MEASURE :  A.B. No. 112
AUTHOR(S) :  Goldberg.
TOPIC :  Sentencing: three strikes.
HOUSE LOCATION :  ASM

TYPE OF BILL :
                Active
                Non-Urgency
                Non-Appropriations
                Majority Vote Required
                Non-State-Mandated Local Program
                Fiscal
                Non-Tax Levy

LAST HIST. ACT. DATE:  01/21/2003
LAST HIST. ACTION   :  Referred to Com. on  PUB. S.
COMM. LOCATION :  ASM PUBLIC SAFETY
COMM. ACTION DATE   :  02/25/2003
COMM. ACTION :  Do pass and be re-referred to the Committee on
 Appropriations.
COMM. VOTE SUMMARY  :  Ayes:   04 Noes: 03 PASS

TITLE :  An act to amend Sections 667 and 1170.12 of the Penal
 Code, relating to sentencing.

BILL NUMBER: AB 112 INTRODUCED
 BILL TEXT
 

INTRODUCED BY   Assembly Member Goldberg

                        JANUARY 13, 2003

   An act to amend Sections 667 and 1170.12 of the Penal Code,
relating to sentencing.
 

 LEGISLATIVE COUNSEL'S DIGEST
 

   AB 112, as introduced, Goldberg.  Sentencing: three strikes.
   Existing law, contained in 2 initiative statutes, requires that if
a defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior serious or violent
felony convictions, as defined, then the court must adhere to
specified sentence enhancements to be served consecutively and follow
other specified sentencing restrictions.
   This bill would instead provide that if a defendant has been
convicted of a violent or serious felony, as defined, and it has been
pled and proved that the defendant has one or more violent or
serious felony convictions, as defined, then the court must adhere to
those specified sentence enhancements, to be served consecutively,
and follow other specified sentencing restrictions.
   This bill would provide a procedure for those persons who were
sentenced under the three strikes statutes to an indeterminate life
sentence before the operative date of this bill to be resentenced
pursuant to the provisions of this bill.
   This bill would provide for the submission of its provisions to
the voters for approval.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  no.
 

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
 

  SECTION 1.  Section 667 of the Penal Code is amended to read:
   667.  (a) (1) In compliance with subdivision (b) of Section 1385,
any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense
committed in another jurisdiction  which   that
 includes all of the elements of any serious felony, shall
receive, in addition to the sentence imposed by the court for the
present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately.  The terms of the
present offense and each enhancement shall run consecutively.
   (2) This subdivision shall not be applied when the punishment
imposed under other provisions of law would result in a longer term
of imprisonment. There is no requirement of prior incarceration or
commitment for this subdivision to apply.
   (3) The Legislature may increase the length of the enhancement of
sentence provided in this subdivision by a statute passed by majority
vote of each house thereof.
   (4) As used in this subdivision, "serious felony" means a serious
felony listed in subdivision (c) of Section 1192.7.
   (5) This subdivision shall not apply to a person convicted of
selling, furnishing, administering, or giving, or offering to sell,
furnish, administer, or give to a minor any methamphetamine-related
drug or any precursors of methamphetamine unless the prior conviction
was for a serious felony described in subparagraph (24) of
subdivision (c) of Section 1192.7.
   (b) It is the intent of the Legislature in enacting subdivisions
(b) to  (i)   (k)  , inclusive, to ensure
longer prison sentences and greater punishment for those who commit a
 felony   a violent or serious felony, as
defined in subdivision (d),  and have been previously convicted
of  serious and/or violent felony offenses   a
violent or serious felony, as defined in subdivision (d)  .
   (c) Notwithstanding any other  provision of  law, if a
defendant has been convicted of a  ^felony   a
violent or serious felony, as defined in subdivision (d),  and
it has been pled and proved that the defendant has one or more prior
felony convictions as defined in subdivision (d), the court shall
adhere to each of the following:
   (1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent  felony
 conviction  for a violent or serious felony as defined
in subdivision (d)  .
   (2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
   (3) The length of time between the prior  violent or serious
 felony conviction and the current  violent or serious
felony conviction shall not affect the imposition of sentence.
   (4) There shall not be a commitment to any other facility other
than the state prison.  Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
   (5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
   (6) If there is a current conviction for more than one
violent or serious  felony count not committed on the same
occasion, and not arising from the same set of operative facts, the
court shall sentence the defendant consecutively on each count
pursuant to subdivision (e).
   (7) If there is a current conviction for more than one
violent or  serious  or violent  felony as
described in paragraph (6), the court shall impose the sentence for
each conviction consecutive to the sentence for any other conviction
for which the defendant may be consecutively sentenced in the manner
prescribed by law.
   (8) Any sentence imposed pursuant to subdivision (e) will be
imposed consecutive to any other sentence which the defendant is
already serving, unless otherwise provided by law.
   (d) Notwithstanding any other  provision of  law and for
the purposes of subdivisions (b) to  (i)   (h)
 , inclusive, a prior conviction of a  violent or serious
 felony shall be defined as:
   (1) Any  conviction for any  offense defined in
subdivision (c) of Section 667.5 as a violent felony or any offense
defined in subdivision (c) of Section 1192.7 as a serious felony in
this state.  The determination of whether a prior conviction is a
prior  violent or serious  felony conviction for purposes of
subdivisions (b) to  (i)   (h)  ,
inclusive, shall be made upon the date of that prior conviction and
is not affected by the sentence imposed unless the sentence
automatically, upon the initial sentencing, converts the felony to a
misdemeanor.  None of the following dispositions shall affect the
determination that a prior conviction is a prior  violent or
serious  felony for purposes of subdivisions (b) to  (i)
  (h)  , inclusive:
   (A) The suspension of imposition of judgment or sentence.
   (B) The stay of execution of sentence.
   (C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.

