BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                           Senator Carole Migden, Chair              S
                             2005-2006 Regular Session               B

                                                                     1
                                                                     6
                                                                     4
          SB 1642 (Romero)                                           2
          As Introduced February 24, 2006 
          Hearing date:  April 4, 2006
          Penal Code
          JM:br



                                   THREE STRIKES LAW  



                                       HISTORY



          Source:  Los Angeles County District Attorney

          Prior Legislation: Proposition 66 - November 2004 Election;  
          defeated
                       SB 2048 (Vasconcellos) - 1998; vetoed by Governor  
          (as study bill)
                       SB 79 (Hayden) - 1998; died on Senate Floor
                       SB 1317 (Lee) - 1997; failed passage on Senate  
          Floor
                       SB 2089 (Marks) - 1995; failed passage on Senate  
          Floor
                       AB 1444 (Kuehl) - 1996; failed passage in Assembly  
          Public Safety
                       Proposition 184 - November 1994 Election; enacted
                       AB 971 (Jones/Costa) - Ch. 12, Stats. 1994
                       
          Support: National Organization for Women; FACTS (Families  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageB


                   Against California's Three Strikes); Friends Committee  
                   on Legislation; California Public Defenders Association

          Opposition:California District Attorneys Association; Crime  
          Victims United of California


                                        KEY ISSUES
           
          SHOULD THE THREE-STRIKES LAW BE AMENDED SO AS TO LIMIT THE RANGE OF   
          CASES IN WHICH A LIFE SENTENCE WOULD BE IMPOSED ON DEFENDANTS   
          CONVICTED IN THE CURRENT PROSECUTION OF A NON-SERIOUS OR NON-VIOLENT  
          OFFENSE?

          SHOULD A DEFENDANT CONVICTED IN THE CURRENT CASE OF A NON-SERIOUS OR  
          NON-VIOLENT OFFENSE BE SENTENCED TO PRISON FOR A MINIMUM OF 25-  
          YEARS-TO-LIFE WHERE THE DEFENDANT'S PRIOR CONVICTIONS INCLUDE A  
          SEXUALLY VIOLENT OFFENSE, A SPECIFIED SEX CRIME AGAINST A CHILD,  
          MURDER, GROSS VEHICULAR MANSLAUGHTER WHILE INTOXICATED, OR A  
          LIFE-TERM SERIOUS OR VIOLENT OFFENSE?

          SHOULD A DEFENDANT CONVICTED IN THE CURRENT CASE OF A NON-SERIOUS OR  
          NON-VIOLENT OFFENSE BE SENTENCED TO PRISON FOR A MINIMUM OF 25-  
          YEARS-TO-LIFE WHERE THE DEFENDANT'S CURRENT CONVICTION IS A  
          SPECIFIED DRUG TRAFFICKING OFFENSE, A SPECIFIED SEX OFFENSE, OR A  
          CRIME IN WHICH THE DEFENDANT USED A WEAPON OR INTENDED TO CAUSE  
          GREAT BODILY INJURY?

          SHOULD INMATES PREVIOUSLY IMPRISONED FOR LIFE UNDER THE THREE  
          STRIKES LAW FOR A NON-SERIOUS OR NON-VIOLENT OFFENSE BE ALLOWED TO  
          PETITION FOR RE-SENTENCING IF THE INMATE WOULD NOT RECEIVE A  
          LIFE-TERM UNDER THE PROVISIONS OF THIS BILL?

          SHOULD A COURT HAVE DISCRETION TO DENY RELIEF WHERE THE INMATE IS  
          OTHERWISE ELIGIBLE FOR RE-SENTENCING?


                                       PURPOSE
          




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageC


          The purpose of this bill is 1) to target the life-term  
          provisions of the Three Strikes law to cover persons convicted  
          of serious or violent offenses (all violent felonies are  
          serious), persons convicted of non-serious offenses in the  
          current case who have specified "super-strike" prior  
          convictions, and persons convicted in the current case of  
          specified drug trafficking crimes and sex crimes; 2) to allow  
          prison inmates who would not have received a life term under  
          this bill to file a petition for re-sentencing; 3) to provide  
          discretion for courts to grant or deny a petition for  
          re-sentencing by an eligible inmate; and 4) to make related  
          implementing and conforming amendments.
          


           Existing law  provides that a defendant, who is convicted of  any   
          current felony, with prior convictions of two or more "violent"  
          or "serious" felonies, must receive a life sentence with a  
          minimum term of 25 years.  (Pen. Code  667, subds. (a) and  
          (d)(2)(i); Pen. Code  1170.12, subd. (c)(2)(A).)<1>

           Existing law  further provides that where a defendant is  
          convicted of  any  felony with a prior conviction for a single  
          serious or violent felony, the sentence imposed must be twice  
          the term otherwise provided as punishment.  (Pen. Code  667,  
          subd. (d)(1) and Pen. Code  1170.12, subd. (c)(1).)

           Existing law  further provides that affected defendants may not  
          ---------------------------
          <1>  The minimum term for any defendant with two prior serious  
          or violent offenses must be at least 25 years.  In many cases,  
          multiple terms of 25-years-to-life must be imposed - one for  
          each count (separately charged offense) which does not arise  
          from the same operative facts in the current case.  Where  
          multiple convictions do arise from separate operative facts,  
          the court has discretion to impose consecutive or concurrent  
          terms.   (Penal Code  667(c)(6).)  According to a complex  
          formula, in a rare case, a different minimum term may be  
          imposed if it would result in a longer sentence than 25 years.  
           (Penal Code  667(d)(2)(A)(i-iii).)



                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageD


          receive probation, there is no limitation on the aggregate term,  
          sentencing credits are limited to 20% of the term (instead of  
          the usual 50%), and any additional convictions must be imposed  
          consecutively.  (Pen. Code  667, subd. (c) and Pen. Code   
          1170.12, subd. (a).)

           Existing law  provides that a defendant sentenced to a life term  
          under Three Strikes can earn no sentencing credits to reduce the  
          minimum term.  (In re Cervera (2001) 24 Cal.4th 1073.)

           Existing Three Strikes law  , unlike five-year serious felony  
          enhancement provisions, does not require that prior qualifying  
          convictions arise in separate cases, and qualifying prior  
          "strike" convictions need not arise from separate transactions  
          that can otherwise not be separately punished.  (People v.  
          Fuhrman (1997) 16 Cal.4th 830; People v. Benson (1998) 18  
          Cal.4th 24, 30; Penal Code  667(a).)

           Existing law  provides that a juvenile adjudication (no jury  
          trial) of a sixteen-year old must be counted as a prior "strike"  
          if the offense otherwise qualifies as an adult strike or would  
          establish presumptive unfitness for juvenile court under Welfare  
          and Institutions Code Section 707(b), and the minor was declared  
          to be a ward of juvenile court for commission of an offense  
          listed in Welfare and Institutions Code Section 707, subdivision  
          (b).  (Pen. Code  667, subd. (d)(3) and Pen. Code  1170.12,  
          subd. (b)(3).)<2>

           Existing law  includes the following additional mandatory Three  
          Strikes provisions:

           A person sentenced under "Three Strikes" may not be committed  
            to any facility other than prison.

           "Three Strikes" prohibits plea-bargaining, although a plea  
          ---------------------------
          <2>  There is substantial overlap among the lists of violent  
          felonies, serious felonies and crimes of presumptive juvenile  
          unfitness.  However, a few crimes, such as residential burglary  
          do not constitute unfitness crimes.



                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageE


            bargain between the prosecutor and the defendant that was  
            accepted by the sentencing court, would not be challenged,  
            regardless of whether the bargain violates the terms of the  
            Three Strikes law.

           "Three Strikes" has no "washout" period - any prior serious or  
            violent felony shall be charged regardless of when it  
            occurred.  However, Proposition 36 of the November 2000  
            election creates washout for defendants charged with  
            non-violent drug possession who have been free of crime or  
            custody for 5 years.

           Under "Three Strikes," the prosecuting attorney must plead and  
            prove each prior felony conviction, although there is no  
            practical way to enforce this provision.

