Three Strikes Reform Act
Category > Three Strikes Reform Act
Updated 3/6/2024Following Prop 36, trial courts retain discretion to impose concurrent sentences in cases where there are current convictions for more than one violent felony. In People v. Hendrix (1997) 16 Cal.4th 508, the court clarified that trial courts had discretion under the statutory scheme then in place to impose concurrent sentences in cases where there are current convictions for more than one violent felony. Hendrix remains valid after Proposition 36, which made changes to the parallel initiative version of the three strikes law.id: 26656
Updated 3/4/2024Defendant was eligible for Prop 36 resentencing where he was not “armed with” a firearm during his constructive possession of the guns. The trial court erred in denying defendant’s petition for resentencing under the Three Strikes Reform Act (Prop 36) based on the finding that he was armed with a firearm during his offense of possessing a firearm. The facts showed he was in constructive possession of the firearms that were miles away when they were found and there was no evidence connecting him to the guns other than that they were found in a house he had recently been seen in, where his car was parked, and where documents bearing his name were found.id: 26990
Updated 2/4/2024AB 103, providing relief for NGI committees is not an unconstitutional amendment of Prop 36, the Three Strikes Reform Act.Following the passage of Assembly Bill 103, a defendant filed a petition for a reduction of his commitment under newly enacted Penal Code section 1170.127. That provision allows people who are found not guilty by reason of insanity and committed to a state hospital to obtain relief that parallels Three Strikes relief for those found guilty of a crime. Because AB 103 did not amend Prop 36, the trial court erred in finding it was unconstitutional. id: 27305
The trial court erred at the Prop 36 resentencing hearing by failing to consider all aspects of the sentence. Defendant, a three strikes prisoner who was serving an indeterminate life sentence, successfully filed a petition for resentencing under Prop 36 (Penal Code section 1170.126.) The trial court thereafter erred when resentencing him as it refused to consider all aspects of his sentence, including exercising its discretion under section 1385, deciding on concurrent sentences and the application of section 654.id: 25857
The jury’s rejection of the firearm counts precluded the court from finding defendant was ineligible for Prop 36 relief because he was armed during the crimes. Defendant was convicted in 2001 of evading a pursuing officer and being a felon in possession of ammunition, but the jury acquitted him of all firearm-related counts. He later moved for resentencing under the Three Strikes Reform Act of 2012, but the court found him ineligible because the prosecution had proved he was “armed with a firearm” during the offenses. However, the court’s determination was contrary to the jury’s verdict and was reversed. The matter was remanded so that the trial court could determine whether defendant posed a danger to the public. id: 25818
The trial court erred in ruling it was required under the three strikes law to impose consecutive sentences for the digital penetration and sexual battery convictions.The Three Strikes Reform Act of 2012 largely left intact a sentencing court’s limited discretion under the Three Strikes law to impose concurrent sentences for multiple felonies committed on the “same occasion” or arising from the “same set of operative facts,” and therefore did not alter the sentencing rules established in People v. Hendrix (1997) 16 Cal.4th 508.id: 25650
Under Prop 36, a prior disqualifying conviction must occur before the inmate’s conviction resulting in his three strike sentence.The trial court erred by denying defendant’s request for resentencing under the Three Strikes Reform Act based on a disqualifying prior conviction. Defendant did not have a disqualifying prior conviction at the time he received the sentence he now seeks to recall. The conviction in question followed the conviction resulting in defendant’s indeterminate life sentence under the three strikes law and was therefore not a “prior” conviction for the present purposes.id: 24890
The trial court erred in denying defendant’s request for resentencing under the Three Strikes Reform Act by failing to consider his dangerousness at the time of his release - when he would be 77.The trial court abused its discretion when denying defendant’s petition for resentencing under the Three Strikes Reform Act by finding he would pose an unreasonable risk to public safety if released. The court didn’t consider how many of defendant’s counts would be subject to resentencing. The defense wasn’t seeking immediate release, acknowledging instead that the defendant would be eligible for release at age 77. When determining the risk to public safety, the court must look at the danger the defendant would pose at the time of his release.id: 25501
Prosecution must prove defendants are ineligible for Prop 36 resentencing beyond a reasonable doubt. The prosecution bears the burden of establishing that a person is ineligible for resentencing under the Three Strikes Reform Act of 2012 (Prop 36). It must prove ineligibility beyond a reasonable doubt.id: 25472
The trial court erred in finding defendant was ineligible for Prop 36 resentencing because of differing elements in the Texas and California murder laws. The trial court erred by finding defendant was ineligible for resentencing under the Three Strikes Reform Act due to a 1978 murder conviction in Texas. Defendant was prosecuted in Texas under a statute that is analogous to California’s implied malice murder law. However, in Texas, murder liability attaches if the act was done with intent to cause serious bodily injury and objectively clearly dangerous to human life. In California, the act must be done with a subjective awareness of the risk of death. Moreover, the record did not show the crime would have been murder if committed in California.id: 25300
The Prop 47 definition of “unreasonable risk of danger” must be used in Prop 36 proceedings as well.The definition of what constitutes “an unreasonable risk of danger to public safety” that was adopted in Prop 47 must also be applied to resentencing petitions filed under the Three Strikes Reform Act (Prop 36). Prop 47 emphasizes that the definition is to be used throughout the Penal Code and that includes Prop 36 cases.id: 24684
Defendant’s acquittal on the gun charge and not true finding on the enhancement allegation precluded a determination that he was ineligible for relief under the Three Strikes Reform Act.Defendant was convicted in 1995 of auto theft, but the judge at the bench trial acquitted him of the firearm charge and rejected the gun allegation. He petitioned for a reduction of his three strikes law sentence pursuant to Prop 36 but the court found he was ineligible for relief after finding by a preponderance of the evidence that defendant was armed at the time of the theft. However, defendant’s acquittal on the gun charge and not true finding on the enhancement allegation precluded a determination that he was ineligible for Prop 36 resentencing. id: 24516
The trial court erred in relying on the probation report to find defendant was ineligible for Prop 36 resentencing.The trial court denied defendant’s petition for a recall of his sentence under the Three Strikes Reform Act. However, the trial court erred in relying on the probation report in determining defendant was ineligible for resentencing. The probation report was not an admissible, reliable document in the record of conviction. Because the court relied solely on the facts in the probation report in finding defendant was armed and ineligible for resentencing, the order denying resentencing was reversed.id: 24436
The trial court erred by impliedly finding defendant had the burden of proof in his Prop 36 proceedings.At the hearing on defendant’s Prop 36 resentencing petition, the trial court asked the defense to go first. The defense presented one witness and the prosecution presented none although it produced documents from defendant’s prison file. The court implicitly imposed the burden of proof on the defendant. The court based its determination of current dangerousness on defendant’s prior record and insincere efforts while attending Alcoholics Anonymous sessions. However, the prosecution presented no evidence that defendant’s commitment to AA was insincere. Whether viewed as an abuse of discretion or a due process violation, defendant was entitled to a new hearing on current dangerousness.id: 24411