   (D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
   (2) A conviction in another jurisdiction for an offense that
 , if committed in California, is punishable by imprisonment
in the state prison.  A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense that
 includes all of the elements of  the particular
  a violent or serious  felony as defined in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
   (3) A prior juvenile adjudication shall constitute a prior
violent or serious  felony conviction for purposes of sentence
enhancement if:
   (A) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
   (B) The prior offense is  listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code or
described in paragraph (1) or (2)  as a   of
this subdivision as a violent or serious  felony.
   (C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law.
   (D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
   (e) For purposes of subdivisions (b) to  (i)
 (h)  , inclusive, and in addition to any other enhancement
or punishment provisions which may apply, the following shall apply
where a defendant has a prior  violent or serious  felony
conviction:
   (1) If a defendant has one prior  violent or serious
felony conviction that has been pled and proved, the determinate term
or minimum term for an indeterminate term shall be twice the term
otherwise provided as punishment for the current  violent or
serious  felony conviction.
   (2) (A) If a defendant has two or more prior  violent or
serious  felony convictions as defined in subdivision (d) that
have been pled and proved, the term for the current  violent or
serious  felony conviction shall be an indeterminate term of
life imprisonment with a minimum term of the indeterminate sentence
calculated as the greater of:
   (i) Three times the term otherwise provided as punishment for each
current  violent or serious  felony conviction subsequent
to the two or more prior  violent or serious  felony
convictions.
   (ii) Imprisonment in the state prison for 25 years.
   (iii) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
   (B) The indeterminate term described in subparagraph (A) shall be
served consecutive to any other term of imprisonment for which a
consecutive term may be imposed by law.  Any other term imposed
subsequent to any indeterminate term described in subparagraph (A)
shall not be merged therein but shall commence at the time the person
would otherwise have been released from prison.
   (f) (1) Notwithstanding any other law, subdivisions (b) to
 (i)   (h)  , inclusive, shall be applied
in every case in which a defendant has a prior  violent or
serious  felony conviction as defined in subdivision (d).  The
prosecuting attorney shall plead and prove each prior  violent or
serious  felony conviction except as provided in paragraph (2).

