DDA Michelle Lauron, Staff Development, Special Units Division

SDDA Michael Dowd, Central Division

DDA Jennifer Dawson, Lifer/Parole Unit, Special Units Division

INTRODUCTORY OVERVIEW OF PROPOSITION 36

ABOUT THIS TRAINING

• 3 parts

1. Overview of the changes in the law (Lauron)

2. How to conduct the hearings that will be required as a result of the new law (Dawson)

3. How to resentence and deal with the legal issues related to resentencing (Dowd)

DDA Michelle Lauron

OVERVIEW OF PROPOSITION 36 LAW

THREE STRIKES LAW (AS WE KNOW IT)• “Strike Offense” a serious or violent felony as enumerated in Penal

Code sections 1192.7(c), 1192.8 and 667.5(c) and any out of state felony with same elements as qualifying prior serious/violent felony conviction in CA

• 2 strikes case any new felony + prior conviction for serious/violent felony• Penalty = mitigated/middle/aggravated term doubled

• 3 strikes case any new felony + 2 or more prior convictions for serious/violent felonies• Three times the term provided for each new felony OR

• 25 years in state prison

WHAT PROP. 36 DOES NOT CHANGE:

• The nature of a strike prior or the types of felonies that qualify as strikes

• The custody-credit regimen

• How a case with one prior strike (“2 strike” case) is handled

• The fact that there is no washout period for a strike

WHAT PROP. 36 DOES NOT CHANGE:

• If a defendant with two or more prior strikes is convicted of a new serious/violent felony, he/she will be sentenced the same as under the Three Strikes law prior to Prop. 36

• A prosecutors discretion to dismiss/ strike a prior “strike” allegation

• The courts discretion to dismiss/ strike a prior “strike” allegation

PROP. 36 CHANGES

• Defendant with two or more prior strike convictions who is currently charged with a non serious/violent felony• Treated as if he/she only had one strike

• Regardless of the number of prior strikes defendant has

• 2 EXCEPTIONS TO THIS LAW:1. There is a list of enumerated non strike felonies excluded from this change in the law and those cases can still qualify for Three Strike Law penalties in PC 667(e)(2)(C) and 1170.12(c)(2)(C)

2. IF a defendant has an enumerated strike conviction that would exclude a defendant from this change in the law. PC 667(e)(2)(C) and 1170.12(c)(2)(C)

PROP. 36 CHANGES

• New law applies prospectively• This law takes effect on November 7, 2012

• It applies to all cases still pending even if filed before November 7, 2012

• New law applies retroactively • This law applies to all prior cases where the defendant has been

convicted under the Three Strikes law as a 3 rd strike case where the committing offense was not a serious/violent felony

• Note: All references to “serious” or “violent” felonies are to statutes as they existed on November 7, 2012. (PC 667(h), 1170.125)

EXCLUSIONS FROM PROP. 36 CHANGES

• If the current (non serious/violent felony) charge/committing offense is one of the enumerated felonies listed in PC 667(e)(2)(C)(i)-(iii) and/or 1170.12(c)(2)(C)(i)-(iii) and defendant has two or more strikes pled/proven, that defendant will still be sentenced in the same manner as under the current Three Strikes law prior to Prop. 36.

PC 667(E)(2)(C) AND 1170.12(C)(2)(C) EXCLUSIONS

• Drug charge with a weight enhancement pursuant to Health and Safety Code sections 11370.4 or 11379.8

• Felony sex offense defined in PC 261.5(d) or 262 or any offense that results in mandatory registration as a sex offender pursuant to PC 290(c) except: PC 266, PC 285, PC 286(b)(1), PC286(e), PC 288a(b)(1), PC 288a(e), PC 314, PC 311.11

• If during the commission of the current offense, the defendant used/armed with a firearm, was armed with a deadly weapon or intended to cause GBI

EXCLUSIONS FROM PROP. 36 CHANGES

• There are 10 classes of strike convictions that will subject a defendant to the current Three Strikes law EVEN IF the current felony is a non serious/violent felony

