California's "three strikes and you're out" law is no game. It's one of the harshest sentencing schemes in the country and a law that can send people convicted of even nonviolent offenses to prison for life.
One in four inmates in California's overcrowded prison
system is serving a second or third strike sentence
Just ask Leandro Andrade. The father of three languishes in California state prison with two consecutive life sentences for shoplifting nine children's videos on two occasions in November 1995.1
Andrade is not alone. About one in four inmates in the overcrowded California state prison system is a "striker."2 Over 1300 of those inmates are serving second or third strike sentences for petty theft with a prior (compared with 583 for second degree murder).3
But there is a growing movement of people dedicated to repealing or reforming the unfair three strikes law. Our California Three Strikes Defense Lawyers are part of that effort. As former district attorneys who once prosecuted three strikes cases, we know the best strategies for keeping our clients from the reach of this anti-defendant law.4
In this article, we provide an overview of three strikes law. We cover:
2.1. Sentencing in "third" strike cases
2.2. Sentencing in "second" strike cases
2.3. Custody credit calculation in strike cases
2.4. Consecutive sentences and other punitive measures
2.5. Prosecutor must prove strike allegations
3.1. Serious or violent felonies
3.2. Sustained juvenile petitions
3.3. Out-of-state convictions
3.4. Multiple strikes from a single trial
4.1. Prosecutors and judges can "strike" strikes
4.2. Romero motions (defense attorneys)
4.3. Los Angeles District Attorney's Office
Three Strikes Policy
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
California's three strikes law is a sentencing scheme that adds significant time to the prison sentences of certain repeat offenders convicted of felonies.
As of June 30, 2010, the California state prison population included 32,479 second strikers and 8,647 third strikers. Because "strike" sentences can be triggered by any felony conviction - even for a "wobbler" or nonviolent offense - strikers are serving lengthy and life sentences for convictions ranging from receiving stolen property to possession of a controlled substance to kidnapping to murder.
The three strikes law was enacted by both legislative and voter initiatives in the 1990's. It was amended in 2000 and again in 2006 to add additional crimes to the list of qualifying "strike" offenses.5
We discuss what crimes constitute strike offenses in Section 3 of this article.
Passed in the anger and panic that followed the tragic murders of 18-year old Kimber Reynolds and 12-year-old Polly Klaas by men with criminal records, the three strikes law was intended to stop violent recidivist offenders. But the data is far from clear as to whether the law even reduces crime.
The law is flawed in other respects, as well:
You can read more about the history of...and numerous problems with...California's three strikes law in our related article The Fight to Repeal Three Strikes.
Racial composition of inmates serving second or third “strike” sentences
in California state prison population as of June 30, 2010
According to the statute, the three strikes law is designed to "ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses."14
Contrary to what you might think when you hear the term "three strikes," California's law targets both "second" strikers as well as "third" strikers. It also implements other excessively punitive measures like eliminating the possibility of probation and limiting a striker inmate's ability to earn custody credits.
Under California's three strikes law, if a person is convicted of any felony, and has two or more "strike" priors (prior convictions for strike offenses), he or she must be sentenced to at least 25-years-to-life in state prison.15
As we discuss in our related article, Strategies for Fighting a Three Strikes Case, one way to tackle a "strike" case is by fighting the current charge. If our California Three Strikes Defense Lawyers can get a felony charge dismissed or reduced to a misdemeanor - or secure an acquittal at trial - we can help our client avoid application of the dreaded law in the first place.
On the same note, it's important to fight any charge that could result in conviction for a serious or violent felony. Those convictions can counts as strikes in the future and thus lead to dire consequences down the road.
If a person is convicted of any felony and has one "strike" prior, that person must be sentenced to double the prison term on the current conviction.16
Let's look at an example:
Example: Angel is on trial for robbery. If convicted under ordinary circumstances, he faces a sentence of three, six, or nine years in state prison. But Angel has a criminal record. His priors include arson and making criminal threats.
