A-49a

Article Bank # A-49a

“THREE STRIKES” ISSUES OUTLINE

(Revised: April 19, 2001)

TABLE OF CONTENTS

I. General Issues About Strike Priors

1. General Provisions

2. Relationship to other recidivist laws

3. Can pre-3/7/94 priors be used as strikes?

4. Felonies which were designated “serious” or “violent”

after 6/30/93

5. Proving “strike” priors

A. Effect of Apprendi v. New Jersey

B. California Law on Proof of Priors

i. Judge or Jury Trial?

ii. What evidence may be used?

iii. Which priors are per se serious felonies?

iv. Retrial of priors

6. Where two priors were incurred in a single case;

where section 654 stayed one of them

7. Proof of foreign priors

7.a. Foreign priors as third strikes

8. Juvenile priors

8.a. Constitutional Issues: Right to Jury?

8.b. Constitutional Issues: Equal Protection Problem

if Juvy Prior Isn’t a Serious Felony?

8.c. Statutory Issues: Must a Juvy Prior be a § 707(b)

offense?

8.d. Statutory Issues: No Fitness Hearing Required

9. Conflict Where Same Lawyer Represents D on Both

Prior and New Case?

10. Is Petty with a Prior a New Felony?

11. Do Strikes Have to be Proven at the PX?

II. Two Strikes Computations (§ 667(e)(1)

1. May a prior used as a strike also be used as an

enhancement?

1.5 Other Dual Use Issues: Strike Prior as Element,

as Felony-Booster, As Aggravating Factor

2. What Term is Doubled – Base, Subordinate, Enhancements?

3. Where New Offense Carries Indeterminate Term

III. Three Strikes Computations (§ 667(e)(2)(A))

1. Dual Use of Strike Priors

2. What Term is Tripled – Base, Subordinate, Enhancements?

3. Where Third Strike Carries Indeterminate Term

4. How Many Peremptories?

IV. Multiple Counts in the Current Conviction

(§ 667(c)(6) and (7).)

1. What do the phrases, “not arising from the same set of

operative facts” and “not committed on the same

occasion” mean?

a. Not a restatement of section 654

b. Examples

c. When does error require remand

2. Where D has one strike prior, and gets multiple new

counts, imposed consecutively: Calculation of aggregate

term

3. Where D has two strike priors, and gets multiple new

counts, imposed consecutively: Calculation of aggregate

term

V. Three Strikes Defendant Who is Already Serving a Term or Who

Picks Up a New Term (§§ 667(c)(8), 667(e)(2)(B).

VI. Earned Credits Limitations (§ 667(c)(5))

1. No impact on presentence credits

2. Sections 2933.1 and 2933.5, more restrictive credit

limitations, are not preempted by Three Strikes

3. Limitation applies to components of a sentence computed

under other statutes

4. Any credits at all for third strikers?

VII. Romero and Fuhrman

1. General

2. Opinions

a. Standing and appealability

b. When do you get a remand

c. When is the trial court’s decison an abuse of

discretion

d. Procedure on remand

3. Cruel and Unusual arguments

4. Where the New Offense is a Wobbler

VIII. Problems in Plea Bargain Cases

“THREE STRIKES” ISSUES CHECKLIST

I. General Issues About Strike Priors

1. General Provisions: AB 971 defines qualifying “strike priors” in section 667, subdivision (d). Prop. 184 defines them in section 1170.12(b).

There is no requirement of a prison term; no washout period; and no requirement that the priors have been brought and tried separately. An expunged prior can be a strike: People v. Diaz (1996) 41 Cal.App.4th 1424 (prior expunged under Pen Code § 1203.4); People v. Daniels (1996) 51 Cal.App.4th 520 (prior expunged under Welf.& Inst. Code, § 1772.)

The rule of People v. Rhoads (1990) 221 Cal.App.3d 56 has been held to apply to strike priors: An offense is priorable as soon as there has been a verdict or a plea. It is not necessary that judgment have been entered, unless the offense is a wobbler. People v. Williams (1996) 49 Cal.App.4th 1632. (Even a 1975 Florida prior in which the court had “withheld adjudication of guilt after [D] completed probation” is a strike in the Fourth District: People v. Castello(98) 65 CA4th 1242.)

The fact that some counties have much more lenient charging policies than others does not give rise to an equal protection claim: People v. Andrews, (98) 65 CA4th 1098: “Although it is disturbing to realize that whether a given offense produces minor sanctions or life in prison may depend on one’s physical location within the state, the solution does not lie in courts requiring all of the state’s prosecutors to follow the lead of the most eccentric among them,” says the San Diego court about San Francisco.

2. Relationship to other recidivist laws: Three Strikes may be superseded by another sentencing scheme which results in a more severe penalty. (People v. Williams (1995) 40 Cal.App.4th 446: special circumstances; People v. Martinez (1997) 54 Cal.App.4th 1533 [rev. gtd. on an evidentiary issue]: § 667.7 term resulting in LWOP.) On the other hand, 3x supersedes any sentencing statute which would result in a lesser penalty: People v. Espinoza (1997) 58 Cal.App.4th 248. [3x supersedes § 664, the general attempts statute, when the new offense is an attempt.]

Apparently, though, 3x is cumulative to any other sentencing scheme which would not alone produce as long a sentence. Thus, § 667.71 and § 667 operate cumulatively, when D qualifies under both: People v. Murphy (2001) – Cal.4th – [3/29/01].) This holding is based on 3x provisions (“notwithstanding any other law” and “in addition to any other punishment provisions which may apply …”) but also on the language and history of § 667.71.

See also People v. Ervin (1996) 50 Cal.App.4th 259: § 667.61 term should be calculated and then doubled if qualifying offender has a strike. (But note: in Ervin, the circumstance which turned the sex offense into a § 667.61 sex offense was a burglary, not a prior conviction. Where the circumstance invoking § 667.61 is a prior, that statute itself, in subdivision (f), contains language which bars dual use. In other words, you need a “surplus” prior, in addition to the one which invokes § 667.61, to invoke Three Strikes as well: Acosta, 80 CA4th 714 rev. gtd, S089120.) Based on the language of 667.61(f), CA3 also distinguishes Ervin, in a case where D was subject to 25-life under 667.61 because of a prior – and where his 25-life term was doubled because that same prior was a strike: P v. Graves,(00) 80 CA4th 1336, rev. gtd. S089533; P v. Diaz,82 CA4th 503, rev. gtd, S091158.

3. Pre-3/7/94 priors. This argument has been a consistent loser. (People v. Moenius (1998) 60 Cal.App.4th 820 and People v. O’Roark (1998) 63 Cal.App.4th 872 are only the latest opinions to reject it.)

Note: the critical moment is 2:45 p.m. on 3/7/94. The law did not wait until the next day to take effect. People v. Cargill (1995) 38 Cal.App.4th 1551.

Variations of the argument have also been rejected. These include: (1) the argument that pre-1982 serious felonies don’t qualify, since they can’t have been determined to be serious felonies even “with reference to” the date of conviction (see, e.g., People v. Moenius , supra, 60 Cal.App.4th 820), and (2) the argument that before the “determination clause” was construed in Reed, defendants had no notice that it would include pre-1994 priors. (The latter is a federal due process argument.)

4. Ungrandfathered priors: The original provision of section 667(h) (“All references to existing statutes in subdivisions (c) to (g) inclusive are to statutes as they existed on 6/30/93”), was amended by Prop. 21 in 3/2000: “For all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act.”

In other words, all offenses added to the lists of serious or violent felonies, up to and including the offenses added by Prop 21, are “strikes” – at least where the new offense is committed after 3/7/00.

Prop. 21 then added a list of new serious felonies to section 1192.7 – including any gang related offense; assault on a school employee; section 422 threats, and others.

5. What is Admissible/Sufficient to Prove a Prior has the Elements of a Serious Felony?

A. Unknown Effect of Apprendi v. New Jersey

This isn’t a purely “three strikes” issue, but will come up in many Three Strikes cases. Beyond the scope of this memo is the effect of Apprendi v. New Jersey (2000) 530 U.S. – [120 S.Ct. 2348], which held that a prosecutor must plead, and a jury determine, facts which increase the statutory maximum term for a new offense. It is not clear yet whether Apprendi will be found to apply to proving the simple fact of a prior conviction. See, for example, Cherry v. Superior Ct. (CA2/4, 2/7/01), noting that Apprendi made an exception for prior convictions. It is true that Apprendi distinguished priors from other sentence-increasing facts – but Justice Thomas, who joined the Apprendi majority, dissented from this exception two years earlier in Almendariz-Torres v. US (98) 523 US 224.)

Furthermore, Apprendi may well apply to the facts which make a prior conviction a strike – e.g., did the assault involve personal use of a weapon? This question was expressly reserved in People v. Epps (2001) – Cal.4th -[3/5/01]: “We do not now decide how Apprendi would apply were we faced with a situation like that at issue in Kelii [21 Cal.4th 452], where some fact needed to be proved regarding the circumstances of the prior conviction — such as whether a burglary was residential — in order to establish that the conviction is a serious felony.”

(The 9th Circuit is clear that there is a right to a jury trial on the facts which make a prior a strike, even without Apprendi: Dillard v. Roe, 3/27/01.)

Since Apprendi was decided, the California Supreme Court has granted review in People v. Sengpadychith, S090076, argument set for May 2001, which involves the application of Apprendi to a current-conduct enhancement. (The specific issue is whether the failure to instruct on an element of that enhancement – gang-related conduct – is a federal constitutional error, or simply an error of state law.) No cases are up there yet involving proof of priors, or of facts which make those priors into strikes. (On 5/4/01, CA5 held that Epps and Kelii, rather than Apprendi, govern when the prior is a residential burglary: the right to a jury trial is purely statutory, not a federal constitutional right. Accordingly, a post-appeal habeas claiming that the waiver of jury was inadequate is denied: People v. Jason Taylor.)

B. California law on proof of priors

i. Judge or jury trial?

Up until Apprendi, California cases have all been based on the premise that the right to a jury trial – on the fact of a prior, and on the facts which make that prior a strike – is created solely by state law, and can be taken away by state law. Citing P v. Wiley (95) 9 C4th 580 [court, not jury, decides if priors were brought and tried separately, as required by § 667(a)], the Supreme Court has held 4-3 that the judge, not the jury, decides if a burglary qualifies as a serious felony: P v. Kelii (99) 21 Cal.4th 452.