• This applies to current cases

• This applies to adjudicated cases

• They are enumerated in PC 667(e)(2)(C)(iv)(I)-(VIII)and/or 1170.12(c)(2)(C)(iv)(I)-(VIII)

STRIKE CONVICTIONS EXCLUDED FROM PROP. 36 CHANGES PC 667(E)(2)(C) AND/OR 1170.12(C)(2)(C)

• Any sexually violent offense defined by W&I section 6600(a)

• Oral copulation, child under 14 years old and more than 10 years younger than defendant PC 288a

• Sodomy, child 14 years old and more than 10 years younger than the defendant PC 286

• Sexual penetration, child under 14 years old and more than 10 years younger than the defendant PC 289

• A lewd and lascivious act involving a child under 14 years of age PC 288

• Any homicide offense, including attempted homicide PC 187-PC 191.5 (this does not include manslaughter as defined in PC 192)

• Solicitation to commit murder PC 653f

• Assault with a machine gun on a peace officer or fire fighter PC 245(d)(3)

• Possession of a weapon of mass destruction PC 11418(a)(1)

• Any serious or violent felony punishable in California by life imprisonment or death.

PROP. 36 CHANGES

• PC1170.12(a)(8) that makes it mandatory to impose consecutive sentences to other sentences a defendant is already serving is NOW REMOVED from the statute

• While there is no requirement for mandatory consecutive sentences to other sentences the defendant is serving:

• Under PC 1170.12(a)(7) and rule 4.425, DA can still argue for consecutive sentences

• It is no longer mandatory, but discretionary

PROP. 36 APPLIES RETROACTIVELY

• Defendants currently serving an indeterminate Three Strikes sentence in state prison have two years to petition the sentencing court to resentence them under the new law.

• Later than two years upon showing of good cause

• Court will have to determine if the defendant is eligible for resentencing.

AN INMATE IS ELIGIBLE FOR RESENTENCING IF…

• Inmate is serving an indeterminate term of life imprisonment imposed pursuant to PC 667(e)(2) or 1170.12(c) (Three Strikes Law)

• The committing offense was not a serious/violent felony

• NOTE: if the committing offense was not a strike at the initial sentencing but has now been designated a strike offense, the defendant is not eligible to be resentenced

• PC667(h) and PC1170.125 indicate that the references to the laws in the statute are to those as they existed on the effective date of the act, November 7, 2012

• The committing offense was not enumerated in PC 667(e)(2)(C) and/or 1170.12(c)(2)(C) (exceptions)

• Neither of the prior strikes are one of the 10 enumerated in PC 667(e)(2)(C) and/or 1170.12(c)(2)(C) (exceptions)

IF THE INMATE IS ELIGIBLE

• Upon receipt of a petition from the defendant requesting resentencing

• The court SHALL resentence the defendant/petitioner as if he only had 1 prior strike (2 strike case)

• UNLESS the court determines resentencing the defendant/petitioner will pose an unreasonable risk of danger to the public safety

• This is discretionary

IN EXERCISING IT’S DISCRETION

• The court may consider:

1. The Petitioner’s criminal conviction history, types of crimes he committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes

2. The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and

3. Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety

PROCEDURE FOR SAN BERNARDINO COUNTY DISTRICT ATTORNEY’S OFFICE

• Petitions will be directed to a Supervising DDA in each office

• SDDA will make the initial determination of eligibility

• Upon consultation with the Division Chief DDA, SDDA will determine which petitions to contest

• SDDA will start the process of ordering needed documentation and assign the case to a DDA for preparation and handling of the hearing

OF IMPORT• Prop. 36 contemplates an eligibility evaluation and resentencing hearing

• Prop. 36 Petitions should NOT be handled as an “add on” to a regular calendar but should follow the procedure outlined

• While the petition is pending Defendant is still a life prisoner

• He is NOT exceeding the maximum commitment time

• He is NOT entitled to bail or OR pending any continuances until resentencing actually occurs

• There are Constitutional Marsy’s Law considerations to be made prior to determining the course of action

• Consequences of this law will likely lead to hundreds of inmates released into the streets without parole supervision, resources, money and training how to assimilate back into society

• Public safety may be compromised

• This concludes the overview of the changes in the Three Strikes law as a result of the passage of Proposition 36.