Because his prior offenses constitute violent or serious felonies under the Penal Code, they qualify as "strike" priors. This means that if Angel is convicted of robbery, he faces a "third strike" sentence of life in prison. If one of Angel's strike priors is dismissed, or if the prosecutor can't prove one of the strike allegations, he faces a "second strike" sentence of up to 18 years in prison.
California prison inmates earn "custody credits" for time served with good behavior. Because of these credits, an inmate normally serves only 50% of the sentence. But the three strikes law limits this privilege.
A second striker must complete at least 80% of his or her sentence before being eligible for release (and 85% of the sentence if the inmate is convicted of a violent felony).17
Third strikers do not receive any custody credits.18
As if the second and third strike sentencing enhancements were not punishment enough, the three strikes law also:
Let's look at an example:
Example: Jimmy, who has a criminal record, steals a bottle of brandy from a neighborhood store. As security personnel pursue him, Jimmy runs across a vacant lot and into Elizabeth's backyard. In his panic, Jimmy strikes Elizabeth with the brandy bottle. He is convicted of petty theft with a prior and assault with a deadly weapon.
The judge decides that the theft and assault were committed on separate occasions. Therefore, because it's a three strikes case, Jimmy is given two consecutive life sentences. He is not eligible for probation and he must serve his time in prison as opposed to an alternative facility.22
Given the grave consequences that can befall a defendant in a "strike" case, at least the accused can take comfort that the prosecutor must prove each and every strike allegation - just as the prosecutor must prove the current charges. This means that the defendant is presumed innocent of the "strike allegations" unless and until the prosecutor proves them beyond a reasonable doubt.
If the accused is acquitted of the new felony charges, the strike allegations get set aside. But if he or she is convicted, then the jury will decide whether the strike allegations are true. If the jury decides the allegations are true, then the three strikes law and all its penalties apply.
The prosecutor typically uses court records, prison records, fingerprint records and booking photos in attempting to prove that the accused did in fact sustain the alleged strike priors.
Our California Three Strikes Defense Lawyers have been on the other side of the table. As prosecutors, we had to prove strike allegations against defendants. Now that we represent people accused of crimes, we use our "inside knowledge" to expose weaknesses in the district attorney's case. That can mean the difference between years behind bars or probation.
Let's look at an example:
Example: Defendant is tried and found guilty of aggravated assault. The prosecutor tries to double the defendant's sentence by contending that he suffered a prior "strike" conviction for discharging a firearm with gross negligence (California Penal Code 246.3).
But PC 246.3 only qualifies as a serious felony (and therefore a strike) if the defendant personally discharged a firearm. So the prosecutor must prove that the defendant actually discharged the firearm and was not merely an aider and abettor in the prior case.23 If his lawyer can defeat the prosecutor's attempt to do this, the defendant won't face a double sentence.
This photograph was originally taken by Flickr user Rennett Stowe and the original photo can be found here.
A prior conviction counts as a strike if it was for a serious or violent felony as defined in the California Penal Code.
Serious felonies are listed in California Penal Code Section 1192.7(c), and violent felonies are listed in California Penal Code Section 667.5(c).
Most felonies involving violence are on the list. These include specific crimes, like murder and mayhem and rape. They also include generalized criminal conduct offenses like
This means that some offenses - like the one we saw in our above example regarding discharging a firearm with gross negligence - may constitute a strike offense if it is committed in a certain way (like where the defendant personally used a firearm). On the other hand, some crimes, like residential burglary and robbery, constitute serious crimes without regard to whether they are committed with violence in a particular instance.
Please visit the pages below for a complete list of what offenses constitute strikes:
Violent Felonies Under California Three Strikes Law
Serious Felonies Under California Three Strikes Law
Convictions that occurred prior to the three strikes law's enactment apply but only if the current felony offense is committed after enactment. This means the current felony charge must have been committed after March 7, 1994 (or, with respect to qualifying priors added to the list of violent or serious felonies after that date, after the dates on which those priors were added).