Effective Jan. 1, 1998, Penal Code section 1025 was amended by SB 1146, to eliminate the right to jury trial on the question of whether the defendant suffered a prior conviction. (Exceptions: when the prior is an element of the charged offense, or when D is charged with murder with specials.) What other issues did SB 1146 take away from the jury?

In People v. Epps (2001) – Cal.4th – [3/5/01], the Supreme Court thinks that while Apprendi does not confer a right to a jury trial on “the bare fact of a prior conviction”, state law does. Epps also noted the possibility that in Rare cases there will be other issues for the jury, such as the authenticity of documents used to prove the prior. However, since the jury trial right is based solely on state law, its denial is subject to the Watson test of harmless error. (As noted above, Epps reserved the question whether there is a federal constitutional right to a jury trial on the facts which make a prior a strike, such as the residential nature of a burglary, or whether an assault involved personal weapon use.)

ii. What evidence may be used?

Federal constitutional questions aside, California has developed a large body of case law on what forms of proof are and are not acceptable. In People v. Reed (96) 13 C4th 217, the Supreme Court held that each piece of evidence used to prove the “extra” element of a prior (e.g., personal use of a deadly weapon) had to be admissible under some statutory exception to the hearsay rule. The Court then went on to admit a PX transcript as “former testimony”, finding the declarants unavailable on the dubious ground that People v. Guerrero (1988) 44 Cal.3d 343 made them unavailable.

However, the good news in Reed is that the Court recognized that proof of priors is subject to the rules of evidence and the Confrontation Clause; it rejected the AG’s argument that proof of priors is just a sort of sentencing hearing, not bound by the trial rules of evidence. Furthermore, the burden of proof of facts which make a prior a strike is on the prosecutor, and an inconclusive record is not sufficient proof. (People v. Henley (1999) 72 Cal.App.4th 555: DA must prove that the personal injury which make the prior a strike was not inflicted on an accomplice – a fact not litigated in the prior case.)

Here are some other cases on admissibility/sufficiency of proof of priors: People v. Rodriguez (1998) 17 Cal.4th 253: An abstract showing that D pled to “245 ASLT GBI/DLY WPN” isn’t enough to show that this particular ADW was a serious felony. (But an abstract of judgment, showing D got a 3-year enhancement under an illegible statutory provision – presumably 12022.7 – plus a 969b record indicating “245 … w/gbi (12022.7)” is sufficient: Ruiz, (99) 69 CA4th 1085, rev. den., distinguishing Williams (96) 50 CA4 1405, which held that “ADW” on the 969b packet was not enough. “Here we do not rely on the prison documents to provide independent information about appellant’s prior crime, but to determine the content of the now-illegible portion of the abstract of judgment.”.)

Given Rodriguez, CA2/3 rejects Guerrero (93) 19 CA4th 401, which held that a plea to a prior containing alternative kinds of conduct is a plea to each kind of conduct: Cortez (99) 73 CA4th 276. So does CA2/4, in Jones,(99) 75 Cal.app.4th 616: D’s plea to violating 18 USC 2113(a) does not establish that he violated it in a way which constitutes a Calif. serious felony.

P. v. Encinas, CA2/7, 62 CA4th 489: An abstract showing a conviction for “PC 245(c) Assault Officer [on]” isn’t enough; without further proof, “we must presume that the prior conviction was for the least offense punishable under the … law.” (Quoting Rodriguez here.)

People v. Lewis (1996) 44 Cal.App.4th 845: CA 4/1 applied regular hearsay rules to hold that a DA’s summary of the facts, and a judge’s post-judgment description of a 1967 Louisiana case, were inadmissible. But in People v. Woodell (1998) 17 C4th 448, the Supremes held that the “record of conviction” isn’t limited to the trial court record; an appellate opinion may be included. (The Court does note that the appellate opinion may not be sufficient to prove factual questions, if the missing facts were not relevant to the issues on appeal.) The Court approves People v. Harbolt (1997) 56 Cal.App.4th 294 (rev. gtd, S063658, and then opinion republished, following the publication of Woodell, at 61 CA4th 123), which reached the same conclusion.

As for the “hearsay” objection to court records, based on Reed, Woodell held that an appellate opinion comes within the “official records” exception. (EC 1280). But that hearsay exception only establishes the fact of conviction. Do the statements in the opinion about defendant’s conduct — here, about the question of whether he personally used a weapon — come within any hearsay exception? The Court really dodges this one, by holding that the statements are admissible for the nonhearsay purpose of “determining the basis of the conviction.” (Mosk dissents from this aspect of the opinion. The appellate opinion “proves his crime and the basis of his liability only by proving his conduct.”)

The Woodell majority does concede that “if the opinion refers to facts in a fashion indicating the evidence was disputed and the factual issue unresolved, that reference would have little, if any tendency to show the basis of the conviction and would, alone, not justify admitting the opinion.” (But in how many cases can you argue that the basis of conviction is clear? Given People v. Santamaria (1994) 8 Cal.4th 903?) This holding seems ripe for attack; if Apprendi creates a right to a jury trial on the facts which make the prior a strike, surely it creates the right to confrontation, and to due process reliability of evidence.

People v. Monreal (1997) 52 Cal.App.4th 670: D’s statements in probation report are admissible, because they clear two hearsay exceptions: party admissions, and official records. People v. Houck (1998)66 Cal.App.4th 350 [opn. after retransfer]: The PX transcript is not a “document that reliably reflects the conduct of which a defendant was convicted”, where D was convicted in a jury trial. The prosecution should have brought in the RT of the trial; Reed‘s approval of the PX transcript is distinguishable because in Reed the PX was followed by a guilty plea.

In effect, Houck holds there are two questions to ask about the documents offered to prove that a prior is a strike: (1) are they part of the record of conviction? (“The exact parameters of ‘record of conviction’ are yet to be defined,” says Houck.) And (2) do they pass the “reliable reflection” test of Reed?

In an odd variation on the Houck pattern, CA1/4 held that a TC erred when it let in the transcript of the PX but excluded the transcript of the ensuing trial – even though the trial had resulted in a mistrial and the D subsequently pled (without admitting the fact which made the prior a strike.) The error was not in the admission of the PX, but in the exclusion of D’s evidence, which also qualified as part of the “record of conviction” under Guerrero. People v. Bartow (1996) 46 Cal.App.4th 1573.

More cases: People v. Best (1997) 56 Cal.App.4th 41, rev. den.: A Prop. 115 hearsay transcript does not satisfy any hearsay exception for use at trial, so not admissible to prove personal use of a weapon. People v. Sohal (1997) 53 Cal.App.4th 911: D’s adoptive admission at the time he pled to the prior establishes that ADW was a serious felony. But in Jones, CA2/4, (99) 75 Cal.App.4th 616, D’s plea to “bank robbery in violation of 18 USC 2113(a)” is not enough to show that he admitted violating the statute in a way which actually is a bank robbery in California. “Bank robbery” is a reference to the statute, not a description of conduct.

Does the uncertainty about what evidence a court may consider, to determine retrospectively that a prior was a serious felony, create an unconstitutional vagueness? People v. Murphy (2001) – Cal.4th – [3/29/01] poses the question, but says it is not necessary to answer it in that case.

iii. Which priors are per se serious felonies?

Without additional proof of the facts of the prior offense, which priors qualify as serious felonies? The Supreme Court has rejected a previously winning argument, that a 1990 or later first degree burglary is not necessarily a serious felony. The argument was based on the fact that the burglary statute included houseboats, while the serious felony statute didn’t. The Court thought that “inhabited dwelling house” in section 1192.7 was a broad enough term to include houseboats. People v. Cruz (1996) 13 Cal.4th 764.

And “lewd or lascivious act on a child under 14”, a serious felony under § 1192.7(c)(6), has been held to include a prior conviction for § 288a, subd. (c) (oral cop on child under 14), even though “lewd or lascivious act” has been held in other contexts to include a specific intent element (see Martinez (95) 11 C4th 434) which is missing from § 288a. (People v. Murphy (2001) – Cal.4th [[ [3/29/01.])

Rodriguez, (99) 69 CA4th 341: a prior in which D “proximately caused” great bodily injury (PC 148.10) is not necessarily a prior in which he “personally inflicted” it, as required by PC 1192.7(c)(8); it was reversible error to let the jury find a serious felony based on a proximate cause instruction.

Note also: The fact that the prosecutor forgot to get an admission in the prior case, that a section 969f allegation was true (that the offense was a serious felony) does not stop a court in a subsequent case from revisiting the question, and determining that the prior was in fact a serious felony. People v. Leslie (1996) 47 Cal.App.4th 198. In fact, CA 2/7 says that there is no requirement even to plead that a new offense is a serious felony under 969f, unless that offense is going to be enhanced with priors. People v. Thompson (1997) 59 Cal.App.4th 1271.

Where the prior was a wobbler, when is it a misdemeanor rather than a felony, within the requirements of 667(d)(1) (“The determination of whether a prior conviction is a [strike] … is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor”)? Under § 17(b)(1), it’s an automatic misdemeanor when the ct imposes summary probation (rather than ISS) to terminate upon completion of jail time. (Soto (85) 166 CA3d 770 distinguished.) Glee, (00) 82 CA4th 99.

iv. Retrial of priors?

SO FAR, THERE IS NO JEOPARDY BAR TO RETRYING INADEQUATELY PROVED PRIORS: Monge v. California, (98) 524 US 721 [118 S.Ct. 2246] affirms People v. Monge (1997) 16 Cal.4th 826. (Scalia, Souter, Ginsburg, and Stevens, diss. Can the majority holding survive Apprendi?) An abstract and prison packet, which characterized D’s offense as “PC245(a)(1) ADW GBI” and “ASLT W/DW (245(a)(1)PC)” were insufficient to prove personal DW use — but there is no jeopardy bar, federal or state, to letting the DA try again.

In fact, there isn’t even a jeopardy bar to retrying the facts about a new offense which make it a serious felony: People v. Hernandez, (98)19 C4 835. (Werdegar, Mosk, and even Brown have some problems with this constitutional conclusion, and would avoid reaching it, since the case might be resolved on statutory grounds.)

But, says CA4/1, Monge and Hernandez noted there might be other bars to retrial – if not double jeopardy, then due process, or res judicata, or collateral estoppel? Mitchell (00)81 CA4th 132, holds that res judicata is a separate equitable doctrine, which may be available where DJ is not. CA 2/3 strongly disagrees with Mitchell‘s application of res judicata/collateral estoppel to this situation. However, law of the case may prevent reversal of a “not true” finding of a strike prior unless the DA presents new evidence at retrial: Scott,(00) 85 CA4th 905. CA2/4 holds law of the case and res judicata require the DA to present “additional” evidence – but it does not have to be “newly discovered.” (Cherry v. Superior Court, 2/7/01.)