           "Three Strikes" may only be amended by a two-thirds vote of  
            the Legislature or a ballot measure approved by the  
            electorate.

           This bill  provides that a person who was convicted in the  
          current offense of neither a serious nor violent felony shall  
          receive a term of at least 25-years-to-life if the prosecution  
          pleads and proves any of the following:

                 Allegations related to the current offense:

                 The current conviction is a controlled substance offense  
               and the prosecution proved an allegation that the weight or  
               volume of the drugs exceeded specified amounts.

                 The current conviction is a specified felony sex  
               offense.

                 The defendant used a firearm, or was armed with a  
               firearm or deadly weapon, in the commission of the current  
               offense.

                 The defendant intended to cause great bodily injury in  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageF


               the commission of the current offense.

           Allegations concerning the defendant criminal record,  
            specifically allegations that the defendant was previously  
            convicted of any of the following:

                 A sexually violent offense, within the meaning of (Welf.  
               & Inst. Code  6600) the qualifying convictions under the  
               sexually violent predator law.

                 Oral copulation ( 288a), sodomy ( 286) or sexual  
               penetration ( 289) with a child under 14 and the defendant  
               was more than 10 years older than the child.

                 Lewd conduct with a child under the age of 14 ( 288,  
               subds. (a) and (b)).

                 Any homicide offense defined in Section 187-191.5  
               (murder or gross vehicular manslaughter while intoxicated).

                 Any serious or violent offense punished by imprisonment  
               for life (e.g., aggravated kidnapping for robbery or a sex  
               offense, aggravated mayhem).

           This bill  provides that if a person has been previously  
          convicted of two or more serious or violent offenses, and the  
          defendant has been convicted in the current crime of a felony  
          that is not a serious or violent offense, the defendant shall  
          receive a doubled base term if the prosecution does not plead  
          and prove that the defendant committed a current disqualifying  
          offense or was previously convicted of a disqualifying crime.   
          (These disqualifying crimes are described in the paragraphs  
          above.)
           
          This bill  grants limited authority for a prison inmate  
          (defendant) who was sentenced under Three Strikes prior to the  
          enactment of this bill to file a habeas corpus petition for the  
          purpose of obtaining a new sentence.





                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageG


           This bill  provides that the substantive and procedural rules for  
          re-sentencing are as follows:

           Re-sentencing petitions will be considered only for a person  
            sentenced to life term who would not be sentenced to a  
            life-term under this bill - the Three Strikes Reform Act of  
            2006.

           The petition must be filed within two years of the enactment  
            of this bill.

           The petition shall be filed in the court where the inmate's  
            sentence was imposed.

           The petition shall state all of the felonies of which the  
            defendant convicted in the current case and the qualifying  
            Three Strikes prior convictions alleged and proved in the  
            current case that resulted in the life-term sentence.

           The petitioning defendant may request appointment of counsel.

           This bill  provides that the court may re-sentence the defendant  
          according to the sentencing provisions of this bill if the  
          following are established or occur:

           The court shall determine that the defendant is eligible for  
            re-sentencing - including a consideration of whether or not  
            the inmate's current or prior crimes would disqualify him or  
            her from relief under this bill.

           The court, in its discretion, must determine that relief is  
            warranted.



          This bill  provides that the court shall determine whether or not  
          another sentencing scheme or statute provides for a longer  
          sentence than would be imposed under this bill.  If a longer  
          sentence would be imposed under another sentencing scheme or  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageH


          statute, that sentence will be imposed.  However, the sentence  
          imposed under this bill may not be longer than the term  
          originally imposed.

           This bill  provides that a petitioning defendant may, in writing,  
          waive his or her appearance for re-sentencing, unless the  
          accusatory pleading (documents charging the defendant with  
          crimes and enhancements) is not amended and that no new trial or  
          retrial will occur.

          This bill  provides that if any of its provisions are held to be  
          invalid, that invalidity shall not affect other portions of the  
          bill.

           This bill  provides that it shall be submitted to the voters for  
          approval, as it affects initiative statutes.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

              Current law states that a defendant with two prior  
              convictions for serious and/or violent felonies  
              (strikes) will be imprisoned for twenty-five years to  
              life for a third felony (third strike).  The third  
              strike need not be a serious or violent felony.  A  
              sentence of at least twenty-five years to life should  
              be reserved for the most hardened or violent offenders.  
               Many offenders who are not the most hardened or  
              violent find themselves imprisoned for over twenty-five  
              years.

              Proponents of Proposition 184, the ballot measure that  
              enacted Three Strikes, stated the intent of Three  
              Strikes was to put career criminals who 'rape, molest  
              and murder' "behind bars where they belong."  However,  
              the Legislative Analyst has noted that nearly half of  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageI


              inmates sentenced under Three Strikes are non-serious  
              or non-violent.  Many offenders are serving life terms  
              not for committing a serious or violent felony, but for  
              petty thefts, minor drug offenses, or property crimes  
              that presented no threat of physical harm.

              The deciding factor in whether a defendant receives a  
              severe sentence under Three Strikes is not the gravity  
              of the offense but the county of conviction.  Some  
              counties reserve life terms for the most serious or  
              violent offenders.  Others prosecute for a third strike  
              more aggressively and thereby undermine the principle  
              of just dessert in sentencing.  The overly aggressive  
              use of Three Strikes threatens the future of the law  
              against the very offenders that the proponents of Prop.  
              184's claimed to single out for life sentences.  Many  
              in the public believe that this broad application of  
              the Three Strikes law makes the criminal justice system  
              unjust.

              Studies demonstrate the failings of the current three  
              strikes law.  Justice Policy Institution found:

                   57% of third strike offences were non-violent.
                   64.5% of second and third strikers were  
                sentenced for non-violent offenses
                   More than ten times as many third strikers  
                serving life for drug possession as 2nd degree  
                murder.
                   There were more third strikers serving  
                25-to-life for drug possession than for  
                second-degree murder, assault with a deadly weapon,  
                and rape combined.
                   177 times more third strikers were serving  
                25-to-life for petty theft in 2003 (354) than in  
                1994 (2).

              The non-partisan Legislative Analyst Office (LAO)  
              found:




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageJ



                   Nearly fifty percent of third strikers were  
                non-violent/non-serious.
                   The application of three strikes law to  
                non-serious/non-violent felonies fails to demonstrate a  
                reduction in the crime rate.
                   The three strikes law increases pressure on courts and  
                county jails.

              The number of new inmates serving life sentences for  
              non-serious or non-violent crimes will be reduced in  
              this bill.  The bill does, however, require a  
              25-years-to-life sentence for defendants convicted in  
              the current cases of a serious or violent felony, a  
              specified sex crime, a specified drug trafficking  
              crime, or a crime involving the intent to inflict great  
              bodily injury.  The bill includes an additional public  
              safety protection - a life-term sentence shall be  
              imposed on a defendant convicted of a non-serious  
              current crime if the he or she was previously convicted  
              of a super strike - a sexually violent offense, a sex  
              crime against children, murder or manslaughter, or a  
              life-term serious felony.<3>

              The bill allows a third-strike offender serving a  
              life-term for a non-serious or non-violent offense to  












              -----------------------
          <3>  All violent offenses are also serious.  Thus, the list of  
          serious offenses includes the list of violent offenses.














                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageK


              petition for re-sentencing. <4>  Relief is not  
              automatic.  The court may consider the individual  
              circumstances of the case before re-sentencing.  The  
              petition must be filed within two years of the  
              effective date of this bill.


              The Department of Corrections and Rehabilitation (CDCR)  
              faces overcrowding and budget stresses, hindering  
              rehabilitation and placing inmates and correctional  
              officers in jeopardy.  Corrections costs have increased  
              disproportionately to other state expenses.  The State  
              will soon see steep increases in the cost of housing  
              aging third strikers.  The LAO has noted that average  
              cost of $35,000 per annum for an inmate will double or  
              triple for older inmates.  The money saved by this bill  
              could be shifted to areas that have fallen behind  
              corrections, including education.