An inmate is eligible for Prop 36 resentencing for a qualifying current conviction even if he or she has a second conviction that is serious or violent.The trial court erred by finding defendant ineligible for relief under the Three Strikes Reform Act on one of his two current convictions. An inmate is eligible for resentencing under Prop 36 on a current conviction that is neither serious nor violent, even though he or she has another current conviction that is serious or violent.id: 24407
For purposes of Prop 36 resentencing, the presence of a serious or violent felony does not disqualify a defendant from resentencing of a current offense that is neither serious nor violent.Under the Three Strikes Reform Act an inmate who is serving an indeterminate life sentence for a serious or violent felony is eligible to petition for recall of an indeterminate sentence for a felony that is not violent or serious.id: 24172
A person convicted of being a felon in possession of a firearm is not automatically excluded from Prop 36 resentencing. A person convicted of being a felon in possession of a firearm is not automatically disqualified from resentencing under the Three Strikes Reform Act (Prop 36). Such a person is disqualified only if he or she had the weapon available for offensive or defensive use.id: 23738
The trial court erred in finding defendant was ineligible for resentencing under the Three Strikes Reform Act based on a conviction that did not result in an indeterminate term.Defendant was serving a 25 years-to-life term under the three strikes law for his stalking conviction along with strike priors. The trial court erred in finding he was ineligible for resentencing under the Three Strikes Reform Act due to his conviction for criminal threats, which is a serious felony. In order for defendant’s criminal threats conviction to bar resentencing, he would have to have been subject to an indeterminate sentence for that offense, which he was not.id: 23795
Prop 47 definition of “unreasonable risk of danger...” does not apply to Prop 36 petitioners. The definition of the phrase “unreasonable risk of danger to public safety” set forth in Penal Code section 1170.18, subd., (c), contained in the recently passed Prop 47 does not apply to petitions brought under Prop 36, the Three Strikes Reform Act. The trial court did not err in denying defendant’s petition for resentencing under Prop 36 after finding he posed a risk of danger given his lengthy history of crimes including burglaries and drug related offenses.id: 24034
The trial court erred by denying Prop 36 relief based on evidence underlying dismissed counts. The trial court erred by finding defendant was ineligible for relief under the Three Strikes Reform Act due to the fact that defendant was armed during the offense to which he pled guilty. The counts alleging firearm possession had been dismissed and the Prop 36 eligibility requirements can only consider the underlying convictions. id: 24055
Denial of a motion for resentencing under the Three Strikes Reform Act is appealable.The trial court’s denial of defendant’s motion seeking resentencing under the Three Strikes Reform Act is appealable. id: 23562
Prop 36 amendment to three strikes law applied to defendant’s case that was not final on appeal at the time the law was passed.During the pendency of the appeal the electorate passed the Three Strikes Reform Act of 2012, which would have reduced defendant’s sentence from the 25 years-to-life term imposed. The amendment to the law applied to defendant under the doctrine of In re Estrada (1965) 63 Cal.2d 740, which provides that an amendatory statute that reduces punishment applies in all cases not yet final on appeal unless there is a clear indication that the enacting body did not so intend.id: 23187
A defendant may appeal the initial determination that he is ineligible for resentencing under Prop 36.The trial court’s initial determination that a defendant is ineligible for resentencing under the Prop 36 Reform Act of 2012 is an appealable order.id: 23370
Defendant was entitled to a retroactive application of Prop 36. Defendant was sentenced to 25-years-to-life as a third striker less than a month before the Three Strikes Reform Act (Prop 36) was passed. His current offense of domestic battery resulting in a traumatic condition (Penal Code section 273.5, subd.(a) was not a serious or violent felony. Under the analysis set forth in In re Estrada (1965) 63 Cal.2d 740, the more lenient sentencing charge applied retroactively to defendant, and he was entitled to be resentenced. id: 23387
Defendant was eligible for Prop 36 resentencing where one of his two strikes convictions was for nonserious offense.The trial court erred by denying defendant’s Prop 36 petition for resentencing pursuant to Penal Code section 1170.126. While he was ineligible for sentencing with respect to one of his qualifying strike convictions that was a serious offense, his other conviction for second degree burglary was a nonserious offense.id: 23615
Defendant’s conviction for attempted forced oral copulation did not disqualify him from seeking resentencing under the Three Strikes Reform Act. The trial court ruled defendant’s prior conviction for attempted forcible oral copulation disqualified him from seeking resentencing under the Three Strikes Reform Act. However, the conviction for attempted forcible oral copulation was not a disqualifying serious or violent felony for purposes of the Act.id: 23651
Updated 6/1/2024At resentencing under section 1172.75, the court lacked the authority to address the three stikes sentence under the Reform Act of 2012.Defendant’s case was remanded to allow the trial court to strike his prior prison term and prior drug related enhancements following the enactment of Penal Code section 1172.75. He argued he was entitled to a full resentencing so that the trial court could apply the Three Strikes Reform Act of 2012 to his three strike sentence. However, section 1172.75 could not be used to incorporate the Reform Act at resentencing.id: 28270
Updated 3/19/2024Defendant was not entitled to resentencing under the Three Strikes Reform Act as part of his resentencing under SB 483.In 2008, the trial court sentenced defendant to 25 years-to-life under the Three Strikes Law plus one year for a prison prior under Penal Code section 667.5(b). In 2022, he appeared for resentencing so the court could strike the one year enhancement under newly enacted SB 483. Contrary to defendant’s argument, the trial court did not err in failing to apply the revised penalty provisions of the Three Strikes Reform Act of 2012.id: 28213
Updated 2/26/2024Defendant’s blows to the victim’s jaw supported an attempt to inflict great bodily injury, which rendered him ineligible for Prop 36 resentencing.The trial court did not err in denying defendant’s petition for resentencing under the Three Strikes Reform Act. His current offense was battery with serious bodily injury but the jury rejected the GBI enhancement. The court found he was ineligible because he acted with the intent to commit great bodily injury and that finding was supported by evidence that he punched the victim in the jaw causing him to fall and hit his head on the wall, and defendant followed with another punch to the jaw when the victim was down. The force of the blows resulted in two broken jaw bones and a dental injury, although the court’s finding was based on defendant’s conduct and not the severity of the injuries.id: 26399
Updated 2/4/2024Defendant could not apply for resentencing as a veteran with a disorder under section 1170.91 since he was serving an indeterminate term and the prospect of Romero relief did not change that. In 2018, the Legislature amended Penal Code section 1170.91 to allow a convicted veteran suffering from service related disorders to petition for resentencing so that disorder could be considered as a mitigating factor when imposing a determinate term. Defendant filed a petition under this provision but was denied because he was serving an indeterminate life term. He argued this was erroneous because if resentenced, the court could dismiss a strike prior. However, section 1170.91 is not a vehicle for obtaining the opportunity to make a Romero motion. Neither could he be sentenced to a determinate term under Prop 36.id: 27378