Following Monge, CA4 has held that where the “personal use” allegation in the prior proceeding was dismissed per 1385 – and even where it was found not true – the prosecution can still prove in the current case that the prior was a strike, based on the fact of personal gun use. Blackburn (99) 72 CA4th 1520.

6. No “Brought & Tried Separately” Requirement?

What if the defendant has two priors, but they were incurred in a single case? Can they be two strikes? Yes: People v. Fuhrman (1997) 16 Cal.4th 930.

What if one of the priors was stayed, under section 654, because it was part of an indivisible transaction with the other?

D still has two strikes: People v. Benson (1998) 18 Cal.4th 24, a 4-3 decision. (What if the two counts are based on a single act? Would a trial court abuse its discretion by refusing to strike one of the priors under § 1385?)

Finally, a gun use enhancement in the prior case, which was dismissed (before it was admitted or found true) under section 1385, can still turn that prior into a serious felony: People v. Blackburn (1999) 72 Cal.App.4th 1520.

7. Proof of Foreign priors

In re Jones (1994) 27 Cal.App.4th 1032, rev. den. 11/17/94, holds that Crowson‘s “least adjudicated elements” test for foreign priors was overruled by Myers/Guerrero. Subsequently, CA 4/1 assumed that Myers and Guerrero applied to strikes: People v. Lewis (1996) 44 Cal.App.4th 845.

SPECIFIC PRIORS: People v. Purata (1996) 42 Cal.App.4th 489: Finds that a Texas prior qualifies on a (very strained) statutory elements comparison, looking only at the statute and disregarding Texas case law. So the CA doesn’t decide whether it could consider other evidence.

People v. Howard (1996) 47 Cal.App.4th 1526: A foreign prior which has the same elements as a Calif. serious felony is usable, even if the foreign state does not recognize a defense which California does recognize. Howard also looks, Guerrero-style, to D’s admissions in the record of the foreign case.

P v. Avery,(00) 83 CA4th 997 rev. gtd, S092426: Like the Oregon theft discussed in People v. Marquez (1993) 16 Cal.App.4th 115, a Texas theft is not necessarily a California theft, because it includes taking without an intent permanently to deprive. (Rejects AG’s argument that Davis (98) 19 C4th 301 extends Calif theft to takings which deprive the owner of economic value of property, and that this includes Texas and Oregon thefts. Rev. gtd. on whether a temporary deprivation which nonetheless deprives the owner of most of the value of the property satisfies the intent element for a California theft.)

7.a Can Foreign Priors be used at all, in 3rd Strike Cases?

Yes. So much for the idea that section 1170.12(c)(2)(A) means what it says. See People v. Hazelton (1996) 14 Cal.4th 101. While the entire court agreed on the result in Hazelton, there were two separate lines of reasoning. Justice Brown, writing for the 4-judge majority, thinks that section 1170.12(c)(2)(A)’s reference to “paragraph (1) of subdivision (b)” defines the offenses but not the forum which will qualify priors. Does this mean that juvenile priors which are not serious/violent felonies can’t be third strikes?

Mosk, Werdegar, and Kennard all get to the bottom line by reasoning that section 1170.12 didn’t repeal section 667.

8. Juvenile priors:

a. Constitutional Issues: Right to a Jury Trial

The constitutional argument that juvenile court priors can’t be used, because D didn’t have a right to a jury trial (see Baldasar v. Illinois (1980) 446 U.S. 222; but see Blanton v. North Las Vegas (1989) 489 U.S. 538, 545, fn. 2) received a major setback from Nichols v. US (1994) 114 S.Ct. 1921. Nichols held that an uncounselled prior misdemeanor could be used to enhance a later sentence under the US Sentencing Guidelines, However, Nichols noted that the prior is treated as a sentencing fact under those guidelines, and the process of factfinding at sentencing is “less exacting than the process of establishing guilt.” Does this distinguish the federal scheme from California’s rules for proving priors?

OPINION: A juvenile proceeding is enough due process, for a conviction to become a strike: People v. Graham (1997) 53 Cal.App.4th 1288; rev. gtd., S061117., and dism; P v. Fowler (99) 72 CA4th 581; and In re Myresheia W. (98) 61 CA4th 734: in an appeal from the juvenile adjudication (which hasn’t yet ripened into a strike), the CA holds that the 3x law does not change the rules of juvenile procedure. There’s still no right to a JT.

b. Other Constitutional Issues: Section 667(d)(3)(B) says juvenile strikes may include anything on the W&I § 707(b) list, as well as any serious or violent felony. There are some crimes on the 707(b) list which aren’t serious or violent felonies. If your D has a juvenile strike prior based on one of these, there’s an equal protection argument to be made. (If adult priors only put you in the strike zone if they are serious or violent felonies, why should a juvenile prior which isn’t serious or violent be a strike?)

In People v.Garcia (99) 21 Cal.4th 1, the Supreme Court did not answer this constitutional argument. It reviewed the converse situation, where the juvenile prior was clearly a serious felony, but not necessarily a 707(b) offense. It held that a minor must have been adjudicated guilty of some 707(b) offense in the same proceeding, though not necessarily the same offense which is being used as a strike. (This is the Court’s way of reconciling subds. (B) and (D) of § 667(d)(3).) But it did not decide what happens when a defendant has only a 707(b) offense but no serious or violent felony on his juvenile record.

c. Juvenile Priors: Statutory Issues: How about serious/violent felonies which are not on the section 707(b) list? Though there are fewer of these than there were before Proposition 21, they can still be found. In People v. Garcia, (99) 21 Cal.4th 1, the Supreme Court decided that there must be some 707(b) adjudication on D’s juvenile record, in order to give effect to § 667(d)(3),subdivision (D) – but it does not necessarily have to be the same offense which is being charged as a strike. If D has, say, a juvenile burglary and also a 707(b) offense, he’s strikeable. (Does the 707(b) offense have to have been adjudicated in the same proceeding as the serious felony? Apparently so: “Such adjudication is limited, by context, to the proceedings that led to the prior juvenile adjudication currently alleged as a strike.”)

Following Garcia, CA3 holds that a juvy adjudication for 243(d), battery with serious bodily injury, is not a strike. It’s not enumerated in 707(b), and is not necessarily “assault by force likely”, which is the closest felony enumerated in 707(b)(14). Fountain,(00) 82 CA4th 61. (Fountain assumes, without discussion, that the TC in the new case could determine, a la Guerrero (88)44 C3d 343, that the juvy prior was a 707(b) offense — if the record did support such a finding. An actual 707(b) finding in the prior proceeding is not necessary. Fountain only got off because the record did not support a retroactive finding that the prior offense could have been a 707(b) offense.)

d. Juvenile Priors: Fitness Hearing Required?

Under section 667(d)(3)(C), the minor must have been “found to be a fit and proper subject to be dealt with under the juvenile court law.” Does this mean he must have actually had a fitness hearing, and have defeated the DA’s attempt to remand him to adult court? No, an implied finding is enough — and there is an implied finding even if no one ever sought a fitness hearing in the juvenile case: People v. Robert V. Davis (1997) 15 Cal.4th 1096. (A 4-3 opinion, over strong dissents by Mosk and (separately) Kennard, each joined by Werdegar.)

9. Conflict Where Same Lawyer Represents D on Prior and on New Case?

Since competent representation will always include investigating a motion to strike priors, counsel who has represented D on the prior (or whose firm has done so) has at least a potential conflict of interest in representing D on the new case. Implicitly, People v. Dancer (1996) 45 Cal.App.4th 1677, 1686 recognized this as a potential (though limited) conflict.

** Briefbank

San Diego Bar Assn. Committee on Legal Ethics, Opn. No. 1995-1: Counsel must at least advise D of the potential conflict. Where the conflict becomes actual (where grounds are found for a motion to strike priors) it is doubtful whether even an informed waiver of the conflict is sufficient.

In re Richard Givens, A0_____(Appeal No. A067630) Habeas petition, Arg. III: PD’s Office had a conflict of interest in attacking prior in which they had represented Givens.

10. Is Petty with a Prior a New Felony?

Yes: People v. Terry (1996) 47 Cal.App.4th 329, rev. den.; People v. Stevens (1996) 48 Cal.App.4th 982; People v. Bury (1996) 50 Cal.App.4th 1873; People v. Nguyen (1997) 54 Cal.App.4th 705, rev. den. But see the opinion on denial of cert. in Riggs v. CA: 4 Supreme Court justices have some problems with a life sentence for petty theft. 525 US 1114 (1999). Two of them are ready to grant cert now: Durden v. California, No 00-6479, 2/20/01 (Justices Souter and Breyer dissenting from denial of cert.)

11. Timely Charging of Strike Priors

A strike does not have to be pled and proven at the PX: See People v. Valladoli (1996) 13 Cal.4th 590. (Not a Three Strikes case, but apparently controlling on the issue. See also P. v. SC (Arevalos) CA 4/1, 41 CA4th 908, 911. On the other hand, a prosecutor who waits until after a defendant has begun serving his sentence to add on priors is too late; the trial court loses jurisdiction at that point: Cano v. SC (P) (99) 72 CA4th 1310.

In between those two extremes, is a post verdict amendment to the information, to add priors, permitted? NO: P v. Tindall, – Cal.4th – [12/28/00]: overruling an enthusiastic Court of Appeal, the Supreme Court find that the DA can’t charge priors after the jury has been discharged. In Tindall, the jury returned a verdict on the new case; D waived jury on his (one year) priors; the court discharged the jury; and then the DA found that D had 3 strikes. DA moved to amend; D objected; D withdrew his JT waiver, but continued to object to the late amendment. After one mistrial, a jury found that D had 3 strikes.

The Supreme Court found that § 969a and Valladoli do not allow such a late amendment – D still has a right to have the same jury decide guilt and priors under § 1025(b), whether that right inures to his benefit or not. Thus, absent a waiver of jury, the trial court loses jurisdiction to entertain an amendment charging priors after the jury is discharged. “Without clear legislative intent to the contrary, we choose not to allocate greater significance to section 969a over section 1025, or vice versa.”

If the prosecutor wants to bifurcate proof of the priors at trial, to avert the possibility of jury nullification, apparently it is OK for the judge to bifurcate over defense objection. People v. Cline (1998) 60 Cal.App.4th 1327.

II. Two Strikes Computations (§ 667(e)(1))

When the base term is a determinate term, the trial court has discretion under section 1170 to choose the upper, middle, or lower term before doubling it: People v. Keelen (1997) 56 Cal.App.4th 1093, fn. 5.

