California Three Strikes Law and Proposition 36 Reforms

California's "three strikes and you're out" law is no game.  For years, it was one of the harshest sentencing schemes in the country and a law that would send people convicted of even nonviolent offenses to prison for life.

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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 in November 2012, a growing movement of people dedicated to repealing or reforming the unfair three strikes law (including our California Three Strikes Defense Lawyers) finally won a major battle. California voters passed "Proposition 36", aka the Three Strikes Reform Act of 2012.4

To summarize briefly, the 2012 reform of California Three Strikes law means that...in most cases...there will no longer be a mandatory 25-years-to-life sentence for "strikers" whose third strike is not a "serious" or "violent" felony.5 An overwhelming majority of California voters voted for this law...clearly showing that the public had finally had enough with the unfair and expensive older version of the Three Strikes system.6

Even better, Proposition 36 allows people sentenced under the old Three Strikes law...who would not be subject to a Three Strikes sentence under the new law...to petition for a reduced term.7

As former district attorneys who once prosecuted three strikes cases, we know the best strategies for helping people who were unfairly sentenced under the old law to reduce their sentences under the new system...and for keeping our clients safe from the reach of this law, which is better than it used to be but still incredibly anti-defendant.8

In this article, we provide an overview of both the old and the new (post-Proposition 36) California Three Strikes Law by addressing the following:

1. What is California's three strikes law, and how has it changed?
2. What prior convictions count as strikes for purposes of the three strikes law?

2.1. Serious or violent felonies

2.2. Juvenile sustained petitions

2.3. Out-of-state convictions

2.4. Multiple strikes from a single trial

3. How does California's three strikes sentencing scheme work?

3.1. Sentencing in "third" strike cases

3.2. Sentencing in "second" strike cases

3.3. Custody credit calculation in strike cases

3.4. Consecutive sentences and other punitive measures

3.5. Prosecutor must prove strike allegations

4. Can the court excuse or dismiss
prior strikes?

4.1. Prosecutors and judges can "strike" strikes

4.2. Romero motions (defense attorneys)

5. Romero motions (defense attorneys)
6. Is it worth fighting my "strike" case?

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group. In addition, you may find helpful information in our related articles on The Legal Definition of a "Wobbler" in California Law; Receiving Stolen Property California Penal Code 496 PC; Possession of a Controlled Substance California Health & Safety Code 11350 HS; Legal Definition of a Felony in California Law; Serious Felonies Under California Three Strikes Law; "Violent Felonies" Under California Three Strikes Law; The Crime of Mayhem in California Law Penal Code 203 & 205 PC; California Rape Law Penal Code 261; The Legal Definition of Great Bodily Injury/Harm California Penal Code 12022.7; California Gang Enhancement Penal Code 186.22; California Residential Burglary Penal Code 459 PC; Juvenile Crimes that Count as Strikes Under California Three Strikes Law; California Robbery Law Penal Code 211 PC; An Explanation of California Arson Laws Penal Code 451 and 452 PC; Assault with a Deadly Weapon California Penal Code 245(a)(1); Discharging a Firearm with Gross Negligence Penal Code 246.3 PC; Romero Motions & California Three Strikes Law; and Appeals of California Three Strikes Cases.

1. What is California's three strikes law and
how has it changed?

California's three strikes law is a sentencing scheme that adds significant time to the prison sentences of certain repeat offenders convicted of serious or violent felonies.

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.9

Passed in the anger and panic that followed the tragic murders of 18-year old Kimber Reynolds10 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.11

The law is flawed in other respects as well:

  • Three strikes can operate in a way that violates the Eighth Amendment constitutional right against cruel and unusual punishment.12
  • Three strikes disproportionately impacts minority defendants.13
  • Three strikes needlessly exacerbates the overcrowding of the California prison system.14
  • Three strikes unnecessarily shifts to the taxpayers the cost of caring for aging offenders who pose no significant threat to the public.15
  • Three strikes has not led to a demonstrable reduction in crime.16
  • Three strikes leaves no realistic room for rehabilitation, redemption or hope.17

In late 2012, however, one of the worst features of California's three strikes law was eliminated. Before then, a "strike" sentences could be triggered by any felony conviction - even for a "wobbler" or nonviolent offense.18 As a result, strikers were being given lengthy and life sentences after convictions for things like receiving stolen property and simple possession of a controlled substance.

So the old version of three strikes could lead to gravely disproportionate and even absurd outcomes, like giving someone convicted of shoplifting a longer sentence than someone convicted of murder.19

But on November 26, 2012, California voters finally chose to change this irrational feature of the law. Thanks to Proposition 36, which won the popular vote in every county in California, in most cases you will only receive the longest 25-year-to-life sentence if all three of your felony convictions were for serious or violent felonies (instead of just the first two).20 (There are exceptions, though, which we will discuss in Section 3 below.)