Updated 2/4/2024An inmate’s rehabilitative progress does not constitute good cause to excuse an untimely filing under the Three Strikes Reform Act. Defendant filed a second petition for recall of his sentence under the Three Strikes Reform Act. He argued his rehabilitative progress in prison justified the second petition. Whether or not the Act permits successive recall petitions an inmate’s rehabilitative progress does not constitute good cause to excuse an untimely filing.id: 27327
Updated 2/3/2024The trial court did not err in rejecting defendant’s Prop 36 and 47 petitions due to his potential dangerousness when his offense was violent and he had a history of fighting in prison. In 2013, defendant moved to recall his sentence under Prop 36 and then later under Prop 47. The petitions were denied after the trial court found defendant posed a risk of danger. The court did not err in making that finding. Defendant was involved in a violent crime, a shooting that was close to being a “super strike.” Regarding his rules violations in person, the record did not show that he was a victim who was forced to fight in order to survive. id: 27733
Updated 2/1/2024The trial court did not err by failing to incorporate the Three Strikes Reform Act when resentencing defendant under SB 483.Defendant was resentenced pursuant to SB 483, and the trial court dismissed a one year prior prison term enhancement but otherwise imposed the original term. He argued the trial court erred by not also applying the revised penalty provisions of the Three Strikes Reform Act of 2012 (Prop. 36). However, there was no error as the Reform Act provides for a distinct resentencing procedure that defendants must follow in order to seek discretionary relief under the act.id: 27923
Defendant was armed with a deadly weapon for purposes of the Three Strikes Reform Act when he used a vehicle in the commission of an assault.Defendant was ineligible for resentencing under the Three Strikes Reform Act because he was armed with a deadly weapon within the meaning of that provision when he intentionally used his vehicle in a way that was likely to produce great bodily injury.id: 24913
Prosecution must prove Prop 36 ineligibility beyond a reasonable doubt, and the court’s eligibility determination may rely on facts not found true by the jury.The trial court erred in finding defendant was not armed with a deadly weapon (his car) during his commission of the aggravated assault, a fact that rendered him ineligible for Prop 36 resentencing. Prop 36 permits a trial court to find a defendant armed with a deadly weapon is ineligible for resentencing only if the prosecution proves this fact beyond a reasonable doubt. Moreover, a court’s eligibility determination may rely on facts not found by a jury, and such reliance does not violate a defendant’s Sixth Amendment right to a jury trial.id: 25640
The trial court reviewing a petition for resentencing under the Three Strikes Reform Act lacked jurisdiction to vacate the sentencing court’s finding that prior convictions were serious felonies. Defendant was serving a three strike sentence for assault with force likely to produce great bodily injury. The trial court rejected his request for resentencing under Penal Code section 1170.126, the Three Strikes Reform Act. He argued the court erred by declining to vacate the original sentencing court’s finding that his current convictions for assault and battery were serious felonies, which would have paved the way for his eligibility for resentencing. However, revisiting the issue of the court’s conclusion that the priors were serious felonies was beyond the jurisdiction provided in section 1170.126. Even if the classification was incorrect, it would not establish an unauthorized sentence.id: 25561
The prosecution was not required to plead and prove the forcible rape prior was a super strike that rendered defendant ineligible for Prop 36 relief.The trial court properly denied defendant’s request for rensentencing under the Three Strikes Reform Act based upon the fact that his prior forcible rape conviction was a super strike, which disqualified him from Prop 36 eligibility. Contrary to defendant’s claim, the prosecution was not required to plead and prove that the prior conviction was a super strike.id: 25458
When ruling on a petition for resentencing under the Three Strikes Reform Act, the trial court has discretion on the ultimate decision regarding petitioner’s dangerousness. In a petition for resentencing under the Three Strikes Reform Act, the prosecution has the burden of proving by a preponderance of the evidence, facts on which a finding that resentencing a petitioner would pose an unreasonable risk of danger can be based. Those facts are reviewed for substantial evidence. The preponderance standard does not apply to the court’s determination regarding dangerousness, nor does Penal Code section 1170.126 (f) create a presumption in favor of resentencing. The ultimate decision regarding dangerousness lies in the discretion of the court. Finally, the Prop 47 definition of dangerousness does not modify section 1170.126(f).id: 24945
The trial court did not err by rejecting defendant’s Prop 36 petition for resentencing after looking at the record and finding that while committing the assault in the most current offense he intended to inflict great bodily injury. The trial court did not err in denying defendant’s Prop 36 petition for resentencing after finding that he intended to cause great bodily injury during the assault. The court had the authority to make this factual finding of intent (shown by a preponderance of the evidence) after reviewing the record even if that finding had not been made by the jury or the trial court at the time of the conviction.id: 24867
The trial court properly denied defendant’s Prop 36 request for resentencing where the prosecution proved by a preponderance that defendant intended to inflict GBI on his wife when threatening her.The trial court denied defendant’s request for resentencing under the Three Strikes Reform Act after finding that in the current stalking offense, defendant intended to cause great bodily injury to another person. The prosecution proved by a preponderance that defendant intended to inflict great bodily injury on his wife. id: 24821
The trial court found defendant was ineligible for Prop 36 resentencing where he was “armed” with a knife during the crime even though the jury found he did not “use” the weapon.The trial court did not err in denying defendant’s petition for resentencing under Prop 36 - the Three Strikes Reform Act. The court properly found he was ineligible for Prop 36 relief because he was “armed” with a knife during his prior false imprisonment offense. The fact that the jury in that case determined he did not “use” a knife in the commission of the offense did not establish that he was not armed.id: 25373
The lack of legal advice during the relevant time period did not establish good cause for the late filing of a Three Strikes Reform Act petition.Defendant sought relief under the Three Strikes Reform Act of 2012, but missed the deadline for filing a petition (November 7, 2014). He did not establish good cause for the late filing where he claimed he had no lawyer during the relevant time period to advise him regarding his rights and remedies.id: 25381
Prop 47's definition of “unreasonable risk of danger to the public safety” does not apply to resentencing proceedings under the Three Strikes Reform Act.Prop 47's definition of “unreasonable risk of danger to public safety” does not apply to resentencing procedures under the Three Strikes Reform Act. The refusal to construe Prop 47's definition to apply to the Three Strikes Reform Act does not violate equal protection or due process.id: 25290