1. Can a strike prior also be used to enhance?

Yes: People v. Dotson (1997) 16 Cal.4th 547, although a third strike case, appears to dispose of all the arguments we have thought up against dual use in both second and third strike cases. Some of Dotson‘s reasoning is inscrutable. (E.g., Dotson says that § 667(a)(2) — 5-year enhancements “shall not be applied when the punishment imposed under other provisions of law would result in a longer term” — has no effect unless the other “punishment” is another enhancement.) But the vote was unanimous.

WARNING: You should look for this as an “adverse consequence” in any case where the trial court did not impose a 5-year enhancement which was pled and proven. The CA will likely (in fact, almost certainly) find the unenhanced sentence is “unauthorized”, and add the enhancements on to your client’s sentence. E.g., People v. Ayon (1996) 46 Cal.App.4th 385, 395-396; People v. Ingram (1995) 40 Cal.App.4th 1397, 1411-1412.

On the bright side, some courts, after sticking an appellant with an extra five years, will remand for the trial judge to exercise whatever sentencing discretion she has left to mitigate the adverse consequence. (But see P v. Purata, CA 4/1, 42 CA4th 489, 497-499, rev. den., where the CA added on 5 years without remanding.) If you’re facing an adverse consequence like this, try arguing for that remand.

1.5. Other Dual Use Issues

Where the Strike is an Element of the New Offense:

What if the strike prior is also an element of the new offense (e.g., of § 290, or § 4532 or § 12021)? Here, the argument against dual use derives from People v. Edwards (1976) 18 Cal.3d 796 and People v. Wilks (1978) 21 Cal.3d 460, cases which the Supreme Court expressly declined to overrule in People v. Baird (1995) 12 Cal.4th 126 and People v. Coronado (1995) 12 Cal.4th 145.

Pending in the Supreme Court is P v. Garcia, S081934, a section 290 case, where the triggering sex offense was used as a strike to double the statutory sentence. There was no “extra fact” about the prior to take it out from under the Edwards rule, as there was in Baird. However, the Court of Appeal found that dual use was mandated by the phrase “notwithstanding any other provision of law …” in the 3x law. (The source of this idea is P v. Tillman, CA1/2, (99) 70 CA4th 710.)

Where the prior is a felony booster rather than an element:

What if the prior isn’t an element (as in § 12021), but rather a felony booster (as in § 666)?

You can’t make an argument based on Edwards, that dual use is prohibited. In People v. Darwin (1993) 12 Cal.App.4th 1101, the Court of Appeal held (against a lot of contrary authority) that Edwards had survived the enactment of the Determinate Sentencing Law. But then Darwin went on to hold that Edwards had no application when the prior was a felony-booster (rather than an element) plus an enhancement. (See also P v. White Eagle, 48 CA4th 1511.)

Coronado (95) 12 C4th 145, also approved the dual use of a felony-booster prior, under VC 23175 and as a prison prior under § 667.5. With no citation to Edwards — suggesting that, indeed, Edwards has nothing to say about felony-boosting (as opposed to element) priors — Coronado rested its result on a discussion of legislative intent, overlapping (or nonoverlapping) subsets, and a special/general analysis.

Since most felony-boosting priors don’t overlap a lot with strikes, this kind of dual use is not a promising area for argument.

But see the opinion on denial of certiorari in Riggs v. California, in which four Supreme Court justices expressed concerns about punishing petty with a prior with a life sentence. (1999,525 US 1114; see also dissent from denial of cert in Durden v. California, 2/20/01, No. 00-6479.)

Where the strike is used to double each of two counts:

People v. McKee, CA 2/6, 36 CA4th 540 rejects an argument that you can’t use a single strike prior to double both the base term and the subordinate term. McKee rejects the argument that the doubling is a priors enhancement, which may only be done once, under People v. Tassell (1984) 36 Cal.3d 77. Even if the doubling were an enhancement (which it isn’t), the “notwithstanding any other law” provision of § 667(c) wipes out Tassell. (For some disagreement about whether Tassell lives, see below, under II.2: “What `Determinate Term’ is doubled?”) This “notwithstanding” language also wipes out former rule 425(b) as a bar to doubling both terms. Same: People v. Hill, CA 3, 37 CA4th 220.

Where the strike is used to aggravate a base term:

There’s no dual use bar to this, says People v. McClain (1997) 59 Cal.App.4th 696: “Neither statute nor rule prohibits relying on the same prior conviction both to invoke an alternative sentencing scheme and impose an upper term.”

2. What “determinate term” is doubled? Base term alone? Base term plus conduct enhancements? Base term plus conduct enhancements plus priors?

The first published decision on this issue is People v. Martin (1995) 32 Cal.App.4th 656, rev. den. Martin holds that you double the base term and subordinate terms, but not enhancements. (See also People v. Ramirez (1995) 33 Cal.App.4th 559, 573-574; People v. Dominguez (1995) 38 Cal.App.4th 410.)

(Note: to get to this result, Martin held that a subordinate term is not an enhancement. It didn’t discuss People v. Lawson (1980) 107 Cal.App.3d 748 or People v. Bejarano (1981) 114 Cal.App.3d 693, 704-5, cases which long ago had held that consecutive terms were enhancements, at least for purposes of the “dual use of facts” prohibition.

Are those subordinate terms really subordinate? That is, when there’s a consecutive count, do you double 1/3 the midterm, or do you double a full consecutive term? Answer: double the aggregate term as you would calculate it under 1170.1, that is, the full base term and the 1/3-midterm subordinate terms. P v. Nguyen, (99) 21 Cal.4th 197.

3. What if the second strike is an indeterminate-term offense?

You double the minimum period of confinement, which is a “term” within the meaning of DSL and Three Strikes. For a “straight life” sentence, you double the 7-year minimum provided by section 3046. Where some other law provides for a longer minimum (here, it was § 186.22(b)), you double that minimum. But you don’t impose two life terms; you impose one life term, with a longer minimum. People v. Jefferson, (99) 21 Cal.4th 86, 94. (Werdegar and Mosk, diss.) There’s a split on whether an LWOP term can be doubled: Hardy,(CA 2/2,99) 73 CA4th 1429 (yes); People v. Smithson (2000) 79 Cal.App.4th 480 (no).

Presumably, any conduct enhancements attached to those consecutive life sentences are served at full-strength. They are not subject to the 1/3 rule of § 1170.1, for enhancements to subordinate determinate terms. In a non-3x case, People v. Felix,(00) 22 C4th 651, the Supreme Court held that life terms — both “straight life” and “25-life” — are “indeterminate”, that is, not subject to any of the DSL sentencing rules. A defendant serving consecutive terms for murder and attempted premeditated murder, each carrying a gun use enhancement, serves two full term enhancements. See also P v. Lyons (99) 72 CA4th 1224: conduct enhancements are added full strength to CS third strike terms, because these are indeterminate, and thus not subject to the 1/3 midterm limit of § 1170.1.

As for the real “something to life” terms, doubling the minimum term does not violate any proscription against modifying the Briggs Initiative, section 190. (See People v. Ruiz (1996) 44 Cal.App.4th 1653, citing People v. Jenkins (1995) 10 Cal.4th 234.)

See also People v. Ervin (1996) 50 Cal.App.4th

259, holding that where D’s new rape term is 15-life under § 667.61(b), and he also has a strike prior, he gets sentenced under both laws. His new sentence is 30 to life.

III. Three Strikes Computations (§ 667(e)(2)(A))

General rules: See § 667(e)(2)(A). A third-striker gets an indeterminate term, with the minimum calculated as the longest of:

“(i) Three times the term otherwise provided as punishment for each current felony conviction …

(ii) 25 years, or

(iii)The term determined by the court pursuant to section 1170 for the underlying conviction, including any enhancement applicable under …

section 1170 … or any period prescribed by section 190 or 3046.”

In calculating the (i) option, the trial court retains its section 1170 discretion to choose the upper, middle, or lower term before tripling. The fact that a tripled upper term would exceed 25 years, while a tripled middle term would not, does not compel the TC to choose the upper. In People v. Keelen (1997) 56 Cal.App.4th 1093,(republished after rehg on 3/26/98; rev. den. 7/8/98), CA 2/7 remanded for a choice of base term, because the TC had been under the misapprehension that it was required to triple the upper term.

1. Same question as in two-strikes: Can a strike prior be used to enhance?

Yes. People v. Dotson (1997) 16 Cal.4th 547.

2. Same question as in the two-strikes section: What term gets tripled in (i)? (See entries under II.2.)

The “term” to be tripled, to calculate the minimum term of a 3x life term, does not include any enhancements. Otherwise, subsection (iii) would be superfluous; if (i) allows the tripling of a term and the tripling of its enhancements as well, that choice would always be longer than (iii), which is an untripled term plus enhancements. Anderson (1995) 35 CA4th 587, 596.

Enhancements get added on, once, to the (i), (ii), or (iii) term, by force of the “umbrella” clause (“in addition to any other enhancement or punishment provisions which may apply ….”) and by force of 667(e)(2)(B) (“The indeterminate term … shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.”) People v. Dotson (1997) 16 Cal.4th 547.

The AG has come up with a bizarre argument that (e)(2)(B), as construed in Dotson and in Hendrix, takes away the power to strike those enhancements which a court would otherwise be able to strike under section 1385. (E.g., § 667.5(b) enhancements, and, presumably, conduct enhancements.) CA 2/5 rejected this argument in People v. Bradley,(98) 64 CA4th 386,rev. den.

3. When the third strike carries an indeterminate term, do you have to use the longer of options (ii) or (iii), rather than the multiplier provisions of option (i)?

See People v. Jefferson (1999) 21 Cal.4th 86, discussed above under II.3 (Second strike cases where the new offense carries an indeterminate term.) Following Jefferson, how do you calculate a third strike term, where the new offense carries (a) a straight life term? Or (b) a x-to-life term?

CA2/7 takes at face value Jefferson‘s dictum that the law does not call for tripling the minimum term of an indeterminate term for third strikers. (This dictum is at 21 C4th at 99.) Accordingly, says People v. Dozier (2000) 78 Cal.App.4th 1195, a third striker with a “straight life” new term gets the longer of (ii) or (iii) – at least 25 to life. It makes no sense, says Dozier, to attempt to calculate the sentence under (i). To do so, you would have to triple a life term and then call that the “minimum term of the [third strike] indeterminate sentence.”

