Three Strikes, generally
Category > Three Strikes, generally
The Three Strikes Law sentence was improper where the information did not allege the prior burglary was a strike, and defendant never admitted that fact.The trial court erred by sentencing defendant under the Three Strikes Law where the information failed to give defendant notice that he faced sentencing under the Three Strikes Law, and because he did not admit that his conviction constituted a strike within the meaning of the law. id: 25364
Evidence did not show the prior aggravated assault constituted a serious felony conviction where the record did not distinguish between possible assaults.The trial court erred by finding defendant’s 2002 conviction for aggravated assault constituted a serious felony and therefore a strike because none of the documents in the record distinguished between assault with a deadly weapon and assault by means likely to produce great bodily injury.id: 24948
The jury, not the trial court, should have determined that the prior battery conviction involved the infliction of serious bodily injury for three strikes purposes.The trial court determined defendant’s prior battery conviction constituted a strike and serious felony after reviewing a stipulation describing the facts that was used as the factual basis. However, because personal infliction of serious bodily injury was not inherent in the offense, it was improper for the court (rather than jury) to make that finding. The matter was remanded for a jury trial on the issue of the personal infliction of serious bodily injury, limited to the record of conviction, unless defendant waived a jury and admitted the necessary facts.id: 24974
The trial court’s failure to retain the certified prison packet in the court records was erroneous but the error was harmless where the appellate court viewed a copy of the packet which showed defendant’s prior conviction was a strike.In finding defendant’s prior conviction was a strike, the trial court admitted a certified prison packet “by reference” only and did not retain it in the court’s records in violation of the Penal Code. Defendant was unable to obtain a copy for his appeal. However, the error was harmless where the Court of Appeal reviewed a certified copy of the Penal Code section 969b packet, which showed defendant’s prior assault conviction was in fact a strike.id: 24253
The Three Strikes Law does not provide for the tripling of a term of life imprisonment without the possibility of parole.The trial court erred by tripling defendant’s three life without parole sentences under the three strikes law. Penal Code section 667, subd.(e)(2) concerns the calculation of the “minimum term” of an indeterminate sentence and a life without parole term doesn’t have a minimum term because it does not allow for parole. The sentence was modified to reflect a total of three life without parole terms.id: 23913
Two prior convictions arising out of a single act against a single victim cannot constitute two strikes under the three strikes law. When faced with two prior strike convictions based on the same act, the trial court is required to dismiss one of them, and the failure to do so here was inconsistent with the spirit of the three strikes law.id: 23654
Absent proof that defendant personally inflicted great bodily injury on the victims, his earlier plea to reckless driving that proximately caused great bodily injury did not qualify as a strike. There was insufficient evidence to prove that defendant’s prior conviction for reckless driving that proximately caused great bodily injury - with a prior conviction for the same offense (Vehicle Code section 23104, subd.(b))qualified as a serious felony within the meaning of the strikes law. Defendant’s bare plea to violating section 23104, subd.(b) did not prove that he personally inflicted great bodily injury on his victims. id: 21966
The trial court erred in tripling defendant's LWOP sentence under the three strikes law. The trial court erred in tripling defendant's life without possibility of parole sentence under the three strikes law. The sentence was modified to impose a single indeterminate term of life without the possibility of parole. id: 21105
Even after Prop 21 amendment, ADW under section 245(a)(1) only qualifies as a serious felony for three strikes purposes if the defendant personally used a weapon.The record did not support the trial court's finding that defendant's prior assault conviction under Penal Code section 245, subd.(a)(1) qualified as a serious or violent felony within the meaning of the three strikes law or Penal Code section 667, subd.(a). Following Prop 21, a conviction for ADW under section 245(a)(1) now qualifies as a serious felony whether defendant was convicted as a direct perpetrator or an aider and abettor. However, the amendment did not change the status of assault by means of force likely to produce great bodily injury - the other variant of section 245(a)(1). The documents presented to the court were silent on the question of whether defendant personally used a gun or personally inflicted great bodily injury.id: 18614
In light of the California Supreme Court's finding that section 12031, subd.(a)(2)(c) was ambiguous, the record did not support the conclusion that the 2000 conviction qualified as a strike.Defendant pled guilty in 2000 to a violation of Penal Code section 12031, subd. (a)(2)(c) - carrying a loaded firearm in public. The offense is a misdemeanor for the present purposes unless the person was an active participant in a street gang as defined by section 186.22, subd.(a). After defendant's plea in that case the Supreme Court determined that part of section 12031, subd.(a)(2)(c) was ambiguous, and one interpretation would not qualify as a strike. Since the record did not provide further clarification, it did not support the finding that defendant's prior conviction qualified as a strike. The matter was remanded for a hearing to determine whether the prior conviction constitutes a strike.id: 18679
Unsworn and unauthenticated medical report which was not received in evidence in the 1986 case was not part of the record which may be used to determine whether the prior was a strike.Defendant argued trial counsel was ineffective in failing to advise, prior to a guilty plea in a three strikes case, that one of the alleged priors did not qualify as a strike. In order to prove the 1986 sexual assault case involved the infliction of great bodily injury the prosecution used the preliminary hearing testimony of the victim. Contrary to defendant's claim, an unsworn and unauthenticated medical report which was not received in evidence in 1986, and did not fall with a hearsay exception, was inadmissible to contradict the victim's claim. The report was not part of the "record of conviction" which may be used to prove whether the offense involved great bodily injury.id: 17495
Fourth DUI could not be prosecuted as a felony where the third prior was not final and could not be pled and proved as a conviction at the preliminary hearing.A drunk driving offense is punishable as a felony under Vehicle Code section 23550 if the defendant has three prior convictions. Pleading and proof at the preliminary hearing of the three prior convictions is necessary to prosecute the fourth as a felony. In the present case the third prior was not yet a final conviction but the prosecutor represented the conviction would exist by the time of the fourth conviction. However, since all three prior convictions were not pled and proved at the preliminary hearing, the fourth could not be prosecuted as a felony.id: 16471
Apprendi provides a right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance punishment.Under Apprendi v. New Jersey (2000) 530 U.S. 466, a criminal defendant has a federal right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance a sentence. The trial court decided the issue of whether defendant had acted with the intent required by California law, and thus whether the Nevada robbery convictions counted as strikes. This deprived defendant of the right to have the issue of intent decided by the jury. However, the error was harmless where any reasonable jury would have found defendant's conduct satisfied the elements of robbery under California law.id: 17744
While the court erred under section 667. 61 in using the three strikes law to double the term for the one strike sentence, the prior could be used to double the other determinate terms and to elevate the molest counts to felonies under section 647.6.Under Penal Code section 667.61, subd.(f), the trial court erred in using the same prior conviction to impose a 25 years-to-life term under the one strike law, and then double it under the three strikes law. However, the provision does not preclude the use of that prior to increase punishment for the remaining determinate counts under the three strikes law, to elevate the child molest counts to felonies (under section 647.6, subd.(c)(2)) and to impose a five year serious felony enhancement.id: 16692
The court may not use the three strikes law to double a 25 years-to-life one strike term under section 667.61, but it may double the term under the alternative section 667.71.Based on the limiting language of Penal Code section 667.61, subd.(f), the trial court erred in using defendant's prior conviction of lewd conduct under section 288(a) to both impose a 25 years-to-life term under the one strike law and to double the term under the three strikes law. While section 667.61 prohibits the doubling of the term under the three strikes law, section 667.71 does not. Both were alleged in the case so the matter was remanded leaving the trial court the choice of sentencing schemes. Moreover, the trial court may not stay under section 654 the "alternative sentence" that was not imposed. Rather, the trial court must strike the alternative penalty.id: 16691
Defendant’s 1990 conviction for negligent discharge of a firearm did not qualify as a strike prior since there was no evidence that he personally fired the gun.The evidence was insufficient to show defendant’s 1990 conviction for negligent discharge of a firearm (Penal Code section 246.3) was a prior serious felony conviction for three strikes purposes because there was no evidence that he personally discharged the firearm. id: 20354
Defendant's adoptive admission, silence during the description of the victim's injuries, could not be used to prove the 1995 prior conviction was a strike where the discussion occurred after the guilty plea and prison sentence. The trial court erroneously determined defendant's prior conviction qualified as a strike because the evidence was insufficient to show that in the commission of the 1995 offense, defendant inflicted great bodily injury on the victim. The only evidence supporting the finding was defendant's adoptive aadmission (silence during the description of the victim's injuries at sentencing) which was made after the court had accepted his guilty plea and sentenced him to state prison.id: 19608
Defendant's 1989 conviction of oral copulation of a minor did not qualify as a strike as it could be committed based on a threat of retaliation which was different than duress.Defendant's 1989 conviction under Penal Code section 288a, subd.(c) (oral copulation of a minor) was not a violent felony for three strikes purposes because, at that time, it could be committed based on a threat of retaliation - which the law says is not the same as duress. The record shows nothing about defendant's conduct regarding that offense. It must be
presumed the conviction was based on a threat of retaliation which was not a serious felony at that time. The true finding on the strike prior was reversed.id: 19556
The trial court could not consider weapon use admitted to the probation officer in determining whether the prior offense was a strike since the weapon use allegation was dismissed as part of the plea agreement.Defendant's prior conviction of inflicting corporal injury in violation of Penal Code section 273.5, subd.(a) was not a strike because it was not listed as a serious felony and the prosecution had dismissed the knife use allegation that would have made it a strike as part of the plea bargain. It did not matter that defendant later admitted to the probation officer that he used a knife in committing the offense.id: 19364
The trial court erred by looking beyond the fact of the 1992 second degree burglary convictions to find the offenses qualified as strike priors.Defendant received a 25 years-to-life sentence under the three strikes law because of two 1992 second degree burglary
convictions. Looking behind the fact of the convictions to the preliminary hearing transcripts, the trial court determined the prior burglaries were residential in nature and therefore qualified as serious felonies. However, defendant pled guilty to second degree burglaries which meant the crimes did not involve a residence. This was not a case where looking beyond the fact of the conviction resolved an ambiguity as to whether the prior conviction was for a serious felony. The court's finding was neither fair nor reasonable.id: 19288