   (2) The prosecuting attorney may move to dismiss or strike a prior
 violent or serious  felony conviction allegation in the
furtherance of justice pursuant to Section 1385, or if there is
insufficient evidence to prove the prior conviction.  If upon the
satisfaction of the court that there is insufficient evidence to
prove the prior  violent or serious  felony conviction, the
court may dismiss or strike the allegation.
   (g) Prior  violent or serious  felony convictions shall
not be used in plea bargaining as defined in subdivision (b) of
Section 1192.7.  The prosecution shall plead and prove all known
prior  violent or serious  felony convictions and shall not
enter into any agreement to strike or seek the dismissal of any prior
 violent or serious  felony conviction allegation except as
provided in paragraph (2) of subdivision (f).
   (h) All references to existing statutes in subdivisions (c) to
(g), inclusive, are to statutes as they existed on June 30, 1993.
   (i) If any provision of subdivisions (b) to (h), inclusive, or the
application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of
those subdivisions which can be given effect without the invalid
provision or application, and to this end the provisions of those
subdivisions are severable.
   (j) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
  SEC. 2.  Section 1170.12 of the Penal Code is amended to read:
   1170.12.  (a) Notwithstanding any other provision of law, if a
defendant has been convicted of a  violent or serious
felony and it has been pled and proved that the defendant has one or
more  violent or serious  prior felony convictions, as
defined in subdivision (b), the court shall adhere to each of the
following:
   (1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent  violent or serious
 felony conviction.
   (2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
   (3) The length of time between the prior  violent or serious
 felony conviction and the current  violent or serious
felony conviction shall not affect the imposition of sentence.
   (4) There shall not be a commitment to any other facility other
than the state prison.  Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
   (5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
   (6) If there is a current conviction for more than one
violent or serious  felony count not committed on the same
occasion, and not arising from the same set of operative facts, the
court shall sentence the defendant consecutively on each count
pursuant to this section.
   (7) If there is a current conviction for more than one
violent or  serious  or violent  felony as
described in paragraph (6) of this subdivision, the court shall
impose the sentence for each conviction consecutive to the sentence
for any other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.
   (8) Any sentence imposed pursuant to this section will be imposed
consecutive to any other sentence which the defendant is already
serving, unless otherwise provided by law.
   (b) Notwithstanding any other provision of law and for the
purposes of this section, a  prior  conviction of a
 violent or serious  felony shall be defined as:
   (1) Any  conviction for any  offense defined in
subdivision (c) of Section 667.5 as a violent felony or any offense
defined in subdivision (c) of Section 1192.7 as a serious felony
 in this state  .  The determination of whether a
prior conviction is a prior  violent or serious  felony
conviction for purposes of this section shall be made upon the date
of that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor.  None of the following
dispositions shall affect the determination that a prior conviction
is a prior  violent or serious  felony for purposes of this
section:
   (A) The suspension of imposition of judgment or sentence.
   (B) The stay of execution of sentence.
   (C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.