              We must be tough and smart on crime.  Our high  
              recidivism rate endangers the public.  Sentencing our  
              most dangerous offenders to life terms is being hard on  
              crime.  Being smart on crime requires that we direct  
              rehabilitation resources to those offenders most likely  
              to benefit from them.  Imprisoning  
              non-serious/non-violent offenders for life reduces the  
              available rehabilitation resources.

              This bill will place an initiative on the ballot  
              without the need for signatures.  The bill will enact  
              the three strikes law that the proponents of Prop. 184  
              claimed they had written.  This will provide uniformity  
              to the application of a third strike and increase  
              public approval of this useful tool against career  
              criminals that display serious or violent patterns of  
              offending.

          ---------------------------
          <4>  Many inmates are serving much longer sentences than  
          25-years-to-life for non-serious offenses, as each count of  
          conviction must or can be punished through a separate  
          life-term.  For example, where the court does not dismiss a  
          prior strike or deem the current conviction to be a  
          misdemeanor, the court is required to sentence a person who  
          was convicted of two counts of felony petty theft with a  
          prior to a minimum term of at least 50-years-to-life if the  
          thefts did not arise from the "same operative facts."  A  
          defendant in the federal cruel and unusual punishment  
          litigation received such a sentence.




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageL


          2. Los Angeles County District Attorney's Three Strikes Policy -  
            Prosecutors File All Prior Strikes and Request Dismissals  
            Consistent with the Published Policy  
                                          
           Outline of the Policy
           
          General Considerations
          
          ? All qualifying (strike) priors shall be alleged (as prescribed  
            by Pen. Code  1170.12 (d)(1))
          ? Case is then fully reviewed

          Defendant has Two Qualifying (Strike Priors)
          
          ? Third Strike (life sentence) presumed correct if current case  
            involves serious or violent crime.
          ? Third Strike filing presumption can be rebutted if all of the  
            following apply:
                 Current offense does not involve weapon
                 Injury to a victim
                 Violence or threat of violence
                 Consideration of the following indicates dismissal is  
               appropriate:
                     Are prior strikes remote?
                     Did priors involve violence or threat thereof?
                     Did strikes arise from single or multiple incidents?
                     Do other factors in aggravation or mitigation apply?

          ? Second Strike (double sentence) presumed if defendant has two  
            prior strikes and current offenses are neither serious nor  
            violent, or the current charges do not involve large scale  
            commercial drug trafficking.
          ? Second Strike presumption rebutted (so that a life-term will  
            be sought) where the current charges are neither serious nor  
            violent (and did not involve major drug trafficker) if:
                                                                                   Current offense involves possession of deadly weapon
                 Injury, violence or threat of violence in current  
               offense





                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageM


          ? Head deputy may still seek a Three Strikes (life-term)  
            sentence based on other factors than those recited above where  
            a bureau director approves written request by the head deputy.

          Defendant has a Single Prior Qualifying (Strike) Conviction
          
          ? Head Deputy may seek dismissal of strike allegation if the  
            following apply:
                 Current offense is neither serious nor violent
                 Prior strike occurred more than 10 years ago
                 Prior strike did not involve deadly weapon, injury to  
               victim, violence or threat of violence
                 Mitigating factors exist

          3.  Discretion of Court to Re-sentence a Defendant Committed to  
            Prison for Life Who Would Not Receive a Life-Term if Initially  
            Sentenced under This Bill  

          This bill allows an inmate who was convicted of a non-serious  
          offense (all violent offenses are serious) and sentenced to a  
          life-term under the Three Strikes law to petition for  
          re-sentencing.  The inmate-defendant must establish in the  
          petition that he would not have been sentenced to a life-term  
          under this bill.  The court, however, has discretion to deny  
          re-sentencing even where the defendant could not have been  
          sentenced to a life-term for a new offense.

          The bill does not include guidelines for the court to consider  
          in determining whether to re-sentence the defendant.  Settled  
          decisional law holds that a court must exercise its discretion  
          to achieve justice and within the framework of the law under  
          which it acts.  Arguably, the fact that a defendant was  
          committed to prison for life for a non-serious offense and that  
          he or she had committed no prior violent crimes would indicate  
          that the court should grant re-sentencing.  Such a decision  
          would be consistent with, and would advance the intent of, the  
          Three Strikes law as amended by this bill.

          Nevertheless, it is typically very difficult to establish an  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageN


          abuse of judicial discretion.  Courts in some counties that have  
          been very harsh in imposing life terms might generally refuse to  
          exercise discretion.  Courts in counties where discretion to  
          dismiss prior strikes has been more often exercised might be  
          more likely to grant petitions.



          Prosecutors have argued that the crime of commitment in a Three  
          Strikes life-term may not fully explain why the prosecutor  
          sought a severe sentence.  Prosecutors may argue that more  
          serious charges could have been alleged had the prosecutor known  
          that a defendant would one day be eligible to petition for  
          re-sentencing.

          An argument that inmates should not be granted re-sentencing  
          because they may have committed uncharged prior serious felonies  
          might appear rather odd in light of the terms of the Three  
          Strikes law.  The literal terms of Three Strikes require  
          prosecutors to charge all available prior serious felon  
          convictions.  The Three Strikes law also prohibits plea  
          bargaining.  If an inmate has been convicted of serious felonies  
          that were not charged in the prosecution resulting in a  
          life-term, or that were dismissed in plea bargaining, the  
          prosecutor failed to follow the law.

          Perhaps this bill should specifically set out guidelines for the  
          court in determining to exercise discretion to grant  
          re-sentencing.  These guidelines could include consideration of  
          factors other than the crime of commitment and the defendant's  
          prior convictions.  The prosecutor could file an answer to the  
          petition for re-sentencing explaining any reasons why  
          re-sentencing would not be appropriate - despite that fact that  
          the defendant's crime of commitment and prior convictions would  
          prohibit a life-term if the original sentencing occurred after  
          the effective date of this measure.

          SHOULD THE BILL INCLUDE GUIDELINES A COURT WOULD BE REQUIRED TO  
          CONSIDER IN DETERMINING WHETHER OR NOT TO EXERCISE ITS  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageO


          DISCRETION TO RE-SENTENCE A DEFENDANT WHO HAS BEEN IMPRISONED  
          FOR LIFE FOR A NON-SERIOUS OFFENSE OR OTHER DISQUALIFYING  
          OFFENSE?

          IF AN INMATE OTHERWISE QUALIFIES FOR RE-SENTENCING, SHOULD  
          RELIEF ONLY BE DENIED IN EXTRAORDINARY CIRCUMSTANCES?

          4.  No Differentiation among Felonies in Current Case under Three  
          Strikes  

          Under "Three Strikes," any felony conviction, not only a serious  
          or violent felony conviction, following a violent or serious  
          prior, results in a sentence of twice the normal length.  With  
          any two violent or serious felony priors, a new conviction for  
          any felony - including bad checks, petty theft with a prior,  
          etc. - results in a life sentence.  Thus, "Three Strikes" makes  
          no distinction in severity between different felonies.<5>  Where  
          a Three Strikes defendant is convicted of two counts of theft  
          not committed on one occasion or arising from the same facts, he  
          or she must receive two consecutive terms of 25-years-to-life.   
          For many defendants, such a sentence means that they will never  
          be released from prison alive.


          5.  Violent and Serious Felonies Defined  

          As originally enacted in 1994, the Three Strikes law defined  
          qualifying prior as those felonies listed as "serious" or  
          "violent" on June 30, 1993.  (As noted in this document,  
          qualifying prior strikes subject a defendant to a doubled term or  
          life sentence upon conviction of any felony in the current case.)   
          Proposition 21 of the March 2000 primary election added to the  
          ----------------------------
          <5>  However, a defendant who is convicted of a serious felony  
          in the current case must receive a 5-year enhancement for any  
          prior serious felony.  This is not a function of the Three  
          Strikes law, but rather flows from earlier recidivist penalty  
          scheme.  The actual minimum term for a Three Strikes defendant  
          with two prior serious felonies who is convicted of a serious  
          felony in the new case is 35-years-to-life.



