Change to Three Strikes law – 25 to life? Maybe not.

What are the changes in the Three  Strikes law after the recent election?

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Essentially, the change to the three strikes law requires that the new case is a serious or violent felony before a life sentence is imposed.  For example, under the old law, if a person had two strikes for two residential burglary convictions, any new felony could subject them to a 25-life sentence. Even a simple possession of drug charge could get them a life sentence. Originally, the judge could not do anything and had to impose 25-life for any new felony if the defendant had 2 prior strikes. Then, a case [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] decided that a judge could exercise their discretion to not give a 25-life sentence. Essentially, they could “strike a strike” for the purpose of sentencing and get around the 25-life sentence. It was discretionary and they could still impose the life term, even if the new offense wasn’t serious or violent.
The changes in the law for Prop 36 are now in Penal Code 1170.126. The full text is at the bottom of this post.

Some important concepts about the three strikes law

First – not every prior felony conviction is a strike. Only serious and violent felonies are. Violent offenses are listed here:

And serious offenses are listed here:

If an inmate has been sentenced to 25 to life on a felony after having 2 prior strikes, they can petition for resentencing if:  (I’m summarizing)
Their prior strike crimes are not one of the listed sex offenses, solicitation to commit murder, assault with an automatic weapon on a peace officer, homicide (including attempted murder) and;
Their current offense is not itself a strike.

If the inmate qualifies, they get a hearing in front of a judge.

The resentence is not automatic just because they are doing 25-life on a non-serious, non-violent offense. That just qualifies them for a hearing. At that hearing, the judge can still leave the original sentence in place if they feel the defendant poses an “unreasonable risk of danger to public safety”.  They can look at things like the defendant’s entire criminal history, how serious the underlying strikes were, whether or not the defendant has been involved in any disciplinary actions while incarcerated, etc.
These cases are just now starting to come thought the court system. If an inmate qualifies for resentencing, the judge will hold a hearing.  Typically, the DA will obtain the inmate’s file from prison as part of the evaluation.  The prosecution is looking for any rules violations or instances of criminal (particularly violent) activity while in prison.  The defense can present evidence of rehabilitation, such as education, training and counseling the inmate has participated in while in state prison.
If the judge feels a defendant is not a risk, they resentence them as though they only had one prior strike. With one strike, it doubles your sentence, plus any additional terms for things like prison priors, etc.

Example:

For example, auto theft carries a maximum of 3 years in prison. With one prior strike, it doubles for a maximum of 6 years. If a defendant was  sentenced to 25-life in 1999, he would now have served 13 years. If he is resentenced, he will have served way beyond the maximum he could have served, plus an additional 3 years he would have been on parole. If resentencing is granted, he should be released free and clear.
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714.532.3600
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Full text of California Penal Code 1170.126 (the Three Strikes resentencing law)

1170.126.  (a) The resentencing provisions under this section and
related statutes are intended to apply exclusively to persons
presently serving an indeterminate term of imprisonment pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12, whose sentence under this act
would not have been an indeterminate life sentence.
   (b) Any person serving an indeterminate term of life imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667
or paragraph (2) of subdivision (c) of Section 1170.12 upon
conviction, whether by trial or plea, of a felony or felonies that
are not defined as serious and/or violent felonies by subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence, within two years after the
effective date of the act that added this section or at a later date
upon a showing of good cause, before the trial court that entered the
judgment of conviction in his or her case, to request resentencing
in accordance with the provisions of subdivision (e) of Section 667,
and subdivision (c) of Section 1170.12, as those statutes have been
amended by the act that added this section.
   (c) No person who is presently serving a term of imprisonment for
a "second strike" conviction imposed pursuant to paragraph (1) of
subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of
Section 1170.12, shall be eligible for resentencing under the
provisions of this section.
   (d) The petition for a recall of sentence described in subdivision
(b) shall specify all of the currently charged felonies, which
resulted in the sentence under paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
or both, and shall also specify all of the prior convictions alleged
and proved under subdivision (d) of Section 667 and subdivision (b)
of Section 1170.12.
   (e) An inmate is eligible for resentencing if:
   (1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of
Section 667 or subdivision (c) of Section 1170.12 for a conviction of
a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.
   (2) The inmate's current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph
(2) of subdivision (c) of Section 1170.12.
   (3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.
   (f) Upon receiving a petition for recall of sentence under this
section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced
pursuant to paragraph (1) of subdivision (e) of Section 667 and
paragraph (1) of subdivision (c) of Section 1170.12 unless the court,
in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.
   (g) In exercising its discretion in subdivision (f), the court may
consider:
   (1) The petitioner's criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes;
   (2) The petitioner's disciplinary record and record of
rehabilitation while incarcerated; and
   (3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.
   (h) Under no circumstances may resentencing under this act result
in the imposition of a term longer than the original sentence.
   (i) Notwithstanding subdivision (b) of Section 977, a defendant
petitioning for resentencing may waive his or her appearance in court
for the resentencing, provided that the accusatory pleading is not
amended at the resentencing, and that no new trial or retrial of the
individual will occur. The waiver shall be in writing and signed by
the defendant.
   (j) If the court that originally sentenced the defendant is not
available to resentence the defendant, the presiding judge shall
designate another judge to rule on the defendant's petition.
   (k) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the defendant.
   (l) Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.
   (m) A resentencing hearing ordered under this act shall constitute
a "post-conviction release proceeding" under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).

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