Evidence showed a connection between defendant’s subset of the East Side Bolen gang and the subset who committed the predicate offenses used to establish the gang enhancement.In People v. Prunty (2015) 62 Cal.4th 59, the court held that when the prosecution seeks to prove a gang enhancement by showing predicate acts committed by a gang’s subset, it must prove a connection between the gang and its subset. In this case there was testimony showing contacts between the Locos (defendant’s subset) and the Rascals (the subset of the perpetrators of the predicate offenses) and a showing that they all identified with the larger East Side Bolen gang.id: 25288
A trial court may deny resentencing under Prop 36 based on facts underlying previously dismissed counts. When a court evaluates a petition for recall of a sentence under the Three Strikes Reform Act, it may find an inmate ineligible for relief because certain facts underlying a previously dismissed count show the inmate was armed with a firearm during the commission of the third strike offense.id: 25311
A person is armed with a weapon for purposes of Prop 36 if he was present with the weapon and had it available for use at any time.The trial court properly rejected defendant’s petition to recall his sentence under the Three Strikes Reform Act of 2012. He was found to be ineligible because he was “armed” with a sharp instrument in prison. He argued he wasn’t armed with the weapon because the guards seized it while he was in the shower. However, he had it available for use while he was in the cell, and possession is a continuing offense.id: 25224
The trial court erred in finding defendant was ineligible for Prop 36 resentencing based on a prior conviction of assault with intent to rape without proof that it was committed by force, fear or threats. A defendant is not entitled to resentencing under the Three Strikes Reform Act if his prior strikes are included on a list of particularly grave offenses. The list includes assault with intent to commit rape, but only if that crime was committed with force, violence, duress or menace. It’s possible for an assault to be committed before any force has been applied, and also without the use of threats or fear. The trial court erred by finding defendant ineligible for Prop 36 resentencing based on his prior conviction for assault with intent to commit rape without proof that it was committed by force, fear or threats.id: 25106
Defendant filing a Prop 36 petition was not entitled to hearing to determine the constitutionally of a prior conviction. In 1997, defendant was convicted of indecent exposure and sentenced to 26 years-to-life under the three strikes law. In 2014, he moved for resentencing under the Three Strikes Reform Act, but the trial court denied his petition. He claims the court erred by failing to conduct a hearing and rule on his motion to strike one of his priors on the ground that it was constitutionally invalid for lack of Boykin-Tahl advisements. However, defendant was not entitled to such a hearing as part of his Prop 36 petition. Moreover, he had already twice lost his challenge to the constitutionally of the prior conviction in question. id: 25121
Violations of section 288 and 288.7 disqualify a person from eligibility for Prop 36 resentencing. The trial court denied defendant’s request for resentencing under the Three Strikes Reform Act. He argued his right to equal protection was denied where his ineligibility was based on a prior conviction for violating Penal Code section 288, when an individual convicted of violating the more serious offense described in section 288.7, would be eligible for resentencing. However, section 288.7 is a disqualifying offense.id: 25122
Defendant serving a three strike life term when the Reform Act took effect could seek relief only by petitioning for recall even though his judgment of conviction was not yet final. Third strike defendants who were sentenced under the Three Strikes Law before the effective date of the Three Strikes Reform Act, but whose judgments were not yet final as of that date, are not entitled to automatic resentencing under the revised penalty provisions of the Reform Act. Instead, they may seek resentencing by petitioning for a recall of the sentence under the provisions of the Act. id: 24779
Defendant seeking Prop 36 resentencing was not entitled to a jury trial on the issue of dangerousness. Defendant petitioned for resentencing under the Three Strikes Reform Act - Prop 36. Contrary to his claim, he was not entitled to a jury trial on the issue of whether he would pose an unreasonable risk of danger if resentenced.id: 24685
Because defendant was vicariously armed during the commission of his arrest offense, he was disqualified from resentencing under the Three Strikes Reform Act. Defendant argued he was not “armed” during the commission of his current offense, and therefore he qualified for resentencing under the Three Strikes Reform Act. Although the jurors found he was armed for purposes of the firearm enhancement, this finding did not require them to find he personally carried the gun or even knew his codefendant carried one. However, the voters intended to disqualify from resentencing an inmate who was vicariously armed with a firearm during the commission of the current offense.id: 24673
The trial court was not required to use the Prop 47 standard for assessing risk of danger to the public when ruling on a Prop 36 petition for resentencing. The trial court did not use the wrong standard in denying defendant’s request for resentencing under the Three Strikes Reform Act based on his unreasonable risk of danger to the public. The court was not required to use the more favorable standard articulated in Prop 47, even though that provision states that its standard is to be used throughout the entire Penal Code. This was a drafting error. And contrary to defendant’s claim, he did not have a Sixth Amendment right to have a jury determine whether he posed an unreasonable risk of danger to the public.id: 24589
The trial court did not abuse its discretion by rejecting defendant’s Prop 36 request for resentencing after finding he would pose a risk of danger to the public. The trial court did not err by denying defendant’s Prop 36 petition for resentencing after finding he would pose an unreasonable risk to public safety. Defendant had a history of violence and was violent when incarcerated. Due process did not require that a jury make the dangerous finding based on proof beyond a reasonable doubt. Finally, the court did not err by failing to use the Prop 47 definition of risk of danger to the public even though that provision stated its definition should be used throughout the Penal Code. Justice Rushing filed a lengthy dissent explaining why the Prop 47 definition should be used. id: 24606
Prop 36 does not permit an NGI committee to petition for a recalculation of a maximum confinement. Penal Code section 1170.126, the Three Strikes Reform Act, does not permit people found not guilty by reason of insanity and committed to a state hospital to petition for a recalculation of their maximum term of commitment. This interpretation does not violate equal protection principles as defendant failed to show the state lacked a rational basis for treating pre-Prop 36 NGI committees differently than pre-Prop 36 convicted felons. id: 24573
After granting Prop 36 relief, the trial court was not limited to resentencing on the base offense, and properly imposed a sentence for the previously stricken prison term enhancement.The trial court granted defendant relief under the Three Strikes Law Reform Act, but resentenced him on other charges and the prior prison term enhancement, which had been stricken during the original sentencing proceeding in light of the third strike life sentence. Contrary to defendant’s claim, the trial court was not limited to resentencing defendant on the base offense.id: 24530
A person who committed an offense involving “serious bodily injury” is ineligible for Prop 36 resentencing.A person serving an indeterminate term as a third strike offender for a violation of Penal Code section 243, subd.(d) when he or she personally inflicted serious bodily injury, is ineligible for relief under the Three Strikes Reform Act. “Serious bodily injury” is the same as “great bodily injury” for purposes of eligibility.id: 24497