                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageP


          lists of serious and violent felonies and defined qualifying prior  
          strikes as felony listed as serious or violent felonies as of  
          March 8, 2000 - the date that the Proposition 21 took effect.  For  
          all practical purposes, all "violent" felonies are "serious."   
          Thus the eligible "strikes" are aptly demonstrated by the serious  
          felony list, with additional notations for violent offenses.   
          Serious and violent felonies, as defined by Penal Code Section  
          667.5(b) and Section 1192.7, as they existed after March 8, 2000,  
          include the following completed crimes and attempts:

                 Murder or voluntary manslaughter (violent)
                 Mayhem (serious, and violent if by force or threat of  
               retaliation)
                 Rape (violent)
                 Sodomy by force, violence, duress, menace, or fear of  
               bodily injury (violent)
                 Oral copulation by force, violence, duress, menace or  
               fear of bodily injury (violent)
                 Lewd act with child under fourteen years of age  
               (violent) and continuous sexual abuse of a child (violent)
                 Any felony punishable by death or life imprisonment  
               (violent)
                 Any felony in which defendant inflicts great bodily  
               injury on defendant or personally uses a firearm (violent)
                 Attempted murder (violent)
                 Assault with intent to commit a sex crime, robbery or  
               mayhem (violent)
                 Assault with a deadly weapon on peace officer (serious)
                 Assault by life prisoner on a non-inmate (serious)
                 Assault with a deadly weapon by inmate (serious)
                 Arson (serious, and violent if structure was inhabited)
                 Exploding a destructive device with intent to injure  
               (serious)
                 Explosion causing great bodily injury or mayhem  
               (violent)
                 Explosion with intent to murder (violent)
                 Burglary of inhabited dwelling (serious, and violent if  
               another person other than an accomplice is present)
                 Robbery, bank robbery or carjacking (violent)




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageQ


                 Kidnapping (violent)
                 Inmate taking a hostage
                 Attempted crime carrying a life sentence or death  
               penalty
                 Any felony where defendant personally uses a dangerous  
               or deadly weapon
                 Sale or furnishing heroin, cocaine, PCP, or  
               methamphetamine to a minor
                 Forcible foreign object rape (violent in most cases)
                 Grand theft involving a firearm
                 Any violation of 10-20-life firearm use and discharge  
               enhancement law (violent)
                 Any gang-related felony (violent if crime involves  
               extortion or witness intimidation)
                 Maliciously throwing acid or flammable substances
                 Witness intimidation
                 Credible threats to kill or cause great bodily injury
                 Discharge of a firearm at an inhabited dwelling, vehicle  
               or aircraft
                 Drive-by shooting
                 Any conspiracy to commit a serious felony

          6.  Judicial Discretion to Dismiss Prior Strike Allegation is  
            Limited; Judicial Discretion to Deem an Alternate  
            Felony-Misdemeanor to be a Misdemeanor in a Three Strikes Case  

           Judicial Discretion Concerning Prior Strikes

          The California Supreme Court held in People v. Superior Court  
          (Romero), (1996) 13 Cal.4th 497, that for purposes of "Three  
          Strikes," a court may on its own motion dismiss a prior felony  
          conviction allegation in the furtherance of justice.  However,  
          the court's discretion to dismiss prior strike allegations is  
          quite limited.  The trial court "must proceed in strict  
          compliance with Section 1385(a) and is subject to review for  
          abuse."  The court may not dismiss a prior solely for judicial  
          convenience or because of court congestion or a plea agreement,  
          or because of personal disagreement with the effects of the  
          Three Strikes law.  Courts must focus on the nature of the  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageR


          present offenses, the defendant's background and other  
          "individualized considerations."

          The court in People v. Williams (1998) 17 Cal.4th 148  
          essentially held that a trial court abuses its discretion in  
          dismissing a prior strike if the defendant's criminality has  
          been unbroken.  This is true even where the defendant's current  
          conviction is not for a serious or violent felony.  A defendant  
          who seeks a dismissal of a prior "strike" must establish that he  
          or she should be treated as though he or she falls outside the  
          scope of the Three Strikes as written.  (Id, at 161.)

           Judicial Discretion Concerning Alternate Felony-Misdemeanor in  
            Current Case

          A trial court's discretion in a Three Strikes case to deem a  
          "wobbler" (alternate felony-misdemeanor) to be a misdemeanor may  
          be slightly wider than the discretion to dismiss a prior  
          conviction.  (People v. Alvarez (1997) 14 Cal.4th 968)  However  
          such a decision must also be made only after consideration of  
          all relevant facts, including a defendant's prior qualifying  
          convictions under the "Three Strikes" law.

          Commitments to prison under the "Three Strikes" law stayed  
          fairly constant after the Romero and Alvarez decisions.  (Three  
          Strikes Update, Legislative Analyst's Office, October 1997.)   
          However, many factors may have influenced these data.  Many  
          defendants facing life-terms under Three Strikes prior to the  
          Romero decision insisted on going to trial, as they had nothing  
          to gain by pleading guilty.  After Romero, many of those  
          defendants could have opted to plead guilty if judges indicated  
          that they would dismiss a prior strike allegation.  While judges  
          may not engage in plea bargaining, judges can validly indicate  
          to the defendant what the sentence would likely be if the  
          defendant entered a guilty plea.  We cannot say whether or not  
          prosecutors followed the prohibition on plea-bargaining, as such  
          negotiations can be held outside of open court.

          7.  Romero and Alvarez - Response of Three Strikes Supporters and  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageS


            Related Background
           
          Simply stated, the Romero and Alvarez decisions changed  
          everything about Three Strikes.  The California Supreme Court in  
          Romero ruled that the trial court has limited discretion to  
          dismiss a prior strike allegation.  In a less widely-known case,  
          the Court in Alvarez ruled that a judge has discretion to deem a  
          current alternate felony-misdemeanor to be a misdemeanor.  Under  
          Romero or Alvarez, a judge cannot exercise discretion because it  
          disagrees with the Three Strikes law.

          The Romero decision was greeted with vehement opposition and  
          criticism by the sponsors and supporters of Three Strikes.  At  
          least two bills were introduced to overturn the effect of the  
          decision.  In summary, critics of Romero asserted that the  
          decision had gutted Three Strikes and thwarted the will of the  
          electorate.

          AB 1370 (Prenter) -1997- would have overturned Romero and  
          substituted a narrow range of judicial discretion.  The author  
          stated:  "This bill would reinstate the will of the people and  
          would repair the damage that has been done [by the Romero  
          decision] to weaken Three Strikes.  It would limit a judge's  
          ability to ignore a criminal's violent past?"  (Italics added.)

          SB 331 (Hurtt) -1996- in supporting the bill, law enforcement  
          groups and prosecutors argued l:  "This measure is a critically  
          important piece of legislation that seeks to correct the  
          problems raised ? by the recent California Supreme Court  
          decision [in Romero].  Enactment of SB 331 will ensure both the  
          electorate and the Legislature's intent in originally enacting  
          the 'Three Strikes' law to ensure tough sentences for repeat  
          felons."  (Italics added.)

          By the time that Proposition 66 of the 2004 election was  
          debated, supporters of Three Strikes cited the discretion for  
          courts and prosecutors as an essential and inherent virtue of  
          the law.  Opponents of that initiative argued that the Three  
          Strikes law grants prosecutors the discretion to allege a prior  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageT


          strike offense or not.  It has been widely argued that judges  
          have broad discretion to dismiss a prior strike allegation.   
          Neither assertion is correct.

          The literal terms of the Three Strikes law requires the  
          prosecutor to file each prior "strike" allegation in the  
          defendant's record.  The law does not appear to grant the  
          prosecutor discretion to not file an allegation that the  
          defendant was previously convicted of a strike offense.

          In order to dismiss a prior strike, the court must effectively  
          find that a Three Strike sentence would be anomalous and outside  
          the purpose of the law.  Romero implicitly states that dismissal  
          of a strike allegation should be a relatively rare act.  (In  
          determining whether or not to deem a current offense to be a  
          misdemeanor under Alvarez, the court also must be guided by the  
          intent of Three Strikes, although the discretion to deem a  
          wobbler a misdemeanor appears to be wider than the discretion to  
          dismiss a prior strike allegation.)