Let's look at an example:
Example: In 1993, Joseph is convicted of residential burglary. The California state legislature passed the three strikes law in 1994, while Joseph is serving time for the burglary. Shortly after passage, Joseph escapes from jail.
Joseph goes on trial for felony escape. The 1993 burglary conviction counts as a prior strike in Joseph's trial on escape charges. Even though the burglary was committed prior to enactment of the law, the felony escape charge - the current offense - was committed after enactment of the law.24
Given the harshness of the three strikes law, it is perhaps no surprise that juvenile convictions can count as strikes. Juvenile sustained petitions (the term for a conviction in juvenile court) counts as a strike under California three strikes law if three conditions are met:
For a list of qualifying offenses, please visit our page Juvenile Crimes That Count as Strikes Under California Three Strikes Law.
If a conviction is for an offense on the serious or violent felony list but is not on the W&I Code 707(b) list, the offense is eligible as a strike if it was committed in connection with an offense that is on the 707(b) list.
Let's look at an example:
Example: Edwin is convicted of residential burglary and possession of burglar's tools. He has four juvenile sustained petitions for burglary. The judge dismisses three of the four priors but doubles Edwin's sentence on the current offense by counting the non-dismissed burglary adjudication as a strike.
Residential burglary is a serious felony but is not listed in W&I Code 707(b). The California Supreme Court reviews the case and decides that such an adjudication can only count as a strike if it was committed in connection with a 707(b)-listed offense. Because Edwin's burglary offense was not committed in connection with a 707(b) offense, it is not a strike.26
For purposes of the California three strikes law, out-of-state convictions count as strikes so long as they would have constituted qualifying priors in California.27
Prior felony convictions count even if they were stayed or converted to misdemeanors (unless the judge converted them to misdemeanors upon sentencing).28
The 1997 Fuhrman case clarified that an offender can accumulate more than one strike in a single court proceeding. There is no need for the qualifying strikes to have been "brought and tried separately," as is the case with the California Penal Code Section 677(a) 5-year enhancement.29
In the Fuhrman case, the defendant received a three strikes sentence on the basis of two strike priors garnered from events that occurred on the same day - assault with a firearm (on a woman with whom he had a car collision) and robbery (of a man whose car he had taken at gunpoint as he fled from the earlier car collision).30
Thankfully, there is room for discretion even within the very strict three strikes law. The prosecutor and judge can move to dismiss strikes in "furtherance of justice." The defense attorney can also ask that the court "strike a strike" by filing a Romero motion.
Prosecutors can "strike" strike allegations up until trial.31 Judges have more time - they can dismiss strike allegations up until sentencing.32
As we discuss in our related article Romero Motions, defense attorneys can file a motion with the court asking the judge to dismiss strike allegations in furtherance of justice.
In deciding a Romero Motion, the court will consider all of the circumstances, including the nature of the current charge, how long ago the strike priors occurred, the underlying facts of the strike priors, and everything about the defendant's history.
If your son or husband or other loved one faces a strike case, our California Three Strikes Defense Lawyers may be able to persuade the judge that your loved one does not fall within the "spirit" of the three strikes scheme.
The three strikes law is so over-the-top that even some California prosecutors recognize the law can benefit from restraint. These prosecutors have implemented policies about how they will exercise their discretion in three strikes cases. We discuss one such policy - Special Directive 00-02 - in our related article Case Study: Los Angeles County District Attorney's Three Strikes Policy.
Special Directive 00-02 provides that as a general rule Los Angeles County prosecutors will not prosecute a case as a three strikes case unless the current offense is a violent or serious felony.
Even if the worst happens, and you are convicted and sentenced under the three strikes scheme, you may have a ground for a legal appeal to a higher court.