Absent an admission, the prosecution failed to prove defendant's 1996 conviction for battery causing serious injury was a serious felony for three strikes purposes.The evidence was insufficient to show that defendant's 1996 conviction for battery with serious bodily injury (Penal Code section 243, subd.(d)) was a serious felony for three strikes purposes. The plea form and minute order show a no contest plea to the charge but no admission that the offense was a serious felony. Absent evidence that defendant admitted the serious felony allegation in the information, it is treated as dismissed. The matter was remanded for resentencing or retrial on the matter.id: 19316
Where the three strikes law does not mandate consecutive sentencing, Penal Code section 654 prohibits multiple punishment.Defendant attempted to rob the victim in a parking lot, and when the victim resisted, defendant shot him. He was convicted of attempted robbery and attempted murder. When the three strikes law does not mandate consecutive sentences, Penal Code section 654 prohibits multiple punishment under the three strikes law. In the present case, it prohibited separate sentences for both the attempted murder and attempted robbery. While the law creates an exception to section 654 which applies to enhancements, it does not refer to, and hence the exception does not apply, to a second current conviction.id: 15197
Assault on a peace officer conviction does not constitute a strike unless the prosecution proves use of a deadly instrument.Unless the prosecution proves beyond a reasonable doubt that a defendant's prior assault on a peace officer conviction under former Penal Code section 245, subdivision (c) was based on use of a deadly weapon or instrument, either personally or by an accomplice, it cannot be treated as a serious felony for purposes of the three strikes law.id: 9325
Court erred in designating a prior misdemeanor assault adjudication as a section 707, subd.(b) offense.The juvenile court erred in determining the minor's prior misdemeanor assault was a Welfare and Institutions Code section 707, subd.(b) offense. Section 707, subd.(b) offenses do not include misdemeanor violations.id: 9328
Judge was disqualified from deciding the hearing on the priors in the three strikes case where it was discovered after trial on the substantive charges that she was the prosecutor at the preliminary hearing for one of the priors.Defendant was charged with committing drug offenses and two prior strikes were alleged. The hearing on the priors was bifurcated from the underlying charges. Prior to trial on the drug offenses, defendant learned that the trial judge had been the calendar deputy district attorney at the time of a plea to a charged prior. The judge refused to recuse herself since, as calendar deputy, she was not active in the prosecution and she could be impartial. Prior to the sentencing and hearing on the motion to strike the prior it was discovered that the judge had actually been the prosecutor at the preliminary hearing in one of the prior cases. The judge was disqualified under Code of Civil Procedure section 170.1, subdivision (a)(6)(c) from the sentencing and hearing on the priors but her disqualification did not invalidate the judgment of conviction on the current offense.id: 9339
Court erred in admitting into evidence testimony from the preliminary hearing transcript to prove the prior conviction was a serious felony.The trial court erred in admitting into evidence, over defendant's hearsay objection, the testimony contained in the transcript of the preliminary hearing of the prior conviction for the purpose of proving that defendant personally used a dangerous or deadly weapon, and therefore that the prior conviction was a serious felony.id: 9327
The trial court's decision to dismiss two of three strike priors in furtherance of justice was not an abuse of discretion despite the defendant's lengthy record and the fact that the instant theft occurred three days after his release from prison.Defendant was convicted of petty theft with a prior conviction, and it was determined that he had three prior convictions which qualified as strikes. The trial court did not abuse its discretion in dismissing two of the three strike priors despite the prosecutor's argument that the mitigating factors did not outweigh the aggravating factors.id: 9361
The trial court erred in relying on the preliminary hearing transcript to establish the prior assault conviction was a "serious felony" for purposes of the three strikes law.Because the prior assault conviction resulted from a jury verdict, it is clear the preliminary hearing transcript was not reliable as to what evidence was presented to, or relied on, by the jury in reaching its verdict. Therefore, the preliminary hearing transcript was not part of the "record of conviction" and was not admissible to prove the prior assault conviction was a serious felony under the three strikes law.id: 15190
Failure to prove prior conviction of assault on a peace officer was committed with a weapon required reversal of the strike allegation.The prosecutor failed to prove defendant's prior conviction of assault on a peace officer was committed with a deadly weapon or instrument rather than by means likely to produce great bodily injury. Absent proof that the prior conviction was a "serious felony" for three strikes purposes, the trial court's true finding on the strike allegation was reversed.id: 15176
Defendant's guilty plea to discharging a firearm from a car in 1992 was insufficient to prove the prior conviction qualified as a strike since there was no showing that he personally fired the weapon.There was insufficient evidence to prove defendant's 1992 conviction for discharging a firearm from a motor vehicle was a prior felony conviction for purposes of the three strikes law. Something more than defendant's bare guilty plea to the prior charged offense was required. It was the prosecution's burden to produce evidence that defendant personally discharged the weapon, perhaps through the factual admission at the time the plea was entered. The matter was remanded to permit a retrial on the prior felony conviction allegation.id: 15172
Court erred in three strikes case in placing burden on defendant to prove person injured in prior felony was not an accomplice.A felony is "serious" if the defendant personally inflicts great bodily injury on any person other than an accomplice. When the prior conviction of such a felony is alleged for purposes of the three strikes law, the prosecution must prove the injured person was not an accomplice. The serious felony finding was reversed where the court placed the burden of proof on the defendant and because substantial evidence did not support it.id: 15168
The three strikes law precludes LWOP sentence from being doubled.The prosecution argued that because of defendant's prior conviction, the trial court was required to double his life without parole term under the three strikes law. However, because an LWOP sentence is not a determinate term and does not contain a minimum term, it is not subject to the doubling requirement of Penal Code section 667, subd.(e)(1).id: 15186
The three strikes law does not prohibit participation in the deferred entry of judgment program.A prior conviction within the meaning of the three strikes law does not render a defendant ineligible for participation in the deferred entry of judgment program which replaced diversion under Penal Code section 1000 in 1997. Under the terms of the program, a defendant must plead guilty to the drug charges and, upon failure to comply with the program, is sentenced under the three strikes law.id: 15185
Although Florida complaint was part of the record of conviction, the factual statements used to prove personal weapon use were improperly admitted over defendant's hearsay objections.Defendant's strike allegations were based on Florida convictions for aggravated assault and attempted robbery, both of which involved the use of a deadly weapon. The convictions were the product of a guilty plea. In seeking to prove personal weapon use for the attempted robbery, the court allowed the facts set forth in the complaint, which was akin to California's preliminary hearing process. However, while the complaint was part of the record of conviction, its factual contents were improperly admitted as evidence over defendant's hearsay objections. The true finding was reversed where there was no other evidence in the record to show defendant personally used a weapon in the attempted robbery.id: 15164
Prior juvenile adjudication for battery with serious bodily injury was not a strike because it was not shown that the means used was likely to have caused the injury.The trial court erred in finding defendant's prior juvenile adjudication for committing battery with serious bodily injury (Penal Code section 243, subd.(d)) constituted a strike. While defendant's admission of the offense established that he caused great bodily injury to the victim, nothing in the record shows that the means he employed was "likely" to have caused the injury. The record was silent on the point and the evidence failed to show that the section 243, subd.(d) offense was a strike.id: 15180
Wobbler assault punished as a misdemeanor could not be used as a strike prior.Defendant's assault conviction in the prior case was a wobbler. In that case when the court suspended proceedings, granted summary probation, ordered defendant to serve one year in county jail and directed that probation be terminated after the jail term, it automatically rendered the crime a misdemeanor under Penal Code section 17, subd.(b)(1). It follows that the conviction does not constitute a serious prior felony under the three strikes law.id: 15199
A conviction dismissed under section 1385 may not be used as a strike prior.Dismissal under Penal Code section 1385 of the charge underlying a prior conviction which would otherwise qualify as a strike precludes the use of that prior conviction as strike under the three strikes law.id: 16532
A conviction for an assault not involving a deadly weapon or a peace officer, does not qualify as a strike even after Prop. 21.The prosecution argued that in the wake of Proposition 21, any assault in violation of Penal Code section 245, even one not specifically enumerated in the statutory language, now constitutes a "serious felony" within the meaning of section 1192.7, subd.(c). However, the language of section 1192.7, subd.(c)(31) is clear that it includes as serious felonies only those section 245, subd.(a)(1) assaults that involved a specified weapon or were made against a peace officer or firefighter.id: 16534
Assault with intent to create great bodily injury is not a strike offense unless it is committed with a firearm or not directed at a peace officer or firefighter.A conviction under Penal Code section 245, subd.(a)(1) for an assault with intent to create great bodily injury is not a serious felony within the meaning of section 1192.7, subd.(c)(31), when it is not an assault with a deadly weapon, firearm, machine gun, assault weapon or an assault on a peace officer or firefighter. Section 1192.7, subd.(c)(31) is not ambiguous and does not present a conflict in interpretation so as to trigger application of Penal Code section 7.5, which allows for descriptive language when interpreting an ambiguous code section. id: 16480
Assault by means of force likely to produce great bodily injury is not a strike under the three strikes law.Penal Code section 1192.7, subd.(c)(31) is unambiguous. It includes most, but not all violations of section 245 as serious felonies. Assault by means of force likely to produce great bodily injury is not a serious felony as defined by section 1192.7, subd.(c)(31). Therefore, the trial court erred when it refused to dismiss the strike allegation premised on defendant's 1995 conviction for that offense.id: 16690
Three strikes law does not apply where the present offense was committed prior to the serious or violent felony.Defendant argued trial counsel rendered ineffective assistance by allowing him to admit the strike allegation and by stipulating to the factual basis. In exchange for the plea of guilty to aggravated assault, a count of attempted premeditated murder was dismissed along with enhancements. He was sentenced to 12 years under the three strikes law. Defendant is correct that the three strikes law did not apply to his case since his present crime was committed one month before the alleged strike offense. However, since defendant received the benefit of his plea bargain, and the 12 year term was not outside the court's fundamental jurisdiction, he was not entitled to a further reduction of his 12 year term.id: 17330
Hit and run under section 20001 does not constitute a serious felony unless the serious injuries are caused by the flight rather than the impact.The question of whether a conviction for violation of the "hit and run" statute (Vehicle Code section 20001), during which the victim is seriously injured does not automatically qualify as a serious felony. The gravamen of the offense of hit and run is the flight of the defendant from the scene of the accident. Thus, such convictions can only constitute a serious felony where the defendant's flight is the cause of the serious injury. In the present case, the defendant caused serious bodily injury by the original impact with the victim, while driving, and thereafter failed to stop as required. The trial court erred in finding the hit and run prior conviction constituted a serious felony under the three strikes law.id: 14808