          However, it appears that dismissals of strikes are not  
          particularly unusual acts, at least where prosecutors do not  
          object.  It is likely that most dismissals of strikes are not  
          challenged as violating the decisions in Romero and Williams  
          because dismissals are often done as part of a (loosely defined)  
          plea bargain.  Because it has been estimated that Romero had a  
          relatively modest effect on the numbers of new life-term  
          commitments (approximately 5% difference from 6/1996-1/2003), it  
          is likely that some form of plea negotiations went on in Three  
          Strikes cases prior to Romero.  Of course, prosecutors will not  
          challenge bargains they made.  Nevertheless, many of these case  
          resolutions likely do violate the rule set out in Williams for  
          dismissal of prior convictions.
          
          The California Supreme Court in Romero noted, but did not  
          decide, the flip side of this issue.  That is, the existing  
          Three Strikes law clearly appears to mandate prosecutors to  
          charge every available prior strike conviction.  It has been  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageU


          argued that such mandate violates the separation of powers.   
          However, it appears that no prosecutor's office has directly  
          challenged the provision.  The court in Romero noted in footnote  
          7, "California Appellate Defense Counsel suggests that section  
          667(f)(1), which requires the prosecutor to 'plead and prove'  
          all prior felony convictions, may violate separation of powers  
          as between the legislative and the executive branch, since the  
          latter has traditionally retained broad discretion to determine  
          whom, and for what offenses, to prosecute.  [Citations.]  The  
          district attorney notes the issue but does not advance it '[i]n  
          this case.'  We intimate no view on the issue."

          8.  Power and Discretion of Prosecutors in Three Strikes  

          The Three Strikes law grants great power to prosecutors.  For  
          example, a defendant who has been previously convicted of two  
          serious felonies (residential burglary for example) who is  
          charged with an alternate felony-misdemeanor (petty theft with a  
          prior conviction for example) faces punishment that ranges from  
          a maximum jail term of six months to life in prison, depending  
          on the charging and disposition decisions of the prosecutor.

          A white paper published by the California District Attorneys  
          Association during the campaign on Proposition 66 in 2004 stated  
          that prosecutors must file every available prior strike and that  
          plea bargaining is prohibited.  While this is certainly a  
          correct description of the written provisions of the Three  
          Strikes law, it may be of questionable value or accuracy in  
          describing actual practice of many prosecutors.

          The well-known practice of at least one district attorney to not  
          file prior strike allegations in most cases where the defendant  
          is charged with a non-serious felony in the current charges  
          belies the assertion that all prior strike allegations are  
          filed.  Further, if plea bargaining were never done in Three  
          Strikes cases - thus eliminating a defendant's agreement to  
          plead guilty from the circumstances considered by the prosecutor  
          in dismissing a prior strike allegation - there would be limited  
          incentives for defendants to plead guilty.




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageV




          In a case where a defendant faces a life-term in prison, it is  
          highly unlikely that he or she would trust his or her fate to a  
          prosecutor's spirit of justice or beneficence as to whether one  
          of the prior strike allegations will be dismissed.  In the  
          absence of a clear plea bargaining, or at least an unambiguous  
          indicated sentence by the court, a defendant in a life-term case  
          will choose to go to trial, as he or she has nothing to lose and  
          much to gain by doing so.

          Attorneys familiar with practices in Los Angeles report that  
          prosecutors may decide whether or not to reduce a case from a  
          third strike to a second strike based on factors inherent in the  
          case and the defendant's background.  However, plea bargaining  
          occurs as to the particular two-strike sentence the defendant  
          will receive.  It also appears that supervisors in Los Angeles  
          give the most scrutiny to cases where the deputy prosecutor  
          wishes to seek a life-term sentence for a defendant who is  
          charged with a non-serious offense in the current case.   
          Finally, criminal cases in Los Angeles are quite often resolved  
          very soon after filing.  In such circumstances it may be  
          difficult to separate strike dismissal and plea bargaining  
          decisions.

          Prosecutors face great pressure to properly handle a large  
          volume of cases with limited resources.  A true and strict  
          prohibition on plea bargaining in Three Strikes cases would be  
          very burdensome.  However, Mr. Cooley's directive to avoid the  
          potential for coercive plea bargaining reveals just how much  
          leverage the Three Strikes law could give a prosecutor in plea  
          bargaining.

          Under a comparable life-term sentencing scheme - the   
          'one-strike ' sentencing law for sex offenders - the California  
          Department of Mental Health found that prosecutors very often  
          plea bargain in cases where a defendant could be charged with a  
          one-strike crime.  It appears that this practice has contributed  
          to a steady flow of persons committed to the Sexually Violent  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageW


          Predator civil commitment program.  Many assumed that the  
          one-strike law - which would impose life terms for persons who  
          might otherwise be committed to the SVP program - would greatly  
          reduce SVP commitments.  As with Three Strikes, the actual  
          practices of prosecutors, defendants and courts may be very  
          different than the terms of the law would appear to dictate.

          Mr. Cooley's Three Strikes policy directs prosecutors to  
          consider specified factors in determining whether to seek  
                                                                                         dismissal of a strike allegation.  He further directs them to  
          avoid "coercive" plea bargaining.  In a coercive plea bargain, a  
          prosecutor would hold the Damoclean sword of a life-term over  
          the head of the defendant, even where the evidence of guilt was  
          weak.

          In 1999, Jennifer E. Walsh, of the California State University,  
          Los Angeles, and Claremont McKenna College, published a study  
          concerning the exercise of discretion by prosecutors and judges  
          in Three Strikes cases.  Walsh relied on surveys from 25 of the  
          58 elected district attorneys in California and on case files  
          compiled by the San Diego District Attorney's Office from  
          1995-1997.  (The responding district attorneys prosecuted about  
          80% of the strikes cases in the state.)  Walsh concluded that  
          prosecutors use common factors in determining whether or not to  
          seek dismissal of a strike allegation.  She further concluded  
          that "prosecutors are not using their discretionary authority to  
          strike a strike in a disparate manner ?"  Peter Greenwood, a  
          former researcher at Rand who now heads his own firm, has stated  
          that "the attorney responses [to Walsh's survey] show a large  
          disparity in the frequency of use of discretion."  Greenwood has  
          published numerous Three Strikes and other criminology studies.

          Ms. Walsh, in conjunction with Claremont College, has recently  
          published a monograph concerning prosecutorial discretion in  
          Three Strikes cases.  The monograph describes the policies of  
          numerous district attorneys in California and describes the  
          commitment offenses of third strike (life-term) inmates.  Ms.  
          Walsh argues:  "Critics of California's Three-Strikes law argue  
          that the mandatory sentencing measure targets offenders for more  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageX


          minor offenses, such as petty theft with a prior and marijuana  
          possession, yet the statistics ? contradict this assertion."

          Arguably, criticism of the application of Three Strikes to  
          non-serious and non-violent crime (as defined by statute) has  
          not been so narrow as is implied by Ms. Walsh's statement.   
          Critics of Three Strikes have particularly noted the inclusion  
          of petty theft with a prior as a qualifying third strike.  Much  
          of this criticism has been based on the fact that a person who  
          has been convicted previously of only violent offenses - murder,  
          rape, mayhem etc., can only receive a maximum term of 6 months  
          in jail for petty theft.  A person who was previously convicted  
          of two serious theft crimes - residential burglary or robbery  
          (taking of property by force or fear), is eligible for a life  
          -term upon conviction of petty theft.

          As of December 2005, there were 361 inmates serving life-terms  
          for petty theft with a prior conviction.  Prosecutors in various  
          counties have starkly different policies concerning prosecuting  
          this crime under Three Strikes.  For example, Kern County, with  
          a population of 750,000, has imprisoned 23 people in prison for  
          life under Three Strikes for petty theft with a prior.  In  
          contrast, Alameda County, with a population of 1.4 million, has  
          imprisoned 1 person in prison for life under Three Strikes for  
          the same crime.

