EA VI(A) Brief Bank Materials: The following article bank materials are available to FORECITE subscribers. Please ask for materials by the number and letter.
A-49a First District Appellate Project “Three Strikes” Issues Checklist. “Three Strikes” Outline and Index (revised April 2001) is available to FORECITE subscribers. Ask for Article Bank A-49a. CD-ROM subscribers can access this article by searching for A-49a. Note: this checklist is also available through the individual appellate programs for members of the respective appellate panels.
A-49b 18 Ways to Avoid Three Strikes.
CACJ Forum Vol. 21, No. 2, pp. 102-119.
A-51 Three Strikes: Selected Issues. A review of three strikes issues by FORECITE editor Dallas Sacher.
A-60 Low Level Offenders Filling Prisons Under “Three Strikes.” March 1996 press release regarding data released by California Department of Corrections showing that twice as many defendants have been imprisoned under “three strikes” law for marijuana possession than for murder, rape and kidnapping combined. The data also showed that in total, 85% of those sent to prison under the “three strikes” law are non-violent offenders.
A-61 “‘Three Strikes’ The New Apartheid.” Center on Juvenile and Criminal Justice report by Christopher Davis, Richard Estes and Vincent Schiraldi, showing that African Americans are being arrested for felonies at 4.7 times the rate of whites; being incarcerated at 7.8 times the rate of whites; and being in prison for a “third strike” at 13.3 times the rate of whites.
A-69 Reported Three Strikes Opinions As Of June 5, 2005. By Gary Mandinach. See the two part article, “A-69-i” and “A-69-ii.“
EA VI(B) Instruction Upon Defendant’s Liability For Three Strikes Sentencing: It has, of course, been an accepted practice to instruct the jury that it must not consider the penalty or punishment that the defendant may receive if convicted. (See CJ 17.42.) However, U.S. v. Datcher (6th Cir. 1993) 830 F Supp 411 held that when the punishment is unusually severe in comparison to the nature of the offense, the defendant should have the right to inform the jury as to that punishment. (But see People v. Baca (96) 48 CA4th 1703 [56 CR2d 445].) In a one-page unpublished order issued on 11/1/94, the Sixth Circuit Court of Appeals vacated the lower court opinion in Datcher, and Datcher was disapproved in U.S. v. Chesney (6th Cir. 1996) 86 F3d 564.) But see, “Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences,” K.K. Sauer, 95 Colum.L.Rev. 1232-72 June, 1995.
Nevertheless, the reasoning and fundamental rationale behind Datcher — that the jury system works best when the jury is not kept in the dark — remains entirely valid. [An article, Jury Nullification In The Three Strikes Era, by Cliff Gardner, further discussing this issue appears in the CACJ Forum, Vol. 22, No. 4 (1995), pp. 29-32. A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-62.]
People v. Nichols (97) 54 CA4th 21, 26 [62 CR2d 433] held that, even if the jury asks, the court does not err in refusing a request to inform the jury that the case is a “three strikes” case. (See also People v. Cardenas (97) 53 CA4th 240 [61 CR2d 583] [defendant has no right to have the prospective jurors voir dired regarding their view of three strikes]; People v. Cline (98) 60 CA4th 1327 [71 CR2d 41] [trial court may allow bifurcation motion by prosecutor to avoid jury nullification provided nullification is not sole reason for bifurcation].)
EA VI(C) Comment Or Instruction To Jury Regarding Three Strikes: It may be argued that even if there is no right to an instruction informing the jury about three strikes sentencing, counsel should not be precluded from so informing the jury. [Briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-650.] However, People v. Cardenas (97) 53 CA4th 240 [61 CR2d 583] held that the defendant does not have a right to question potential jurors about the “Three Strikes” law. (See also People v. Cuevas (2001) 89 CA4th 689, 700-702 [107 CR2d 529] [court did not err in instructing jury not to consider defendant’s narrative statements regarding three strikes law].)
[A Motion with Points and Authorities on this issue is available to FORECITE subscribers. Ask for Motion Bank #M-3004.]
EA VI(D) Three-Strikes: Out-Of-State Convictions. The California Supreme court has ruled that out-of-state convictions qualify as “strikes” under the “Three Strikes” provision of Proposition 184 (PC 1170.12). (People v. Hazelton (96) 14 C4th 101 [58 CR2d 443].) While the court held that the statutory language was ambiguous regarding whether out-of-state convictions were included in PC 1170.12 (c)(2)(A), the court turned to the initiative’s legislative history to determine the voter’s intent and concluded “… we see no evidence…that the voters intended to exclude out-of-state convictions from the purview of the … penalty, or ameliorate the punitive effect of section 667, subdivisions (b)-(i).” (Hazelton, at 14 C4th 108.)