CA4/2 does not have this logical problem with calculating a third strike term under (i), at least where the new offense is first degree murder, carrying a 25-life term. Following Jefferson‘s lead, People v. Mendoza (2000) 78 Cal.App.4th 918 simply triples the minimum term, getting to a result of 75-life. (See also People v. Diaz (1997) 54 Cal.App.4th 1499, a pre-Jefferson case. Note that even if Dozier had agreed that the minimum term of an indeterminate sentence could be tripled under (i), on its own facts it would have had to reject that calculation for the (ii) option, which was longer than 21-life.)

Dozier may lead to anomalously short (!) terms for third strikers whose new offenses carry sentences like 25-life; they would be sentenced under (ii) or (iii) to essentially the same sentences they would get if they had no strikes. The Supreme Court has granted review to address this question in a case where the third strike carried 25-life under section 667.61 (aggravated sex offenses.) The case is People v. Cornelius, formerly at 79 Cal.App.4th 771.

4. Since a third-strike offense now carries a life term, does the defendant get 20 peremptories? Good luck.

IV. Multiple Counts in the Current Conviction (§ 667(c)(6),(7))

Section 667(c)(6) governs mandatory consecutive terms for multiple new felonies: ” . . . 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).”

Conversely, if the two new counts are committed on the “same occasion” or “arise from the same set of operative facts”, then concurrent sentencing is an option: People v. Deloza (1998) 18 Cal.4th 585; People v. Hendrix (1997) 16 Cal.4th 508.

Section 667(c)(7) applies where two or more of the new offenses are serious or violent felonies However, Deloza and Hendrix hold,(c)(7) incorporates the “same occasion/same operative facts” rule of (c)(6), with regard to mandatory consecutive sentencing for those new offenses.

So what’s the difference between the mandatory-CS sentencing rules for multiple new nonserious/nonviolent crimes, and for multiple new serious/violent crimes? For the latter — unless they fit into a “same occasion” exception — the new counts must be consecutive not only to each other, but “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (Again, Hendrix, 16 Cal.4th at p. 514.)

The first thing to check, in any case where 667(c)(6) or(7) is invoked, is whether there really are multiple new offenses. Do both of the offenses which are being sentenced consecutively post-date the Three Strikes law? Where D was convicted of a felony before the law was passed, and was on probation for that felony when he was sentenced for a post-Three Strikes offense, the old offense is not a “current conviction.” Even if D is being sentenced on the probation violation offense for the first time, that old case is a prior, not a current, conviction. (People v. Rosbury (1997) 15 Cal.4th 206.) And with only one current conviction, 667(c)(6) doesn’t even come into play.

1. What do the terms “same occasion” and “same set of operative facts” mean?

a. The Supreme Court has finally nixed the idea that these phrases are a restatement of section 654.

In People v. Deloza (1998) 18 Cal.4th 585, the defendant was convicted of four counts of robbery based on a single store holdup. (He took property from three salespeople and a customer.) Obviously, the four counts were separately punishable under section 654, given the Neal (Neal v. Calif.(1960) 55 Cal.2d 11) rule. But they were not committed on “separate occasions” – so concurrent sentencing was permissible.

“[S]ection 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively…. Section 654 does not allow any multiple punishment, whether concurrent or consecutive…. Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment.” (18 Cal.4th at p. 594.)

Of course, section 654 is still applicable to three strikes cases. Does it apply only when section 667(c)(6) would otherwise permit concurrent sentences? Or can it operate to stay the sentence for an offense which is “not committed on the same occasion, and not arising from the same set of operative facts” as another offense? Put differently, does the mandatory-consecutive provision of (c)(6) create a legislative exception to section 654? People v. Danowski (1999) 74 Cal.App.4th 815 is not sure. People v. Jones (1998) 67 Cal.App.4th 724 suggests that perhaps it does.

b. How close in time must two crimes be, to be on the “same occasion” or arise from the “same operative facts“?

The Deloza court refused to incorporate into Three Strikes the definition of “same occasion” included in section 667.6(d). It also noted that “same occasion” as used in section 186.22 has never been definitively construed. For purposes of three strikes, here’s as close as Deloza comes to a definition of the phrase: “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’.” (18 Cal.4th at p. 599.)

Obviously, more definition was needed. In People v. Lawrence,(00) 24 Cal.4th 219, the Supreme Ct.(by split vote, 4-1-2) overruled CA2/3’s broad definition of “same occasion”, and found that a D who shoplifted from a store, ran across the street, cut into a residential backyard and assaulted the homeowner, did not commit his two felonies (666 and 245) on the same occasion – even though they were a few minutes and a couple of blocks apart.

Nor did the two offenses arise from the same set of operative facts. They did not share “common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted” — mainly because the theft/burglary was completed before the assault was begun? (See 24 Cal.4th at p. 233, citing with approval Durant, below.)

Following Deloza, CA2/4 found itself unable to decide whether a § 496 count and a conspiracy count occurred on the same occasion. It remanded for the TC to hold a sentencing hearing on whether CS sentences were mandatory: P.v.Hall,(98) 67 CA4th 128. The same court found that a witness-intimidating count, though committed in furtherance of the same objective as the burglary count, occurred later in time – and thus required a mandatory consecutive sentence. (“There is no exception to mandatory CS sentences when one offense is in furtherance of the other.”) Marlin Jones,(98) 67 CA4th 724.

CA 4/1 has seconded the idea that simply because one count is in furtherance of another – or multiple counts are in furtherance of a single objective – that doesn’t mean they are on the “same occasion.” And “same set of operative facts” is a very restrictive test; the CA suggests (without quite holding) that if one crime is legally complete, another does not involve the SSOF. (E.g., burglary and its target offense have separate operative facts??) People v. Durant,(99) 68 CA4th 1393. (Durant involved sequential burglaries, which the TC thought were pursuant to one intent: “He was going to burglarize a house to get something to pawn, and when he realized that intention he stopped …”)

Note that in spite of this factual finding, the Durant CA reversed a TC’s decision to impose concurrent sentences. It held that under the facts of the burglaries (apparently, the fact of D’s intent was irrelevant), concurrent terms constituted an “unauthorized sentence.” So watch out for this potential adverse consequence of appeal.

Implicitly, CA2/5 agrees with Durant‘s rejection of the idea that a single objective is the equivalent of “same occasion.” Over a dissent by Grignon, Weisman holds that the crimes were on separate occasions (and based on separate operative facts) when D pushed Vic #1 downstairs, ran down past her, got a knife from the kitchen, and ran back upstairs after Vic #2. The majority emphasized the fact that the first assault was completed before the second began, and that D had time to reflect. The dissent argues that the second assault really began first; vic#1 was assaulted only to push her out of the way while D tried to kill vic #2. Jenkins (01) 86 Cal.App.4th 699 (pet/rev filed 3/20.)

c. When do you get a remand, in a case where the trial court has imposed consecutive sentences?

Deloza found that the record affirmatively demonstrated that the trial court thought consecutive sentences were mandatory. (So did People v. Jeffries (2000) 83 Cal.App.4th 15.) What if you have a silent record? Are you stuck with the same remedies given you in People v. Fuhrman (1997) 16 Cal.4th 930?

2. Where D only has one prior strike, but gets multiple new counts: Are all the new counts doubled? If the new counts are to be sentenced consecutively, are the consecutive counts also doubled? Yes. (People v. Martin (1995) 32 Cal.App.4th 656.)

Does the 1/3 midterm rule still hold? That is, do you double 1/3 the midterm, or do you double a full-consecutive term? Yes; the Supreme Court follows the near-unanimous view of the CA’s on this question: Nguyen,(99) 21 Cal.4th 197.

3. Where D has two prior strikes, and gets two new felonies, how to calculate a 3rd strike sentence?

Assuming the two new counts are to be consecutive, how do you calculate a multiple-count sentence where D is a third striker? Hendrix, 16 C4th 508, doesn’t answer the question.

Do People v. Jenkins (1995) 10 Cal.4th 234 (which actually construed § 667.7) and People v. Murphy (2001) — Cal.4th — [3/29/01] (construing § 667.71) mean that the court can impose multiple 3rd strike terms — that is, 50 or 75 to life? See Part IV of the Jenkins opinion, and Part II of Murphy, which allow multiple 25-life terms when there are multiple new offenses.

Or do you calculate an aggregate term under section 1170.1, and then triple it under 667(e)(2)(A)(i) — just as you double the aggregate term for multiple-count second strikers – and then use that tripled term as the minimum term of a life sentence?

The courts have unanimously rejected the latter proposal, in favor of the Jenkins model: People v. Thomas (1997) 56 Cal.App.4th 396, rev. den.; People v. Ayon (CA 4/1, 1996) 46 Cal.App.4th 385; P v. Samuels, CA 2/1, 42 CA4th 1022; P v. Miles and P. v. Nelson, (both CA 2/5) 43 CA4th at 329 and 364, REVIEW GRANTED in NELSON; P v. Ingram, CA 5, 40 CA4th 1397 REVIEW DENIED; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1141-1143.

NOTE: There are major potential adverse consequences lurking here, in any case where D was convicted of multiple third strikes and was sentenced to anything less than 25 to life per count.

BRIGHTER NOTE: The judge can dismiss strikes allegations as to some but not all counts, under People v. Garcia (99) 20 Cal.4th 490. In effect, Garcia allows the judge to use section 1385 to avoid imposing multiple 25-life sentences.

How about enhancements, in multiple-count third strike cases? As far as we know, priors enhancements are added on once;; this aspect of People v. Tassell (1984) 36 Cal.3d 77 is still good law, and applies to Three Strikes cases. But conduct enhancements are probably added to each life term at full strength. See People v. Felix (2000) 22 Cal.4th 651, discussed above at II.3. Felix was not a 3x case, but did involve two consecutive life terms, one “straight life” and one 25-life. It held that the gun use enhancements to each term attached at full strength; because life terms are not determinate, the enhancements are not subject to § 1170.1’s 1/3 rule for calculating subordinate enhancements.

V. Three Strikes Defendant Who is Already Serving a Term

(§ 667(e)(2)(B); § 667(c)(8); § 1170.12(c)(2)(B).)

See § 667(e)(2)(B): The “indeterminate term described in sub¶ (A)” shall be served consecutive to any other term of imprisonment for which a consecutive term “may be imposed by law” and there is no merger of terms.

See also 667(c)(8) “Any sentence imposed pursuant to [Three Strikes] will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.”