          9.  Recent Data on Three Strike Commitments  

          June 2004 Data

          
           ----------------------------------------------------------------- 
          |Total                |7,458                |100%                 |
          |---------------------+---------------------+---------------------|
          |Robbery              |1,655                |  22%                |
          |---------------------+---------------------+---------------------|
          |Residential burglary |   866               |  11.6%              |
          |---------------------+---------------------+---------------------|
          |Commercial burglary  |   465               |    6.2%             |




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageY


          |---------------------+---------------------+---------------------|
          |Sex crimes           |   588               |    7.9%             |
          |---------------------+---------------------+---------------------|
          |Assault              |   789               |  10%                |
          |---------------------+---------------------+---------------------|
          |Petty theft w/ a     |   357               |    4.8%             |
          |prior                |                     |                     |
          |---------------------+---------------------+---------------------|
          |Vehicle thefts       |   235               |    3.1%             |
          |---------------------+---------------------+---------------------|
          |Grand theft          |   120               |    1.6%             |
          |---------------------+---------------------+---------------------|
          |Combined non-serious |1,457                |  19.5%              |
          |property crimes      |                     |                     |
          |---------------------+---------------------+---------------------|
          |Drug possession      |   678               |    9.0%             |
          |---------------------+---------------------+---------------------|
          |Drug commerce,       |   559               |    7.5%             |
          |including poss. of   |(approximately - CDC |                     |
          |marijuana for sale   |categories are not   |                     |
          |                     |clear)               |                     |
          |---------------------+---------------------+---------------------|
          |Weapon possession    |   402               |    5.4%             |
          |---------------------+---------------------+---------------------|
          |Murder and           |   102               |    1.4%             |
          |manslaughter         |                     |                     |
           ----------------------------------------------------------------- 
           December 2005 Data
           
          
           ----------------------------------------------------------------- 
          |Total                |7,813                |100%                 |
          |---------------------+---------------------+---------------------|
          |Robbery              |1,778                |  22.7%              |
          |---------------------+---------------------+---------------------|
          |Residential burglary |   910               |  11.6%              |
          |---------------------+---------------------+---------------------|
          |Commercial burglary  |   474               |    6.0%             |
          |---------------------+---------------------+---------------------|




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageZ


          |Sex crimes           |   616 (lewd conduct |    7.9% (lewd       |
          |                     |- 262)               |conduct - 3.3%)      |
          |---------------------+---------------------+---------------------|
          |Assault              |   852               |  11%                |
          |---------------------+---------------------+---------------------|
          |Petty theft w/ a     |   361               |    4.6%             |
          |prior                |                     |                     |
          |---------------------+---------------------+---------------------|
          |Vehicle thefts       |   236               |    3.0%             |
          |---------------------+---------------------+---------------------|
          |Grand theft          |   123               |    1.6%             |
          |---------------------+---------------------+---------------------|
          |Combined non-serious |1,489                |  19%                |
          |property crimes      |                     |                     |
          |---------------------+---------------------+---------------------|
          |Drug possession      |   679               |    9%               |
          |---------------------+---------------------+---------------------|
          |Drug commerce,       |   578               |    7.4%             |
          |including poss. of   |(approximately - CDC |                     |
          |marijuana for sale   |categories are not   |                     |
          |                     |clear)               |                     |
          |---------------------+---------------------+---------------------|
          |Weapon possession    |   423               |    5.4%             |
          |---------------------+---------------------+---------------------|
          |Murder and           |   111               |    1.4%             |
          |manslaughter         |                     |                     |
           ----------------------------------------------------------------- 
          
           Comparative County Rates of Life-Term Three Strikes Terms
           
          12/31/05 Prison Population Numbers.  State and County Population  
          numbers from U.S. Census.  State population estimated at  
          36,000,000.
           
           
           ----------------------------------------------------------------- 
          |              County |  Percentage of      |  Percentage of 3rd  |
          |                     |State Pop.           |Strikers             |
          |---------------------+---------------------+---------------------|




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageA


          |Alameda              |               4.0%  |                     |
          |                     |                     |1.5%                 |
          |---------------------+---------------------+---------------------|
          |Kern                 |               2.0%  |                     |
          |                     |                     |5.0 %                |
          |---------------------+---------------------+---------------------|
          |Los Angeles          |             28%     |                     |
          |                     |                     |38%                  |
          |---------------------+---------------------+---------------------|
          |Sacramento           |               3.8%  |                     |
          |                     |                     |6.0 %                |
          |---------------------+---------------------+---------------------|
          |San Diego            |               8.3%  |                     |
          |                     |                     |8.1                  |
          |---------------------+---------------------+---------------------|
          |San Francisco        |               2.0%  |                     |
          |                     |                     | .04%                |
          |                     |                     |                     |
           ----------------------------------------------------------------- 
          
         10.  California Crime Rates in Comparison with Other States -  
            Fairly Consistent and High Rates of Violent Crime over Time,  
            Middle of the Pack in Property Crime
           
          Supporters of the Three Strikes law argue that the law has been  
          responsible for a dramatic decrease in crime in California.   
          (Numerous published and peer-reviewed academic studies have  
          found little or no effect from the law on the rate or incidence  
          of crime in the state.)  Crime has fallen in California, as it  
          has across the country.  The California crime rate has fallen at  
          a higher rate than many other states.  Supporters of the  
          existing Three Strikes law often find great significance in the  
          fact that California's crime rate has fallen more than many  
          other states.  They argue that this point established the Three  
          Strikes law is largely or greatly responsible for the decrease  
          in crime in California over the last ten years.  (Crime rates  
          have begun rising recently.)

          On the other hand, academic researchers have concluded that  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageB


          Three Strikes has had only minimal effect on crime rates.  These  
          researchers have attributed the drop in crime in California to  
          many factors.  For example, it has been stated that California  
          simply had farther to fall vis-?-vis other states and that  
          California's crime rate has remained relatively high,  
          particularly for violent crime.  Further, it has been noted that  
          California was slower than the rest of the country to emerge  
          from economic recession in the 1990s.

          California still has a relatively high rate of violent crime,  
          and the rate of violent crime has stayed constant in comparison  
          with the seven largest states in the country.  As of 2002,  
          California ranked 10th in the rate of reported violent crime  
          (FBI Uniform Crime Reports) in the United States.  That is, 9  
          other states have higher rates of violent crime than California.  
           California ranked 4th in violent crime in 1988 and 10th in  
          1998.  However, California's rate of violent crime, when  
          measured against the most populous states in the country, has  
          remained strikingly consistent.  That is, California has ranked  
          3rd in violent crime in 1988, 1998 and 2002 among the seven most  
          populous states (California, New York, Texas, Florida, Illinois,  
          Pennsylvania and Ohio).

          In 2004, California ranked 2nd in violent crime rates among the  
          seven most populous states.  The only state with a higher  
          violent crime rate than California in 2004 - Florida - has often  
          been described as having harsh sentencing laws.  The 2004  
          violent crime rates (violent crimes per 100,000 of population  
          among the seven most populous states are as follows:

                    Florida:                 711
                    California               552
                    Illinois                      543
                    Texas                    541
                    New York                 442
                    Pennsylvania             411
                    Ohio                     342

          In 2004, California had the 9th highest rate of violent crime  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageC


          among all states.  Only South Carolina, Florida, Maryland,  
          Tennessee, New Mexico, Louisiana and Alaska had higher violent  
          crime rates.

          California ranked approximately 27th in reported (FBI UCR)  
          property crime rates in 2002.  Ten states, including California,  
          have rates of reported property crimes of between 3,400 and  
          3,000 per 100,000 citizens in 2002.  In other words,  
          California's property crime rate was essentially equivalent to  
          many states in the middle of the rankings.  In 1998, California  
          ranked 17th in property crime.  In 1998, California also ranked  
          3rd in property crime rates among the seven most populous  
          states.  California was 3rd in property crime overall in 1988.   
          It was also 3rd in reported property crime among the seven most  
          populous states in 1988.  In 2002, California ranked 5th in  
          reported property crime among the seven most populous states.   
          California's property crime rate in 2002 was very similar to  
          that of Illinois and Ohio.