• DDA Jennifer Dawson will now address some of the specifics at it relates to the Prop. 36 hearings.

DDA Jennifer Dawson

PROPOSITION 36 HEARINGS

IF THE PETITIONING DEFENDANT IS ELIGIBLE

• What evidence do you put on in the hearing?

• How do you obtain the evidence?

• What does the court consider in its determination?

IS THE DEFENDANT/PETITIONER ELIGIBLE FOR RESENTENCING?

• Penal Code Section 1170.126 (f):

• Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e).

WHEN DEFENDANT/PETITIONER IS ELIGIBLE FOR RESENTENCING

• P.C. 1170.126 (f):

• If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 UNLESS the court in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

“UNREASONABLE RISK OF DANGER TO PUBLIC SAFETY"

• This language is very similar to the language used in Lifer Parole Hearings:

• Title 15, Cal. Code Regulations, Section 2281, sub (a).

• Regardless of the amount of time served, an inmate shall be found unsuitable for, and denied parole, if in the judgment of the panel the inmate will pose an unreasonable risk of danger to society if released from prison.

STANDARD AT A PAROLE HEARING

At a Lifer Parole Hearing you must show a nexus between the crime and current dangerousness.

WHAT THE COURT MAY CONSIDER:• P.C. 1170.126 (g): In exercising its discretion in sub (f),

the court may consider:

1. Petitioner’s criminal conviction history, including:

-types of crimes committed

-extent of injury to victims

-length of prior prison commitments

-remoteness of the crimes

WHAT THE COURT MAY CONSIDER: CONT.

2. Petitioner’s disciplinary record and record of rehabilitation while incarcerated.

3. Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

WHAT RECORDS TO OBTAIN

• Updated Rap sheets

• Police Reports

• Your original file(s)

• Victim statements

• CDCR C-File (these must be ordered from CDCR)

ORDER FOR INMATE RECORDS

• Every CDCR Inmate has a Central File (C-File)

• Copies from C-Files must be ordered directly from the prison where the inmate is housed

• You should have copies of the C-Files before you conduct a hearing on whether the defendant/petitioner poses an unreasonable risk of danger to public safety.

C-FILES MAY CONTAIN:• Rap Sheet

• List of chronos/certificates for self-help

• List of chronos/certificates for vocations

• List of chronos/certificates for academics

• Job assignments

• List of disciplinary violations

• Police reports

• Probation report

• Appellate Decision

• Psychological Evaluations

• Form 812—any gang affiliations

DISCIPLINARY RECORDS – SERIOUS RULE VIOLATIONS – CDCR 115

• CDCR Regulation 115:

• Serious rule violations - could result in a new case

• Examples:

• Assault on Peace Officer

• Assault on inmate

• Mutual combat

• Possession of a cell phone

• Possession of inmate manufactured alcohol

• Possession of drugs

• Possession of tattooing devices

• Disobeying a direct order

DISCIPLINARY RECORDS – MINOR RULE VIOLATIONS – CDCR 128A

• CDCR Regulation 128A:

• Minor violations—called “counseling chronos”• Late to work

• Not going to class

RECORD OF REHABILITATION

• Vocations• Job training

• Academics

• Self-help• List of classes taken and when

• Examples

• AA/NA

• AVP (Alternatives to Violence)

• Anger Management

WHAT TO INQUIRE OF THE DEFENDANTS• At lifer hearings inmates are often times questioned about their

self-help.

• Do they know the 12 Steps of AA/NA?

• What did they get out of the classes?

• How have they used what they learned in classes?

• If they’ve taken classes and have recent violations—why didn’t the classes help them avoid the confrontation?

• If inmate blames alcohol or drugs for the offense follow up with why was inmate using in the first place?