Prop 36 doesn’t violate equal protection by requiring risk assessment for those sentenced after it passage and does not violate Apprendi.Defendant argued the trial court erred by denying his petition for resentencing under the Three Strikes Reform Act. Contrary to defendant’s claim the trial court properly assigned the burden of proof on the prosecutor. Next, Prop 36 did not violate equal protection by requiring risk assessments for those sentenced after its passage as the voters could plausibly conclude that the differences between the two groups of defendants justified the distinction in punishment. Finally, Prop 36 does not violate the Sixth Amendment under Apprendi because it does not establish a presumption that an eligible petitioner is entitled to resentencing.id: 24495
The jury’s finding that defendant constructively possessed the gun found in the trash can rendered him ineligible for Prop 36 relief.The trial court did not err in finding defendant was ineligible for relief under the Three Strikes Reform Act. The court properly determined he was “armed” during the weapon possession offense despite the fact that he did not possess it during the arrest as the jury determined he constructively possessed the gun later found in the trash can.id: 24482
The trial court properly found defendant was ineligible for Prop 36 resentencing in light of his prior juvenile adjudication for rape. Defendant argued the trial court erred in finding he was ineligible for resentencing under the Three Strikes Reform Act because of a 1975 juvenile adjudication for rape. However, the juvenile adjudication was properly used to disqualify the defendant even though it had not been “pleaded and proved” in the underlying case. Moreover, even though Penal Code section 1170.126 refers to “convictions” it also applies to juvenile adjudications. Finally, the juvenile adjudication was properly before the court even though it was ordered by the trial court and not the juvenile court as the law provides.id: 24490
The trial court did not err by reviewing the preliminary hearing transcripts in order to find defendant was armed during the theft offense, which made him ineligible for Prop 36 resentencing.Defendant sought resentencing under the Three Strikes Reform Act but his petition was denied where the court found he was armed with a firearm during the grand theft offense. Defendant argued that he only pled guilty to the grand theft offense and the firearm related charges were dismissed. However, the trial court was allowed to review the reporter’s transcript of his preliminary hearing to make the finding that he was armed.id: 24446
Prop 47 definition of unreasonable risk of danger to public safety, need not be used in Three Strikes Reform Act petition. The trial court considering defendant’s Prop 36 petition for resentencing did not err by failing to use the Prop 47 definition of “unreasonable risk of danger to public safety.”id: 24409
Defendant was not entitled to a jury trial on his Three Strikes Reform Act petition.Defendant argued that he was entitled to a jury trial on his Prop 36 petition. However, Prop 36 does not create a presumption in favor of a second strike sentence, so the denial of a recall petition does not increase the mandatory minimum sentence for a defendant’s crime and he was not entitled to a jury trial.id: 24410
Court of Appeal denied habeas petition without prejudice suggesting the superior court would be a better place to file.Defendant appealed the trial court’s denial of his petition for resentencing under the Three Strikes Reform Act. He also filed a habeas corpus petition alleging his prior convictions were unconstitutional. The Court of Appeal denied the petition without prejudice suggesting it would be better to file the petition in the superior court.id: 24412
Defendant’s prior assault with intent to commit rape was considered a sexually violent offense when Prop 36 became effective so he was disqualified from resentencing under the Act. Defendant argued that he was eligible for resentencing under the Three Strikes Reform Act because his crime of assault with intent to commit rape was not listed as a sexually violent offense in 1998 when he was sentenced to serve the present three strikes term. However, assault with intent to commit rape was considered a sexually violent offense as determined in Welfare and Institutions Code section 6600 on the date Prop 36 became effective. Because defendant had two prior convictions for that offense, the trial court correctly determined that he was disqualified from resentencing under the Act.id: 24282
Defendant with a prior juvenile adjudication for murder was ineligible for relief under the Three Strikes Reform Act.Defendant was serving a 26 years-to-life sentence under the three strikes law. His recent offense was not violent or serious and he petitioned for resentencing under the Three Strikes Reform Act. However, he had a prior juvenile adjudication for murder, and a juvenile adjudication like an adult conviction for murder, rendered him ineligible for Prop 36 relief. id: 24278
Prop 36 resentence was void where it was discovered defendant was ineligible since his original gang enhancement had not been stricken.Defendant pled guilty in 2008 to attempted extortion and admitted two strike priors so he was sentenced to 25 years -to-life. There was also a true finding on a gang allegation. In 2013, defendant sought resentencing under Prop 36, but was ineligible because of the gang allegation. The parties mistakenly told the court the gang finding had been stricken given that no additional term had been imposed. The court then granted defendant a reduced term. However, the gang finding had not been stricken, and there was no term imposed simply because the law added no extra years, just a 15 year minimum parole period. Defendant was not eligible for Prop 36 resentencing and the court subsequently properly reimposed the original sentence. id: 24230
When the trial court resentences a third strike defendant, the classification of the offense as serious or violent is based on the law as of the effective date of Prop 36.The Three Strikes Reform Act (Prop 36) reduced punishment for some third strike offenses that are neither serious nor violent. When a court resentences a defendant, the classification of the current offense is based on the law as of the effective date of Prop 36. Defendant was not entitled to resentencing on the attempting to dissuade a witness count which had been classified as serious and violent before November 7, 2012.id: 24171
Defendant was not entitled to the appointment of counsel as his Prop 36 petition for resentencing failed to state a prima facie case.Defendant argued the trial court erred by refusing to appoint counsel to assist him with his petition for resentencing under the Three Strikes Reform Act. However, defendant was not entitled to the appointment of counsel because his petition failed to state a prima facie case.id: 24093
A person serving two Three Strikes life terms, one for a serious offense and one for a nonserious offense, is not entitled to Prop 36 relief.Defendant argued the trial court erred by denying his Penal Code section 1170.126 petition for resentencing because his three Strikes sentence for grand theft was eligible for resentencing under Prop 36. However, an inmate serving two Three Strikes life sentences, one for a serious offense and one for a nonserious offense, is not eligible for resentencing under section 1170.126.id: 24094
The trial court did not err by denying the Three Strikes Reform Act petition for resentencing in light of the record of defendant’s housing status, gun use during the prior conviction and lack of remorse.Defendant filed a petition to recall his three strike sentence under Penal code section 1170.126. The trial court did not err by denying his petition after finding he posed an unreasonable risk of danger. The court considered defendant’s housing status and the fact that at various times his mental illness required he be housed in a single cell. Moreover, the record showed defendant used a firearm during the 1985 assault. And defendant never actually acknowledged his responsibility for the offenses, at most blaming the crimes on his drug addiction and flaws in the criminal justice system. id: 24048