In 2011, there were around 32,000 second strikers and 9,000 third strikers in California prisons.21 As many as 3,000 third strikers (a third of the total) may be eligible to have their sentences reduced thanks to Proposition 36.22

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

2. What prior convictions count as strikes for purposes of the three strikes law?

In order to understand how California's three strikes system works, it's important to understand what a "strike" offense is.  Simply put, a prior conviction counts as a strike if it was for a serious or violent felony as defined in the California Penal Code.23

2.1. Serious or violent felonies

Serious felonies under California three strikes law are listed in California
Penal Code Section 1192.7(c). Violent felonies under California three
strikes law
are listed in California Penal Code Section 667.5(c).

Most felonies involving violence are on the list. This includes specific crimes, like murder and mayhem and rape.24 It also includes generalized criminal conduct offenses like

This means that some offenses may be strike offenses if they are committed in a certain way (like where the defendant personally used a firearm).  On the other hand, some crimes, like residential burglary and robbery, are serious crimes without regard to whether they are committed with violence in a particular instance.28

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).29

Let's look at an example:

Example:  In 1993, Joseph is convicted of residential burglary.  The California state legislature passes 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.

2.2. Juvenile sustained petitions

Given the harshness of the three strikes law, it is perhaps no surprise that juvenile convictions can count as strikes.  A "juvenile sustained petition" (the term for a conviction in juvenile court) counts as a strike under California three strikes law if three conditions are met:

  1. The conviction counts as a strike under the California Penal Code definitions of violent or serious felony;30
  2. The crime is listed in California Welfare and Institutions Code 707(b); and
  3. The person was at least 16 years of age when the offense occurred.31

For a list of qualifying offenses, please visit our page on 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 not on the W&I Code 707(b) list, the offense is eligible as a strike only if it was committed in connection with an offense that is on the 707(b) list.32

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 counts 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.33

2.3. Out-of-state convictions

For purposes of the California three strikes law, out-of-state convictions count as strikes so long as they would have constituted qualifying strike priors in California.34

Prior felony convictions count even if they were stayed or converted to misdemeanors (unless the judge converted them to misdemeanors upon sentencing).35

2.4. Multiple strikes from a single trial

A defendant can accumulate more than one strike in a single court proceeding.36 There is no need for the qualifying strikes to have been brought and tried separately.

Example: On one fateful day, Scott is driving a stolen car and collides with another car. When the driver of the other car tries to call the police, Scott pulls out a handgun to get her to stop. Then, he takes another car at gunpoint and uses it to flee the scene. Scott ends up being charged and convicted, in one proceeding, of both assault with a firearm (for threatening the other driver with the gun) and robbery (for taking the new car).

Even though the two offenses were brought and tried together, Scott now has two strikes for purposes of the three strikes law.37
3. How does California's three strikes sentencing scheme work?

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 one or more serious and/or violent felony offenses."38

Contrary to what you might think when you hear the term "three strikes," California's law targets "second" strikers as well as "third" strikers.39 It also implements other excessively punitive measures like eliminating the possibility of probation40 and limiting a striker inmate's ability to earn custody credits41.

3.1. Sentencing in "third" strike cases

Under the old version of California's three strikes law, if a person was convicted of any felony, and had two or more "strike" priors (prior convictions for strike offenses), he or she would be sentenced to at least 25-years-to-life in state prison.42

But under the new version of the law, that has changed. A third offense will only trigger a 25-year-to-life prison sentence if the third offense is also a "strike" offense. It is no longer the case that any old felony will do.43

But if the third offense is not a strike offense, the defendant will still face an enhanced sentence. S/he will be sentenced to twice the normal sentence for the third offense.44 In other words, s/he will be treated like a second striker (see Section 3.2 below).

Example: Manuel has two strike offenses on his record-one for residential burglary and one for robbery. He is arrested for possession of cocaine-which 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.
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Exceptions to the reform under the new three strikes law

Even under the new three strikes law, though, there are exceptions to the rule that a third strike has to be a serious or violent felony to earn a 25-years-to-life sentence. Here are the major exceptions:

