BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 79|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 79
Author: Hayden (D)
Amended: As introduced
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 4/6/99
AYES: Vasconcellos, Burton, Johnston, Polanco
NOES: McPherson, Rainey
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Sentencing: prior convictions
SOURCE : Author
DIGEST : This bill would require that a defendant be
convicted in the current case of a serious or violent
felony before a life term can be imposed under the "Three
Strikes" law (which does require the prior convictions be
serious or violent).
ANALYSIS : 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.
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.
CONTINUED
SB 79
Page
2
Existing law further provides that affected defendants may
not receive probation, there is no limitation on the
aggregate term, conduct credits are limited to 20% of the
term (instead of the usual 50%), and any additional
convictions must be imposed consecutively.
Existing 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.
Existing law provides that a juvenile adjudication 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(b).
This bill would require that a defendant be convicted in
the current case of a serious or violent felony, with two
or more prior serious or violent felony convictions, before
a life term can be imposed.
" Three Strikes" in More Detail
The "Three Strikes" law was enacted by AB 971 (Jones/Costa)
Chapter 12, Statutes of 1994 and by Proposition 184.
Mandatory provisions of "Three Strikes" beyond those listed
in "existing law," above include:
--A juvenile adjudication (a findings by a juvenile court
judge that the minor committed a crime) may constitute an
adult strike prior, although a juvenile cannot have a
jury trial of charges against him or her.
--A person sentenced under "Three Strikes" may not be
committed to any facility other than prison.
--"Three Strikes" prohibits plea-bargaining.
--"Three Strikes" eliminates any "washout" period,
SB 79
Page
3
requiring that any prior serious or violent felony
conviction be used regardless of when it occurred.
--Under "Three Strikes," the prosecuting attorney must
plead and prove each prior felony conviction.
--"Three Strikes" may only be amended by a two-thirds vote
of the Legislature or a ballot measure approved by the
electorate.
Issues Related to Prior Juvenile Offenses (Adjudications)
to Establish Prior "Strikes" in Adult Prosecutions
The "Three Strikes" law defines a prior juvenile
adjudication as a prior strike "conviction" where the
following are shown:
--The minor was at least 16 years old.
--The minor was found to be fit for juvenile court
treatment.
--The prior offense was one which rendered him or her
presumptively unfit for juvenile court (Welfare and
Institutions Code Section 707(b)) or is defined as a
"serious" or "violent" felony for purposes of adult
sentencing;
--The minor was adjudged to be a ward of the juvenile court
for a crime of presumptive unfitness.
Arguably, these provisions are internally inconsistent or
vague. The California Supreme Court in People v. Davis
(1997) 15 Cal.4th 1096, a 4 to 3 decision, held that no
special "fitness" hearing was necessary to render a
juvenile adjudication a "strike" in a later adult
prosecution, as such a finding is implied in every juvenile
adjudication. The ruling in Davis was contrary to the
belief of many practitioners. Some district attorneys
sought specific findings of fitness by judges or admissions
of fitness as part of plea agreements in juvenile cases to
insure that a juvenile offense would later constitute a
prior "strike" conviction.
SB 79
Page
4
The court in Davis left "for another day" the determination
of whether juvenile serious felonies such as first degree
burglary, which are not listed as crimes of presumptive
unfitness in Welfare and Institutions Code Section 707(b),
constitute strikes. That day will apparently dawn with the
issuance of the ruling in People v. Gentry , S069817. The
appellate court in Gentry held that a prior juvenile
offense must be listed in Welfare and Institutions Code
section 707(b) in order to constitute a strike in a later
adult prosecution.
The Supreme Court has let stand an appellate decision
contrary to Gentry, in People v. Griggs (1997) 53
Cal.App.4th 57, that held that failure of the "Three
Strikes" law to clearly state that all juvenile serious
felonies constitute strikes in later adult cases was a
"drafting error." If the Supreme Court so finds, the
drafting error will be momentous.
Many, if not most, practitioners believed that juvenile
crimes such as first degree burglary did not constitute
strikes, and thousands of juveniles admitted such offenses
upon advice of counsel consistent with that belief. Even
where minors did not admit the commission of serious
felonies, they were not entitled to jury trials.
Violent and Serious Felonies Defined
"Three Strikes" incorporates the definitions of violent and
serious felonies as they existed on June 30, 1993. For all
practical purposes, all "violent" felonies are "serious"
felonies. 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 on
June 30, 1993, include the following:
--Murder or voluntary manslaughter (serious and violent).
--Mayhem (serious, and violent if by force or threat of
retaliation).
SB 79
Page
5
--Rape (serious and violent).
--Sodomy by force, violence, duress, menace, or fear of
bodily injury (serious and violent).
--Oral copulation by force, violence, duress, menace or
fear of bodily injury (serious and violent).
--Lewd act with child under fourteen years of age (serious
and violent).