Defendant was ineligible for Prop 36 relief even though his assault with a firearm offense wasn’t considered a serious or violent offense at the time of the judgment. Defendant petitioned for resentencing under the Three Strikes Reform Act. The trial court did not err by finding defendant was ineligible for relief under Penal Code section 1170.126 even though his commitment offense - assault with a firearm - wasn’t considered a serious or violent felony at the time of the final judgment. Moreover, the trial court could properly consider the fact the he was armed with a firearm when committing the crime even though that finding was stayed under section 654 at the time of his original sentencing. id: 24049
Law requiring post-release community service did not violate ex post facto or equal protection.Defendant’s three strikes law sentence was recalled and his sentence was redirected under Penal Code section 1170.126 (the Three Strikes Law Reform Act). Although his custody credits exceeded the new sentence, sections 3451 and 1170, subd.(h)(6) required that he participate in post-release community supervision. Section 3451 required that he participate in the program and the law did not violate ex post facto or due process principles.id: 23602
Defendant was not entitled to resentencing under Prop 36 even though his criminal threat conviction was not a serious felony at the time of the convictions and there were other nonserious counts. Defendant moved to recall his three strikes sentence pursuant to Prop 36 (Penal Code section 1170.126). In determining whether an inmate is eligible for resentencing under subdivision (e)(1), the court should use the current, post Prop 36 definitions of serious and violent felonies. Defendant’s conviction of making a criminal threat under section 422 is a serious and/or violent felony that precluded his resentencing under Prop 36 even though other offenses for which he is currently serving a life term are not serious or violent felonies. id: 23736
Factors disqualifying a defendant from Prop 36 resentencing need not be pled or proved beyond a reasonable doubt.Disqualifying factors under the Three Strikes Reform Act (Prop 36) need not be pled and proven to a trier of fact beyond a reasonable doubt. The trial court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence of such a factor.id: 23739
For purposes of Prop 36 eligibility, being “armed with a firearm” in current offense does not require that the possession be “tethered to” or have a “facilitative nexus” to an underlying felony. Where there are facts in the record showing the defendant was armed with a firearm (had it available for offensive or defensive use) during the commission of the current offense, he is disqualified from resentencing under the Three Strikes Reform Act (Prop 36) even though he was convicted of possession and not of being armed with it. Moreover, for purposes of the Act, being “armed with a firearm” during the current offense does not require the possession be “tethered” to, or have some “facilitative nexus” to an underlying felony.id: 23740
Defendant did not qualify for relief under Penal Code section 1170.126 where one of his commitment offenses was a serious and violent felony.Defendant did not qualify for resentencing under the Three Strikes Reform Act because one of his two commitment convictions was a serious and violent felony.id: 23780
Defendant convicted of solicitation of murder was ineligible for resentencing under the Three Strikes Reform Act.The trial court properly determined defendant was ineligible for resentencing under the Three Strikes Reform Act of 2012 because his conviction for solicitation of murder necessarily included the intent to cause great bodily injury. Defendant was also ineligible for resentencing on the other nondisqualifying current convictions of sexual intercourse with a minor because the act excludes this dangerous class of criminals from the benefits of resentencing.id: 23807
The trial court erred by finding it lacked authority to require postrelease community supervision upon release and by modifying its earlier order without notice and a hearing. The trial court resentenced defendant under the Three Strikes Reform Act and ordered that he be subject to postrelease community supervision pursuant to Penal Code section 3451. Several days later, the court, on its own motion and without notice to the parties, modified the judgment to omit reference to PRCS. The court concluded it lacked the authority to order PRCS. However, the trial court was, in fact, authorized to require PRCS upon defendant’s release from custody. Moreover, the trial court erred by failing to give notice and an opportunity to be heard before modifying the resentencing order. id: 23833
The trial court’s denial of defendant’s petition for recall of his sentence under the Three Strikes Reform Act is an appealable order.The trial court’s denial of defendant’s petition for recall of sentence on the ground that he failed to meet the threshold eligibility requirement of Penal Code section 1170.126, subd.(b) is an appealable order.id: 23862
Felon in possession of a firearm is a disqualifying offense under the Three Strikes Reform Act. The trial court denied defendant’s petition for resentencing under the Three Strikes Reform Act after finding he was armed in his commitment offense of being a felon in possession of a firearm. Felon in possession is a disqualifying offense under the law and there is no requirement that the fact be pled or proved. Moreover, the trial court properly relied on the appellate opinion, which is part of the record of conviction, to find defendant was ineligible for resentencing.id: 23865
The prosecution was not required to plead and prove the disqualifying factors under the Three Strikes Reform Act.In 1999, defendant was convicted of solicitation to commit assault with a deadly weapon, along with two strike allegations. In 2013, the trial court denied his petition for resentencing under the Three Strikes Reform Act finding defendant was ineligible because during the solicitation offenses, he intended to cause great bodily injury to another person. Contrary to defendant’s claim, the prosecution was not required to plead and prove disqualifying factors. id: 23872
Defendant forfeited the issue of having his original sentencing judge consider his petition for resentencing under the Three Strikes Reform Act. Defendant who was seeking a resentencing under the Three Strikes Reform Act argued he was entitled to have the original sentencing judge consider his petition. However, he forfeited the issue by not objecting in the trial court. Defendant also forfeited the issue of failure to provide a supplemental probation report for purposes of the petition. id: 23888
Defendant’s alcoholism and mental state supported the denial of a petition for resentencing under the Three Strikes Reform Act. The trial court did not err in denying the defendant’s petition for resentencing under the Three Strikes Reform Act. Contrary to defendant’s claim, the trial court did not place the burden of proof on the defense. The trial court properly found defendant presented a risk as defendant’s prior alcohol abuse and mental state was predictive of his current dangerousness. id: 23889
Defendant was not entitled to an evidentiary hearing to determine eligibility for resentencing under the Three Strikes Reform Act. The trial court properly denied defendant’s petition for resentencing under the Three Strikes Reform Act by relying on the prosecutor’s statement of factual basis for the 1998 guilty plea which established that defendant was armed with a deadly weapon as he purposely drove at a police vehicle. Defendant was not entitled to an evidentiary hearing on the issue of eligibility for resentencing.id: 23903
Defendant seeking resentencing under the Three Strikes Reform Act was not entitled to a determination of “risk of danger” under the new Prop 47 standard. The trial court denied defendant’s request for resentencing under the Three Strikes Reform Act after finding he posed an unreasonable risk to public safety. Contrary to defendant’s claim, he was not entitled to a determination of “unreasonable risk of danger” using the standard recently developed in Proposition 47. id: 23922
The trial court did not abuse its discretion by failing to do a cost-benefit analysis in finding defendant posed an unreasonable risk of danger and denying his Prop 36 request.Under the Three Strikes Reform Act the prosecution has the burden of proving the defendant would pose an unreasonable risk of danger to the public. The prosecution must prove risk of danger by a preponderance of the evidence and the trial court’s ruling on the matter is reviewed for an abuse of discretion. The court did not abuse its discretion by failing to use a cost-benefit analysis in finding the defendant posed an unreasonable risk of danger and denying the petition.id: 23925