          In 2004 California, at 3,419 property crime reports per 100,000  
          people, had the 25th highest rate of property crime among all  
          states.  The California property crime rate was very close to  
          the rates Delaware (3, 164), Indiana (3,398), Mississippi  
          (3,478), Nebraska (3,512), Maryland (3, 640), and Ohio (3,673).

          In 2004, California ranked 4th in the rate of property crime  
          among these seven most populous states.  The California rate of  
          property crime was solidly in the middle of the state rates, as  
          the rates of property crime in Ohio and Illinois were similar to  
          the rate in California.  The property crime rates per 100,000  
          people in 2004 were:

                    Texas                    4,494
                    Florida                  4,178
                    Ohio                     3,673
                    California               3,419
                    Illinois                      3,186
                    Pennsylvania             2,415
                    New York                 2,199




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageD



          Violent crime includes murder, rape, robbery and aggravated  
          assault.  Property crime includes burglary, theft and motor  
          vehicle theft.  The UCR counts all forms of burglary (generally  
          entry into a structure with intent to steal) the same.  In  
          California, residential burglary (regardless of whether or not  
          someone is actually in or residing in the residence at the time)  
          is a prior "strike" offense.  Commercial burglary, which  
          involves the entry into any structure with the intent to commit  
          theft or any felony, is not a serious felony.  The conduct that  
          can constitute commercial burglary ranges from entering a store  
          with the intent to shoplift, to breaking and entering a jewelry  
          store or car dealership with the intent to steal property of  
          great value, and that may be guarded by a security service.

          It should be noted that the statistics cited in the paragraphs  
          above exclude the District of Columbia, which generally has the  
          highest rate of violent and property crime when included with  
          the 50 states.

          Myriad studies have been published reporting that Three Strikes  
          has had little or no effect on the California crime rate.   
          However, supporters of Three Strikes have argued that the drop  
          in crime in California can be attributed to enactment of the  
          law.

          In 2002, Peter Greenwood, formerly of the Rand Corporation,  
          compiled a summary of the major studies on the effects of the  
          Three Strikes law on crime rates.  Mr. Greenwood noted a study  
          by Ms. E. Chen "no evidence that Three Strikes law had a  
          significant effect on incarceration rates of violent crime  
          trends.  The only statistically significant effect found was for  
          a [particular] property crime in California [of] motor vehicle  
          theft."


          11.  This Bill is Very Different than Proposition 66 of the  
          November 2004 General Election  





                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageE


          This bill has been drafted so as to be very different than prior  
          attempts to amend the Three Strikes law.  The most notable  
          attempt to amend the law was Proposition 66 of the November 2004  
          General Election.  Examples of important differences between  
          these measures are described below:

          Scope of Measures

           SB 1642 amends only the third-strike (life-term) provisions of  
            the Three Strikes law.

           Proposition 66 would have applied to second and third strikes.

          Definitions of Current and Prior Strikes
          
           SB 1642 provides that a third-strike sentence can be imposed  
            under various circumstances where the defendant has been  
            convicted of a non-serious/non-violent offense
               ?      Defendant has been previously convicted of a  
                 "super-strike" - a sexually violent offense, specified  
                 sex offenses against children, murder or manslaughter,  
                 life-term serious/violent offense
               ?      Defendant has been charged in the current case with  
                 an egregious drug trafficking offense, a specified sex  
                 offense or the defendant intended to inflict great bodily  
                 injury.

           Proposition 66 did not distinguish among current non-serious  
            or violent offenses.  Proposition 66 would not have  
            distinguished among prior serious/violent offenses.

          How Prior Convictions were Established
          
           Proposition 66 would have required that prior strike  
            convictions had been established in separate cases.

           SB 1642 allows prior strikes to have been proved in the same  
            case.





                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageF


          Defining Serious and Violent Convictions
          
           Proposition 66 would have amended the lists of serious and  
            violent felonies in existing law.

               -      Most notably, Proposition 66 would have defined  
                 residential burglary as a serious felony only if a person  
                 was present in the residence at the time of the crime.
               -      Attempted residential burglaries would not be  
                 defined as serious felonies.
               -      Also, a felony in which the defendant inflicted  
                 great bodily injury would have been defined as a serious  
                 or violent felony where the defendant intended to  
                 personally inflict great bodily injury.
               -      Credible threats would have been deleted from the  
               serious felony list.

           SB 1642 does not change the lists of serious and violent  
            felonies.
           
           Re-sentencing Provisions
          
            Proposition 66 re-sentencing  :  Proposition 66 would have  
            provided that an inmate who would not qualify for a life-term  
            if sentenced after enactment of the initiative would have  
            been re-sentenced, subject to the following conditions:  No  
            petition would have been necessary.  Eligible inmates would  
            have been remanded to court and re-sentenced.  With specified  
            exceptions and requirements, the prosecutor would have been  
            allowed to file additional charges arising from the same  
            transaction as the crime of conviction.

            SB 1642 re-sentencing  :  SB 1642 requires a life-term inmate  
            to file a habeas corpus petition for re-sentencing within two  
            years of the enactment of this bill.  The inmate has the  
            burden to establish that he or she would not have been  
            sentenced for a life-term if this bill had been in effect at  
            the time he or she had been sentenced.   The trial court has  
            discretion to grant or deny the petition.




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageG



          12.  Timeline of the Three Strikes Law  

          1992
          
           July 1992:  Mike Reynolds, whose daughter was shot to death by  
            a convicted felon three weeks earlier, convenes an informal  
            group of judges, attorneys and law enforcement representatives  
            to discuss sentencing practices.
          
          1993

           April 20:  Reynolds testifies before the Legislature in  
            support of the Three Strikes bill (AB 971 - Jones).  There  
            is little support for the bill and his testimony is  
            overshadowed by ATF invasion of the Branch Davidian compound  
            in Waco, TX.

           November 30:  Convicted felon Richard Allen Davis is charged  
            with the kidnapping and murder of 12-year old Polly Klaas.

           December:  Klaas family learns of the "Three Strikes"  
                      initiative being circulated by Mike Reynolds and his  
            organization.

           December:  KGO radio in San Francisco launches signature  
            drive in support of "Three Strikes" initiative.  People line  
            up for 3 blocks seeking petitions.

           December:  Marc Klaas states support for "Three Strikes"  
            initiative.


          1994

           January 11, 1994:  Republican Assemblyman Bill Jones, author  
            of the legislative version of Three Strikes, announces his  
            support of the "Three Strikes" voter initiative.





                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageH


           January 19, 1994:  AB 1568 (Rainey) is introduced as an  
            alternative to AB 971.  AB 1568 is sponsored by the California  
            District Attorneys Association and the California State  
            Sheriffs Association.  AB 1568 would have required that a  
            defendant's conviction in the current case be a serious or  
            violent felony in order for the defendant to receive a  
            life-term.

           February 17:  Marc Klaas ends his support of the "Three  
            Strikes" bill in favor of the Rainey bill (AB 1568),  
            legislation that specifically deals with "violent" and  
            "serious" offenders.

           March 3:  AB 971 (Jones) is passed by the Legislature.

           March 7:  Governor Wilson signs AB 971, the legislative  
            version of Three Strikes; and Reynolds submits petitions for  
            the November ballot.

           March 7:  November 8, 1994:  Proposition 184 ("Three Strikes  
            and You're Out") is enacted and goes into effect November 9,  
            1994.
          
          1995
          
          Hundreds of Three Strikes cases make their way through the  
          California courts.  Of the many published decisions of the  
          California Court of Appeal considering the issue, only one holds  
          that the trial judge retains the discretion to dismiss a prior  
          "strike."
          
          1996
          
          The California Supreme Court rules in Romero v. Superior Court  
          (People) (1996) 13 Cal.4th 497, that a trial court may strike a  
          defendant's prior convictions under certain circumstances.