(“Otherwise provided by law” incorporates the principal/subordinate calculation scheme of § 1170.1, where D is sentenced to a new offense before he finishes serving his old sentence. D gets a full principal term, doubled, and a 1/3 middle consecutive term, also doubled – but at least (c)(8) does not require full consecutive sentences. People v. Riggs (2001) – Cal.App.4th – [CA3, 2/2/01].)

Thus, if the defendant is already serving a sentence, any strike sentence must run consecutively to it, by virtue of (c)(8). Does (c)(8) also cover the situation where D has a previously imposed but not yet executed sentence, so that when that sentence is ordered into execution, it must be consecutive? No: People v. Rosbury (1997) 15 Cal.4th 206. Where D is on (ISS) probation in an old case at the time his 3x sentence is imposed, he isn’t yet “serving” a sentence.

(As the Supreme Court noted, Rosbury would have lost if his probation had been revoked before his 3x sentence was imposed, rather than afterwards. This is an arbitrary result, the Court agreed, and “we share the People’s implicit concern about races to the courthouse ….” But they didn’t write the statute, did they?)

What effect does Rosbury have on People v. Davis (1996) 48 Cal.App.4th 1105? In Davis, D was on CRC parole at the time his 3x sentence was imposed. CA 6 thought he was “serving a sentence” for purposes of 667(c)(8), and noted the arbitrary results which would ensue if he wasn’t. (Like Rosbury, his exposure to mandatory-CS sentencing would have depended on the order in which the sentences were imposed.) But if those arbitrary results didn’t bother Justice Mosk in Rosbury, can Davis survive?

If D’s old sentence is for a pre-3/7/94 offense, does it violate ex post facto to make it mandatory consecutive to a new sentence? At the time the old offense was committed, the court had the option of sentencing it concurrently to any other offense. (Indeed, that concurrent sentencing option is the whole point of § 1203.2a, which allows a defendant to get himself sentenced on outstanding probations whenever he’s sent to prison for a new crime.) But the Supreme Court says there’s no problem with requiring the old and the new sentences to be consecutive, under (e)(2)(B): People v. Helms (1997) 15 Cal.4th 608.

VI. Earned Credits Limitations (§ 667(c)(5))

§ 667(c)(5): “The total amount of credits awarded pursuant to Article 2.5 (commencing with section 2930) … shall not exceed one-fifth of the total term of imprisonment and shall not accrue until the defendant is physically placed in state prison.”

(But D does not have to be advised of this “collateral consequence” of a plea to a strike offense, in order for the plea to be valid: Barella(99) 20 C4th 261.)

1. There is no impact on presentence credit:

Presentence credits are governed by §§ 2900.5 & 4019 and Sage. People v. Hill, 7/31/95, 37 CA4th 220 [Rev. den. 11/16/95] and People v. Caceres (1997) 52 Cal.App.4th 106. Neither 2900.5 nor 4019 is in the “Article 2.5 etc.” referred to in § 667.5(c). (The Supreme Court confirmed this holding in P v.Thomas,(99) 21 Cal.4th 1122.) Review has been granted on the question whether D earns section 4019 credits while he is in local custody awaiting resentencing: Buckhalter, S086220 (rev. gtd. 5/10/00.)

2. § 2933.1 and § 2933.5 (credit reductions for certain prisoners, more onerous than § 667(c)(5)), survive.

Note that Jenkins held that the (more restrictive) credit rules of § 190 would apply to a murder defendant sentenced under 667.7. (10 Cal.4th at pp. 247-248.) Would this reasoning allow the 2933.5 rules to apply to strikers? Or the new 2933.1 rules? Answer so far: Yes. People v. Caceres (1997) 52 Cal.App.4th 106, rev. den.; People v. Sylvester (1997) 58 Cal.4th 1493, rev. den. (Both these cases involve § 2933.1 credits.)

But section 2933.1 (15 percent limitation, on pre- and postsentence credit, for violent felonies) applies only where the new offense, viewed apart from the priors, is a “violent felony.” In People v. Henson (1997) 57 Cal.App.4th 1380, CA 4/2 rejects the AG’s argument that any third strike offense is a violent felony. (The list of violent felonies includes “any felony punishable by … imprisonment in the state prison for life.” § 667.5(c)(7).)

After all, Henson notes, if a new offense could be classified as a violent felony because of § 667.5(c)(7), it would also be a serious felony under § 1192.7(c)(7). Then all third strike sentences would be subject to three- or five-year enhancements, under People v. Dotson (1997) 16 Cal.4th 547 — even if the new offense was a minor felony. (The Supreme Court agrees with Henson in P. v. Thomas,(99) 21 Cal.4th 1122.)

3. Does the 80% rule apply to those parts of a sentence computed under other statutes?

Yes. See People v. Brady, 34 Cal.App.4th 65. “The total term of imprisonment imposed” includes the components based on older statutes. However, the portion of a sentence which is based on a post-3/7/94 imposition of judgment in a pre-3/7/94 case (e.g., where probation was granted in 1993) gets credits under the old rules: People v. Williams (1996) 49 Cal.App.4th 1641.

4. Any post-sentence credits at all for third strikers?

No. In In re Cervera (01) – C4th – [2/8/01], the Supreme Court While the Three Strikes law restricts the credits which may be awarded under Article 2.5 (§ 2930 et seq.), it “does not itself authorize article 2/5 prison conduct credits for use against indeterminate terms of imprisonment…. Credits of any sort are available only if, and to the extent that, they are authorized.” No other law applies to authorize credits against a Three Strikes indeterminate term. (Compare, for example, § 667.61(j).)

Werdegar,concurring, points out that third strikers can earn 20% credits against any determinate portion of their sentences.

VII. Scope of Judicial Power to Dismiss (§ 667(f)(2))

1. General

A trial court can strike a prior “strike” under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — so long as it complies with the requirement of section 1385 that reasons be stated in the minutes for the decision. (Note: failure to comply with this requirement makes the sentence unauthorized, regardless of its merits. The case can be sent back for a statement of reasons – with no guarantee that the trial court will reach the same decision. Watch for this as an adverse consequence.)

Furthermore, the court can strike priors on some but not all new counts: People v. Garcia (1999) 20 Cal.4th 490. In P v. Burke (56) 47 Cal.2d 45, the Court had noted that a court might strike a prior under 1385 in one context, but use it in another; here, the Court says, it is simply applying the Burke principle where both new cases arise in a single proceeding. The Court even notes that the imposition of a life sentence on one count could be a relevant factor in the decision to strike priors as to another – it certainly bears on the likelihood D will commit future crimes. (Brown, J., dissenting, heaps scorn on this reasoning.)

There are probably few cases left where the sentencing occurred before Romero. Should you have one, note that under People v. Fuhrman (1997) 16 Cal.4th 930, the defendant gets a remand for resentencing only if the record affirmatively demonstrates that the trial judge “committed error or would have exercised discretion under section 1385 to strike the prior conviction if it believed it had such discretion ….”

Does “or” really mean “and” in that last sentence? Does the appellant have to show both that the TC didn’t know it could strike, and also that the TC would have stricken if it could? Apparently not. In People v. Rodriguez (1998) 17 Cal.4th 253 the Supreme Court held that on a record which affirmatively shows that the judge thought he had no power to strike, D is entitled to a remand. The remand order should specify that he may appear personally and with counsel in court to have the judge exercise his section 1385 discretion.

(Rodriguez was anticipated by People v. Vong (1997) 58 Cal.App.4th 1063, where CA 2/7 held that if the record affirmatively shows that the TC didn’t know it had the power to strike, D is entitled to a remand without any further showing that he is likely to get a shorter sentence. Both Rodriguez and Vong suggest that these “affirmative showing” cases contain a built-in likelihood of success on remand: the judge wouldn’t have bothered to articulate his lack of discretion on the record, unless he would have liked to give D a break.)

If you have a silent record case, you must file a habeas petition, or, more likely, you leave it up to your client to file one for himself. (As the three Fuhrman dissenters, Werdegar, Mosk, and Kennard, point out, the indigent defendant is not going to have a lawyer for this procedure.) And then it’s up to the trial court to decide whether to have a hearing.

Even if the defendant files a habeas, the two grounds for summary denial allowed by Romero‘s Footnote 13, following the precedent of In re Cortez (1971) 6 Cal.3d 78, 88-89, were vastly expanded in Fuhrman. Now, the petition may be summarily denied unless the petitioner persuades the sentencing court that his claim has “possible merit” – that is, that the sentencing court not only may but should strike a prior. (16 Cal.4th at 946, fn. 10.)

2. Opinions

A. Standing and Appealability

People v. Gillispie (1997) 60 Cal.App.4th 429: CA 1/1 takes a commonsense approach to the AG’s arguments that D can’t make a “motion” to have the TC exercise its section 1385 discretion, and that D can’t appeal the TC’s refusal to do so.

True, D can’t make a motion; he can only ask the TC to

exercise its discretion. But just as a D can appeal a TC’s failure to exercise discretion under section 1385, he can appeal an abuse of that discretion. “We see no valid distinction between a failure to exercise discretion, and a failure to exercise discretion in a lawful manner.”

Of course, the abuse must appear on the record. The TC does not have to give reasons for refusing to strike. So to win, you really need a judge who puts his foot in his mouth ….

People v. Benevides (CA5, 1998) 64 Cal.App.4th 728: A 1385 denial is appealable, but the appeal is a very limited one. “If the record shows the court was aware of its discretion [when it denied a request to strike priors], summary denial of the allegation [of abuse of discretion] is generally the appropriate disposition.” (The court, of course, does not have to give reasons for declining to exercise its 1385 power. If it does give reasons, an appellate court can review them only if they are improper — e.g., based on race or gender.) But see P. v. Myers,(99) 69 CA4th 305: although the review of a TC’s refusal to strike is deferential, the refusal is an exercise of discretion, and thus reviewable if “irrational or arbitrary.”

Best case to date: see People v. Cluff (1901) – Cal.App.4th – [CA1/3, 3/14/01], below.

B. When do you get a remand?

Before the pre-Romero sentencing cases ran their course, many

decisions considered whether a record was “silent”, or whether it “affirmatively demonstrated” a court’s ignorance of its sentencing discretion. Some of them ordered resentencing without an advance showing that the trial court was likely to exercise its section 1385 discretion. These included: People v. Rodriguez (1998) 17 Cal.4th 253; People v. Vong (CA 2/7, 1997) 58 Cal.App.4th 1063; People v. Banks (1997) 59 Cal.App.4th 20; People v. Newsome (1997) 57 Cal.App.4th 902 [applying same principles to consecutive sentencing decision made before Deloza; People v. Smith (1997) 59 Cal.App.4th 46 [the new twist in Smith is that the appeal followed a plea agreement. But the bargain was not for a specified sentence, and the Romero motion to strike could be made without violating it]; In re Barfoot, CA 2/4, 61 CA4th 923; People v. Saldana (1997) 57 Cal.App.4th 621.