HOW / WHAT TO EVALUATE

• Basically it comes down to what has the inmate done while in prison to show he is not the same person who committed the crime in the first place.

• Types of possible arguments:

• Inmate claimed under the influence at time of crime and has recent 115 for contraband/pruno/ or UA refusal—shows inmate is still using while in prison.

• Any violence—under 24/7 observation and still violent.

• Tattoos—possible gang activity

HOW / WHAT TO EVALUATE

• Before any inmate is granted a parole date, he must have realistic parole plans.

• This should matter to court for resentencing consideration as well because if the inmate has no where to live and no job prospects…

• CRIMINAL BEHAVIOR IS GUARANTEED

DEFENDANT/PETITIONER MAY OR MAY NOTAPPEAR FOR THE HEARING

• Pursuant to PC 1170.126(i):

• Defendant/Petitioner has a right to be present at hearing and right to counsel.

• This right can be waived notwithstanding PC 977(b)

• Waiver shall be in writing and signed by the defendant.

• This concludes the discussion about the Prop. 36 Hearings.

• If after the Prop. 36 Hearing the court grants defendant’s petition for resentencing, the hearing will become a sentencing hearing.

• SDDA Michael Dowd will now discuss the issues and considerations to be addressed at these resentencing hearings.

SDDA Michael Dowd

PROPOSITION 36 RESENTENCING CONSIDERATIONS

2ND STRIKE PUNISHMENT• Term is Doubled• What is Doubled?• Current Determinate Crime (Base Term Doubled)• Current Indeterminate Crime (Minimum Term Doubled)

• Enhancements?• Not Doubled.• Added to term after Doubling.

CONSECUTIVE SENTENCES

• Mandatory when:• Current crimes not committed on same

occasion and

• Current crimes not arising from same set of operative facts.

CONSECUTIVE SENTENCE TO EXISTING SENTENCE

• Strike Sentences may be consecutive to existing sentences.

• Includes CDCR parole revocation.

• Existing sentence is recalculated per PC 1170.1(a).

• Includes Probation Revocation.

CALCULATING CONSECUTIVE SENTENCES

• Consecutive Subordinate Terms in 2nd Strike Cases.

• 1/3 middle term rule applies, but that gets doubled.

• Full strength subordinate terms get doubled.

SAME OCCASION RULE

• Different from PC 654 Analysis.

• Not a “Same Day” Rule.

• Same Occasion when:

• Close temporal and spatial proximity

• Simultaneous offenses against same victims

• Uninterrupted criminal activity

• No intervening events

SAME SET OF OPERATIVE FACTS

• Acts and Criminal Conduct that Establish the Elements of a Crime.

• Irrelevant Factors

• Crimes committed on same day.

• One offense in furtherance of other crime.

• Crimes have single motive.

CREDIT LIMITATIONS• 20% Conduct Credit Limitation• Applies to all 2nd Strike Sentences, determinate

enhancements and all prison time.

• Does not apply to pre-sentence credits only to the time to be spent in State Prison.

• 15% Limitation of PC 2933.1 overrides if current crime is violent felony.• Life term of 3rd Strike Sentence does not make crime

“violent” for purposes of credit limitation.

PC 1170.1 STEPS• Determine Principal Term

• Apply PC 654 to Remaining Counts

• Consecutive or Concurrent

• Apply 1/3 Middle term and 1/3 of Enhancement Term to all Subordinate Terms

• Add Priors

• Add PC 12022.1 Enhancement.

STEP #1 – DETERMINING PRINCIPAL TERM

• Principal Term consists of:• Greatest Term of Imprisonment actually imposed for any

crime.

• Includes any enhancements.

• Must apply aggravating/mitigating factors to select base term and to enhancement triad before determining.

• Remember that we double the term selected in a 2nd Strike Sentence.

STEP #2 – APPLY PC 654

• Apply PC 654 to remaining counts in order to determine if court even has power to sentence consecutively or concurrently.

• If PC 654 applies, court must sentence count with longest term of potential imprisonment. Other count(s) must be stayed.

