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. ***************