Updated 3/4/2024Newly enacted section 1385(c) which directs the court to consider certain mitigating facts when deciding whether to dismiss an enhancement does not apply in the context of the Three Strikes Law.The trial court abused its discretion by dismissing defendant’s prior strike conviction for purposes of the Three Strikes Law. Contrary to defendant’s claim, recently enacted Penal Code section 1385(c) does not apply because that provision directs courts to consider certain mitigating factors when deciding whether to dismiss an enhancement, but the Three Strikes Law is not an enhancement. Newly enacted AB 600 does not show the Legislature intended section 1385(c) to apply in the context of the Three Strikes Law.id: 28210
Updated 2/24/2024Enhancements that are stricken may not be used to lengthen a sentence under option 3 of the Three Strikes Law. If a trial court exercises its discretion to strike an enhancement under Penal Code section 1385 “in furtherance of justice,” the enhancement may not be used to increase the minimum term of the defendant’s life sentence under “option 3" of the Three Strikes Law.id: 27293
Updated 2/7/2024As long as the information alleges a prior strike conviction, it need not be pleaded on a count-by-count basis.Defendant argued the trial court erroneously doubled the sentence on count six where the strike prior was only pleaded as to the first count. However, as long as the information alleges a strike prior, it need not be pleaded on a count-by-count basis.id: 27162
Evidence supported the prior strike conviction finding where defendant pled nolo contendere to an assault in 2013, after the statute had been amended to include only assaults with a deadly weapon.In 2011, the Legislature amended Penal Code section 245, subd.(a)(1) to include only assault with a deadly weapon or instrument other than a firearm (moving “assaults by any means of force likely to produce great bodily injury” to section 245, subd.(a)(4)). The version of section 245, subd.(a)(1) to which defendant pled nolo contendere in 2013 could not be violated in a way that did not constitute a serious felony under section 1192.7, subd.(c)(31). The evidence supported the trial court’s prior strike conviction finding. id: 24758
Evidence supported the forcible lewd acts conviction where defendant held the young victim against her will before performing the acts. Defendant was convicted of forcible lewd conduct on a child under 14 in violation of Penal Code section 288, subd.(b). He argued the evidence was insufficient to support the conviction as there was no proof that he used force beyond which was necessary to perpetrate the offense. However, the evidence supported the conviction where defendant pulled the victim onto his lap preventing her from leaving and held her hands on his penis against her will. This was different from the force necessary to commit the lewd acts themselves.id: 21104
Section 12025, subd.(b)(3) was properly alleged as a strike prior even though the state didn’t prove the gang participation involved was a felony.The complaint alleged that defendant had a prior felony conviction under Penal Code section 12025, subd.(b)(3) which involves carrying a concealed firearm by a person who was an active participant in a gang under section 186.22, subd.(a). The latter offense is a wobbler and defendant argued that because it had not been proven to be a felony, the offense did not constitute a strike prior. However, active gang participation is a felony unless charged as, or later reduced to a felony, which did not happen here. Section 12025 subd.(b)(3) was adequately alleged to be a felony violation. id: 23817
The term in Three Strikes Reform Act “unreasonable risk of danger to public safety” is not unconstitutionally vague. The trial court denied defendant’s petition for resentencing under the Three Strikes Reform Act after finding he posed an “unreasonable risk of danger to public safety.” Contrary to defendant’s claim, that standard is not unconstitutionally vague and can be addressed by examples including criminal history, prison disciplinary record, and any other evidence the court finds relevant. id: 23836
Defendant was ineligible for resentencing under the Three Strikes Reform Act where his commitment offense involved the use of an unloaded shotgun.The trial court erred under the Three Strikes Reform Act because during the commission of the offense he was armed with and used an unloaded shotgun. Contrary to defendant’s claim, the ineligibility for gun use applies to gun related offenses and not just enhancements. The gun use was part of the record of conviction and the Reform Act does not include a pleading and proof requirement. id: 23837
A defendant is ineligible for resentencing under the Three Strikes Reform Act when any offense for which he is serving a three strikes sentence is a serious or violent felony.Defendant was serving two life terms under the three strikes law - one for a serious and violent felony and one for a nonserious felony. He argued that under the language of the Three Strikes Reform Act, he was eligible for resentencing as long as one of his qualifying offenses was non-serious/violent. However, a defendant is not eligible for resentencing under the Three Strikes Reform Act when any of the offenses for which he is serving a three strikes sentence is a serous or violent felony. id: 23850
Trial court lacks authority to strike a disqualifying prior at a Three Strikes Reform Act resentencing hearing. The trial court does not have the authority to strike a disqualifying prior conviction allegation under Penal Code section 1385 and Romero at a sentencing recall hearing brought under Penal Code section 1170.126.id: 23854
The trial court did not abuse its discretion in denying defendant’s petition for resentencing under the Three Strikes Reform Act. The abuse of discretion standard applies when reviewing an appeal from a trial court’s denial of a petition for resentencing under Penal Code section 1170.126 based on the trial court’s finding that release of the defendant would present an unreasonable risk of danger to the public. The trial court did not abuse its discretion in denying defendant’s petition in light of his extensive criminal history and misconduct while in custody.id: 23855
Recidivism enhancements were properly added to each count for a second strike offender under the three strikes law. Defendant was convicted of several counts stemming from a shooting incident including possession of a firearm by a felon and attempting to elude a pursuing officer. He argued the trial court erred by adding enhancements for prior prison terms (Penal Code section 667.5) and prior serious felony (section 667, subd.(a)) for both of those counts because the enhancements should only have been added once - to the base term. However defendant was convicted and sentenced under the three strikes law and the intent of the law was to impose recidivism enhancements for every qualifying offense for both second and third strikers.id: 24006
The five year serious felony enhancement may be added only once to multiple determinate terms imposed as part of a second-strike sentence. Defendant with a single strike prior was convicted of several current offenses. The trial court erred by adding a Penal Code section 667, subd.(a), to each of the defendant’s determinate terms. The enhancement may be added just once to second strike sentence.id: 24064
Defendant who killed two bicyclists in a drunk driving incident was not entitled to relief under Vargas where the court found multiple convictions from a single act may be treated as just one strike. In People v. Vargas (2014) 59 Cal.4th 635, the court held that where a defendant has suffered two prior convictions growing out of a single act, involving a single victim, only one of the convictions may be treated as a strike within the meaning of the three strikes law. But Vargas does not extend to offenders such as defendant who suffered multiple convictions growing out of a single act (vehicular manslaughter while intoxicated) but who violently injure more than one victim. id: 24066
Defendant was armed within the meaning of the Three Strikes Reform Act even though he didn’t carry the gun on his person and the prosecution can seek writ review of the trial court’s contrary conclusion.An inmate serving a 25 years-to-life term under the three strikes law may be found to have been “armed with a firearm” in the commission of his current offense, so as to be disqualified from resentencing under the Reform Act of 2012, even if he did not carry the firearm on his person. Moreover, the prosecution was entitled to writ review of the trial court’s contrary conclusion.id: 23564
The trial court erred by finding defendant was ineligible for resentencing due to his possession of wire cutters based solely on facts cited in the opinion.The trial court found defendant was ineligible for sentencing based on evidence that he had a pair of wire cutters at the time of the burglary. However, the court must determine the facts needed to adjudicate eligibility based on evidence obtained solely from the record of conviction. While the defendant has no right to a jury trial on the issue, he should have been given an opportunity to be heard, but was not here as the court made its decision based solely on facts included in the original opinion. The court’s ruling was reversed because it was not supported by evidence. id: 23661
The dismissal under section 782 of the petition underlying a juvenile adjudication precludes the use of the adjudication as a strike prior.The dismissal under Welfare and Institutions Code section 782 of a petition underlying a juvenile delinquency adjudication precludes the use of that adjudication as a strike under the three strikes law. id: 23390
Three strike sentence was not cruel and unusual punishment for a defendant who failed to update his sex offender registration.A 25 years-to-life sentence under the three strikes law was not cruel and unusual punishment for a defendant whose current crime was the failure to update his sex offender registration within five working days of his birthday. This was not a technical oversight by a defendant who made a good faith effort to comply. Rather, defendant had never registered at his current address and showed he was intentionally unwilling to comply with the law.id: 22879
A defendant who is convicted of a misdemeanor that is sentenced as a felony under section 186.22, subd.(d) has been convicted of a felony for purposes of the three strikes law.The alternative sentencing scheme of the three strikes law applies when a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions. A defendant who is convicted of a misdemeanor offense that is sentenced as a felony under section 186.22, subd.(d) has been “convicted of a felony” within the meaning of the three strikes law.id: 22926
Defendant’s assaults of a homeless man in 1999 were separated by 30 minutes and constituted two strike priors. Defendant was convicted of aggravated assault and given a sentence under the three strikes law because of his two previous assault convictions. He argued the two strike priors should have been treated as a single strike since they arose from a single criminal act. However, in that case, the defendant beat a homeless man with a skateboard, fled after he thought he killed him the victim, but returned 30 minutes later to continue the beating. These were two separate crimes and the trial court expressly advised the defendant in 1999 that he now had two strikes.id: 22659
In calculating the third alternative to option 3 of the three strikes law, the sentencing court must consider any enhancement that would be included when determining minimum parole eligibility.Defendant argued the trial court incorrectly calculated the sentence on the attempted murder conviction under the three strikes law. However, in calculating the third alternative to option 3 of the three strikes law, the sentencing court must consider any enhancement that would otherwise be included in determining defendant’s minimum parole eligibility. This included the 25 years-to-life gun use enhancement and the one year prior prison term enhancement in defendant’s case which made the base term 33 years.id: 22028
Trial counsel did not render ineffective assistance by failing to object under Apprendi to the trial court’s determination that the 1992 evading conviction was a strike in that serious bodily injury qualified as great bodily injury. Defendant’s alleged strike prior was a 1992 conviction for evading police. To constitute a strike, the prosecution had to show it caused serious bodily injury. The trial court properly made that determination and trial counsel did not render ineffective assistance of counsel by failing to argue the serious bodily injury issue (including whether serious bodily injury was to equivalent of great bodily injury) should have been resolved by the jury.id: 22231
The trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony for strikes purposes.The trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony as defined by Penal Code section 1192.7, subd,(c)((23) because the conduct that made the prior conviction a felony (interfering with the victim’s civil rights) differed from the conduct that made the prior conviction a serious felony (personally using a deadly or dangerous weapon).id: 22134
A copy of a certified copy of the Alabama indictment was admissible to prove the offense constituted a serious felony under the three strikes law.Evidence supported the trial court’s finding that defendant’s Alabama manslaughter conviction qualified as a serious felony for three strikes purposes. The conviction arose from defendant’s reckless