   (D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
   (2) A conviction in another jurisdiction for an offense that
 , if committed in California, is punishable by imprisonment
in the state prison.  A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense that
 includes all of the elements of  the particular
  a violent or serious  felony as defined in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
   (3) A prior juvenile adjudication shall constitute a prior
violent or serious  felony conviction for purposes of sentence
enhancement if:
   (A) The juvenile was  sixteen   16
years of age or older at the time he or she committed the prior
offense , and   .
   (B) The prior offense is
   (i)  listed in subdivision (b)  of Section 707 of
the Welfare and Institutions Code, or
   (ii) listed in this subdivision as a felony, and   as
a violent or serious felony.
   (C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law  , and
.
   (D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
   (c) For purposes of this section, and in addition to any other
enhancements or punishment provisions which may apply, the following
shall apply where a defendant has a prior  violent or serious
 felony conviction:
   (1) If a defendant has one prior  violent or serious
felony conviction that has been pled and proved, the determinate term
or minimum term for an indeterminate term shall be twice the term
otherwise provided as punishment for the current  violent or
serious  felony conviction.
   (2) (A) If a defendant has two or more prior  violent or
serious  felony convictions, as defined in  paragraph
(1) of  subdivision (b), that have been pled and proved, the
term for the current  violent or serious  felony conviction
shall be an indeterminate term of life imprisonment with a minimum
term of the indeterminate sentence calculated as the greater of
:
   (i)  three   Three  times the term
otherwise provided as punishment for each current felony conviction
subsequent to the two or more prior  violent or serious
felony convictions  , or   .
   (ii)  twenty-five years or   Imprisonment in
the state prison for 25 years.
   (iii)  the   The  term determined by the
court pursuant to Section 1170 for the underlying conviction,
including any enhancement applicable under Chapter 4.5 (commencing
with Section 1170) of Title 7 of Part 2, or any period prescribed by
Section 190 or 3046.
   (B) The indeterminate term described in subparagraph (A) of
paragraph (2) of this subdivision shall be served consecutive to any
other term of imprisonment for which a consecutive term may be
imposed by law.  Any other term imposed subsequent to any
indeterminate term described in subparagraph (A) of paragraph (2) of
this subdivision shall not be merged therein but shall commence at
the time the person would otherwise have been released from prison.
   (d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has a prior
violent or serious  felony conviction as defined in this
section.  The prosecuting attorney shall plead and prove each prior
 violent or serious  felony conviction except as provided in
paragraph (2).
   (2) The prosecuting attorney may move to dismiss or strike a prior
 violent or serious  felony conviction allegation in the
furtherance of justice pursuant to Section 1385, or if there is
insufficient evidence to prove the prior conviction.  If upon the
satisfaction of the court that there is insufficient evidence to
prove the prior  violent or serious  felony conviction, the
court may dismiss or strike the allegation.
   (e) Prior  violent or serious  felony convictions shall
not be used in plea bargaining, as defined in subdivision (b) of
Section 1192.7.  The prosecution shall plead and prove all known
prior  violent or serious  felony convictions and shall not
enter into any agreement to strike or seek the dismissal of any prior
 violent or serious  felony conviction allegation except as
provided in paragraph (2) of subdivision (d).
   (f) All references to existing statutes in this section are to
statutes as they existed on June 30, 1993.
   (g) If any provision of subdivision (a) to (h), inclusive, or the
application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of
those subdivisions that can be given effect without the invalid
provision or application, and to this end the provisions of those
subdivisions are severable.
   (h) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
  SEC. 3.  It is the intent of the People in enacting this act to
revise those felonies that trigger possible sentencing enhancements
under "three strikes" by establishing a list of felonies that will
constitute violent or serious felonies for purposes of prior strikes
and currently charged felonies.  It is further the intent of the
People that certain nonviolent offenses be removed from the felonies
that qualify as a current felony for purposes of sentence enhancement
pursuant to the three strikes statutes.  It is also the intent of
the People that certain individuals who were sentenced under the
three strikes law prior to its amendment by this act shall qualify
for resentencing.
  SEC. 4.  Notwithstanding Section 1170 of the Penal Code,
individuals sentenced pursuant to Section 667, 1170.12, or both, of
the Penal Code, may petition for resentencing pursuant to this act,
as follows:
   (a) A person who was convicted of a felony and is currently
serving an indeterminate term of life in prison may make a written
motion before the trial court that entered the judgment of conviction
in his or her case, for resentencing, pursuant to the provisions of
this act, if the following apply:
   (1) The person was sentenced pursuant to Section 667, 1170.12, or
both, of the Penal Code, prior to those sections being amended by
this act.
   (2) The currently charged felony resulting in the imposition of an
indeterminate term of life in prison was not described as a violent
or serious felony pursuant to this act.
   (b) A person who is currently serving an indeterminate term of
life in prison for a felony by virtue of a plea may make a written
motion before the trial court that entered the judgment of conviction
in his or her case, for resentencing, pursuant to the provisions of
this act, if the following apply:
   (1) The person was sentenced pursuant to Section 667, 1170.12, or
both, of the Penal Code, prior to those sections being amended by
this act.
   (2) The currently charged felony resulting in the imposition of an
indeterminate term of life in prison was not described as a violent
or serious felony pursuant to this act.
   (c) The person making the motion before the court pursuant to
subdivision (b) shall, in the written motion, expressly waive double
jeopardy for purposes of resentencing, in regard to any charges
arising out of the same set of operative facts resulting in the plea,
for charges that were not filed, or were dismissed pursuant to the
plea.
   (d) If the court determines that the person making the motion for
resentencing was sentenced pursuant to the three strikes statutes
prior to their amendment by this act, and the person meets the
requirements of either subdivision (a) or (b), the court shall order
that person to be resentenced, subject to subdivision (f), and in
compliance with the sentencing laws as amended by this act.
   (e) (1) If the court grants the motion for resentencing for a
person meeting the requirements of subdivision (a), the district
attorney may also file any charges based on the same set of operative
facts that resulted in the conviction, that were not filed in
connection with the conviction, and for which the statute of
limitations has not expired.
   (2) If the court grants the motion for resentencing for a person
meeting the requirements of subdivision (b), a district attorney
seeking to file or refile charges arising out of the same set of
operative facts resulting in the plea that were not filed or were
dismissed pursuant to the plea shall obtain the court's permission to
file or refile those charges.  The district attorney shall have to
show by a preponderance of the evidence that the charges would have
been filed, or would not have been dismissed, but for the plea.
   (f) A person who meets the requirements of subdivision (a) or (b)
shall be entitled to representation by counsel to prepare a motion
under this section, and for the purposes of resentencing, trial, or
retrial.  The person may request appointment of counsel by sending a
written request to the court.
   (g) The motion for resentencing shall include the person's
statement that one or more of the currently charged felonies
resulting in the conviction or plea that resulted in the person's
sentence was a felony that is not described as a violent or serious
felony pursuant to this act.
   (h) If any of the information required in subdivision (g) is
missing from the motion, the court shall return the written motion to
the convicted person and advise him or her that the matter cannot be
considered without the missing information.
   (i) Notice of the motion shall be served on the Attorney General
and the district attorney in the county of conviction.  Responses, if
any, shall be filed within 60 days of the date on which the Attorney
General and the district attorney are served with the motion, unless
a continuance is granted for good cause.
   (j) The court, in its discretion, may order a hearing on the
motion.  The motion shall be heard by the judge who conducted the
trial, or accepted the convicted person's plea of guilty or nolo
contendere, unless the presiding judge determines that judge is
unavailable.  Upon request of either party, the court may order, in
the interest of justice, that the convicted person be present at the
hearing of the motion.
   (k) Notwithstanding any other provision of law, the right to file
a motion for resentencing pursuant to this act is absolute and shall
not be waived.  This prohibition applies to, but is not limited to, a
waiver that is given as part of an agreement resulting in a plea of
guilty or nolo contendere.
   (l) Nothing in this section shall be construed as limiting the
grounds for a writ of habeas corpus, or as precluding any other
remedy.
   (m) Under no circumstances may the resentencing, trial, or retrial
of any individual pursuant to this section result in a sentence that
is longer than the sentence the individual is making a motion to
change.
   (n) The provisions of this section are severable.  If any
provision of this section or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
  SEC. 5.  Sections 1, 2, 3, and 4 of this act affect an initiative
statute and shall become effective only when submitted to, and
approved by, the voters of California, pursuant to subdivision (c) of
Section 10 of Article II of the California Constitution.