  1. If your third offense involves possession for sale,
    sale or transportation, or manufacturing of cocaine, heroin, methamphetamine, or related substances, you will receive the maximum three strikes penalty.45
  2. If your third offense is a felony sex offense or is a felony that results in mandatory registration as a sex offender, in most cases you will receive the maximum three strikes penalty.46 (There are exceptions to this rule for some more minor sex crimes, such as indecent exposure and simple possession of child pornography.47 )
  3. If, in the commission of your third offense, you used a firearm, were armed with a firearm or deadly weapon, or intended to cause intended to cause great bodily injury to someone, then you will receive the maximum three strikes sentence.48
  4. If one of your prior strike offenses is on a list of particularly serious crimes, then you will receive the maximum three strikes sentence. Some of the prior strike offenses that can lead to this result are:

    a. Any "sexually violent offense" (meaning a sex offense committed by means of force, violence, or threats),

    b. Oral copulation, sodomy, or forcible sexual penetration of a child under 14 who is more than 10 years younger than the defendant,

    c. Lewd acts with a child under 14,

    d. Murder or manslaughter, or solicitation to commit murder,

    e. Assault with a machine gun on a peace officer or firefighter, and

    f. Any serious or violent felony for which the possible penalties include life in prison or the California death penalty.49

3.2. Sentencing in "second" strike cases

Under both the old and the new three strikes laws, 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.50

Example:  Angel is on trial for robbery in a residence.  If convicted under ordinary circumstances, he faces a sentence of three, six, or nine years in state prison.51 But Angel also has a prior conviction for California arson....which is considered a violent felony and therefore a "strike" offense.52

This means that Angel will face a "second strike" sentence if he is convicted of the robbery charges...this will be double the normal sentence, so six, twelve, or eighteen years in prison.

3.3. Custody credit calculation in strike sentences

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.53 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). Third strikers do not receive any custody credits.54

3.4. Consecutive sentences and other excessively punitive measures

As if the second and third strike sentencing enhancements were not punishment enough, the three strikes law also:

  • Mandates that strike sentences for different counts tried in the same proceeding be served consecutively . . . without aggregate term limits . . . as long as the counts were not committed on the same occasion and did not arise from the same set of facts,55
  • Eliminates striker eligibility for probation,56 and
  • Requires strikers to serve their time in prison as opposed to a rehabilitation-oriented facility.57
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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.  Because of Jimmy's criminal record, both of these convictions were considered third strikes under the old three strikes law.

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.58

3.5. Prosecutor must prove strike allegations

According to Los Angeles County criminal defense attorney John Murray59:

"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.60 This means that the defendant is presumed innocent of the "strike allegations" unless and until the prosecutor proves them beyond a reasonable doubt."

Once the defendant has been convicted of the new felony charges, then the jury will decide whether the defendant actually has one or more prior "strikes."  The jury cannot assume that the strikes exist just because the prosecutor says so...the prosecutor has to prove that they exist. 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:  Don is tried and found guilty of aggravated assault.  The prosecutor tries to double Don's sentence by contending that he suffered a prior "strike" conviction for  discharging a firearm with gross negligence.

But negligent discharge of a firearm only qualifies as a serious felony (and therefore a strike) if the defendant personally discharged a firearm. So the prosecutor must prove that Don actually discharged the firearm and was not merely an aider and abettor in the prior case.61 If Don's lawyer can defeat the prosecutor's attempt to do this, then he won't face a double sentence.
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This photograph  was originally taken by Flickr user Rennett Stowe and the original photo can be found here.

4. Can the court excuse or dismiss prior strikes?

Thankfully, there is room for discretion even within the very strict three strikes law.  The prosecutor and judge can move to dismiss strikes "in the furtherance of justice."62 The defense attorney can also ask that the court "strike a strike" by filing a Romero motion.

4.1. Prosecutors can "strike" strikes

Prosecutors can "strike" strike allegations up until trial.63 A prosecutor may decide to do this if he or she thinks that it will be too difficult to plead and prove all the strike allegations ...or if he or she does not think the defendant truly deserves to be treated as a striker based on the nature of the past offenses and the current offense.

4.2. Romero motions (defense attorneys)

Judges also may dismiss strikes. They can do this at any time up until sentencing.64

As we discuss in our related article on  Romero Motions and California three strikes law, defense attorneys can file a motion with the court asking the judge to dismiss strike allegations in furtherance of justice.65

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.

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5. Can I appeal a three strikes sentence?

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. Appeals of California three strikes cases are often successful.  In an appeal, you might be able to argue that your sentence is so disproportionate to the crime that it constitutes cruel and unusual punishment.

And not only that...but now that Proposition 36 has reformed the three strikes law, California inmates who are serving time on a third strike may petition to have their sentences reduced if their third strike was not a serious or violent felony (and other conditions are met). If you or a loved one is in this position, you should contact a California criminal defense attorney right away...relief may be in sight.

6. Is it worth fighting a "strike" 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.

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 much improved....but still unfair...law.

Your future and that of your loved one is absolutely worth fighting for.  We can help you do that.