operation of a vehicle and was akin to involuntary manslaughter in California. The question is
whether a defendant personally inflicted great bodily injury on someone other than an accomplice. That fact was proven by a copy of the original certified copy of the Alabama indictment and a copy of a certified copy is admissible absent a genuine question regarding its
authenticity.id: 21337
Defendant’s prior aggravated assault conviction, though a wobbler qualified as a strike prior where the parties originally agreed it was a felony and could be used as a strike prior in the future.Defendant was convicted of a drug offense and admitted a prior conviction for violating Penal Code section 245, subd.(a)(1), which is a wobbler offense. He argued the conviction did not qualify as a strike prior because it had been sentenced as a misdemeanor. However, the assault with a weapon charge was originally charged as a felony and defendant agreed in could be used as a strike prior in the future. Moreover, the sentencing judge emphasized that defendant was pleading to a serious felony which could later be used as a strike. Under the circumstances, defendant’s prior assault conviction was a felony strike prior. id: 20606
There was sufficient proof that defendant’s prior assault was a serious felony for three strikes purposes where the abstract noted “Asslt w DWpn.”Penal Code section 245, subd.(a)(1) punishes assault when committed either by means likely to produce great bodily injury or by use of a deadly weapon. Only the latter version qualified as a serious felony for three strikes purposes. In the present case, the sole proof of a prior serious felony conviction was a certified abstract of judgment that specified a violation of section 245,(a)(1) along with a notation describing the crime as “Asslt w DWpn.” The notation was sufficient to prove the assault involved a deadly weapon for the three strikes purposes.id: 20355
Notation on the federal judgment form that the 1976 violation was a “bank robbery” was sufficient to establish the offense qualified as a strike prior.18 U.S.C. 2113 includes a group of bank related offenses but never refers to “robbery” or “bank robbery.” Defendant argued the evidence was insufficient to show that his 1976 federal conviction under this provision did not qualify as a serious felony for three strikes purposes. However, the “armed bank robbery” and “kidnapping” notations on the federal judgment form were sufficient to establish that the prior conviction constituted a serious felony for three strikes purposes. id: 20353
Assault on a peace officer under section 245, subd.(c) constitutes a “strike” even where a deadly weapon was not used.Defendant argued the evidence was insufficient to show that his prior conviction for assault on a peace officer (Penal Code section 245, subd.(c)) constitutes a serious felony for three strikes purposes, because no weapon was used. However, an assault on a peace officer under section 245, subd.(c) is a serious felony for three strikes purposes regardless of whether a deadly weapon was used. April 30, 2008
id: 20281
The word "term" in section 667, subdivision (e) applies to both determinate and indeterminate sentences.The word term contained in Penal Code section 667, subdivision (e) applies to both determinate and indeterminate sentences. Since defendant's normal term is 25 years to life, it was properly tripled under option (i) to 75 years to life.id: 9362
Assault with a deadly weapon now constitutes a strike prior even without a finding of personal use so counsel did not render IAC in advising defendant to testify as to the details of the prior.Defendant argued defense counsel's advice to testify about the
details of his prior conviction led to the only evidence showing the offense was a strike. His argument was based on the premise that assault with a deadly weapon is only a serious felony
where the defendant personally uses a firearm, and it was that detail that emerged from the testimony. However, Prop 21 revised the law and enlarged the definition of a "serious felony" to include "any assault with a deadly weapon." Since the court could have found the prior constituted a strike without defendant's testimony, there was no ineffective assistance of counsel.id: 19493
The trial court properly considered as "strikes" conduct which occurred after the verdict and prior to sentencing.Defendant argued the trial court erred in sentencing him as a 3 striker since he had not been convicted of six of the seven prior charges when the current charges occurred. The conduct for which he was charged occurred after the verdict on the underlying charge but before sentencing. Contrary to defendant's claim, a defendant has been "convicted" of a prior offense for purposes of the three strikes law, after a guilty verdict has been read in open court but before the jury is polled or the defendant sentenced.id: 18753
Defendant's silence at the sentencing hearing in the prior case where the court described the victim's serious injuries was an adoptive admission which supported the finding that the prior conviction was a strike.Defendant argued his 1995 conviction for drunk driving causing injury under Vehicle Code section 23153, subd.(a) did not constitute a strike. The issue was whether the conviction which was based on a guilty plea, showed that he inflicted "great bodily injury." The trial court did not err in impliedly ruling that defendant's silence at the 1995 sentencing hearing was admissible as an adoptive admission of the sentencing court's description of the victim's injuries. In view of the adoptive admission, the evidence supported the trial court's finding that the prior conviction was a strike.id: 18324
Under the three strikes law, Penal Code section 667(a) enhancements are to be applied individually to each count of a third strike sentence.In People v. Tassell (1984) 36 Cal.3d 77, the court held that when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense. However, Tassell's holding does not apply to multiple indeterminate third strike sentences imposed under the three strikes law where a prior conviction enhancement may be added to the third strike sentence for each new offense.id: 18141
Use of a 1992 guilty plea to double defendant's term under the three strikes law did not violate the contract clauses of the state and federal constitutions.Following defendant's felony conviction, the trial court doubled his sentence under the three strikes term. Defendant argued that his 1992 guilty plea was a contract between the state and him which at most would result in a five year enhancement under Penal Code section 667, subd.(a), in the event of a future conviction. Contrary to defendant's claim, the imposition of the doubled sentence under the three strikes law did not violate the contract clauses of the state and federal constitutions.id: 17835
Defendant's prior conviction of section 422, which predated the 2000 amendment to the three strikes law, and did not literally involve threats of terrorism qualified as a strike prior.Defendant had a conviction for criminal threats under Penal Code section 422, which predated the 2000 amendment to the three strikes law. The amendment was part of Prop. 21, and added section 422 to the list of potential strike priors. While defendant's conviction predated the amendment, it qualified as a strike in the current case. Moreover, even though the amendment referred to section 422 as "terrorist threats," it was not limited to prior threats of violence to a government or a community. Defendant's threats to his ex-girlfriend and her new boyfriend qualified as strikes.id: 17850
Strike prior may be retried after reversal for insufficient evidence.Retrial of a strike allegation is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence. The court previously held such retrial does not violate double jeopardy principles. In the present case, the court held retrial is not barred by the constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, or relevant statutory provisions.id: 17728
Following Prop 21, absence of reference to personal use or personal infliction of GBI in abstract of judgment showing a prior section 245(a)(1) conviction, does not prevent a serious felony finding.Prior to the adoption of Proposition 21, the law stated the reference in the abstract of judgment to "ASLT GBI W/DLY WPN" was insufficient to find that defendant had previously personally inflicted great bodily injury or used a weapon required by Penal Code sections 1192.7, subd. (c)(8) and (c)(23). However, section 1192.7, subd.(c)(31) deletes for serious felony purposes the personal use requirement for assault with a deadly weapon. The abstract of judgment referring to the aggravated assault without reference to personal use, was sufficient to prove the prior conviction was a serious felony for purposes of the three strikes law.id: 17624
A prior conviction of assault with intent to commit lewd touching (Penal Code section 220) qualifies as a strike under the three strikes law.Defendant argued that a prior conviction of assault with intent to commit lewd touching does not qualify as a strike because it is neither a violent nor a serious felony. However, the offense necessarily involves an attempt to commit a lewd act on a child under 14. Thus, the prior conviction qualified as a serious felony under Penal Code section 1192.7, subd.(c)(39).id: 17201
Once the jury found defendant had been convicted of a violent felony, it was required to double the sentence under the three strikes law as to all counts, subject to the court's section 1385 discretion.The three count amended information alleged defendant had previously been convicted of two violent felonies, child molestation under Penal Code section 288, subd.(a) where the victim was younger than 14. The amended information alleged the prior serious felony conviction allegations applied to one of the counts. But the jury and court findings entered pursuant to sections 1025 and 1158 made no reference to the prior violent felony findings as applying to only a single count. After dismissing one of the priors under section 1385, the court doubled the sentence as required by sections 667, subd.(e)(1) and 1170.12, subd.(c)(1) as to only one of the counts. As to the remaining counts, the court imposed consecutive terms as if the defendant had never been convicted of a violent felony. However, once the jury found defendant had been convicted of a violent felony, the sentence to all counts had to be doubled under the three strikes law subject to the trial court's section 1385 discretion to dismiss the strike prior.id: 17211
Trial court may apply one strike and three strikes laws cumulatively.A court may apply the one strike and three strikes law cumulatively. Moreover, the court in the present case properly imposed a three strike sentence based on defendant's Penal Code section 288, subd.(a) conviction, and also properly used that conviction (along with another) to triple the term under the three strikes law. The court could also have imposed the term based upon the habitual offender law (section 667.71) and the three strikes law. However, the court was precluded from sentencing defendant under the one strike (section 667.61) and the habitual offender laws because those are alternative sentencing schemes.id: 17153
Option one of the three strikes law applies notwithstanding defendant's eligibility for sentencing under the one strike law.Defendant argued the trial court erred in concluding that option one of the three strikes law requires tripling of a minimum period of parole ineligibility where, absent the three strikes law, a defendant would receive an indeterminate term under another statute - here, the one strike law. However, option one of the three strikes law requires tripling of a minimum period of parole ineligibility to calculate the minimum term of the indeterminate life sentence. Moreover, the three strikes law applies notwithstanding the defendant's eligibility for sentencing under the one strike law. Finally, a prior conviction treated as a strike may also serve as the basis for referencing the one strike law in calculating the minimum term and for imposing a sentence enhancement under section 667, subd.(a).id: 16975
Defendant waived the right to challenge her strike prior on the basis that it should have been treated as a juvenile adjudication by failing to raise the issue in the prior case.Defendant moved to strike a prior conviction on the grounds that she was 17 years old at the time of the offense, a fact that was not disclosed in that proceeding. However, any right to a juvenile court disposition of an action following an adult conviction must be asserted while the trial court in that action still had jurisdiction over the matter. Therefore, the defendant waived any right to have her prior conviction treated as a juvenile adjudication for three strikes purposes. Moreover, defendant was estopped from challenging the court's jurisdiction to convict and sentence her as an adult in the prior action since the motion to strike procedure is only available to defendants who challenge the constitutionality of a prior conviction that is alleged for purposes of a sentence enhancement.id: 16766