As we discuss is our related article Appeals of California Three Strikes Cases, you might be able to argue that your sentence is so disproportionate to the crime that it constitutes cruel and unusual punishment.
You might have other grounds for appeal, as well.
It is absolutely worth fighting a California three strikes law case. And with the stakes so high, it is critical to leave no stone unturned. Our attorneys can challenge the current charge and the strike allegations, move for a strike prior to be "stricken" and appeal a strike sentence to a higher court.
We will bring all our experience to bear to avoid or minimize the impact of this unfair law.
Your future and that of your loved one is absolutely worth fighting for. We can help you do that.
If you or a loved one has a case involving the three strikes law, we invite you to call us at Shouse Law Group for a consultation.
To learn about Nevada habitual criminal laws, go to our article on Nevada habitual criminal laws.
Families to Amend California's Three Strikes
Families Against Mandatory Minimums
Stanford Three Strikes Project
RAND Research on Three Strikes Law
The Real Cost of Prisons Project
1Lockyer v. Andrade, 538 U.S. 63, 77 (2003) [finding Andrade ineligible for habeas corpus relief in light of federal law providing for such relief only when a lower court's decision was contrary to clearly established law] ("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 sentence of two consecutive terms of 25 years to life in prison" under California Three Strikes law. Justice Souter issued a dissent joined by three other justices: "In sum, the argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ. The argument is irrational, and the state court's acceptance of it in response to a facially gross disproportion between triggering offense and penalty was unreasonable within the meaning of §2254(d). This is the rare sentence of demonstrable gross disproportionality, as the California Legislature may well have recognized when it specifically provided that a prosecutor may move to dismiss or strike a prior felony conviction 'in the furtherance of justice.' Cal. Penal Code Ann. §667(f) (2) (West 1999). In this case, the statutory safeguard failed, and the state court was left to ensure that the Eighth Amendment prohibition on grossly disproportionate sentences was met. If Andrade's sentence is not grossly disproportionate, the principle has no meaning. The California court's holding was an unreasonable application of clearly established precedent." Id at 83)
2California Department of Corrections and Rehabilitation: Inmates Sentenced Under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs, California State Auditor, May 2010 Report 2009-107.2, p. 1 ("As of April 2009, 25 percent of the inmate population was incarcerated under the three strikes law, which requires longer sentences for individuals who are convicted of any felony and have been convicted previously of crimes defined in state law as serious or violent felonies, also known as strikes. As discussed in our prior report, we estimated that on average, these individuals' sentences are nine years longer because of the requirements of the three strikes law.") As of June 30, 2010, the striker population was 41,126. As of December 15, 2010, the total California state prison population was 163, 088.
3Second and Third Striker Felons in the Adult Institution Population, June 30, 2010, California Department of Corrections and Rehabilitation Offender Information Services Branch Estimates and Statistical Analysis Section Data Analysis Unit, Table 1.
4Our California Criminal Defense 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.
5Career Criminal Punishment Act, ch. 12, 1994, Stat. 71, codified at California Penal Code Section 667(b) - (i); Proposition 184, approved by voters Nov. 8, 1994, codified at California Penal Code Section 1170.12; Proposition 21, approved by voters March 7, 2000. The California Supreme Court has held that the legislative and voter-enacted laws are "virtually identical." People v. Hazelton, 14 Cal.4th 101, 106 [interpreting different wording in the statutes in regards to out-of-state convictions] ("The initiative's history demonstrates an unequivocal intent on the part of the voters to adopt a sentencing scheme identical to the legislative version of the three strikes law.")
6In 2004, 47 percent of the California electorate voted for Proposition 66, which would have amended the three strikes law to provide for three strike sentences only upon conviction of a serious or violent felony. As we discuss in Section 4 of this article, certain county district attorneys use their discretion to limit application of the law to such violent or serious felonies.