Defendant seeking a new sentence under Prop 36 was not entitled to a jury trial on the issue of future dangerousness. Defendant argued the trial court erred in denying his petition for resentencing under the Three Strikes Reform Act. Contrary to defendant’s claim, he was not entitled to a jury trial and proof beyond a reasonable doubt on the issue of whether resentencing him to a lower term would pose an unreasonable risk of danger to public safety. And there is no equal protection violation in applying this standard to a defendant who was properly sentenced under the three strikes law but is now seeking a downward modification of his term following the Act.id: 23926
The trial court was not required to obtain a supplemental probation report before denying the Prop 36 petition.Defendant argued the trial court erred by failing to obtain a supplemental probation report before denying his petition for resentencing under the Three Strikes Reform Act. While the trial court has the authority to obtain a supplemental probation report to determine whether resentencing the defendant would pose a risk of danger to the public, it is not required to do so. id: 23927
The abuse of discretion standard applies when reviewing the denial of a 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 public safety. The trial court did not abuse its discretion in denying defendant’s petition where his efforts to address his substance abuse and violent tendencies were relatively recent when compared to his extensive criminal history.id: 23928
The trial court erred by continuing the defendant’s Prop 36 request to give him two more years to show he was no longer dangerous. The trial court erred by continuing defendant’s petition for resentencing under the Three Strikes Reform Act for two years so that he could prove he was no longer a danger to society. The court’s order exceeded its statutory authority. id: 23931
The trial court did not err in denying defendant’s motion for resentencing under the Three Strikes Reform Act without first appointing an expert on the issue of current dangerousness. Defendant argued the trial court erred in denying his petition for resentencing under the Three Strikes Reform Act without first appointing an expert on the issue of current dangerousness. However, in light of the information before the court, which it considered, it could properly make the required determination without the assistance of an expert. id: 23994
The trial court did not err in denying defendant’s Prop 36 resentencing petition after a finding of dangerousness based on past offenses, a history of reoffending, and his continued attempts to minimize his offenses.The trial court did not abuse its discretion in rejecting defendant’s petition for resentencing under the Three Strikes Reform Act after finding the prosecution proved an unreasonable risk of danger by a preponderance. The court considered not only defendant’s criminal history, but his repeated attempts to minimize his prior offenses, and found that his successful substance abuse programing in prison might not be enough to prevent him from reoffending upon release, as he had reoffended soon after being released several times. Finally, the new definition for “unreasonable risk of danger” provided in Prop 47 provision did not apply here. id: 24009
Prop 36 amendments to sections 667 and 1170.12 need not be applied retroactively, and the denial of retroactive application did not violate defendant’s equal protection rights.Defendant was sentenced to 25 years-to-life under the three strikes law for a drug related offense that was later reclassified and is no Statistical a violent or serious offense. However, he committed offenses in prison that rendered him dangerous to the public. So he did not move to recall his sentence under the Three Strikes Reform Act. Instead, he sought and was denied retroactive application of Penal Code sections 667 and 1170.12, which reclassified his offense. However, he was not entitled to retroactive application of the modified statutes, the denial of such a benefit did not violate equal protection, and his sentence was not “unusual” within the meaning of the California Constitution.id: 24024
Defendant is not entitled to a jury trial on his petition for resentencing under section 1170.126. Defendant filed a petition for resentencing under the Three Strikes Reform Act. He argued counsel rendered ineffective assistance by failing to request a jury trial on his petition. However, a petition for resentencing under Penal Code section 1170.126 doesn’t implicate the Sixth Amendment because it does not establish a presumption that an eligible petitioner is entitled to resentencing. And the trial court did not err in denying the request for resentencing given defendant’s long history of violence against police and others, and his disciplinary problems in prison.id: 24078
Defendant was “armed with a firearm” in current offense for purposes of the Three Strikes Reform Act even if he did not carry the firearm on his person.An inmate serving an indeterminate life term under the three strikes law maybe found to have been “armed with a firearm” in the commission of the current offense, so as to be disqualified from resentencing under the Reform Act of 2012, even if he or she did not carry the firearm on his or her person.id: 23563
Defendant with one serious and violent current offense was not eligible for re-sentencing under the Three Strikes Reform Act.Defendant was sentenced to 25 years-to-life under the three strikes law, for each of the two current offenses and sought re-sentencing for one under Penal Code section 1170.126. The trial court did not err in denying the request because defendant’s sentence was imposed, in part, for spousal rape under section 262, subd.(a) which is a serious and violent offense. That made him ineligible for re-sentencing under the Three Strikes Reform Act.id: 23476
Defendant whose current offense was firearm possession by a felon was not entitled to be resentenced under the Three Strikes Reform Act. Following the Three Strikes Reform Act of 2012, a defendant only qualifies for a prosecution under the three strikes law if his current third felony is a serious or violent felony. The Act can be applied retroactively absent disqualifying exceptions. Defendant was ineligible for resentencing under the Act because his current offense of firearm possession by a felon (where defendant actually possessed a gun) invoked the armed-with-a-firearm exclusion.id: 23495
Defendant could not seek the benefit of Prop 36 in a petition for rehearing in the Court of Appeal.Defendant was convicted of drunk driving with three recent priors, and other offenses. He also had two strike priors and was sentenced to 25 years-to-life under the three strikes law. He filed a petition for rehearing seeking the benefit of the recently passed Proposition 36. However, the relief he sought was not appropriately requested in the petition he filed because the appeal involved consideration of the law in effect at the time defendant was sentenced. Prop 36 authorizes defendant to file a petition for recall in the trial court.id: 22990
Defendant was not entitled to retroactive application of the Prop 36 Three Strikes Reform Act.In the fall of 2011, defendant was convicted of possessing marijuana in prison and sentenced to 25 years-to-life under the three strikes law. In November of 2012, the voters approved Prop 36 which restricts application of the three strikes law to cases where the current crimes is a serious or violent felony. Defendant was not entitled to retroactive application of the amended sections. However, defendant will still have the option of filing a petition to recall his sentence under Penal Code section 1170.126 and may get relief unless the trial court finds he poses an unreasonable public safety risk.id: 23053
