Los Angeles Criminal Defense Attorney

Archive for the ‘Three Strikes’ Category

Proposition 36 Gives Inmates Serving Life In Prison A Chance At Reducing Their Sentence

Thursday, November 8th, 2012

On Tuesday November 6, 2012, almost 70% of California voters supported Proposition 36, which changes how California administers it’s three strikes law.  Under that law, a person convicted of three felonies is sentenced to life in prison.  Proposition 36 changes that process with the respect to the third strike.  Specifically, California law now requires the third strike to be a serious or violent felony in order to trigger the life sentence.

The most immediate impact of the new law is to give an estimated 2,800 inmates who are serving a life sentence a chance to petition a judge to have their sentence reduced.  The right to seek a reduced sentence is limited to those inmates whose third strike was not a serious or violent felony.  In other words, if you or someone you know is serving a life sentence under the old version of the three strikes law, and their third conviction was NOT for a violent or serious felony, they have a right to ask a judge to reduce their sentence.  The technical name of the request that is filed with the court is a “petition for recall of sentence.”

Proposition 36 includes an important deadline.  For inmates who are currently serving life sentences because of the old version of the three strikes law, the petition to “recall a sentence” must be filed on or before November 7, 2014. That’s two years from the date Proposition 36 went into effect.

What’s A Serious or Violent Felony?

California law includes two somewhat overlapping lists of felonies.  Section 1192.7 of the Penal Code lists 42 crimes that are defined to be “Serious Felonies.”  Section 667.5 of the Penal Code includes 23 crimes that are defined to be” Violent Felonies.”

For the purposes of Proposition 36, an inmate serving a life sentence under the three strikes law may seek a reduction of their sentence only if their third strike DID NOT involve a conviction for any of the following crimes.

Serious Felonies

(1) Murder or voluntary manslaughter;

(2) mayhem;

(3) rape;

(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;

(5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and

unlawful bodily injury on the victim or another person;

(6) lewd or lascivious act on a child under 14 years of age;

(7) any felony punishable by death or imprisonment in the state prison for life;

(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in

which the defendant personally uses a firearm;

(9) attempted murder;

(10) assault with intent to commit rape or robbery;

(11) assault with a deadly weapon or instrument on a peace officer;

(12) assault by a life prisoner on a non-inmate;

(13) assault with a deadly weapon by an inmate;

(14) arson;

(15) exploding a destructive device or any explosive with intent to injure;

(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;

(17) exploding a destructive device or any explosive with intent to murder;

(18) any burglary of the first degree;

(19) robbery or bank robbery;

(20) kidnapping;

(21) holding of a hostage by a person confined in a state prison;

(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;

(23) any felony in which the defendant personally used a dangerous or deadly weapon;

(24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1)of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;

(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;

(26) grand theft involving a firearm;

(27) carjacking;

(28) any felony offense, which would also constitute a felony violation of Section 186.22;

(29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;

(30) throwing acid or flammable substances, in violation of Section 244;

(31) assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;

(32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5;

(33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;

(34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;

(35) continuous sexual abuse of a child, in violation of Section 288.5;

(36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100;

(37) intimidation of victims or witnesses, in violation of Section 136.1;

(38) criminal threats, in violation of Section 422;

(39) any attempt to commit a crime listed in this subdivision other than an assault;

(40) any violation of Section 12022.53;

(41) a violation of subdivision (b) or (c) of Section 11418;

(42) any conspiracy to commit an offense described in this subdivision.

 

Violent Felonies

(c) For the purpose of this section, “violent felony” shall mean any of the following:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 12308, 12309, or 12310.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418.

Thus, if the third strike conviction was for a crime that is not on the list above, a petition can be filed to reduce the life sentence.

 

What Happens After a Petition for a Reduced Sentence is Filed?

Proposition 36 gives judges discretion whether to reduce a life sentence. It is not automatic.  Judges are supposed to look at three factors to determine whether the life sentence should be reduced: (1) The inmate’s criminal conviction history, including the extent of injury to victims, and how long ago the crimes took place; (2) The inmate’s disciplinary record and record of rehabilitation while in prison; and (3) Any other evidence the judge thinks is relevant  to determining whether a lower sentence would result in an unreasonable risk of public safety.

At this stage, it is hard to predict how judges will apply these factors.  Proposition 36, however, makes clear that an inmate cannot get a higher sentence as a result of filing a petition.  As a criminal defense lawyer in Los Angeles, I know that any inmate who thinks that they may be able to benefit from seeking a reduction of a life sentence under California’s three strikes law should contact an experience criminal defense lawyer to determine whether the changes made by Proposition 36 apply to them.

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Assault With A Deadly Weapon Is Not Always A Strike In California

Sunday, April 10th, 2011

When a lawyer’s client is charged with felony assault with a deadly weapon under penal code section 245(a)(1), they are facing a “strike” under California’s Three Strikes law.  Assault with a Deadly Weapon is what I call a “mega-wobbler”, it can be charged as either a strike felony or it can be charged as a misdemeanor.  Of course, if filed or convicted of a misdemeanor, the charge is not a strike.  But if your client is facing a felony 245(a)(1) and there’s no hope of breaking it down to a misdemeanor, he or she may get a probationary sentence, there may even be a “no time” offer where your client must only perform community labor or community service.  But the downside is that the prosecutor may seem unwilling to change the charge, which would leave your client with a strike.

What to do?  You may be thinking “well you take the case to trial!”  Of course, trial is always the point every real criminal defense attorney should start from, and you may very well need to push to trial to get the best result.  But let’s presume that you really don’t have a good case to take to take to a jury, and you have a client who wants the matter settled.  What then? Triable case or not, nobody should plead their client to a strike if it can be at all avoided.

If a deadly weapon is used by your client in the assault, then the offense is a strike whether great bodily injury was sustained or not. However, if no great bodily injury was sustained by the complaining witness, and the prosecution is not alleging as such, then the one way to get around the strike problem is to “take the weapon out of your client’s hand.”  Penal Code §245(a)(1) reads as follows:

(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

Look at the statute carefully. Notice how there is a distinction between an assault with the use of a deadly weapon and an assault by any means of force likely to produce great bodily injury. The phrase “by any means of force” does not mean that a weapon need be involved.  If a person sustains a felony conviction under this section for using a deadly weapon in the commission of the assault, then the conviction will be considered a serious felony under Penal Code §1192.7(c) and a “strike.”  However, if they are charged with felony under this section for using “force likely to produce great bodily injury” with no allegation that great bodily injury was actually sustained, then the offense is NOT a strike.  This principle was most recently upheld again in People v. Feyrer (2010) 48 Cal. 4th 426.

Bottom line:  If your client has no practical choice but to plead to a felony on this charge, at least you may be able to get rid of the strike.

Jerod Gunsberg is a Los Angeles Criminal Defense Attorney who handles serious and violent felonies as well as all criminal matters in and around the Los Angeles area.

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