                                                                  AB 112
                                                                  Page  1

          Date of Hearing:   February 25, 2003
          Counsel:                Gregory Pagan
 

                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                  Mark Leno, Chair

                 AB 112 (Goldberg) - As Introduced:  January 13, 2003
 

           SUMMARY  :  Amends the "Three Strikes" law to require that the
          current conviction be a "serious" or "violent" felony in order
          to subject a defendant to an enhanced sentence.    Specifically,
           this bill  :

          1)Provides that if it is pled and proved that the defendant has
            two or more prior serious or violent felony convictions, as
            defined, and if the defendant's current conviction is for a
                serious or violent felony, the term for the current felony
            conviction shall be an indeterminate term of life imprisonment
            with a minimum term of the indeterminate term calculated as
            the greater of:

             a)   Three times the term otherwise provided as punishment
               for each felony conviction subsequent to the two or more
               prior felony convictions;

             b)   Imprisonment in the state prison for 25 years; or,

             c)   The term determined by the court under the determinate
               sentencing law including applicable enhancements.

          2)Provides that if it is pled and proved that the defendant has
            a prior serious or violent felony conviction, as defined, and
            if the defendant's current conviction is for a serious or
            violent felony, the term shall be twice the term otherwise
            provided as punishment for the current felony conviction.

          3)Allows an imprisoned person convicted prior to the passage of
            this bill to make a motion for re-sentencing under the
            provisions of this bill if the current conviction for which
            the person is imprisoned is not a serious or violent felony
            conviction, as defined.

          4)Requires that the motion for re-sentencing be in writing, and

                                                                  AB 112
                                                                  Page  2

            expressly waive double jeopardy for the purposes of
            re-sentencing for any charges arising out of the same
            operative set of facts that may not have been filed or were
            dismissed as the result of a plea of guilty.

          5)Requires the court to grant the motion for re-sentencing if
            the person making the motion was sentenced under the Three
            Strikes law prior to its amendment by this bill and if the
            current conviction for which the person is not a serious or
            violent felony, as defined.

          6)Allows the district attorney, with the consent of the court,
            to file or re-file any charges arising out of the same
            operative facts that would have been filed or were dismissed
            as a result of the plea.

          7)States that a person applying for re-sentencing shall be
            entitled to the assistance of counsel in the preparation of
            the motion, re-sentencing, or re-trial; and may request
            appointment of counsel by sending a written request to the
            court.

          8)Requires that the motion for re-sentencing be served on the
            Attorney General, and the district attorney in the county of
            conviction; and requires that any responses be filed within 60
            days of the receipt of the motion.