--Any felony punishable by death or life imprisonment
(serious and violent).
--Any felony in which defendant inflicts great bodily
injury on defendant or personally uses a firearm (serious
and violent).
--Attempted murder (serious and violent).
--Assault with intent to commit rape/robbery (serious).
--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 causes great bodily
injury).
--Exploding a destructive device with intent to injure
(serious).
--Explosion causing great bodily injury or mayhem
(serious).
--Explosion with intent to murder (serious and violent).
--Burglary of inhabited dwelling (serious, and violent if
resident is present and weapon used).
--Robbery or bank robbery (serious, and violent if the
robbery was a residential robbery with the use of a
SB 79
Page
6
weapon).
--Kidnapping (serious, and violent if for purposes of sex
crimes against a child).
--Inmate taking a hostage (serious).
--Attempted death or life crime (serious).
--Any felony where defendant personally uses a dangerous or
deadly weapon (serious).
--Sale or furnishing heroin, cocaine, PCP, or
methamphetamine to a minor (serious).
--Forcible foreign object rape (serious, and violent in
most cases).
--Grand theft involving a firearm (serious).
--Attempts to commit any felony listed in a-z except
assault (serious).
Prior legislation
SB 2048 (Vasconcellos - 1998) passed the Senate 23-12
(Noes: Brulte, Haynes, Hurtt, Johannessen, Johnson,
Kelley, Knight, McPherson, Monteith, Mountjoy, Rainey,
Wright) but was vetoed by the Governor (as study bill).
SB 1317 (Lee - 1997), failed passage on the Senate Floor
13-25 (Noes: Alpert, Brulte, Calderon, Costa, Dills,
Haynes, Hurtt, Johannessen, Johnson, Karnette, Kelley,
Knight, Leslie, Lewis, Lockyer, Maddy, McPherson, Monteith,
Mountjoy, O'Connell, Peace, Rainey, Schiff, Thompson,
Wright).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 4/19/99)
ACLU
SB 79
Page
7
California Public Defenders Association
California Attorneys for Criminal Justice
California NORML
Lutheran Office of Public Policy
Families to Amend California's Three Strikes
numerous individuals
OPPOSITION : (Verified 4/19/99)
California District Attorneys Association
California Correctional Peace Officers Association
Committee on Moral Concerns
California State Sheriff's Association
Doris Tate Crime Victims Bureau
ARGUMENTS IN SUPPORT : According to the author, "Senate
Bill 79 does not undo 'Three Strikes.' Nor does it renege
on the promise made to voters in 1994 to get violent
criminals off of our streets. What SB 79 does is to revise
current law to require a third 'strike' be a serious or
violent felony -- as the first two must be.
"In order to achieve any sense of justice, sentences must
be proportionate to the crime. "Three Strikes" fails in
this sense because relatively minor criminals are unjustly
receiving sentences of 25-years-to-life. Under "Three
Strikes," drug addicts and petty thieves are seen in the
same light as cold-blooded, first-degree murderers. Should
the punishment for possession of any amount of cocaine be
the same as for premeditated murder?"
California Attorneys for Criminal Justice writes, "the
proposal to amend the "Three Strikes" law to require that
the third strike be a serious or violent crime has grown in
acceptance in recent years as the effect of the current law
has become clear to more and more people, both criminal
justice professionals and lay people. In a recent
editorial, Joseph P. Charney, a deputy district attorney in
Los Angeles and an adjunct professor at Loyola Law School
wrote in support of this bill: "Justice must be measured,
rational and proportionate or it isn't justice. Any
legislation that promotes a punishment scheme not in
conformity with this basic principal of fairness is unjust.
California's "Three Strikes" law, providing life sentences
SB 79
Page
8
for relatively minor offenses is such a law . . . Besides
disproportionate incarceration, the "Three Strikes" law
diminishes our system of justice in other ways. By
permitting lifetime incarceration for both minor and
heinous crimes, punishment loses its moral compass." (Los
Angeles Times, March 8, 1999)"
ARGUMENTS IN OPPOSITION : California District Attorneys
Association writes, "[This] measure would require that the
third strike against a person be a violent or serious
felony. Even though in 1994 CDAA supported a version of
the "Three Strikes" law which would have required a violent
of serious felony for a strike, we do not believe that the
law now needs to be amended. We feel that five years of
the "Three Strikes" law has shown that the current law, as
passed by the voters, is working. In addition, we believe
that two recent court decisions, People v. Romero (1996)
and People v. Alvarez (1997) have provided sufficient
safety valves for the "Three Strikes" law. These decisions
allowed judges to throw out previous strikes or reduce a
third strike from a wobbler to a misdemeanor. CDAA
strongly believes that these court decisions, coupled with
a prosecutor's right
to not pursue a third strike, remove much of the argued
necessity of a measure such as your SB 79."
RJG:sl 4/22/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****