C. When is the TC’s decision an abuse of discretion?

In People v. Williams (1997) 17 Cal.4th 148, all seven Supreme Court justices agreed that a trial court had abused its discretion in sentencing a 3x drunk driver as a second striker. Though his serious and violent felonies were 13 years in the past, he had a lot of minor felonies and misdemeanors before and after his strikes. Hence, he “cannot be deemed outside the spirit of the Three Strikes law in any part”.

As in Romero, the Court was clear that factors “extrinsic to the scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant”, are no good.

What’s different in Williams is that the Court reversed a decision which was based on factors “intrinsic to the scheme”, that is, factors about the defendant’s new crime, his past record, or his character. The Supreme Court didn’t disapprove the trial court’s factors; it just said the trial court had weighed them incorrectly.

The good news is that four of the seven justices said Williams should be allowed to withdraw his plea, since it was “manifestly” induced by the TC’s promise to consider striking a prior. (The other three -Baxter, George, and Chin — said that the TC hadn’t made any hard promises, so the reviewing court shouldn’t give back D’s plea. At most, it should remand for the TC to find facts on whether there was “good cause” to allow him to withdraw it.)

People v. Cluff (2001) – Cal.App.4th – [CA1/3, 3/14/01]: It was an abuse of discretion to give D a life sentence for a “technical violation” of PC section 290, the sex offender registration statute. Here, the decision rests in large part on the fact that the trial court drew inferences (about D’s conduct) which had no support in the record. CA1/3 accordingly declines to decide whether the sentence was cruel and unusual, and notes only that it “appears disproportionate by any measure.” “Neither the Legislature nor the voters intended the Three Strikes law to be used as a nuisance statute to rid society forever of persons who fail to meet technical requirements to confirm an accurate registration.”

People v. Strong (2001) – Cal.App.4th – [CA3, 2/27/01]: Though D’s new offense was nothing worse than selling bunk cocaine, it was an abuse of discretion to find him outside the spirit of the Three Strikes law on the ground that his strike — a knife assault — was “out of character”. (D’s other priors all involved marijuana and theft; most of them were misdemeanors.) See also People v. Stone (1999) 75 Cal.App.4th 707; People v. Thornton (1999) 73 Cal.App.4th 42; People v. Barrera (1999) 70 Cal.App.4th 541; People v. McGlothin (1998) 67 Cal.App.4th 468; and others cited in Strong.

In Gaston,(99) 74 CA4th 310, CA2/4 also reverses a judge’s decision to strike priors: D’s age and diabetic condition not good enough. And, notwithstanding Garcia, 20 C4th 490, neither is the fact that he’s going to do so much time even with 2 strikes that he won’t be a danger to anyone. In Ortega,(2000) 84 CA4th 659, CA ½ finds no abuse of discretion in refusing to strike a current conviction, which will be stayed in any event under section 654, because of the possibility that some day another court will use it as a separate strike. (The argument was based on fn. 8 of Benson, 18 C4th 24, which says it is probably an abuse of discretion to use two counts arising from a single act as two strikes. Counsel was trying to prevent a future court from abusing its discretion, by taking away the 654’d count.)

Note: The court cannot release a convicted D, whose priors have been found true, on “Supervised OR” prior to sentencing, to see how he does in a drug program. A D in this posture — with priors found true and not stricken — is not eligible for probation, and the “supervised OR” at Delancey St. looks a lot like probation. The TC is “not authorized to defer sentencing in order to test D’s amenability to rehabilitation and thereby gather more information relevant to sentencing.” Too bad. (P.v. SC (Roam), CA6,69 CA4th 1120.

Similarly, a creative trial court (Santa Clara) acted unlawfully when it “conditionally” struck a strike prior to send D to CRC. The court must either strike the prior, pursuant to 1385, or not; but it can’t place it into a “kind of suspended animation” while it waits to see how D does at CRC. P v. Carillo, CA6, 3/27/01.

Pre-Williams cases:

People v. Bishop (1997) 56 Cal.App.4th 1245: CA 2/1 rejects the DA’s argument that the TC abused its discretion in striking strikes because priors were old and the new offense not violent. It’s up to the TC to weigh mitigating factors; so long as it cites permissible ones (i.e., it’s careful not to strike for “judicial convenience”) the CA won’t second guess the weight it gives to them. (But see CA1/3’s comment on Bishop in McGlothin: the TC’s discretion does not extend to “substitut[ing] its conclusions for those of the electorate.”)

Unfavorable pre-Williams cases: People v. Humphrey (1997) 58 Cal.App.4th 809: CA 2/6 reverses a TC’s decision to strike a prior, because the sole articulated ground (“the prior strike is 20 years old”) is erroneous. “We must add a new category to the list of improper bases for striking a prior,” the CA says; the age of the prior is an improper basis if D is not otherwise crime free.

People v. SC(Pipkin) (1997) 59 Cal.App.4th 1470. Reviewing a P’s writ petition, CA 2/5 carefully avoids holding that the TC abused its discretion in dealing out 3x cases by striking priors. The holding, instead, is simply that the TC failed to put its reasons in writing, as required by section 1385. So the CA remands for the TC to do this.

D. What Procedure on Remand?

People v. Rodriguez (1998) 17 Cal.4th 253: Based on section 1260 (authorizing remands “for such further proceedings as may be just under the circumstances”), a remand for a Romero hearing entitles D to appear in person and with counsel. (The Supreme Court notes that this is the same result reached in In re Cortez (1971) 6 Cal.3d 78, but declines to rest it on constitutional grounds this time. It also notes that section 977(b)(1) might compel the result — but again, there’s no need to decide, since section 1260 gets them there.)

3. “Cruel and unusual” arguments

There are at least two votes on the US Supreme Court for granting cert in a case where a petty theft – normally a misdemeanor – results in a life term. Durden v. California, NO. 00-6479, Justices Souter and Breyer dissenting from denial of certiorari, 2/20/01.

Souter notes that three justices – himself, Stevens and Ginsburg, agreed to deny cert. two terms ago, in Riggs v. California, 525 US 1114 (1999) only because of “the expectation that rulings by other courts on challenges to the California scheme would be valuable to us in any examination of the issue we might ultimately give it.” But since the California Supreme Court has not taken up the issue, and since the federal district courts are denying relief (and since a case coming up through the federal courts would have to deal with Teague v. Lane 489 US 288 (1989), Souther and Breyer would wait no longer. “The issue is serious, the state courts have had adequate opportunity to consider it, and the stakes are substantial.”

OPINIONS: The California Courts of Appeal opinions are uniformly bad. They include:

People v. Strong (2001) – Cal.App.4th –[CA3,2/27/01](described above under VII.C., “abuse of discretion.”)

People v. Stone (1999) 75 Cal.App.4th 707 (new offense is manufacturing PCP.)

P. v. Martinez (99) 71 CA4th 1502: Life for meth possession and DUI approved. Elaborate interstate comparison: Calif. is longer than other states except Miss. & Louisiana, but not out of line.

People v. Cline (1998) 60 Cal.App.4th 1327: 25-life for shoplifting ($648 worth of clothes) isn’t C&U because he’s a recidivist.

People v. Ayon (1996) 46 Cal.App.4th 385. Having asked for supplemental briefing on whether the “functional equivalent of LWOP” is C&U for a 3rd striker with 7 new robberies, CA 4/1 finds it isn’t.

P v. Cooper, CA 5, 43 CA4th 815: 25-life OK for ex-felon in possession. (Priors are 1977 and 1982 robberies.) Neither Federal nor California standard violated.

P v. Reese, CA 1/5, 42 CA4th 1113: “Burglary by a recidivist” can be punished by 25-life. This is not out of line with other states’ punishments for this offense and these priors.

People v. Diaz (1996) 41 Cal.App.4th 1424: Approves 30-life for a new L&L, with multiple molestation priors, all of which were disposed of in a 1989 plea bargain, leading to probation and (in 1993) expungement.

People v. Kinsey (1995) 40 Cal.App.4th 1621: 20-life for attempted 273.5 is OK.

People v. Cartwright, (95) 39 CA4th 1123, 1134: In a heavy sex offense case, where D got 375 to life plus enhancements, CA 3 holds (1) under US Const., particularly Harmelin, the plurality held that an 8th Amdt claim could be decided on a “first prong” review alone. (8th A. forbids only “grossly disproportionate”; no need to do intra- and inter-jurisdictional reviews.) This sentence is not grossly disproportionate for this guy. (2) Under Calif. Const., D’s sentence passes muster under first and second prongs (offense & offender; comparison with more serious crimes in same jurisdiction) which is enough. Comparison with sentences for other crimes is invalid unless it takes the recidivism factor into account.

** Briefbank

People v. Cortez, F034550: AOB filed 3/28/00 by George Mertens, challenging 3rd strike sentence for possession of heroin, on state and federal grounds. Discussion of proportionality requirement under Solem and Lynch.

P v. Nwozuzu, A086580, AOB and unpublished opinion (filed 11/2/99, rejecting argument) from CA 1/1, by Rodger Curnow. C&U to impose 113 to life sentence on D with 3 prior serious felonies, and four new counts of lewd&lascivious (plus residential burglary.)

P.v. Donald Green, A085306, AOB filed 6/99 by Don Bergerson: 25-life for possession of drugs violates state and federal cruel&unusual punishment prohibitions. (2 priors are drug-related, nonviolent res. burgs.)

People v. Tony Lee, A084117, AOB filed 5/99 by Michael Goldstein, OSPD: “Eight years imprisonment for being two weeks overdue to register, even after having committed a serious offense 12 years earlier, is cruel and unusual punishment.”

Hernandez v. Warden, P&A in support of traverse filed in 9th

Cir., 9/99 (by Frank McCabe): Following Riggs, let’s hold that 25-life is C&U, where new offense is PCP possession, and both priors come from a single case, the victim of which asks for leniency now.

People v. Mayo, A080857, AOB filed 3/98: 25-life sentence for shoplifting violates state and federal constitutions. (Ross Thomas, FDAP panel.)

CCAP Cruel & Unusual Briefs: These are actually Supplemental Briefs in two Fifth District cases, P v. Dwayne Taylor, F027842, and P v. Esteban Bautista, F028630. Both are on a disk sent from CCAP. Taylor makes an interstate comparison of penalties for recidivists whose new offense is drug possession; Bautista does the same for a recividist whose new beef is DUI with injury. (I’ve filed them in one file, under C for CCAP etc., because they are both on one disk.)