• Remember that the PC 654 rules are different for 2nd Strike Sentencing purposes.

STEP #3 – CONSECUTIVE OR CONCURRENT

• Court must follow the strike law when determining consecutive sentences.

• The criteria under Rule 4.425 is not needed to justify a consecutive sentence under the strike law.

STEP #4 – APPLY 1/3 RULES• Subordinate Terms for Each Count• 1/3 Middle Term

• 1/3 Enhancement

• If triad enhancement, 1/3 of any term. Court, though, must give reason for choice other than middle term.

• Remember that in a 2nd Strike Sentence all subordinate terms are doubled as well.

STEP #5 – ADD PRIORS

• PC 667(a), 667.5, HS 11370.2 go here.• Only add Priors once for determinate

sentencing.• Priors are added on each count for

indeterminate sentencing purposes.• We do not double the terms on the priors.

STEP #6 – ADD PC 12022.1• Each enhancement is added to the end of the

determinate aggregate term.

• This enhancement is not doubled in a 2nd Strike Sentence.

WHAT CAN THE COURT CONSIDER?

• RULE 4.433

• Probation Report

• Facts in the Record

• Testimony of Witnesses

• Victim Impact

• Sentencing Statements

RULE 4.433• What Judge Must Do:

• Determine the Term

• State Reasons for any term, sentence or enhancement where reason must be given

• Determine Enhancements

• Apply PC 654 and Strike any Term or Allegation

• Determine Concurrent or Consecutive

• Determine any Dual Use Issues

• Pronounce Sentence

• Inform Defendant of Parole Period (This could be tricky if time is done and credits exceed the sentence)

CIRCUMSTANCES IN AGGRAVATION• RULE 4.421

• Facts Relating to the Crime

• Facts Relating to the Defendant

• Other Statutory Factors

• RULE 4.408• Any additional Factor in the Discretion of the Court

• Must be stated on the record by the Court• Could be Facts of Charges Defendant was not convicted

• Could be Uncharged or Dismissed Priors

• Perjury

CIRCUMSTANCES IN MITIGATION• RULE 4.423

• Facts Relating to the Crime

• Facts Relating to the Defendant

• Not Factors

• Plea Bargain

• Waiver of Jury Trial

• Confession After Trial

• Confession to Police, but failure to acknowledge guilt during Case.

• Addiction

• RULE 4.408

• Any additional Factor in the Discretion of the Court

• Must be stated on the record by the Court

• Could be Facts of Charges Defendant was not convicted

• Could be Uncharged or Dismissed Priors

• Perjury

ENHANCEMENTS• Impose or Strike

• Court can give low term on charge and upper term on enhancement

• Must give reason for upper term

• No reason necessary if no triad

• Remember some enhancements cannot be stricken.

CONDUCT CREDITS COMPUTATIONS

• PC 4019 applies to credits that the defendant has earned locally even on a Second Strike Sentence.

• The 80% conduct credit limitation applies to state prison time.

• The PC 4019 Credits that apply to a defendant will depend on a number of factors including date of crime, date of sentencing and when the credits were actually earned.

COURT RULES REGARDING RESENTENCING

• Actual Local Custody

• PC 4019 Credits

• Actual Prison Custody

• CDCR will calculate Prison Conduct Credit.

• People v. Buckhalter (2001) 26 Cal.4th 20

• People v. Johnson (2004) 32 Cal.4th 260.

CREDITS EXCEED SENTENCE• PC 2900.5(a) – “entire term of imprisonment shall be

deemed to have been served.”

• Excess Credits go toward reducing the length of the parole period.

• This is our best assessment because the new Strike Law does not address this issue.

A FEW THINGS…• There are unanswered legal questions with this new law.• It is not clear what procedures the court may follow in complying

with this new law.• It is not clear how great the impact of this law will be on the office

dealing with petitions to resentence.• The law, procedures and our offices response will likely evolve

over time.

• Special thanks to CDDA Gary Fagan and SDDA Cameron Page who also worked diligently on this project.