          9)States that under no circumstances may the re-sentencing,
            trial, or re-trial of any individual pursuant to this section
            result in a sentence that is longer than the sentence the
            individual is making a motion to change.

          10)States that this bill affects an initiative statute and shall
            only become effective when submitted to, and approved by, the
            voters of California pursuant to specified provisions of the
            California Constitution.

           EXISTING LAW  :

          1)Provides that if a defendant is convicted of a felony offense
            and it is pled and proved that the defendant has previously
            been convicted of two or more serious or violent offenses as
            specified, the term for the current conviction is an
            indeterminate term of life in prison with the minimum term
            calculated as the greater of 25 years, three times the term

                                                                  AB 112
                                                                  Page  3

            provided for each current felony conviction, or the
            determinate term which would otherwise be imposed including
            enhancements.  (Penal Code Sections 667 and 1170.12.)

          2)Provides that if a defendant is convicted of a felony offense
            and it is pled and proved that the defendant has been
            convicted of one prior serious or violent offense as defined,
            the term of imprisonment is twice the term otherwise imposed
            for the current offense.  (Penal Code Sections 667 and
            1170.12.)

          3)Provides that affected defendants may not receive probation,
            there is no limitation on the aggregate term, conduct credits
            are limited to 20% of the term, and any additional convictions
            must be sentenced consecutively.  [Penal Code Sections 667(c)
            and 1170.12(a).]

          4)Does not require that prior qualifying convictions arise in
            separate cases, and "strike" convictions need not arise from
            separate transactions that can otherwise not be separately
            punished.  [Penal Code Section 667(a).]

          5)Provides that a juvenile adjudication of a minor 16 years of
            age or older constitutes a prior "strike" if the offense
            otherwise qualifies as an adult strike, or would establish
            presumptive unfitness for juvenile court, and the minor was
            declared a ward of the court for the commission of the
            offense.  [Penal Code Section 667(d)(3).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :

           1)Author's Statement  :  According to the author, "The California
            'Three Strikes' Initiative is going to be changed.  We can
            spend a fortune in the courts changing it one case at a time
            or the Legislature-with the concurrence of a majority of
            California voters-can ensure that a person is not sentenced to
            life in prison for the commission of a petty crime.  We can
            bring this law into balance with what is fair and just, and
            stop wasting tens of millions of taxpayer dollars by not
            locking persons up for life committing non-serious or
            non-violent crimes.

            "This bill submits to the voters of California in 2004 an

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            amendment to the 'Three Strikes' law to require that the
            current conviction be a 'serious' or 'violent' felony in order
            to subject a defendant to an enhanced sentence."

           2)Purpose of This Bill  :  Under the Three Strikes law, if a
            person has a prior serious or violent felony conviction and he
            or she is convicted of any felony offense, the sentence for
            the current offense would be twice the term otherwise
            provided.  If a person has two prior serious or violent felony
            convictions and if he or she is convicted of any felony
            offense, the sentence for the current offense would be a
            minimum 25 years-to-life in state prison.  This bill requires
            that a second or third strike be a serious or violent felony
            in order to subject a person to an enhanced sentence under the
            Three Strikes law.

          Additionally, this bill establishes a procedure whereby a person
            imprisoned prior to the passage of this bill, may make a
            motion for re-sentencing under the provisions of this bill, if
            the current conviction for which the person is imprisoned is
            not a serious or violent felony conviction.  According to the
            California Department of Corrections (CDC) as of December 30,
            2002, there were 23,954 second and third strikers imprisoned
            as a result of having been convicted of a non-serious or
            non-violent felony conviction.  All of these persons would be
            eligible for re-sentencing under the general law governing
            convictions for non-serious or non-violent felonies.  Most
            sentences would be reduced and many inmates would be
            immediately released.

           3)Recent Court Decisions  :  The United States Court of Appeal
            recently held in  Andrade v. Attorney General of the State of
            California   [(9th Cir. 2001) 270 F.3d 743, 767] that a
            50-years-to-life sentence for two petty theft convictions
            violated the Eighth Amendment's prohibition against cruel and
            unusual punishment, and that the California Court of Appeal
            unreasonably applied clearly established United States Supreme
            Court law when it held otherwise.