EA VI(E) Three-Strikes: Proof Of Prior Strike. In People v. Hearn DEPUBLISHED (96) 51 CA4th 479 [59 CR2d 130] the court held that proof of conviction, without more, is not a substitute for proof that the crime was a serious felony. In Hearn, there was no evidence of when the defendant committed the burglary for which he was convicted, and absent that evidence, it was impossible to know which version of the burglary statute applied to the crime, since it was the statute that was in effect when the burglary was committed that governed. To prove a “strike” under the three strikes laws requires more than proving a prior conviction of a generic felony or service of a prior prison term, since statutory definitions and degrees of crimes change. It must be proved either that the conviction was for a felony that had a definition congruent with that of the relevant serious or violent felony defined in PC 1192.7(c) and PC 667.5(c) or that defendant’s conduct in committing that felony was congruent with those sections. (Hearn, at 484-85; see also People v. Mitchell (99) 68 CA4th 1489 [81 CR2d 339] [counsel ineffective for failing to raise sufficiency of the evidence of a prior “strike” on appeal].)
To qualify as a strike (PC 667(b)-(i) and a five-year “serious felony” (PC 667(a)(1), the prosecution must prove that a violation of PC 245(c) was committed with a deadly weapon or instrument. Unless such proof is offered it must be presumed “that the prior conviction was for the least offense punishable under the…law.” (People v. Rodriguez (98) 17 C4th 253, 262 [70 CR2d 334]; see also People v. Cortez (99) 73 CA4th 276, 283 [86 CR2d 234] [plea to crime which may be committed alternatively is not an admission to both alternatives]; People v. Encinas (98) 62 CA4th 489 [72 CR2d 622].) The prosecution has the burden to prove the truth of such allegations at trial. (Encinas, 62 CA4th at 492.)
EA VI(F) Three-Strikes: Proximate Causation Is Not Personal Infliction Of Great Bodily Injury.
PC 1170.12(b)(1) makes a prior “serious felony” a “strike.” PC 1192.7(c)(8) provides that “a felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice” is a “serious felony.” In People v. Rodriguez (99) 69 CA4th 341 [81 CR2d 567] the jury was instructed that “to constitute the personal infliction of great bodily injury there must be in addition to the injury an unlawful act with was a cause of such injury. & Criminal law has its own particular way of defining cause. A cause of injury is an act that sets in motion a chain of events that proceed a direct, natural and possible consequence of the act, the injury, and without which the injury would not occur.” (Rodriguez, 69 CA4th at 346.) The court held this instruction to be reversible error because it failed to require a finding that the defendant personally inflicted GBI.
EA VI(G) Four Justices Of U.S. Supreme Court Suggest The Possibility Of Future Three Strikes Review.
In Riggs v. California (99) ____ US ____ [142 LEd2d 789; 119 SCt 890] the United States Supreme Court denied certiorari in a three strikes case where the defendant had been convicted of stealing a bottle of vitamins. However, Justices Stevens, Souter, and Ginsberg expressed concern over the constitutionality of such a severe sentence for what would ordinarily be a misdemeanor. In their concurring opinion, these justices noted that the issue may be raised by the petitioner on federal habeas since it involves application of a settled rule of Eighth Amendment law.
Justice Breyer dissented from the denial of certiorari due to the serious constitutional question regarding the imposition of a severe sentence for a petty offense.
EA VI(H) Prior With GBI: Prosecution Has Burden Of Proving Defendant Was Not Accomplice.
(See FORECITE F 17.25d.)
EA VI(I) Three-Strikes: Is Amendment Of Information Permissible To Add Priors After Jury Is Discharged? (See People v. Tindall (2000) 24 C4th 767 [102 CR2d 533] [prosecution cannot amend information to allege new priors when defendant has not yet been sentenced but jury has been discharged].)
EA VI(J) Second Degree Residential Burglary Is Not A Serious Felony (PC 1192.7(c)). [See Brief Bank # B-875 for briefing on this issue.]
EA VI(K) Three Strikes: Discretion To Impose Concurrent Terms. Under the “Three Strikes” law, the court must impose a consecutive sentence for each current offense “not committed on the same occasion, and not arising from the same set of operative facts . . . .” (PC 667(c)(6) and PC 667(c)(7); PC 1170.12(a)(6) and PC 1170.12(a)(7).) The statutory phrase “committed on the same occasion” refers to “at least a close temporal and spatial proximity between the acts underlying the current convictions.” (People v. Deloza (98) 18 C4th 585, 595, 599 [76 CR 255].) The statutory phrase “arising from the same set of operative facts” refers to “sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.” (People v. Lawrence (2000) 24 C4th 219, 233 [99 CR2d 570].)