Our California Three Strikes Defense Lawyers Can Help...
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If you or loved one has a case involving the three strikes law 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.

To learn more about Nevada "habitual criminal" laws (similar to California's three strikes law), please visit our page on Nevada "habitual criminal" laws.

Additional Resources:

California Proposition 36: Three Strikes Reform Act

Families to Amend California's Three Strikes

Families Against Mandatory Minimums

RAND Research on Three Strikes Law

The Real Cost of Prisons Project

Legal References:

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.

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 See same.

6 See same.

7 See same.

8 Our 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.

9 Career 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.")

10 See A Father's Crusade Born From Pain, Los Angeles Times, Dec. 9, 1993.

11 See, e.g., Justice Fellowship, Study Shows Three-Strikes Laws do not Reduce Crime.

12 Erwin 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.")

13 As 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.

14 Coleman 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.")

15Inmates 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.")

16 Legislative 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.")

17 To 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.

18 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.")

19Ramirez 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.")

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

21A ballot initiative that could reduce the number of lifers in California prisons qualified for November's elections, KPCC.org, June 12, 2012.

22 See Softer 3-strikes law has defense lawyers preparing case reviews, endnote 20, above.

23 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: (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. (2) A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison shall constitute a prior conviction of a particular serious and/or violent felony if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7. (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.")

24 California Penal Code 667.5 PC -- Prior prison terms; enhancement of prison terms for new offenses. ("(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.")

25 California Penal Code 1192.7(c) - Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section. ("(c) As used in this section, "serious felony" means any of the following: . . . (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; . . .")

26 See same. (". . . (28) any felony offense, which would also constitute a felony violation of Section 186.22; . . . .")

27 See same. (". . . (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; . . .")

28 See same. (" . . . 18) any burglary of the first degree; (19) robbery or bank robbery; . . . .")

29 People 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.")

30 People v. Leng, 71 Cal.App.4th 1, 12 (1999) [prior juvenile adjudication for PC 245(a)(1) assault was not a strike under the three strikes law 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.")

31 California Penal Code 667(d)(3) PC - Three strikes law-new version. ("(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.")

32People 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).")

33 See same.

34 California Penal Code 667(d)(2) PC - 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 . . .  (2) A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison shall constitute a prior conviction of a particular serious and/or violent felony if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.")

35 California Penal Code 667(d)(1) PC - 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: (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.")

36People 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.")

37 See same.

38 California Penal Code 667(b) PC - Three strikes law-new version.

39 California Penal Code 667(c)(2) PC - Three strikes law-new version.

40 California Penal Code 667(c)(2) PC - Three strikes law-new version. ("(c) 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 serious and/or violent 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.")

41 California Penal Code 667(c)(5) PC - Three strikes law-new version. ("(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.")

42 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.")

43 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.")

44 See same. See also 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.")

45 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.")

46 See same. ("(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.")

47 See same.

48 See same. ("(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.")

49 See same. ("(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.")

50 California Penal Code 667(e)(2)(C) - Three strikes law-new version. ("(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.")

51 California Penal Code 213 PC - Robbery; punishment. ("(a) Robbery is punishable as follows: (1) Robbery of the first degree is punishable as follows: (A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, a vessel as defined in Section 21 of the Harbors and Navigation Code, which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, a trailer coach as defined in the Vehicle Code, which is inhabited, or the inhabited portion of any other building, by imprisonment in the state prison for three, six, or nine years.")

52 California Penal Code 667.5 PC -- Prior prison terms; enhancement of prison terms for new offenses. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: . . . (10) Arson, in violation of subdivision (a) or (b) of Section 451.")

53 California 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.")

54 See same.

55 California Penal Code 667(c) PC - Three strikes law-new version. ("(c) 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 serious and/or violent 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.")

56 See same. ("(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.")

57 See same. ("(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.")

58People 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)

59 Los Angeles criminal defense attorney John Murray represents clients in matters ranging from DUI to homicide in courthouses across Los Angeles and Orange counties.

60 California Penal Code 667(f) PC - Three strikes law-new version. ("(f)(1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction except as provided in paragraph (2).")

61 People 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.")

62 California Penal Code 667(f) PC - Three strikes law-new version. ("(f)(1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has one or more prior serious and/or violent felony convictions as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction except as provided in paragraph (2). (2) The prosecuting attorney may move to dismiss or strike a prior serious and/or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious and/or violent felony conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious and/or violent felony conviction, the court may dismiss or strike the allegation. Nothing in this section shall be read to alter a court's authority under Section 1385.")

63 See same.

64People v. Romero, 13 Cal.4theth 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.")

65 See same.

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