Defendant's prior second degree residential burglaries remain strike priors under Prop 21's newly amended section 1192.7, subd.(c)(18).Defendant argued that his prior second degree residential burglaries were not strike priors under Penal Code section 1192.7, subd.(c)(18), as amended under Proposition 21. At the time of the present crime, section 1192.7, subd.(c)(18) defined burglary of a residence as a "serious felony." However, Prop 21 amended the provision to refer to "any burglary of the first degree." Defendant claimed the amended section now refers to an "offense" as opposed to "conduct" and there is no need to go behind a judgment of conviction for second degree burglary to determine the residential nature of the conduct. However, the legislative intent did not support defendant's argument. Defendant's prior second degree residential burglaries remain strike priors under the newly amended section 1192.7, subd.(c)(18.)id: 16528
Failure to provide retrospective application to D.A.'s new policy of charging three strikes cases did not violate the doctrine of abatement.Defendant was convicted of possession of a small quantity of methamphetamine and received a 25 years-to-life sentence under the three strikes law. While his appeal was pending, the newly elected District Attorney in Los Angeles, Stephen Cooley, issued a directive to hhis deputies that certain cases, including drug cases involving small amounts, would be presumed to be second strike rather than third strike cases. Believing he would receive a more lenient sentence had he been prosecuted under the new directive, he argued he should have received the benefit of the directive pursuant to the doctrine of abatement. However, the doctrine of abatement was wholly inapplicable to the District Attorney's change in policy. The new policy was not a statutory enactment, it does not lessen punishment and was not intended to be given retrospective application.id: 16459
Three strikes law is valid urgency legislation as the duties of the judges and prosecutors did not substantially change.Defendant argued the three strikes law could not be enacted as an urgency measure because it changed the duties of both judges and prosecutors. However, the changes in the duties of judges and prosecutors under the three strikes law are neither new and special nor entirely foreign to their existing duties. Accordingly, the three strikes law is valid urgency legislation.id: 16416
Proof of strike priors is not required at preliminary hearings even in the wake of Apprendi.California courts have held that strike priors need not be proved at the preliminary hearing. The recent decision of <i>Apprendi v. New Jersey</i> (2000) 530 U.S. 466 does not change that proposition. <i>Apprendi</i> held that all facts increasing punishment beyond the statutory maximum must be proven to the jury beyond a reasonable doubt. However, <i>Apprendi</i> specifically excepted prior conviction allegations from its rulings. Moreover, that the failure to present proof of strikes at a preliminary hearing might hinder public policy is a matter that should be addressed to the Legislature. Finally, defendant was not similarly situated to others whose priors are proven at prelims, i.e., those whose priors elevate a misdemeanor to a felony, and there is therefore no equal protection violation.id: 16357
The trial court did not err in sentencing defendant under the three strikes law by tripling his minimum parole eligibility date of 25 years.Defendant was convicted of murder, and was also found to have multiple prior convictions under the three strikes law. He argued the court erred in calculating his sentence under the three strikes law (Penal Code section 667, subd. (e)(2)(a)) by tripling the minimum parole eligibility date of 25 years. He claimed that since option (i) uses the word "term" but does not use the word "period", it only applies to determinate sentences and is not available in cases where the otherwise provided punishment is an indeterminate term. However, under defendant's interpretation a second strike defendant convicted of murder could be sentenced to an indeterminate term of 50 years to life while a third strike defendant convicted of the same offense could only receive 25 years to life in prison. Such a result is absurd.id: 15189
Trial court need not advise three strike defendant, prior to guilty plea, that he was ineligible for parole until he served four-fifths of his sentence.A defendant's parole eligibility date is not a direct consequence of which a defendant must be apprized before pleading guilty. Therefore, in sentencing under the three strikes law, the trial court was not required to advise defendant, prior to his guilty plea, that he was ineligible for parole until he had served four-fifths of his sentence.id: 15191
Trial court properly added full term firearm use enhancements to defendant's indeterminate terms under the three strikes law.Defendant used a firearm in the commission of several robberies. Because he had two strike priors, he received an indeterminate term of 125 years to life in prison, plus a determinate term of 33 years. He argued the firearm use enhancements should have been reduced to one-third the middle term. However, the trial court properly added full term firearm use enhancements to defendant's indeterminate terms under the three strikes sentencing law.id: 15192
Under the provision which calls for tripling the term under the three strikes law, the trial court may select the upper, middle or lower term to be tripled.In calculating a sentence under Penal Code section 667, subdivision (e)(2)(A)(i), - "three times the term otherwise provided as punishment" - the trial court retains its discretion under section 1170, subdivision (b) to select the upper, middle, or lower term as appropriate. Because the trial court mistakenly believed it had to select the upper term as the term to be tripled, the matter was remanded.id: 15193
Use of defendant's prior rape conviction both as an element of the substantive registration offense and as a "strike" to enhance his sentence was not improper.Defendant argued the trial court impermissibly used his prior rape conviction both as an element of the Penal Code section 290 violation and a strike which augmented his sentence under section 1170.12, subd.(c)(1). However, the rule prohibiting dual use of prior convictions is inconsistent with the Three Strikes Law as a whole, the intent of which is to ensure longer prison sentences for recidivist offenders.id: 15194
Waiver of the right to jury trial on the prior conviction issue included the issue of whether or not the current offense was a serious felony.Defendant argued the trial court prejudicially erred in denying him a jury trial on, and depriving him notice of, the allegation that the current offense was a felony. He argued his jury trial waiver only extended to the issue of whether or not he suffered the prior convictions. However, defendant's waiver of his right to a jury trial on the prior conviction issue included the issue of whether or not his current offense was a serious felony.id: 15195
When the court in a prior case has stayed sentence on an otherwise qualifying conviction under section 654, the stayed conviction may be treated as a strike.Defendant had two prior felony convictions - residential burglary and assault with intent to commit murder - sustained in one action and arising out of the same set of facts. The trial court in that case imposed sentence on one conviction but stayed sentence on the other under Penal Code section 654. Contrary to defendant's argument, he has two strikes, not one. When a court has stayed sentence on an otherwise qualifying conviction under Penal Code section 654, the stayed conviction may be treated as a strike.id: 15196
Court did not err in using the same prior conviction which gave rise to his duty to register as a sex offender to double his sentence under the three strikes law.Defendant argued the trial court violated the rule announced in <U>People v. Edwards</U> (1976) 18 Cal.3d 796 concerning the use of his prior conviction as both a substantive element of the crime of failing to register as a sex offender and to increase his sentence under the three strikes law. However, in contrast to <U>Edwards</U>, the underlying felony offense is one of strict liability for an omission of required conduct by a convicted sex offender. It does not involve an act, let alone an act that is otherwise legal. The failure to register as a sex offender is inherently a criminal act unlike, the mere possession of a firearm. The <U>Edwards</U> rule only applies to cases in which the new offense is not inherently criminal.id: 15167
Court reserved its ruling on the question of whether a prior that was stayed under section 654 may be counted as a strike.Defendant's two alleged strike priors arose from a single prior proceeding. He argued the second prior could not be counted as a separate strike since the sentence on that count was stayed under Penal Code section 654. The Supreme Court determined the section 654 stay was not warranted in the prior proceeding and, therefore, reserved its ruling on the section 654 issue for a later case.id: 15169
Defendant convicted of an attempt crime was properly sentenced under the three strikes law rather than Penal Code section 664.When a current felony is an attempt crime and sentencing is in the context of the three strikes law, that law supersedes the general statute for punishment of attempts and governs the sentence that must be imposed.id: 15170
Defendant's prior conviction qualified as a strike despite the fact that the firearm use enhancement was alleged but stricken, and never found true or admitted.Defendant argued that his prior conviction for shooting at an occupied motor vehicle cannot qualify as a strike, because in that case (which resulted in a plea bargain) the firearm use enhancement was alleged but stricken, and never found true or admitted. However, the prosecution was permitted to present other evidence of firearm use, despite the fact that the firearm use in the prior allegation had been stricken. The record of the prior conviction, including the preliminary hearing transcript, demonstrated defendant's firearm use.id: 15173
Dismissing the manslaughter prior for strike purposes was not a dismissal for all purposes and imposition of the five-year enhancement was mandatory.The trial court believed that because it had stricken the manslaughter conviction for three strike purposes, the conviction was stricken for all purposes including imposition of the five-year enhancement pursuant to Penal Code section 667, subdivision (a). Defendant's admission of the prior conviction, the truth of which the court recognized when it struck the prior conviction, negated the necessity of an express finding by the court. Because imposition of the five-year enhancement was mandatory, the matter must be remanded with directions that the court impose the enhancement.id: 15174
Evidence was insufficient to show prior federal bank robbery was a strike because the offense can be committed in non-strike ways and no facts of the offense were presented.Evidence was insufficient to prove defendant engaged in conduct which constitutes a "strike" since the federal bank robbery statute at issue can be violated in different ways, some of which would not qualify as a strike. The evidence presented by the prosecution did not disclose the facts of the prior offense and therefore the trial court should have presumed the prior conviction was for the least offense punishable under the federal law, which did not constitute a serious felony strike.id: 15175
Minimum term of indeterminate life sentence for third strike when punishment for offense is life with parole is the greater of options (ii) or (iii) under section 667, subd.(e)(2)(A).In calculating the minimum term of the indeterminate life sentence for a third strike offender when the punishment otherwise provided for the current offense is life imprisonment with the possibility of parole, the trial court should select from the options provided in Penal Code section 667, subd.(e)(2)(A)(ii) or (iii), whichever is greater.id: 15177
Penal Code section 969f did not require that defendant admit in 1992 that the robberies to which he pled guilty were serious felonies.Defendant was charged with robbery and three prior robbery convictions were alleged as strikes. Before trial, the court dismissed all the prior felony allegations because when defendant had pleaded guilty to them he had not separately admitted they were serious felonies within the meaning of Penal Code section 969f, subdivision (a). However, section 969f did not require that defendant admit what section 1192.7, subdivision (c)(19) prescribed - that robbery was a serious felony. The trial court's order of dismissal was reversed.id: 15179
Prior qualifying conviction need not have been brought and tried separately from another qualifying conviction to be counted as a separate strike.When a defendant has been convicted of more than one violent or serious felony offense in a single prior proceeding, each conviction may be counted as a separate strike. The prior qualifying conviction need not have been brought and tried separately from another qualifying conviction to be counted as a strike.id: 15181