          1998
          




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageI


          The California Supreme Court, in People v. Williams (1998) 17  
          Cal.4th 148, 161 narrows Romero.  The court holds that in order  
          to dismiss a prior strike the trial court must find that the  
          defendant's crimes and background establish that he "should be  
          treated as though he had not previously been convicted of one or  
          more serious and/or violent felonies."

          1999

           Senator Hayden introduces SB 79, a bill that as introduced  
            would have limited third strike sentencing to violent and  
            serious offenses.  The bill was amended to provide for a  
            broadly constituted task force to study Three Strikes and  
            related crime policy.

           As of 1999, 24 states and the Federal Government have some  
            form of "Three Strikes" legislation.  None of these laws is  
            comparable to the severity of the California law.

          2000/2001

           March 2000:  Proposition 21 expands the list of prior strikes.

           December 2000:  Los Angeles County District Attorney Steve  
            Cooley announces a new Three Strikes policy.  The policy  
            directs deputies to charge all available qualifying strikes  
            and then to seek dismissal by the court of a strike based on  
            numerous factors.  The most important factors concern whether  
            or not the current offense is "serious" or "violent," whether  
            the victim was injured, the use of a weapon and the use or  
            threat of violence.  The remoteness of the prior convictions  
            and other mitigating and aggravating factors shall also be  
            considered in determining whether or not to seek dismissal of  
            a prior strike.  The policy should be followed regardless of  
            whether or not the defendant elects to go to trial.  "[T]he  
            potential for coercive plea-bargaining must be avoided."

          2003





                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageJ


          Ewing and Andrade - A sharply divided US Supreme Court (5-4  
          decision) holds that Three Strikes does not provide cruel and  
          unusual punishment for wobbler offenses (offenses that could be  
          misdemeanors), including the crime of petty theft with a prior  
          theft (Andrade).

          2004

          Ramirez v. Castro (9th Cir. 2004) - relying on Andrade and  
          Ewing, the Federal Ninth Circuit Court of Appeals holds that the  
          defendant's sentence was that "exceedingly rare" one that  did   
          violate the 8th Amendment as grossly disproportionate to the  
          crime committed.  Ramirez was convicted in the current case of  
          petty theft with a prior theft for stealing a VCR.  He had been  
          previously convicted of two counts of robbery.  In one incident,  
          Ramirez and his sister shoplifted merchandise from a grocery  
          store.  This crime was charged as a robbery because the person  
          who drove Ramirez from the store ran over the foot of a store  
          employee, causing a minor injury.  In the second incident,  
          Ramirez pushed a security guard as he ran from a K-Mart with  
          stolen goods merchandise.

          November - Proposition 66, which would have amended Three  
          Strikes fails at the ballot.  Governor Schwarzenegger campaigns  
          heavily against the measure in the closing weeks of the  
          election.  Proposition 66 would have amended Three Strikes much  
          more broadly than this bill





          13.  Argument in Opposition  

          The California District Attorneys Association argues in  
          opposition to this bill:

              SB 1642 would amend the Three Strikes law to require  
              generally that the current conviction offense be for  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageK


              a "serious" or "violent" felony.  Moreover, the bill  
              would entitle up to 4400 prisoners to re-sentencing  
              and release.  This legislation is a drastic and  
              unwarranted narrowing of the "Three Strikes" law and  
              represents a serious public safety risk.

              The Three Strikes law works.  This statute, passed by  
              the Legislature and approved by a wide margin by the  
              electorate in 1994 has provided an effective tool  
              against habitual felons.  We have removed from our  
              communities recidivist criminals who have multiple  
              prior convictions for serious or violent felonies,  
              thus preventing future crimes and increasing public  
              safety.

              SB 1642 takes away local discretion.  There is no  
              evidence that there have been abuses in the use of  
              discretion.  Three Strikes is applied in a very  
              limited number of felony cases each year.  Last year  
              there were only 239 new non-serious non-violent  
              felony convictions resulting in life sentences.   
              Furthermore, Three Strikes has not overburdened the  
              state's prison population as predicated by its  
              opponents.  SB 1642 will take California backwards by  
              exempting many dangerous felonies from indeterminate  
              sentencing under three strikes.

















                                                                     (More)











              SB 1642 would require the third strike to be  
              "serious" or "violent," with narrow exceptions that  
              appear to classify crimes as serious that are not  
              included in the statutorily defined "serious" or  
              "violent" felony lists.  This list of "exceptions" is  
              in great part illusory because many of the crimes  
              listed are already "serious" or "violent" felonies.   
              For example, the following are some of the sexual  
              assault crimes that are "serious" and/or "violent"  
              felonies that the bill claims to include:   
              kidnapping; aggravated kidnapping with intent to  
              commit rape; assault with intent to commit sex crime;  
              spousal rape; sodomy; child molest; oral copulation;  
              penetration by a foreign object; rape; spousal rapes;  
              rape in concert; aggravated sexual assault of child;  
              sodomy; child molestation; unlawful oral copulation;  
              continuous sexual abuse of a child.

              The bill specifically "exempts" crimes in which the  
              defendant used a firearm or caused great bodily  
              injury to another person.  Felonies in which the  
              defendant personally inflicts great bodily injury or  
              personally uses a firearm are already strike crimes  
              under existing law.



              SB 1642 creates exceptions based on the facts of a  
              defendant's prior crimes.  While the bill includes as  
              a prior any serious or violent felony offense  
              punishable by life imprisonment or death, these  
              limits do not include offenders who have committed  
              life crimes as follows:  treason; perjury causing  
              execution of an innocent person; conspiracy to commit  
              life or death crime; gang conspiracy to commit life  
              or death crime; murder; gross vehicular manslaughter  
              while intoxicated with a prior; aggravated mayhem;  
              torture; kidnap for ransom, robbery, sex, or  
              carjacking; kidnap during a carjacking; attempted  




                                                                     (More)







                                                           SB 1642 (Romero)
                                                                      PageM


              murder of government official; train wrecking;  
              aggravated sexual assault of a child; child abuse  
              causing death; aggravated arson; attempted  
              premeditated murder; attempted murder of peace  
              officer, firefighter; assault by a life prisoner;  
              using a weapon of mass destruction causing death or  
              risk to life; exploding a destructive device with  
              intent to murder; exploding a destructive device  
              causing death or GBI; sabotage

              Public safety is of paramount concern to district  
              attorneys.  To understand the impact of SB 1642 on  
              public safety, CDAA has identified a very serious  
              crime that would  not  be eligible for "Three Strike"  
              life sentences under the bill, as follows:  evading  
              peace officer; felon in possession of firearm;  
              unlawful possession of a firearm; taking a hostage to  
              act as a shield; carrying a destructive device on a  
              common carrier; human trafficking; child abuse likely  
              to cause great bodily injury; physical child abuse;  
              killing a domestic animal; stalking; hate crimes;  
              elder abuse; solicitation of murder; obstructing  
              peace officer by violent threat; threatening  
              officials; corrupting/threatening jurors;  
              impersonating a peace officer; substituting one child  
              for another; slavery; enticing minor for  
              prostitution; abduction for prostitution; abandoning  
              child under 14; child endangerment; domestic abuse;  
              child abduction; DUI causing injury; felony DUI (4th  
              offense in 10 years); rape by false pretense; pimping  
              a minor; providing minor for lewd purposes; sexual  
              exploitation of a minor; making child porn for  
              profit; solicitation for rape and child molest;  
              luring a child from the home for lewd acts.

              Finally, CDAA opposes the bill's re-sentencing  
              scheme, which would entitle any person serving a  
              Three Strikes life term for a non-serious,  
              non-violent crime to file a petition for a writ of  












                                                           SB 1642 (Romero)
                                                                      PageN


              habeas corpus seeking re-sentencing.  All persons  
              eligible to file a petition are entitled to counsel  
              paid for by the state.  In the re-sentencing  
              procedure outlined by the bill, the judge would  
              review the petition and determine whether the  
              petitioner was entitled to re-sentencing under the  
              new statute.  Then the judge would have discretion  
              whether to grant or deny the petition.  Many of these  
              offenders have already had multiple levels of  
              appellate review by state and federal courts.

           
                                    ***************