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Felony  Sentencing Laws

With the passage of three strikes, 
sentencing laws are more complicated 
and involve more statutory schemes

by Nancy E. O'Malley

On March 7, 1994, Gov. Pete Wilson signed into law urgency legislation identified as "three strikes," which was incorporated into Penal Code §667. In November 1994, the voters passed the three strikes initiative, Proposition 184, which essentially duplicates the provisions contained in Penal Code §667. Currently, the prevailing three strikes law is found in Penal Code §1170.12, and cases arising on or after Nov. 8, 1994, fall within the purview of Penal Code §1170.12.

The preamble to that initiative reads: "[I]t is the intent of the People of the State of California in enacting this measure to ensure longer prison sentences, and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." That preamble has been incorporated into the statute.

Even though the law(s) became effective on the dates set forth above, ex-post facto laws do not prohibit the district attorney's office from alleging pre-March 7, 1994, prior convictions in the accusatory document, which would expose the defendant to the legal consequences of having suffered strike priors. Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302.

By statute, the length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of the sentence. This legal concept is identical to the legal authority which occurred when Penal Code §667 was enacted by initiative, Proposition 8, in 1982. Penal Code §667 required that serious felony prior convictions be alleged and, if the new crime was a serious felony, five additional years were added to the sentence because of the serious prior felony conviction.

What is true, however, is that ex-post facto laws prohibit the district attorney from pursuing punishment under the three strikes laws on cases where the new crime was committed before March 7, 1994.

The three strikes law dramatically impacts felony sentencing. It can be used to double a determinate term of imprisonment or, in some cases, impose an indeterminate sentence of life in prison. Sentencing pursuant to the three strikes law absolutely prohibits probation in lieu of state prison. The court is prohibited from suspending imposition or execution of the sentence; there is no diversion option; and the only facility to which the defendant can be sentenced is state prison. Therefore, knowledge of the laws surrounding felony sentencing when there are prior felony convictions is absolutely imperative in the practice of criminal law.

Since the enactment of the three strikes laws, there has been tremendous legal controversy regarding the prohibition imposed on the court to strike a prior felony conviction. In fact, the statute gave the district attorney sole discretion to make a motion to the court to strike a prior felony conviction. The legal arguments center around separation of powers between the court and the district attorney. The California Supreme Court addressed that dispute in the case of People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

In that case, the Supreme Court ruled that the superior court can strike a prior conviction on its own motion at any time pursuant to Penal Code §1385. The courts, however, must comply with Penal Code §1385 when striking a prior in the furtherance of justice and the reasons for dismissing a strike prior must be contained in the court's minutes. People v. Carter (1996) 49 Cal.App.4th 567.

However, the law continues to prohibit dismissing prior felony convictions based solely on the court's antipathy for the strike law or for purposes of plea bargaining a case. The court has the authority to reduce a wobbler to a misdemeanor even though the accusatory pleading alleges strike prior convictions. People v. Carranza (1996) 96 Daily Journal D.A.R. 14625.

Felony sentencing laws have become very complicated. Many of the new statutes contain mandatory imposition criteria. For instance, historically, if a defendant was convicted of multiple sexual assault crimes occurring on different dates, or which have been deemed separate acts or are against more than one victim, the court was required to sentence pursuant to Penal Code §667.6(d).

Under that sentencing scheme, the court was required to impose full, consecutive sentences for the crimes of which the defendant was convicted. However, the enactment of Penal Code §667.61 identifies certain circumstances which, if found to be true by the trier of fact, potentially substitute punishment under Penal Code §667.6 to Penal Code §667.61, stating that the defendant "shall be punished by imprisonment in the state prison for life

. . ." For instance, if a defendant was convicted of two counts of forcible rape against two separate victims, the court used to impose the sentence of either 3-6-8 years in state prison for each victim, and the two sentences were to be run full and consecutive to each other.

Today, however, based on the fact pattern described, the court would impose a sentence of 15 years to life in state prison pursuant to Penal Code §667.61.

With the enactment of three strikes, the law is even more complicated and can involve more statutory schemes. 

As will be discussed below, with the enactment of the three strikes law, sentencing is required pursuant to that scheme. Due to the specific language contained in the statute --  "Notwithstanding any other provision of law . . ." --  the three strikes sentencing can be in addition to sentencing under other provisions.