The trial court erred by failing to give the prosecution notice of the three strikes resentencing hearing pursuant to Prop 36. Defendant, serving a 25 years-to-life sentence under the three strikes law, filed a habeas corpus petition seeking resentencing following Prop 36 because his current offense was not a serious or violent felony. The trial court erred by granting the petition for resentencing without insuring the prosecutor had notice and an opportunity to be heard on the issue of defendant’s current dangerousness. At these hearings, the prosecution has a right to notice, the victim has a right to notice, the defendant has a right to be present and the proceedings should be conducted by the original trial judge if possible although a waiver is possible. The prosecution has the burden of establishing dangerousness by a preponderance of the evidence.id: 23170
Defendant serving a life sentence under the three strikes law was not entitled to a prospective application of Prop 36. Defendant who was serving life term under the three strikes law argued he was entitled to a retroactive application of Prop 36 which limits three strikes sentences to cases where the current offense was serious or violent. However, the provision is to be applied prospectively only and defendant’s recourse is to petition for a recall of sentence under Penal Code section 1170.126. Contrary to defendant’s claim, prospective application does not violate equal protection.id: 23171
The denial of petition to recall a sentence under Prop 36's Three Strikes Reform Act is appealable. The denial of a petition to recall a sentence pursuant to Penal Code section 1170.126 (the Three Strikes Reform Act) is appealable as a postjudgment order affecting the substantial rights of the party. The petition was properly denied where the commitment offense (first degree burglary) was a serious felony.id: 23200
Defendant was ineligible for resentencing under Prop 36 because one of his strike priors involved a sexually violent offense.Defendant was convicted of making a criminal threat in 1996 and was sentenced to 25 years-to-life under the three strikes law. In 2013, he sought to have his sentence recalled following Prop 36 (Penal Code section 1170.126). The trial court’s finding of ineligibility was not appealable but the court treated the request as a petition for a writ of habeas corpus. Because one of defendant’s prior convictions was for a sexually violent offense he was ineligible for resentencing under section 1170.126, subd.(e)(3).id: 23221
The trial court’s decision denying Prop 36 relief to an ineligible defendant was not an appealable order. Penal Code section 1170.126 was enacted as part of Prop 36, the Three Strikes Reform Act of 2012. The trial court in the present case denied defendant relief under the Act because his current sentence was based on a conviction of a serious felony - second degree robbery. The trial court’s decision is not an appealable order. id: 23336
Prop 36 did not apply to qualifying defendants whose judgments were not yet final on the effective date of the act.Defendant was convicted of possessing drugs for sale, along with true findings on two strike priors. Shortly thereafter, the voters enacted Prop 36 that would have provided defendant with a doubled term rather than 25 years-to-life. Defendant was not entitled to retroactive application of the new law allowing the appellate court or the trial court to impose a reduced sentence. Defendant does have the ability under Penal Code section 1170.126 to petition the trial court to recall the indeterminate term and possibly sentence him to a determinate term.id: 23355
The determination of whether a current crime qualifies as a serious or violent felony is based on whether the crime was so defined as of the Prop 36 effective date.The trial court denied defendant’s motion to recall his sentence pursuant to Penal Code section 1170.126 after finding he was ineligible for resentencing because his current offense, attempting to dissuade a witness, was a serious felony. Defendant argued that he was eligible for resentencing under the Three Strikes Law Reform Act because dissuading a witness wasn’t a serious felony when he committed his crimes in 1998. However, for purposes of section 1170.126's resentencing procedure, the determination of whether a defendant’s current crime qualifies as a serious felony must be based on whether the crime was so defined on the effective date of Prop 36 in 2012. id: 23601
The disqualifying “prior” conviction need only occur before the court decides whether the inmate is eligible for resentencing under the Three Strikes Reform Act.Defendant was serving a 25 years-to-life three strike sentence following a 2005 conviction for vehicle theft. He argued the trial court erred by finding he was ineligible to have his sentence recalled under the Three Strikes Reform Act of 2012 based on a disqualifying offense, a prison assault, committed in prison in 2010. Even though the 2010 prison offense was not a “prior conviction” it was relevant to the issue of his risk to public safety, and rendered defendant ineligible for recall of his sentence. id: 23611
The trial court erred in denying defendant’s petition for resentencing under the Three Strikes Reform Act without listing whether facts in the record showed his prior strike offense involved disqualifying conduct.Defendant argued the trial court erred by denying his request for a recall of his sentence under the Three Strikes Reform Act. His two prior convictions were for rape of an unconscious victim (separate incidents) which is not listed as an enumerated disqualifying offense or a violent sex offense under Penal Code section 1170.126. The court still had the ability to find the offenses were disqualifying based on facts presented in the record, but failed to make such a finding. The matter was remanded to allow the prosecutor to prove that at least one of the prior offenses involved disqualifying conduct. The trial court would thereafter need to specify the records it relied on and its reason for including the offenses were or were not disqualifying.id: 23619
The trial court properly found defendant was ineligible for resentencing under section 1170.126 as his commitment offense of gun possession meant he was armed while committing a crime. Defendant argued his commitment offense of unlawful possession of a gun was not a serious or violent felony within the meaning of Penal Code section 1170.126 and he was therefore entitled to be resentenced under the Three Strikes Reform Act. However, the trial court properly found his firearm offense constituted being armed with a firearm. The prosecution did not need to plead and prove this circumstance. Finally, the trial court’s order was either appealable or the matter can be treated as a petition for writ of habeas corpus.id: 23660
The trial court did not err in using facts from the prior appellate opinion to determine defendant was ineligible for resentencing under the Three Strikes Reform Act. Defendant argued that it was improper for the trial court to consider the facts stated in the appellate opinion to determine whether he had the intent to commit great bodily injury in committing the current offense. He claimed there was a pleading and proof requirement in determining whether he was qualified for resentencing under the Three Strikes Reform Act. However, the trial court properly made the determination and the evidence in the opinion established that he intended to inflict great bodily harm on the victim. He was not entitled to a jury trial to determine eligibility.id: 23702
Defendant was personally armed with a firearm during the 1998 offense, which rendered him ineligible for resentencing under Penal Code section 1170.126 even though the sentence on that count was stayed. The trial court properly found defendant was ineligible for resentencing under the Three Strikes Reform Act because he was found to be armed with a firearm as part of the second count even though the sentence for that count was stayed.id: 23716
An arming allegation dismissed for sentencing purposes may disqualify a defendant from resentencing under the Three Strikes Reform Act. An arming enhancement - found true by the jury but dismissed for sentencing purposes at defendant’s original 1996 sentencing hearing - may be used to disqualify him for resentencing under Prop 36.id: 23719
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.
Case of the Day
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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