7Ramirez v. Castro, 365 F.3d 755, 756 (2004) [finding that a 25-year-to life sentence under California three strikes law for shoplifting a VCR was grossly disproportionate punishment] ("After he was convicted of this 'wobbler' felony, the jury found that Ramirez's 1991 'robbery' convictions were 'strikes' for purposes of California's Three Strikes law enacted in 1994. The trial court thereafter denied Ramirez's motion to strike one or both of his two prior shoplifts, even though it had indicated before trial that it was inclined to do so, and sentenced Ramirez to 25 years to life in prison, with no eligibility for parole until he had served 25 years. The California Court of Appeal affirmed the sentence. The sentence imposed upon Ramirez for his three shoplifting offenses is more severe than the sentence he would have faced had any one of his three crimes been murder, manslaughter, or rape. Considering the objective factors of this case and performing the fact-specific analysis of Ramirez's criminal history as we are required to do under Supreme Court precedent, we hold that this is an 'exceedingly rare' case in which the sentence imposed is grossly disproportionate to the crimes committed, in violation of the Eighth Amendment.")
8Erwin Chemerinsky, Cruel and Unusual: the Story of Leandro Andrade, Drake Law Review Vol 52 at 4 (2003) ("My thesis is a simple one: It is cruel and unusual punishment, a violation of the Eighth Amendment, to sentence a person to life in prison for committing a minor offense.")
9As of June 30, 2010, the striker population was broken down as follows: 15,050 African-American inmates, 14,124 Hispanic inmates, and 10,048 white inmates. Second and Third Striker Felons in the Adult Institution Population, Id at Table 3. According to Families to Amend California's Three Strikes, in Los Angeles County, an African-American person is 17 times more likely to be charged under the three strikes law as is a white person.
10Coleman v. Schwarzenegger, No. 2:90-cv-00520 (E.D. Cal 8/4/09), 181 [imposing a cap on the state prison population] ("The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and California three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence.")
11Inmates Sentenced Under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs California State Auditor, Id at Page 21 ("We also estimated that $7.5 billion of the $19.2 billion in additional costs associated with striker inmates is attributable to strikers whose current convictions are for felonies that are not strikes.")
12Legislative Analyst's Office, A Primer: Three Strikes - The Impact After More Than a Decade (October 2005) ("Unfortunately, there remains no clear consensus about the public safety impact of the Three Strikes measure. In particular, data limitations (such as the number of offenders eligible for prosecution under Three Strikes) and the inherent difficulty of estimating the number of crimes prevented make it difficult to conclusively evaluate the law's impact on crime and safety. For now it remains an open question as to how much safer California's citizens are as a result of Three Strikes.")
13To help understand the human cost of three strikes, Families to Amend California's Three Strikes has provided a forum for the state's strikers to tell their stories.
14California Penal Code Section 667(b).
15California Penal Code Section 667(e)(2) provides: "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."
16California Penal Code Section 667(e)(1) provides: "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."
17California Penal Code Section 667(c)(5) provides: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following...(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison."
18California District Attorneys Association, Prosecutor's Perspective of California's Three Strikes Law - A 10 Year Retrospective (Summer 2004), p. 3 ("Finally, a criminal who is sentenced under one of the provisions of the Three Strikes law receives less work-time credit than other inmates. Most inmates can receive 50% work-time credit. In other words, if the inmate stays out of trouble while in prison, half of his or her imprisonment term will be eliminated. Under the Three Strikes law, a sentenced second striker receives only 20% maximum work-time credit. In 1994 the Penal Code was further amended to limit work-time credits for those inmates committed to state prison for violent felonies. Those inmates now receive a maximum of only 15% work-time credit. As with other defendants sentenced to life terms, a third striker does not earn any custody credits against the indeterminate life term imposed under the Three Strikes law.")
19California Penal Code Section 667(c)(1) and (6) - (8) provide: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: (1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction...(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e). (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law. (8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law."
20California Penal Code Section 667(c)(2) provides: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following...(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense."