People v. Page (“Page II”) A077752, AOB filed 7/97. C&U to give 25-life for simple possession.

P v. William Stokes, C022517. AOB by Madeline McDowell, CCAP Staff Atty. Life top for shoplifting is C&U. (Priors were two Lewd&lascivious counts growing out of a single 1983 prosecution.

People v. Bamber, A069715 (AOB filed 9/12/95, Manny Nestle) A 3-prong Lynch analysis, with respect to a D whose new offense was RSP, possession of a syringe, car theft, and resisting an officer. He had two strike priors: a 1978 burglary with weapon use and a robbery (date unspecified). Argument V: for the 3rd prong, the brief includes an exhaustive comparison with other states’ recidivist statutes. Some require that the new felony be serious; others require that the prior have resulted in a prison term; others give the court discretion to sentence for the new offense only; others have earlier parole. Footnote 8, which lists the sentences D would have gotten for stealing the same truck, and for having the same priors, in the other 49 states and DC, is awesome. (AG’s response, in file, shines it on with a long quote from Gore and a paragraph arguing that D is a recidivist, so nothing is cruel and unusual for him.)

People v. Williamson, F023571 (AOB filed in CA 5, 9/95, also by Manny Nestle) Same review of 49 states plus DC, for a new offense of nonforcible escape (walkaway from county jail) with two-plus strike priors.

People v. Holloway, A069634 (AOB filed 9/12/95, by George Mertens; RB filed 11/29/95.) D got 25-life for a nonforcible, no-skin-contact 288. Arg. V: (1) The law is too random to meet constitutional scrutiny, because it does not discriminate based on nature of new offense, or age of prior, and takes away all DA and TC discretion. The only discrimination is based on the order of the offenses (see “Equal Protection Problem?” at p. 6) and that classification is irrational. (2) The law is unconstitutional as applied to D, based on the three Lynch factors. (Going through other states’ recidivist laws for the third prong, brief notes that other states have more flexibility, or make the severity of the term depend on the seriousness of the new crime.)

People v. Davison, D022131 (ADI RB, filed 7/95) P appeal from TC’s finding that prison would be C&U. D argues: 1) CA should defer to TC’s finding, that prison is C&U under Lynch’s first prong, because this is a factual inquiry. (Subject, therefore, to abuse of discretion review.)

2) Lynch’s 2nd prong: brief compares sentences for other

new offenses, other recidivist sentences — because in other states, D would not be sentenced under recidivist statutes.

3) Lynch’s 3rd prong: even under other states’ recidivist

laws, this D (new offense, simple possession; one strike) would be sentenced less harshly in other states.

4) Prison here is C&U under 8th Amdt. Voter enactment of Prop. 184 does not point to contrary conclusion.

Wes van Winkle (the lawyer’s name, not the D’s, since the argument was sent to us without a cover sheet; it’s from an AOB filed 10/95) Reviews other states’ punishments for ex-con w/ a gun, with 2 priors.

People v. Mowatt, B087630 (Supp AOB by Manny Nestle) An early version of the 3rd Lynch prong (interstate comparison) argument, where the new offense is fleeing an officer (VC 2800.2.) Further interstate comparison pending, when the reply brief is available.

People v. McCurdy, C020397 (also by Manny Nestle) The

3rd prong/interstate comparison where the new offense is car theft with priors.

People v. Raul Ramos, D022321 (AOB filed 6/23/95 by David Stanley) Arg. IV: 25 to life for shoplifting is C&U under 8th Amendment; it violates the “gross disproportionality” test which 7 justices thought was acknowledged in Hamelin. Under California law, it is C&U under all three Lynch prongs. (Brief compares recidivist statutes in 5 other western states.)

People v. St. Julien, A067921 (AOB, 5/95; RB, Arg. II; ARB, Arg. II, filed 10/95; pet.rev., 5/96.) Under Dillon, TC is in best position to decide whether a particular sentence is C&U, so case must be remanded to have TC make that discretionary decision in the first instance. (Note: in People v. DeJesus (1995) 38 Cal.App.4th 1, 27, CA 2/7 held that a Dillon argument is waived if not presented first to the TC.) In an unpublished opn. filed 3/26/96, Div. 2 held it was error but harmless for the TC to refuse to rule on the C&U claim. A favorable ruling by the TC would have been an abuse of discretion anyway.

People v. Terry Jones, F022736. AOB filed in CA 5 in April 95, by Stephen Temko. Arguments VII-VIII: Two 25 to life sentences are C&U for transporting small quantities of drugs, under California and federal constitutions.

Contra Costa Memo, “Making a Record Regarding Cruel & Unusual Punishment”, 7/28/94. Reviews case law as to when a punishment is C&U in a particular case.

People v. Burris, (Stanislas Co. #R277347) Argument II: The judge always has the power to strike priors where the sentence would otherwise be C&U under People v. Dillon (1983) 34 Cal.3d 441. Stanislaus Co. Generic Pleading, Arg. IV: same. (Burris’s new offense was possession of 0.1 gm. meth. Both priors grew out of a single incident.)

4. When the new offense is a wobbler, can the trial court avoid 3-strikes sentencing by reducing it under section 17(b)(1) or (3)?

Yes: People v. Superior Court (Alvarez) (1996) 14 Cal.4th 968. All seven justices agree, with very little discussion, that the Three Strikes Law did not take away a trial court’s power under section 17(b) to reduce a wobbler to a misdemeanor at the time of sentencing.

Most of the Alvarez opinion is devoted to the next question: when is it an abuse of discretion for a trial court to give a defendant a 17(b) reduction? (Answer: appellate review of a 17(b) reduction must be very deferential. While the judge must take a defendant’s priors into consideration, the fact that he has strike priors can’t be dispositive. “To judicially mandate that a single factor predominate the trial court’s exercise of discretion would eviscerate the essence of its statutory authority; indeed, it would be one step shy of declaring the three strikes law eliminates the court’s discretion entirely.”)

Two justices, Baxter and Kennard, point out that this trial court didn’t know it had the power to impose a felony sentence of less than 25 to life. (Alvarez was sentenced before Romero.) They would remand for the judge to reconsider that 17(b) reduction in light of the broader range of felony alternatives.

Note: A defendant with strikes may be eligible for deferred entry of judgment. Although Three Strikes prohibits “diversion”, the deferred-entry-of-judgment program which replaced diversion in 1997 is different. (The legislature could have amended 3x in 1997, if they wanted its prohibition to extend to deferred entry.) A defendant in a deferred-entry program has not yet been convicted, so is not yet subject to mandatory 3x sentencing. Davis (00) 79 CA4th 251.

VIII. Problems in Plea Bargain Cases

Post-Romero Plea Bargain Cases

People v. Lloyd (98) 17 C4th 658: The Cal. Supremes recognize that a plea is not necessarily part of a bargain. In fact, they note, a plea in a case where strikes are alleged can’t be part of a bargain, under section 667(g)! So Mr. Lloyd can raise on appeal, without a certificate of probable cause, the fact that his judge did not anticipate Romero, when it sentenced him following his plea. (The issue survives the plea because it is purely one of law, and not fact bound; “whether or not it is meritorious does not depend on evidence that could have been presented at trial.”)

(But see Young,(00) 77 CA4th 827: D pled to a top of 25-life, and agreement reserved D’s right to ask TC to strike priors. Still, he needs a CPC to attack the 25-life sentence as cruel and unusual; CA3 finds that the plea bargain barred him from attacking the constitutionality of the maximum sentence.)

People v. Couch (1996) 48 Cal.App.4th 1053: D agreed to a 32-month sentence for a single count of forgery. He is estopped from raising the usual 3X issues (pre-94 prior; urgency statute, etc.) and also from arguing that the TC didn’t know it had discretion to strike. (In the unpublished part of the opinion, he did get an OSC on his claim that his trial lawyer gave him bad advice, that he could plead and still appeal those issues.)

People v. Cepeda (1996) 49 Cal.App.4th 1235. Same: D is estopped from complaining about his plea bargain by asking to have the case sent back for the TC to strike the remaining strike. But CA 2/7 (without vacating the plea bargain) sends the case back for the TC to state whether it struck the extra priors (to get to a 2nd strike agreement) under 667(f) or under 1385. If the latter, the trial court must state reasons.

(A good thing for Mr. Cepeda that the TC did agree to his plea bargain. No matter what the legality of this agreement, a CA isn’t about to set it aside. Compare the situation of Mr. Barriga in People v. Barriga (1996) 49 Cal.App.4th 1242, whose judge took back his approval of the bargain after he read the probation report, and decided that the bargain violated § 1192.7(a) (prohibition against plea bargaining in serious felony cases.) CA 2/7 said that was OK. Wouldn’t the same result be reached if the TC decided the bargain violated § 667(g)?)

CA 2/7 distinguished Cepeda in People v. Taylor (1998) 63 CA4th 29 [this is an opinion on rehearing, because Fuhrman came down before it was final]: D admitted two strike priors in exchange for P’s agreement not to seek enhancements as well. But apparently 25 to life isn’t a good enough bargain that CA 2/7 will allow it to create an estoppel against a habeas claim that TC should have exercised 1385 discretion regarding those two strikes. (D’s exposure, without the prosecutor’s agreement, was 47 to life.) Woods, diss.

People v. Allan (1996) 49 Cal.App.4th 1507. Mr. Allan’s judge did strike his strike. But this was an unlawful plea bargain (because it was done over the P’s objections, like the situation in People v. Orin (1975) 13 Cal.3d 937). It wasn’t an indicated sentence, because the court didn’t demand a plea to all charged counts.

People v. Cunningham (1996) 49 Cal.App.4th 1044. CA 3 says D is estopped even though he made his plea bargain after a judge expressly ruled he had no discretion to strike priors.

BUT SEE: People v. Smith (1997) 59 Cal.App.4th 46: CA 1/2 says that so long as the plea bargain wasn’t for a term of years, D can raise on appeal the issue that the TC did not understand it had discretion to strike priors. The CA rejects the AG’s analogies to Cunningham, Cepeda, and Couch. It also rejects the AG’s argument that D got a good enough deal that he should not ask for more: “Presumably, every plea bargain entails some benefit, and this only begs the real question: What was the bargain, and did it preclude a striking under Romero?”

This plea bargain was silent on whether a Romero request was precluded — but the DA didn’t object when D asked the court to strike his prior. “We imply from this an implicit understanding that the motion could be made without violating the bargain.”