damnum absque injuria

January 11, 2006

Yet Another Phony Three Strikes “Reform”

Filed under:   by Xrlq @ 12:55 pm

The Other Xrlq links to the latest “reform” of one of the few good laws left in California, the Three Strikes Law. The good news is that the new “reform,” unlike the completely insane one they tried to pass in 2004, limits the scope of its re-sentencing provisions to third strikers only. The bad news is that due to careless drafting, its impact on third strikers could be a wee bit broader than its proponents claim (or, at least in Steve Cooley’s case, likely believe). Get a load of the re-sentencing provisions in Sections 8(a) and (b):

(a) Subject to the exclusions and limitations set forth below in subdivisions (b), (c) and (d),* any person serving an indeterminate term of life imprisonment imposed pursuant to Penal Code Section 667(e)(2) for [sic] conviction of a felony that is not classified as a “violent felony” by Penal Code Section 667.5(c) as amended by this Act [sic, the Act doesn't amend § 667.5], and any person serving an indeterminate term of life imprisonment imposed pursuant to Penal Code Section 1170.12(c)(2) for [sic] conviction of a felony that is not classified as a a “serious felony” by Penal Code Section 1192.7(c) as amended by this Act, shall be re-sentenced within 180 days of the effective date of this Act to a determinate term that is twice the term otherwise provided as punishment for the current felony conviction.

(b) Subject to the exclusions and limitations set forth below in subdivision [sic] (c) and (d) any person who has a prior conviction for any of the offenses set forth in [sic] (i) through (iii) of this subdivision,** and is presently serving an indeterminate term of life imprisonment imposed pursuant to Penal Code Section 667(e)(2) for a conviction of a felony that is not defined as a “violent felony” by Penal Code Section 667.5(c) as amended by this Act, or is serving an indeterminate term of life imprisonment imposed pursuant to Penal Code Section 1170.1212(c)(2), for a conviction of a felony that is not classified as a “serious felony” by Penal Code Section 1192.7(c) as amended by this Act, shall, within 180 days of the effective date of this Act, have the minimum term of his or her sentence modified to twice the term otherwise provided as punishment for the current felony conviction, so that after service of the minimum term as modified, such persons shall not be immediately released, but shall be eligible for parole. The Board of Prison Terms shall, in considering parole for persons with a prior conviction for any of the offenses set forth below,consider all statements and recommendations submitted by the judge, district attorney, and sheriff, pursuant to Section 1203.01, and shall provide notices under Section 3042, and recommendations of other persons ionterested in the granting or denying of the parole. The Board shall enter on its order granting or denying parole to these prisoners, the fact that the statements and recommendations have been considered by it.

Note the parallel language in both sections: “any person serving an indeterminate term of life imprisonment … for conviction of a felony that is not classified as a ‘violent felony’ … and any person serving an indeterminate term of life imprisonment …. for conviction of a felony that is not classified as a a ‘serious felony’…shall” be eligible for re-sentencing under subdivision (b) or (c) as applicable. That means every third striker will be eligible for resentencing if he can show that he is either a person serving 25 to life for an offense that is not “violent,” or he is a person serving 25 to life for an offense that is not “serious.” That’s not a problem if the third strike happens to be murder, attempted murder, voluntary manslaughter, mayhem, rape, forcible sodomy, lewd acts on a child, kidnapping or arson, all of which are defined both as “violent” offenses under Section 667.5 and as “serious” ones under Section 1192.7. Ditto for first degree “hot” burglary, which is only considered “violent” under existing law, but would become “serious” if the current initiative were enacted. However, felonies involving using a gun or inflicting great bodily injuries are only “serious” if the defendant personally uses the gun or personally inflicts such injury, so any third striker serving 25 to life for doing so non-personally might be able to score a Get Out Of Jail Free card on that basis, along with anyone in for assault with intent to commit burglarly, assault with a deadly weapon, assault by a life prisoner on a non-inmate, exploding a destructive device causing injury or with intent to cause injury, holding a hostage while confined in a state prison, personally using a deadly or dangerous weapon other than a fireamr in the commission of a felony, making criminal threats other than to victims or witnesses, selling drugs to minors, attempting to commit any crime other than murder, or conspiring to commit any crime whatsoever, all of which are considered “serious” under Section 1192.7 but not as “violent” under Section 667.5. Similarly, anyone doing 25 to life for extortion gets a pass because his crime was “violent” but not “serious.”

Now, you might say “Oh, c’mon, Xrlq, so what if they were a little sloppy with the wording; everyone knows the spirit of this reform is to release only those whose third strike was neither serious nor violent, not to open the gates to all whose third strike was either serious or violent, but just not both.” You could say that, and you may well be right about the spirit. However, to the best of my knowledge, no one has ever gone to prison for violating the “spirit” of a law. Particularly in a criminal context, under the rule of lenity, any ambiguously drafted sentencing provision will be construed in the defendant’s favor, and this wording isn’t even ambiguous.

*Subsections (c) and (d) exclude from re-sentencing any third strikers who have one prior conviction for first degree murder or child molestation, or two or more priors for certain other sex crimes.
**Paragraphs (i)-(iii) of subsection (c) make third strikers with prior convictions of sexually violent offenses, second degree murder and felony murder eligible for parole rather than release.

2 Responses to “Yet Another Phony Three Strikes “Reform””

  1. The Southern California Law Blog » Another Attempt to Waterdown the Three-Strikes Law Says:

    [...] Update: XRLQ drills down on the language of the initiative here. Related Topics: Proposed and New Laws, State and Local Politics, Law Technorati Tags: California, Three_Strikes_Law Bookmark on del.icio.us [...]

  2. Patterico’s Pontifications » New Proposals for Changing Three Strikes Says:

    [...] UPDATE: Xrlq identifies a potential issue with the drafting of the Cooley proposal. [...]

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