21California Penal Code Section 667(c)(2) provides: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following...(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code." NOTE THAT Proposition 36, which was passed by the California voters in 2000 and mandates drug treatment instead of prison for certain nonviolent drug offenses, provides relief in a limited group of "striker" cases. See California Public Defenders Association, An Analysis of Proposition 36 Substance Abuse and Crime Prevention Act of 2000 (April 30, 2001), p. 20 ("Unless they meet certain saving criteria, people with prior 'strikes' are not eligible for Proposition 36 sentences. The saving criteria, that will make a prior striker eligible, are the following. [T]he [Nonviolent Drug Possession Offense must have] occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a [NDPO], or a misdemeanor conviction involving [i] physical injury or [ii] the threat of physical injury to another person.")
22People v. Lawrence, 24 Cal.4th 219, 234 (2000) ("Defendant's initial crime was the shoplifting theft of a bottle of brandy from a market. Although still in flight from the crime scene, he thereafter chose to commit new and different offenses: the trespass into the Rojas/LaVastida backyard, and the ensuing assaults against Rojas and LaVastida. The first crime involved an act of theft directed at one group of victims, the second involved assaultive conduct directed at an unrelated pair of victims. The two criminal episodes were separated spacially by at least one to three city blocks, and temporally by two to three or more minutes...On these facts we conclude that defendant's felony assault upon LaVastida did not arise out of the 'same set of operative facts' as the theft from the market. Because defendant's multiple current felony convictions neither were committed on the same occasion within the meaning of Deloza nor arose from the same set of operative facts, the trial court correctly concluded it was mandated by subdivision (c)(6) to sentence consecutively.") COMPARE with People v. Deloza, 18 Cal.4th 585, 599 (1998) [robberies of four victims in a furniture store were committed on same occasion permitting concurrent sentences under the three strikes law] ("Here, the crimes were so closely related in time and space, and committed against the same group of victims, that these factors alone compel us to conclude they occurred on the 'same occasion.' Hence, consecutive sentences were not mandatory under subdivision (a)(6) and (a)(7)." The dissent took issue with extreme sentences as a more general matter: "A grossly excessive sentence can serve no rational legislative purpose, under either a retributive or a utilitarian theory of punishment. It is gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted. Such a sentence makes no measurable contribution to acceptable goals of punishment." Id at 601)
23People v. Golde, 163 Cal.App.4th 101, 113 (2008) (" However, defendant himself admitted only the 'prior conviction.' He did not admit the enhancement allegation. He did not admit the prior conviction was a serious felony. He did not admit he personally discharged the firearm at issue in the 1990 conviction....The documents submitted by the prosecution did not show defendant personally discharged the firearm. Thus, there was no admission or evidence of personal use of a firearm that would qualify defendant's 1990 conviction as a 'strike' under sections 667 or 1170.12....Nevertheless, as noted by defendant, the California Supreme Court has more recently said the remedy in such a case is remand for retrial at the prosecution's election.")
24People v. Sipe, 36 Cal.App.4th 468, 477 (1995) ("Here, the Legislature clearly expressed its intent to provide longer sentences for felons who 'have been previously convicted of serious and/or violent felony offenses.' Because of the need to protect the public from the 'imminent threat' posed by recidivist felony offenders, the act was declared an urgency measure to take effect immediately. Nothing in the statute indicates an intent to limit its effect to only those who commit multiple felonies in the future. Indeed, '[t]he basic purpose of the section-deterrence of recidivism-would be frustrated by a construction which did not take account of prior criminal conduct.'" (internal citations omitted)) SEE ALSO People v. James, 91 Cal.App.4th 1147, 1150 (2001) [offenses committed after Proposition 21 was passed] ("We hold that if a defendant's current offense was committed on or after the effective date of Proposition 21, a determination whether the defendant's prior conviction was for a serious felony within the meaning of the three strikes law must be based on the definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on March 8, 2000.")