Strike prior for resisting an officer causing injury was reversed where the instruction allowed a true finding if the jury believed he proximately caused the injuries but did not directly cause or personally inflict the injuries.Defendant had a 1992 prior conviction for resisting an officer causing bodily injury under Penal Code section 148.10. The jury instruction defining "personally inflict bodily injury" for purposes of the strike allegation was erroneous. Proximately causing an injury is clearly different from personally inflicting an injury. Including the definition of proximate cause in the jury instruction wrongly incorporated the concept into the meaning of "personally inflict great bodily injury." The strike finding was reversed where the instruction allowed the jury to find the allegation true if it believed that defendant proximately caused the officer's injuries but did not directly cause or personally inflict those injuries.id: 15182
The court, rather than the jury, determines whether a conviction is a serious felony for three strikes purposes.Pursuant to Penal Code sections 1025 and 1158, the trial court, not the jury, determines whether a prior felony conviction qualifies as a "serious felony" for purposes of the three strikes law.id: 15183
The trial court did not abuse its discretion in granting the prosecutor's motion to bifurcate the trial on the strike priors.Before trial, defendant informed the court he wished to have the prosecution prove the truth of the prior conviction allegations as part of the prosecution's case-in-chief. The trial court then granted the prosecutor's request for a bifurcated trial. The trial court has discretion under Penal Code section 1044 to bifurcate the trial. A defendant has no right to a unitary trial and no right to jury nullification. While the court could not grant such a motion based only on a generalized concern that a jury might exercise nullification, the court was entitled to consider prejudice to the defendant from having the jury learn of his 12 prior convictions in a unitary trial. There was no abuse of discretion in granting the motion to bifurcate.id: 15188
A prior residential burglary conviction sustained before the effective date of Penal Code section 1192.7 may qualify as a strike.A prior serious felony conviction sustained before the effective date of Penal code section 1192.7 may qualify as a strike. Because substantial evidence supported the trial court's finding that defendant's 1974 burglary conviction was for burglary of a residence, the trial court properly determined that the 1974 conviction was a qualifying prior felony conviction under the three strikes law.id: 15162
Aggravated assault prior qualified as a strike where partially legible abstract of judgment and prison records showed the offense was accompanied by a GBI enhancement.Defendant's 1985 conviction could not be used as a "strike" or as the basis for a five-year enhancement if it does not fit one of the conduct-related criteria of Penal Code section 1192.7 or 667.5. The prosecutor argued the prior assault conviction qualified for such treatment because it was accompanied by a great bodily injury enhancement under section 12022.7. However, the abstract of judgment was only partially legible, and while it showed a three year enhancement was imposed there was no legible description of that enhancement. However, the prosecutor also submitted certified copies of appellant's prison records. These records included a fingerprint card which referred to the great bodily injury enhancement. The evidence supported the true finding on the prior conviction allegation.id: 15163
Convictions for crimes not listed in section 1192.7 at the time may be used as strikes if the offenses were added to section 1192.7 on June 30, 1993.A prior serious felony conviction sustained before the offense resulting in that prior conviction was added to the list of serious felonies in Penal Code section 1192.7, subdivision (c) may qualify as a strike if that felony was in the list of serious felonies in section 1192.7, subdivision (c), on June 30, 1993. Because robbery and bank robbery were serious felonies on June 30, 1993, the trial court properly determined defendant's 1978 robbery conviction and the 1987 robbery conviction could be used as strikes under the three strikes law.id: 15165
Court acted in excess of its jurisdiction in deferring sentencing on the three strikes defendant and releasing him post-conviction to attend a rehabilitation program.The trial court acted in excess of its jurisdiction in ruling on March 13, 1998, that sentencing would be deferred pending defendant's release on supervised OR to a rehabilitation program. As of March 13, 1998, the court was required either to sentence defendant under the three strikes law, or to exercise its discretion under <i>Romero</i> to remove him from the scope of the three strikes scheme by striking his prior convictions.id: 15166
Court did not err in instructing the jury not to consider the defendant's narrative statements regarding the three strikes law.During his testimony, defendant directly informed the jurors that this was a three strikes case, his life was at stake, and the case was "deeper" than it appeared. He repeated the statement, and then repeated it again during a side bar conference in the hallway. During deliberations, the jurors sent a note asking whether they could consider defendant's volunteered statement made during the sidebar conference. The court said the statement could not be considered for any purpose. Contrary to defendant's claim, the jury should not have been permitted to consider his statements to exercise its power of nullification.id: 14806
Court did not err in refusing to strike a current conviction on a stayed count based on same act to avoid future consequences of two strikes.Defendant argued the trial court abused its discretion in denying his motion to dismiss the assault with a firearm conviction pursuant to Penal Code section 1385. He claimed the assault count was based on the same facts as the attempted manslaughter and that because both convictions were for the same act the court should have dismissed the lesser offense in order to avoid leaving him with two prior felony convictions for purposes of the three strikes law. However, once the court stayed execution of the sentence, there was no specter of double punishment before the trial court.id: 14807
Sentencing under both the three strikes law and the habitual sexual offender statute did not violate section 654.A sentencing court should apply both the three strikes law and the habitual sexual offender statute in determining the sentence of a defendant who meets the criteria of both statutes.id: 14809
The trial court properly found defendant's prior conviction under section 288a, subd.(c), to be a strike under the three strikes law.A conviction for oral copulation with a child who is less than 14 years old and more than 10 years younger than the perpetrator (Penal Code section 288(a), subd. (c)(1) is a strike under the three strikes law.id: 14810
The trial court properly used section 1170.1 to impose one third the mid-term for an offense committed in one county following a conviction in a previous county and both offenses were current felonies under the three strikes law.Defendant committed the El Dorado County burglary after receiving stolen property in Placer County. Charges were pending in both counties but the El Dorado prosecution proceeded to judgment first. Defendant received a 16 month term doubled under the three strikes law. He was then convicted in Placer County. The court, based on Penal Code section 1170.1, imposed a term of one-third the two year mid-term, doubled. The prosecution appealed and argued the three strikes law (section 1170.12, subd.(a)(8)) required a full consecutive term. However, contrary to the prosecution's position, all of the convictions for which defendant was sentenced were "current" convictions as they were offenses currently before the court for disposition, as distinguished from the prior felony conviction that served as the strike . The court correctly discerned the distinction and properly applied both the three strikes law and section 1170.1.id: 14811
There was no improper dual use of the prior sex offense which triggered the registration requirement under section 290 and was then used as a strike prior to double the term.Defendant was convicted of failing to register as a sex offender under section 290. The court used his prior sex related conviction to double his punishment under the three strikes law. Defendant argued that section 290 has already "factored in" the commission of the prior felony in setting the three year maximum term, and that the trial court improperly relied on that prior to double his punishment under the three strikes law. However, nothing in the language of the three strikes law or the cases construing it indicate the framers intended to exempt section 290 from the law. There was no improper dual use of the prior conviction.id: 14812
Where a defendant with two strikes is sentenced for multiple offenses, the minimum term for each independent life term is calculated separately for each offense without regard to the other new offenses.Defendant was convicted of 12 current armed robberies and the jury found he committed three prior robberies. He argued the court erroneously computed the minimum term of the indeterminate term of counts 2 through 10. For each of those counts the court added 15 years for his three prior serious felony enhancements under Penal Code section 667, subd.(a). He claimed the prior serious felony convictions were status enhancements that may only be used once where consecutive sentences are imposed.. Since the enhancements were used on count 1, he argued they could not be used for the other counts. However, where a defendant with at least two strikes is sentenced for multiple offenses, the minimum term for each indeterminate life term (under section 667, subd.(e)(2)(A)(iii))is calculated separately for each new offense, without regard to the other new offenses. Moreover, the court was not required to impose one-third of the middle term plus one third of the firearm use enhancement on counts 2 through 10.id: 14813
The trial court did not err in "engrafting" the use and weight enhancement terms into the 25 year minimum three strikes term.Defendant was sentenced under Penal Code section 667, subdivision (e)(2)(A)(ii), to an indeterminate term of 25-years to life to be served consecutive to determinate terms of 3 years for a weight enhancement under Health and Safety Code section 11370.4, subdivision (a), and 4 years for a Penal Code section 12022, subdivision (c) enhancement. He argued the three strikes law expressly required him to serve a minimum term of 25 years, so that his sentence to a minimum term of 32 years was erroneous. However, defendant failed to distinguish between the minimum number of years he must serve under his indeterminate life sentence before being eligible for parole, and the length of his total aggregate sentence.id: 13931
Three strikes law applies to convictions incurred before its enactment.Defendant argued the three strikes law does not apply to convictions incurred before its enactment. However, the phrase in Penal Code section 667, subdivision (d)(1) that the determination [as to whether a prior offense constitutes a strike] shall be made upon the date of the conviction is interpreted to mean that the court is required to look backward to see if, at the time of the conviction of a past offense, such past offense qualified as a serious or violent offense under section 1192.7, subdivision (c) or section 667.5, subdivision (c).id: 9366
Three strikes law applies to priors predating March 7, 1994.The Three Strikes legislation applies to California convictions predating its March 7, 1994, effective date.id: 9367
Three strikes law does not supersede death penalty and special circumstance statutes.Defendant was convicted of two murders and the jurors found the multiple murder special circumstance true. He was sentenced to life without possibility of parole. He argued the three strikes law superseded death penalty and special circumstance statutes even though he had no qualifying priors. However, insulating capital murders with prior felony convictions from a sentence of death or life without possibility of parole was not the intention of the Legislature in enacting the statute.id: 9368
Three strikes law is inapposite to a defendant with one qualifying prior where the term otherwise provided by law for the current offense is life with possibility of parole which is an indeterminate sentence.The three strikes law is inapposite to a defendant with one qualifying strike where the term otherwise provided by law for the current offense is life with the possibility of parole which is an indeterminate sentence. A sentence of life with the possibility of parole has no minimum term for the sentencing court to impose. The minimum confinement period which must be served by a prisoner prior to eligibility for parole referred to in Penal Code section 3046 is not the equivalent of a minimum term for three strikes purposes. Moreover, the minimum 15 calendar years confinement period specified in the CSG statute, which supersedes the lesser specific 7-year period in section 3046 also is not a minimum term for an indeterminate term for three strikes law purposes.id: 9369