          Similarly, the United States Court of Appeal for the Ninth
            Circuit again, held in  Brown v. Attorney General of the State
            of California and Bray v. Attorney General of the State of
            California  [(2002) 02 C.D.O.S. 1222] that sentences of
            25-years-to-life for the defendant's petty theft offenses
            violate the Eighth Amendment's prohibition against cruel and

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            unusual punishment.  The decision does not hold California's
            Three Strikes law unconstitutional, only its application to
            mandate a 25-years-to-life sentence for petty theft offenses
            such as in these cases.  The sentences of life imprisonment
            with no possibility of parole for 25 years are grossly
            disproportionate to the respective crimes-stealing three
            videotapes and a steering wheel alarm-even in light of the
            defendants' records.

            Each of these cases were recently argued in the United States
            Supreme Court and a decision is expected in the Spring.

           4)Additional Three Strikes Information  :  The Three Strikes law
            was enacted by AB 971 (Jones/Costa), Chapter 12, Statutes of
            1994, and by Proposition 184.  Mandatory provisions beyond
            those listed in "Existing Law" above include:

             a)   A juvenile adjudication (a finding by a juvenile court
               judge that a minor committed a crime) may constitute an
               adult strike prior, although a minor is not entitled to a
               jury trial;

             b)   A person sentenced under the Three Strikes law may not
               be committed to any facility other than prison;

             c)   The Three Strikes law prohibits plea-bargaining;

             d)   Three Strikes eliminates any "washout" period, requiring
               that any prior or serious or violent felony conviction be
               used regardless of when it occurred;

             e)   Requires the prosecuting attorney to plead and prove
               each prior felony conviction; and,

             f)   Three Strikes may only be amended by a two-thirds vote
               of the Legislature or a ballot measure approved by the
               electorate.

           4)Differentiation Among Felonies  :  Existing law differentiates
            between the severity of crimes.  Thus, some felony offenses
            (such as rape or murder) have higher penalties than others,
            (such as theft).  Under Three Strikes, any felony conviction -
            not only a serious or violent felony conviction - following a
            violent or serious prior results in a sentence of twice the
            normal length.  With any two violent or serious felony priors,

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            a new felony conviction results in a life sentence.  Thus,
            Three Strikes makes no distinction in severity between the
            different felonies.
 
            For example, a person who was convicted of breaking into a
            neighbor's garage (whether attached to the home or not) on two
            occasions in order to steal a bicycle and receives probation
            for the acts would have two serious prior offenses.  All
            residential burglary is defined as a "serious" felony, whether
            it occurs during the day or night and whether or not a person
            is actually in the residence.  A third felony, such as
            possession of a controlled substance, results in a life term
            under the provisions of "Three Strikes" regardless of whether
            or not the accused had ever acted violently or dangerously.

           5)Judicial Discretion  :  The California Supreme Court held in
             People v. Superior Court of San Diego County (Romero)  [(1996)
            13 Cal. 4th 497] that for the purposes of Three Strikes the
            court on its own motion may strike a prior felony conviction
            in the interests of justice.  However, the court's discretion
            to strike prior convictions is limited, its exercise must be
            in strict compliance with Penal Code Section 1385, and is
            subject to review for abuse of discretion.

          A trial court has the discretion to deem an alternate
            felony/misdemeanor offense a misdemeanor pursuant to Penal
            Code Section 17(b) and  People v. Alvarez  (1997) 14 Cal 4th
            968.  However, such a decision must also be made only after
            consideration of all relevant facts, including the nature of
            the qualifying prior convictions.

          The very limited exercise of judicial discretion by trial judges
            has been clearly demonstrated by applicable data.  Commitments
            to prison under the Three Strikes law stayed virtually
            constant after the  Romero  and  Alvarez  decisions.  ("Three
            Strikes Update", Legislative Analyst's Office, October 1997.)

           6)Cost of Three Strikes  :  On February 20, 1996, the Senate
            Judiciary Committee, Criminal Procedure Committee, and the
            Budget and Fiscal Review held a joint informational hearing on
            the "Impact of the 'Three Strikes' Law on the Civil and
            Criminal Justice System in California".  At the hearing, the
            committees learned that the impact of "Three Strikes" has
            varied widely between counties; but courts, jails, and
            prosecution and defense efforts have been impacted in

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            virtually all counties.

          The Legislative Analyst's Office noted that although more than
            90% of all felony cases are disposed of through plea
            bargaining in which the defendant ultimately agrees to plead
            guilty, many fewer offenders are agreeing to plead guilty in
            Three Strikes cases, presumably because of the much longer
            sentences.  This has resulted in many more cases going to
            trial and many more defendants being held in county jail
            awaiting or undergoing trial.