As stated above, there are several sentencing schemes from which the court imposes sentence, depending on the new conviction and/or prior felony convictions. (See Penal Code§§190, 667.6, 1170, for example).

If strike priors exist, the sentencing on the new felony is pursuant to Penal Code §1170.12. For instance, a defendant convicted of murder with one or more strike priors is sentenced under the strike law rather than Penal Code §190. People v. Jenkins (1995) 10 Cal.4th 234; People v. Ruiz (1996) 44 Cal.App.4th 1653. 

However, in the case of the one strike sexual assault law, Penal Code §667.61, the defendant is properly sentenced under both the strike law and the one strike sex law.

By way of example, a defendant convicted of rape where the allegation that the rape occurred during a residential burglary is found to be true and where the defendant has an attempted robbery prior felony conviction, the sentence is 55 years to life, which is 25 years to life for the conviction/enhancement pursuant to Penal Code §667.61, then doubled. People v. Ervin (1996) 50 Cal.App.4th 259. The court must then impose the additional five years pursuant to Penal Code §667.

Penal Code §§667 and 1170.12 enhance the punishment of a convicted felon in the following way: upon a new felony conviction where there is one serious and/or violent prior felony conviction, the base term/subordinate term(s), but not the enhancement, is doubled under Penal Code §1170.12.

FACT PATTERN A: A defendant is convicted in the first count of a violation of Penal Code §245 as a felony, not involving great bodily injury nor the use of a weapon, but against an aged victim as alleged pursuant to Penal Code §667.9 and in the second count, a violation of Vehicle Code §10851, and the defendant has previously been convicted of Penal Code §245, involving the use of a gun.

Pursuant to Penal Code §1170, the sentence factoring is as follows: Count 1 is the base term and the court selects one of the three terms (2-3-4 years) in state prison; the court imposes an additional eight months, which is one-third of the mid-term of Count 2; because of the serious felony prior conviction, the court must double the base/subordinate terms, then add the one year enhancement for the "aged victim" clause. 

If the new conviction is a serious felony (as defined in Penal Code §1192.7), not only does Penal Code §1170.12 require the court to double the base/subordinate terms, but a five year enhancement is added to the sentence under Penal Code §667.

FACT PATTERN B: Assume the same fact pattern discussed above with the following change: the conviction of Count 1 involved the use of a knife, making that crime a serious felony pursuant to Penal Code §1192.7, and the trier of fact found the enhancement pursuant to Penal Code §12022(b) to be true. The sentencing is as follows: the same base/subordinate term imposition and then doubled due to the prior conviction; the enhancements are added to the doubled term and then an additional five-year enhancement is imposed because of the prior felony conviction. 

If there is more than one serious and/or violent felony conviction found to be true, upon a new felony conviction, the punishment is 25 years to life (three strikes), irrespective of whether the new conviction is considered a violent or serious felony.

FACT PATTERN C: Assume Fact Pattern A with the following change: the defendant has also been convicted of a violation of Penal Code §211. The sentencing is as follows: 25 years to life pursuant to Penal Code §1170.12. 

FACT PATTERN D: Assume Fact Pattern B with the following change: the defendant has been convicted on the same date and as part of the same case of a violation of Penal Code §245 involving a gun, and §211. The sentencing is as follows: 30 years to life, which is 25 years to life for the new conviction and two strike prior convictions pursuant to Penal Code §1170.12.

The court then adds a five-year enhancement for the prior felony convictions. Only one five-year enhancement is added because the two prior felony convictions were not separately brought and tried as required by Penal Code §667 (but not Penal Code §1170.12). However, if the two prior felony convictions were separately brought and tried, the court would impose 10 years in enhancements.

The accusatory pleading must allege the prior convictions and they must be found to be true by the trier of fact. A preliminary hearing or trial transcript is admissible to prove the prior conviction. People v. Bartow (1996) 46 Cal.App.4th 1573. However, live witnesses may not be called to prove the "serious" or "violent" nature of the prior conviction.

Nancy E. O'Malley is a senior deputy district attorney in the Alameda County District Attorney's Office. She is the chair of the Criminal Law Section of the State Bar. Research for test material provided by Kathryn B. Storton of the Santa Clara District Attorney's Office.