Conversely, if the current offenses were committed on the same occasion and arose from the same set of operative facts, the court has discretion to impose consecutive or concurrent sentences. (People v. Hendrix (97) 16 C4th 508, 512-513 [66 CR2d 431]; People v. Hall (98) 67 CA4th 128, 137-138 [78 CR2d 809]; People v. Bell (98) 61 CA4th 282, 294 [71 CR2d 415].) Thus, to determine the scope of its discretion, a court must know the factual basis of each conviction. People v. Coelho (2001) 89 CA4th 861, 865 [107 CR2d 729] held that if the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.
EA VI(L) Three Strikes: Failure To Determine If Foreign Convictions Are Strikes Under California Law As IAC.
(See People v. Morgan DEPUBLISHED (2001) 90 CA4th 853 [109 CR2d 290] [attorney’s failure to determine, prior to entry of plea, whether foreign convictions charged as strikes, were strikes under California law, constituted ineffective assistance of counsel].)
EA VI(M) Three Strikes: Apprendi Challenge To Juvenile Strikes (PC 667(d)(3)).
Based on U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187, it may be argued that California’s three-strikes law, which includes juvenile adjudications as strikes (PC 667(d)(3)), violates the federal Constitution, based on Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]. (But see People v. Bowden (2002) 102 CA4th 387 [125 CR2d 513] [declining to follow Tighe [U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187] majority]; see also People v. Smith (2003) 110 CA4th 1072 [rejecting Tighe]; but see dissenting opinion of Justice Johnson extensively discussing the issue and concluding:
In my view, the Tighe rationale is correct and, moreover, applies to the use of juvenile adjudications as “strikes” in California’s “three strikes” scheme just as it did to the use of prior serious or violent felonies to enhance sentences under the federal “Armed Career Felons Act.” In both instances, the trial court is using a juvenile adjudication as a “prior conviction” to enhance the defendant’s sentence for his present crime beyond the statutory maximum punishment for that crime. And, in both instances, the defendant was found to have committed that prior offense in a juvenile court proceeding where he was denied the right to trial by jury. Thus, in the instant case as in Tighe, the underlying facts — whether the defendant actually committed the offense charged in the juvenile court proceeding–are being decided by a judge rather than a jury because the defendant was denied the option of jury trial. As the Tighe court held, under the rationale of U.S. Supreme Court opinions in Apprendi and Jones, this represents an unconstitutional denial of the constitutional right to trial by jury.
(People v. Smith (2003)110 CA4th at 1102 [dissenting opinion of Johnson, J.)
See PG VII(C)(32)(7) [Applicability Of Constitutional Rights To Sentencing Decisions: Apprendi Forecloses Use Of A Juvenile Prior As A Strike Or Five Year Enhancement].
EA VI(N) Three Strikes: Eighth Amendment Cruel And Unusual Punishment Challenges. In Ewing and Andrade, the United States Supreme Court found that California Three Strikes sentences at issue did not violate the Eighth Amendment prohibition on cruel and unusual punishment. (Lockyer v. Andrade (2003) 538 US 63 [155 LEd2d 144; 123 SCt 1166, Ewing v. California (2003) 538 US 11 [155 LEd2d 108; 123 SCt 1179].) In its opinions, the Court allowed for the remote possibility of finding a statutory punishment unconstitutional when it is “grossly disproportionate.” (Andrade, 538 US at 73; see also Ewing, 538 US at 23 [noting that the Eighth Amendment contains a narrow “proportionality principle that applies to noncapital sentences”] (internal quotations and citations omitted).) The Court did not elaborate what types of violations this exception might encompass, but warned that “it is applicable ‘only in the exceedingly rare and extreme case’.” (Ramirez v. Castro (9th Cir. 2004) 365 F3d 755, 763 [discussing Andrade, 538 US at 72-73]; see also Reyes v Brown (9th Cir. 2005) 399 F3d 964 [remand to allow petitioner to develop facts supporting contention that 26‑to‑life sentence for making misrepresentations on driver’s license application constituted cruel and unusual punishment]; Ramirez v. Castro (9th Cir. 2004) 365 F3d 755 [non‑violent shoplift of VCR]; People v. Carmony (2005) 127 CA4th 1066.)
EA VI(O) Three Strikes: Assault By Means Of Force Likely To Produce Great Bodily Injury (PC 245) Not A Serious Felony Under PC 1192.7(c). See People v. Haykel (2002) 96 CA4th 146, 148, 150-51 [116 CR2d 667].