Three strikes law prohibits plea and/or sentence bargaining and the court erred in striking the prior conviction pursuant to the bargain.Defendant, a recidivist felon was arrested and prosecuted for stealing a $5.98 box of Tide laundry soap. It was also alleged that he had a prior serious felony strike. The court struck a bargain with the defendant whereby defendant pled guilty to all charges and admitted all allegations in exchange for the court's agreement to strike the Penal Code section 667 allegation at sentencing. However, because the plea bargain offered by the court and accepted by the defendant was prohibited by Penal Code section 667, subdivision (g), it was unenforceable and the sentence imposed was reversed.id: 9370
Three strikes law was valid urgency legislation since it did not substantially change the duties of judges or prosecutors.Defendant argued the three strikes law changed the duties of judges and prosecutors, and therefore could not be enacted as urgency legislation. However, the law did not substantially affect the primary duties of either the prosecutorial or judicial offices.id: 9371
Three strikes laws do not supersede the 1978 death penalty law.Defendant argued the three strikes laws establish a sentencing scheme for convicted felons with prior specified felony convictions, and the laws supersede the 1978 death penalty law. However, neither Penal Code section 667 nor section 1170.12 supersede the death penalty law, and the laws apply in addition to any other laws including the 1978 death penalty provisions.id: 9372
Transcript of defendant's plea supported the court's finding that the prior assault conviction constituted a strike.Defendant argued the trial court erroneously considered the transcript of his plea to the prior assault offense in determining it was a strike because the prosecutor's statement to the factual basis for the plea constituted inadmissible hearsay. However, the court relied on the factual basis for the plea as stated by the prosecutor with which defense counsel agreed. The factual basis included the fact that defendant personally used a metal pipe. Defendant also entered a plea to assault with a deadly weapon rather than assault by means of force . . . or assault as defined in section 245, subdivision (a)(1). Thus, defendant made an adoptive admission to the truth of the facts underlying the plea on the prior.id: 9373
Transcript of the trial which resulted in a mistrial was part of the record of the prior conviction and was admissible in a later trial to determine whether the prior qualified as a strike.Defendant's felony drunk driving sentence was doubled under the three strikes law after the jury found that as to his prior conviction of willfully discharging a firearm with gross negligence he personally used a firearm. The trial court erred in refusing to allow the defense to introduce portions of the transcript of the jury mistrial which preceded his plea of nolo contendere in the prior conviction. Such evidence would contradict the evidence that he personally used a firearm. The transcript of testimony given in a trial which resulted in a mistrial is part of the record of the prior conviction and it is admissible in a subsequent trial to determine whether that conviction qualifies as an enhancement. The failure to allow the evidence was prejudicial and required reversal.id: 9374
Trial court did not err in considering preliminary hearing testimony in determining the prior offense was a serious felony under the three strikes law.Defendant argued that because the prosecutor failed to show that the preliminary hearing witnesses were unavailable at his present trial, admission of their former testimony violated his constitutional right to confrontation and cross-examination. However, the trial court did not err in considering testimony in the preliminary hearing transcript for the prior offense in finding it was a serious felony.id: 9375
Trial court erred in staying the five-year enhancements for defendant sentenced under the three strikes law.Defendant was convicted of seven robbery counts and two attempted robbery counts. He was also found to have committed three prior felonies under Penal Code section 667, subdivision (a) and four prior strikes within the meaning of section 1170.12. He received nine consecutive 25 years to life sentences for a total of 225 years. However, the trial court erred in staying the sentence on the three prior serious felonies under section 667, subdivision (a). Imposition of the five-year enhancements was mandatory and the proper sentence was 24 years to life.id: 9376
Use of the same prior to impose the three strike 25-years to life sentence and a five-year enhancement does not violate section 654.Dual use of the same prior felony convictions to impose both the life sentence under Penal Code section 667, subdivisions (b) - (i) and the five-year enhancements under section 667, subdivision (a) did not violate the double punishment prohibition of section 654.id: 9377
Multiple use of a prior robbery term was not barred and the stay of the enhancement pursuant to section 654 can be corrected on appeal.The same robbery conviction can be used to (1) convert the current offense to a felony under Penal Code section 666, (2) to invoke the punishment provisions of section 667, subdivision (e)(1), and (3) to impose a prior prison term enhancement pursuant to section 667.5, subdivision (b). Such multiple use is not prohibited by Penal Code section 654 or by double jeopardy principles. The trial court therefore erred in finding section 654 required a stay of the enhancement term. Inasmuch as the court imposed the aggravated term it is not reasonably probable it would have exercised its discretion to strike the enhancement. The stay of the enhancement was therefore subject to correction on appeal.id: 9340
Penal Code section 666 is a felony for purposes of the three strikes law and it is not a special statute controlling the general three strikes statute.Defendant, who was convicted of petty theft with a prior, argued he should have been punished under Penal Code section 666, rather than section 667, subdivisions (b)-(i), the three strikes law. Contrary to defendant's claim, violation of section 666 is a felony not a misdemeanor with enhanced punishment. Moreover, the special over the general statute rule does not apply here because the elements necessary for the three strikes law do not correspond to the elements necessary for section 666.id: 9341
Petty theft with a prior is not just a misdemeanor punished as a felony but is a felony itself and is properly subject to the three strikes law.Defendant argued that petty theft is always a misdemeanor and that Penal Code section 666 merely provides for the punishment of petty theft as a felony when the defendant has a prior theft-related conviction that resulted in incarceration. He claimed the three strikes scheme pertains only to offenses that are actually felonies, not those merely punished as felonies. Finally, he argued section 666 is the exclusive means of punishing petty theft as a felony. However, when petty theft is punished as a felony under section 666, it is a felony. Defendant was properly sentenced under the three strikes law for his petty theft conviction.id: 9342
Preliminary hearing transcript was admissible to prove the prior conviction was a serious felony because it came within the former testimony exception to the hearsay rule.The prosecution sought to admit two pieces of hearsay evidence from the record of defendant's prior assault conviction to prove the prior conviction was for a serious felony within the meaning of Penal Code section 667, subdivision (a), and 1192.7, subdivision (c)(23). The preliminary hearing transcript excerpts were not inadmissible hearsay because they came within the former testimony exception to the hearsay rule. The probation report fragment, however, was inadmissible because it contained hearsay that was not shown to be within any hearsay exception.id: 9343
Prior 1979 robbery conviction qualified as a strike despite the fact that at that time it was not labeled as a serious or violent felony.Defendant argued Penal Code section 667, subdivisions (b)-(i) does not apply to prior convictions for felonies which were not serious pursuant to section 1192.7, subdivision (c) which was not adopted by the electorate until June 8, 1982, as part of Proposition 8. He also argued a prior felony was not violent pursuant to section 667.5, subdivision (c) unless it was so designated at the time of the conviction. However, section 667, subdivision (d) only requires a trial court to make a determination whether as of the date of the prior conviction, the crime was a felony or misdemeanor. Moreover, the pertinent issue is whether the prior crime was a serious or violent felony when the new offense for which defendant is on trial was committed.id: 9344
Prior convictions arising out of a single incident may be treated as separate strikes.Defendant argued it was error to treat his prior convictions as two separate convictions within the meaning of the three strikes law because both convictions arose out of a single incident. However, prior convictions may be counted as separate strikes even where they were based upon conduct against a single victim committed at the same time with a single intent and punished as a single crime pursuant to Penal Code section 654.id: 9345
Prior convictions may be used as strikes even if they were expunged under section 1203.4.Defendant argued his earlier child molestation convictions could not properly be considered strikes because the convictions were expunged pursuant to Penal Code section 1203.4. However, section 1203.4 expressly provides that relief under this section does not prevent use of the convictions as enhancements in future cases.id: 9346
Prior felony constitutes a strike even though it was later reduced to a misdemeanor.A qualifying prior felony conviction is a strike under the three strikes law even though the felony is later reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (c).id: 9347
Prior strikes need not have been brought and tried separately.Penal Code section 667, subdivisions (b)-(i), the legislative version of the three strikes law, does not require that a defendant's prior serious or violent felonies have been brought and tried separately in order to qualify as multiple strikes.id: 9348
Prosecution is not required to present evidence supporting strike priors at the preliminary hearing.Defendant was charged with felony drug possession with two prior felonies under the three strikes law. He argued the allegation charging him with two prior felony convictions should have been dismissed because no evidence to support the strike priors was adduced at the preliminary hearing. However, the prosecution is not required to present evidence supporting prior felony allegations at the preliminary hearing.id: 9349
Same prior felony conviction may be used as a strike and as a five year enhancement under section 667, subdivision (a).Defendant argued the trial court erred in using the same two prior serious felony convictions both as qualifying priors or strikes to bring him under the three strikes law and to impose a five year enhancement under Penal Code section 667, subdivision (a). However, the Legislature intended a defendant's sentence under the three strikes law should include a doubled term or life term, as appropriate under section 667, subdivision (e), plus an enhancement under section 667, subdivision (a) for each prior serious felony conviction. Moreover, there is no violation of section 654 which prohibits double punishment for the same act or omission since the prior conviction establishes defendant's status as a recidivist; it is not an act so section 654 does not apply.id: 9350
Same prior may be used as a second strike and to impose a five year enhancement.The trial court did not err in using defendant's prior residential burglary both as a second strike under Penal Code section 667, subdivision (e)(1) and also as a five year enhancement under section 667, subdivision (a).id: 9351
The court did not err in using the same prior conviction to convict him of felony escape and increase his sentence under the three strikes law.Defendant argued the use of the same prior conviction both to convict him of felony escape and to increase his sentence under the three strikes law constitutes an improper dual use of facts. However, defendant's prior conviction under the three strikes law is not an enhancement. Moreover, the use of defendant's prior conviction does not fall within the prohibition of Penal Code section 654 because it is not an act or omission. Rather, it is defendant's recidivist status that brings section 667, subdivision (e) into play. Section 654 does not apply to defendant's status.id: 9352
The crime of petty theft with a prior can be deemed a felony under the three strikes law.While petty theft is a misdemeanor it becomes a felony when prior convictions are present. The crime of petty theft with a prior can therefore be deemed a felony under the three strikes law.id: 9353
The law permits the use of pre-March 7, 1994 convictions as strikes.Defendant argued that only felony convictions incurred after March 7, 1994, the effective date of the three strikes legislation, can be considered strikes. However, the law permits the use of pre-March 7, 1994 convictions as strikes and such use does not result in a retroactive application of the law.id: 9354
