for the offender to be punished at all. To use a minor triggering offense simply to increase the punishment for prior offenses retroactively would violate fundamental principles of due process and double jeopardy. Therefore, if prior crimes are to be used as the justification for punishing minor triggering offenses at levels reserved for the most serious offenses, the legal rationale must further some other penological objective beyond the mere desire to increase the sentences previously imposed or to incapacitate the person for the future because the previous sentences have not done so."11
If we can continue to persuade courts that California’s Three Strikes law is oppressive and unconstitutional, the sooner we will see it redrafted or possibly even overturned.
For questions about appealing a Three Strikes sentence in California, or to discuss your case confidentially with one of our California criminal appellate attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1Our California criminal appeals attorneys 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.
2California Penal Code 1192.7(c) PC -- California serious felonies. ("(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 12034; (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. ("(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.")
3See same.
4California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law. ("(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 [California] state prison for 25 years…") It’s because of these extraordinary sentences that people appeal their Three Strikes sentences in California.
5See same.
6California Penal Code 667, subdivision (d) -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law. (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…(3) A prior juvenile adjudication shall constitute a prior 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 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.")
7People 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).
8California appeals attorney Al Amer represents clients appealing Three Strikes sentences in California primarily in the South Bay (including Long Beach and Torrance) as well as throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster.
9Gonzalez v. Duncan (2008) 551 F.3d 875
10Ramirez v. Castro (2004) 365 F.3d 755
11Banyard v. Duncan (2004) 342 F.Supp.2d 865
If you or a loved one faces misdemeanor or felony charges, contact our California criminal defense attorneys for help. We'd be glad to meet with you for a free consultation at one of our local criminal law offices in Los Angeles, San Francisco, Van Nuys, Pasadena, Long Beach, Orange County, Rancho Cucamonga, San Bernardino or Riverside.
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