          The backlog of criminal cases has pushed some misdemeanor and
            low-level felony, as well as civil, cases out of court in some
            jurisdictions.  The Three Strikes law has limited the ability
            of public defenders' offices to handle misdemeanor cases for
            indigent defendants.  Due to the impact Three Strikes cases
            have on jails, some counties are no longer booking
            misdemeanants.  Assaults within the jail systems have
            increased, apparently due to the number of Three Strikes cases
            where the inmates are facing substantially longer terms.

          Recent data continue to document the cost of the Three Strikes
            law, particularly in Los Angeles County, which prosecutes
            approximately 40% of the Three Strikes cases statewide.
            Through 1997, the cost of Three Strikes cases to the Los
            Angeles County Public Defender's Office has been over $80
            million, costs to the prosecution totaled approximately $75
            million, and costs to the sheriff were approximately $140
            million.  Because of the impact on Los Angeles County, the
            county has filed a claim with the Commission on State Mandates
            for $322 million for the costs of Three Strikes to the county
            through 1997.

           1)Justice Policy Institute (JPI) Study on Three Strikes  :  The
            JPI, along with University of California, Irvine, School of
            Social Ecology doctoral candidate Mark Males, recently
            published a study, "Striking Out", on the implementation of
            the Three Strikes law in various California counties.

          This study examined the data collected by the CDC and the
            Department of Justice from the 12 largest California counties
            of defendants sent to prison under Three Strikes sentences.
            The data included raw numbers and the proportion of Three
            Strikes sentences in contrast to other prison terms from each
            county.  The study concluded that the proportion of defendants

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            sent to prison under Three Strikes reflected the charging
            policies of the county district attorney.

          The authors of the study confirmed that a county's reliance
            upon, or heavy use of, the Three Strikes law in sentencing did
            not correlate to lower rates of crimes.  Counties such as
            Alameda (in addition to San Francisco) that sent a smaller
            percentage of defendants to prison under Three Strikes
            sentences had greater decreases in crime, particularly violent
            crime, than did counties such as Sacramento and Los Angeles
            that relied heavily upon Three Strikes in charging and
            sentencing defendants.  (Source:  California Criminal Justice
            Statistics Center, CDC, Data Analysis Unit.)

          The JPI found that of the nearly 40,000 inmates imprisoned under
            the Three Strikes law the vast majority were convicted of
            non-violent crimes.  While 30% were convicted of drug crimes,
            another 37% were convicted of property crimes.  Only 1% has
            been convicted of murder.

          JPI study authors summarized their conclusions about
            county-by-county use of Three Strikes and crime rates as
            follows:  "Data clearly shows that counties that vigorously
            and strictly enforce the 'Three Strikes' law did not
            experience a decline in any crime category relative to more
            lenient counties.  The absence of any difference in relative
            crime rates occurred despite the fact that the six largest
            counties [in terms of use of 'Three Strikes'] applied the law
            at a rate 2.2 times greater than the six counties that invoked
            the law least.

          "Even more remarkable, the sevenfold greater use of 'Three
            Strikes' in Sacramento and Los Angeles was not associated with
            a bigger crime decline than in Alameda and San Francisco, two
            counties that rarely use the law.  In fact, San Francisco, the
            county which uses 'Three Strikes' most sparingly, witnessed a
            greater decline in violent crime, homicides and all index
            crime than most of the six heaviest enforcing counties."

           REGISTERED SUPPORT / OPPOSITION  :

           Support
 
          American Civil Liberties Union
          California Attorneys for Criminal Justice
 
 
 

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          California Catholic Conference

           Opposition
 
          Association for Los Angeles Deputy Sheriffs
          Committee on Moral Concerns
          California District Attorneys Association
          California Peace Officers' Association
          Office of the Attorney General
          Riverside Sheriff's Association
 

          Analysis Prepared by  :  Gregory Pagan / PUB. S. / (916) 319-3744

 VOTES - ROLL CALL
MEASURE: AB 112
AUTHOR: Goldberg
TOPIC: Sentencing: three strikes.
DATE: 02/25/2003
LOCATION: ASM. PUB. S.
MOTION: Do pass and be re-referred to the Committee on Appropriations.
 (AYES   4. NOES   3.)  (PASS)
 

 AYES
 ****

Leno Goldberg Koretz Longville
 

 NOES
 ****

La Suer Bermudez Spitzer
 

 ABSENT, ABSTAINING, OR NOT VOTING
 *********************************