25People v. Leng, 71 Cal.App.4th 1, 12 (1999) [prior juvenile adjudication for PC 245(a)(1) assault was not a strike where prosecutor failed to establish it was a violent or serious felony] ("Appellant received a second strike sentence based on the trial court's finding that his prior juvenile adjudication for assault was within Welfare and Institutions Code section 707, subdivision (b), and thus constituted a strike pursuant to section 667, subdivision (d)(3). However, the prosecution failed to introduce any evidence to establish the serious or violent nature of the underlying adjudication. Under the same set of circumstances, the court would not have been able to impose the same second strike sentence on an individual who had suffered a prior conviction for assault as an adult, unless the prosecution had proved the serious or violent nature of the prior offense. Thus, section 667, subdivision (d)(3) treats the personal liberty of similarly situated parties in a disparate manner.")
26People v. Garcia, 21 Cal.4th 1, 15 (1999) ("In the proceeding leading to the prior juvenile adjudication alleged and imposed against defendant as a prior felony conviction, the only felony offense for which defendant was adjudged a ward of the juvenile court was burglary of an inhabited dwelling, which is not an offense listed in Welfare and Institutions Code section 707(b). Although that offense is classified as serious and would, therefore, qualify as a strike under paragraph (B), the separate requirement of paragraph (D), that the juvenile was adjudged a ward of the juvenile court because of a section 707(b) offense, was not satisfied. The trial court therefore erred in sentencing defendant under section 667, subdivision (e)(1).") SEE ALSO CEB California Criminal Law and Procedure, §37.33A "Practice Tip" - "Determining whether a juvenile adjudication can be used as a strike can be complex. For example, 'kidnapping' is both a violent felony under Pen C §667.5(c)(14) and a serious felony under Pen C §1192.7(c)(20). However, only three specified forms of kidnapping-kidnapping for ransom, kidnapping for robbery, and kidnapping with bodily harm-are listed in Welf & I C §707(b). In this situation, determining whether the juvenile adjudication constitutes a strike may require examining the entire juvenile court record to ascertain whether the facts proven at the juvenile proceeding bring the offense within the provisions of Welf & I C §707(b) or whether another offense found at the same juvenile proceeding is included in §707(b)."
27California Penal Code Section 667(d)(2) provides: "Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: (2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7."
28California Penal Code Section 667(d)(1) provides: "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. The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive: (A) The suspension of imposition of judgment or sentence. (B) The stay of execution of sentence. (C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony. (D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison."
29The the 5-year sentencing enhancement in California Penal Code Section 667(a)(1) for serious felonies applies to prior serious felony charges "brought and tried separately." California Penal Code Section 667(a)(1) provides: "In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
30People v. Fuhrman, 16 Cal.4th 930, 940 (1997) ("We conclude that defendant's position is without merit. Section 667, subdivision (a), is a separate enhancement statute that is not part of the Three Strikes law. As noted, the language of section 667, subdivision (a), states specifically that the five-year enhancement established by that provision shall be imposed for each prior serious felony conviction arising from 'charges brought and tried separately.' In view of the explicit language set forth in section 667, subdivision (a), it is reasonable to infer that had the drafters of the Three Strikes law intended to include the 'brought and tried separately' requirement suggested by defendant, they were aware of the manner in which to do so.")
31California Penal Code Section 667(f) - (g) provide: "Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2). (2) The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation. (g) Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (f)."
32People v. Romero, 13 Cal.4th 497, 529 (1996) [trial court has discretion, on its own motion but subject to strictures of Penal Code 1385 and abuse of discretion review, to dismiss a strike allegation in furtherance of justice] ("For these reasons, we conclude that section 1385(a) does permit a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. Our holding respects the principle that legislative acts are construed, if at all possible, to be constitutional. Our holding also avoids conflict with the principle that ambiguous penal statutes are construed to favor the defendant.")
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