The legislative version of the three strikes law is not an invalid modification of the Briggs Initiative - Proposition 7.Defendant argued that to the extent the three strikes law modifies the punishment for murder and limits the custody credits which can be earned by a convicted murderer, the law constitutes an invalid legislative amendment to a law enacted by initiative. He claimed Penal Code section 190, enacted by Proposition 7 (the Briggs Initiative) sets the punishment for murder, and it did not provide for legislative amendment or repeal of its provisions. However, sentencing a qualified recidivist murderer under the three strikes law is proper despite the provisions of the Briggs Initiative.id: 9355
The same prior burglary could be used both to convert petty theft to a felony and as a strike.The prior burglary used to elevate the instant petty theft to a felony could also properly be used as a strike. Defendant was not being punished presently for a crime previously committed. Moreover, the court rejected defendant's argument that Penal Code section 666 is a specific statute punishing recidivist thieves which controls over the general recidivist provisions of the three strikes law.id: 9356
The three strikes law applies to petty theft with a prior where the trial court chooses to treat the offense as a felony.Because the trial court chose to consider the charge of petty theft with a prior as a felony, and because the three strikes law is applicable when a defendant is convicted of a felony and has one or more serious or violent felonies, defendant was properly sentenced according to the provisions of the three strikes law.id: 9357
The trial court did not err by allowing the prosecution to prove prior felony convictions with computerized rap sheets and portions of a probation report.Defendant argued the trial court erred by admitting, in violation of the hearsay rule, computerized rap sheets and portions of a probation report in order to prove he was the person who had suffered the alleged prior convictions and prior prison terms. However, the computerized rap sheets and statistical information in the probation report were properly admitted under the official records exception to the hearsay rule.id: 9359
The trial court did not err in sentencing defendant under an older habitual offender statute rather than the three strikes law.Defendant argued he should have been sentenced under the three strikes law, rather than another habitual offender statute, Penal Code section 667.7, because his record satisfied both sentencing schemes and the three strikes law superseded section 667.7 in this circumstance. However, the three strikes law, which carried a lesser sentence than section 667.7 did not supersede that provision and it would have been improper to apply both sentencing schemes in the same case.id: 9360
There is no requirement that strike prior convictions be based on charges brought and tried separately.The brought and tried separately phrase in Penal Code section 667, subdivision (a) does not control the remaining subdivisions of the statute comprising the three strikes law. There is no requirement that strike prior convictions be based on charges brought and tried separately.id: 9363
Three strikes defendant was not entitled to have the jury instructed on the doctrine of nullification.Defendant argued he was entitled to have the jury instructed in a manner that would enable it to find him not guilty because of the harshness of the punishment he would receive. However, while the jury has the undisputed power to acquit regardless of the evidence of guilt, a defendant is not entitled to instructions informing the jury of that power or0 inviting the jury to use it.id: 9364
Three strikes law applied to defendant whose crime was committed on March 7, 1994.Defendant was arrested for drug possession at 10:15 p.m. on March 7, 1994. He argued the three strikes law signed by the Governor on March 7, 1994, was not immediately effective until at least March 8, 1994. However, the law was effective on March 7, 1994 and defendant fell within its provisions.id: 9365
1985 residential burglary conviction qualified as a strike even though it predated the three strikes law.Defendant's 1985 residential burglary conviction qualified as a strike even though it occurred prior to the effective date of the three strikes law. <$!110>id: 9321
A defendant has no right to question potential jurors about their opinion of the three strikes law.Defendant argued the trial court's refusal to allow him to question potential jurors about the three strikes law violated his Sixth Amendment right to an impartial jury and Fourteenth Amendment right to due process. However, a defendant does not have the right to question jurors concerning their opinion of the three strikes law.id: 9322
A felony such as carjacking which was not in existence on June 30, 1993, may nevertheless constitute a qualifying prior violent or serious felony under section 1170.12Defendant argued the trial court improperly characterized his prior conviction for carjacking as a strike under Penal Code section 1170.12, subdivision (c)(1), a portion of the initiative version of the three strikes law, because at that time carjacking was not one of the felonies enumerated in section 667.5, subdivision (c) or section 1192.7, subdivision (c). However, a felony such as carjacking which was not in existence on June 30, 1993, may nevertheless constitute a qualifying prior violent or serious felony under section 1170.12.id: 9323
A three strike defendant who receives 25-years to life may receive 5-year enhancements in addition.A defendant who receives a 25-years to life sentence under the three strikes law may also receive two additional five-year enhancements within the meaning of Penal Code section 667, subdivision (a).id: 9324
Convictions occurring prior to the enactment of the three strikes law are properly considered qualifying priors.Defendant argued that his prior serious felony conviction did not quality as a strike for purposes of Penal Code section 667, subdivision (d)(1) because it was not so designated on the date of that conviction. The prior occurred five years prior to the passage of the three strikes law. However, the Legislature did not intend to limit the law to prohibit the use of qualifying prior convictions that predate the statute.id: 9326
Court erred in failing to use the same prior to establish a violation of section 12021 and trigger application of the three strikes law.Defendant pled guilty to possession of a firearm by a felon (Penal Code section 12021) and admitted that he suffered a prior felony conviction and served a prior prison term. The trial court erred in refusing to sentence defendant pursuant to Penal Code section 667, subd.(e)(1), which required a doubling of the base term. Using the single prior felony conviction both to establish the elements of a violation of section 12021 and to trigger application of the three strikes law was not improper.id: 9329
Court properly excluded the reference to three strikes punishment as a motive to recant defendant's confession.Defendant argued the trial court erred by not allowing him to refer to the fact he faced a 25-years to life sentence under the three strikes law as a reason why he confessed at the time of his arrest and then later recanted. However, evidence of punishment is irrelevant to the question of guilt. Moreover, while evidence of why a defendant confessed is relevant, the question of why a defendant chose to recant his confession is irrelevant.id: 9330
Defendant's admission of certain facts to his probation officer was admissible to prove his prior felony conviction qualified as a strike.Defendant argued his trial counsel should have objected to the admission of the probation report to prove defendant's prior assault with a deadly weapon conviction qualified as a strike. However, the probation officer's written report of defendant's admissions (of personally using the knife) to her qualified as an official record under Evidence Code section 1280. Moreover, the portion of the report regarding defendant's admissions was reliable within the more narrowly defined meaning of record of conviction. While the probation report was admissible it was not necessarily conclusive. Finally, the admissions to the probation officer did not violate defendant's right against self-incrimination. Defense counsel was not ineffective in failing to object to the admission of the probation report.id: 9331
Defendant's prior burglary conviction was a strike where the record showed the section 1385 dismissal pertained only to the probation revocation proceedings.Defendant argued the first of his three prior convictions was not a valid prior conviction for purposes of the three strikes law because the prior was previously dismissed in the original trial court pursuant to Penal Code section 1385. However, the only reasonable inference to be drawn from the record was the section 1385 dismissal pertained only to the revocation of probation allegations then pending with respect to the underlying charge which formed the basis of the prior. Defendant failed to meet his burden of showing the entire case had been dismissed. Even if the prior was not valid under the three strikes law the sentence would remain the same in light of the two other valid strikes.id: 9332
Enhancements for priors must be added to three strike sentence and consecutive terms of 25-years to life should have been imposed for each separate burglary count.Defendant was convicted of two residential burglaries and the court found true two prior allegations for the same offense. He was sentenced pursuant to the three strikes law to a term of 27-years to life. He argued his term was miscalculated because it should not have included 11 years for three enhancements that were based upon prior felony convictions. He claimed the term should be reduced to 25-years to life. However, imposition of sentence for the three priors was proper. Moreover, since each felony count of which defendant was convicted arose from separate burglaries the mandatory minimum term of 25-years to life must be imposed consecutively for each count for a minimum determinate term of 50 years to life (with an additional 11 years for enhancements based upon the two prior felony convictions and prior prison term.)id: 9333
Evidence supported the ADW strike notwithstanding the possibility he may not have personally used the weapon.One of the strikes alleged against defendant was for a prior assault with a deadly weapon in violation of Penal Code section 245. To support the allegation the prosecution submitted an abstract of judgment stating defendant was convicted of 245(a) ASLT GBI/DLY WPN. Defendant argued the evidence did not establish he personally used a deadly or dangerous weapon as required. However, the evidence supported the finding despite the possibility he may not have personally used the weapon.id: 9334
Failure to obtain defendant's admission of a serious felony allegation at the time of the guilty plea did not preclude the prosecution from proving it later.At the time of the guilty plea to the prior offense defendant did not admit that it was a serious felony under Penal Code section 1192.7. Since the trial court made no finding, the serious felony allegation was in essence dismissed. However, the prosecution was not precluded from later proving the issue upon a subsequent felony conviction.id: 9335
Following a note from the jurors, the court did not err in refusing to inform them this was a three strikes case or that they had the power to nullify the verdict.During trial, the jury sent a note to the court asking whether defendant was facing three strikes consequences. The trial court informed the jury it would not answer the question. The court further reminded the jury not to consider penalty or punishment. The trial court's response to the question was appropriate. It was not required to inform the jury this was a three strikes case.id: 9336
Grossly negligent discharge of a firearm qualifies as a strike.The grossly negligent discharge of a firearm pursuant to Penal Code section 246.3, is a serious felony within the definition of section 1192.7, and qualifies as a strike.id: 9337
Imposition of the five year enhancement as well as the doubling of the base term is not barred by the three strikes law or Penal Code section 654.Defendant argued that the imposition of the five year enhancement for a prior serious felony conviction under Penal Code section 667, subdivision (a)(1), in addition to the doubling of the base term under section 667, subdivision (e)(1) is barred by the terms of the three strikes law and by section 654. The proscription against multiple enhancements for the same prior did not apply because the doubling of the base term does not constitute an enhancement. Subdivision (e)(2)(a), a separate portion of the three strikes statute, likewise does not support defendant's position because that section addresses the sentencing of a defendant with two prior qualifying convictions. Neither does subdivision (a)(2) (three strikes statute does not apply where sentence imposed under other provisions would be longer) support defendant's position since limitation was not intended to apply to subdivision (e)(2). Finally, section 654 does not prohibit the imposition of the five year enhancement as well as the doubling of the base term. By its terms, section 654 prohibits multiple punishment for the same act or omission and while the repeat offender's status calls for the increased sentence it is the new criminal conduct rather than the status which is being punished.id: 9338
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245