Patterico's Pontifications

12/13/2005

Chuck Nickel on the New Prop. 66

Filed under: Crime,No on 66 — Patterico @ 6:20 am

I have more on that new anti-Three Strikes proposition, which I told you about and analyzed in this post. Courtesy of the Los Angeles Association of Deputy District Attorneys, I have obtained an analysis of the proposition by Chuck Nickel, a San Diego County Deputy District Attorney who is considered to be one of the top experts on criminal sentencing in the state.

Nickel’s analysis tends to reinforce the conclusions I came to in my earlier post. Here it is:

ANALYSIS OF THE NEW PROP 66 “THE THREE STRIKES REFORM ACT OF 2006″

“The Three Strikes Reform Act of 2006″ is an initiative measure that has been submitted to the Attorney General for preparation of the Title and Summary. This measure could appear on the November 7, 2006 ballot if the proponents are successful in their signature-gathering effort.

This measure would be a disaster for the Three Strikes and serious felony statutes. It would significantly reduce the application of those statutes, and it would apply retroactively to release probably several thousand three-strike prisoners.

The current Three Strikes statutes provide two levels of punishment as follows:

· “Two-strike” punishment: PC 667(e)(1); PC 1170.12(c)(1) – If the current offense is any felony, and the defendant has one qualifying prior “strike” conviction for a serious or violent felony, the term for the crime is doubled; probation denial with a prison sentence is mandatory; consecutive sentencing for crimes on separate occasions is mandatory; there is no aggregate term limitation on consecutive sentences; and prison conduct credit reduction is limited to one-fifth of the total term.

· “Three-strike” punishment: PC 667(e)(2); PC 1170.12(c)(2) – If the current offense is any felony, and the defendant has two or more qualifying prior “strike” convictions for serious or violent felonies, the term for the crime is life imprisonment with a minimum term calculated as the greatest of the following three options: (i) triple the term for the crime, or (ii) 25 years, or (iii) the term determined under general statutes, including enhancements; probation denial with a prison sentence is mandatory; consecutive sentencing for crimes on separate occasions is mandatory; there is no aggregate term limitation on consecutive sentences; and there is no conduct credit reduction of the minimum term.

The following are some of the major provisions of “The Three Strikes Reform Act of 2006″:

· The Three Strikes statutes, for both two-strike and three-strike defendants, would apply only if the current offense is a serious or violent felony as defined and limited by this measure, instead of applying to any current felony.

· The number of crimes that are defined as serious or violent felonies would be significantly reduced for qualifying current offenses, for prior “strikes,” and for enhancements for serious felony priors.

· The following crimes would be eliminated as serious or violent felonies:
1. Residential burglary (unless someone other than an accomplice is in the residence at the time of the burglary) – PC 459. Note: This eliminates virtually all residential burglary priors and almost all residential burglary current offenses.
2. Assault with a deadly weapon – PC 245(a).
3. Assault with a deadly weapon on a school employee – PC 245.5.
4. Shooting at an inhabited dwelling or occupied vehicle – PC 246.
5. Shooting from a motor vehicle – PC 12034(d).
6. Grand theft of a firearm – PC 487(d)(2).
7. Criminal threats – PC 422.
8. Witness intimidation – PC 136.1(a) or (b).
9. Participating in a criminal street gang – PC 186.22(a).
10. Any wobbler felony committed for gang purposes – PC 186.22(b)(1)(A).
11. Any wobbler felony with personal use of a deadly weapon – PC 12022(b).
12. Any wobbler felony with personal use of a firearm – PC 12022.5.
13. Any wobbler felony with personal infliction of great bodily injury – PC 12022.7.

· Judicial plea bargaining would be allowed in cases involving Three Strikes, serious felonies, and driving under the influence. This would allow the judge to make a deal directly with the defense attorney, to the exclusion of the prosecutor.

· The sentencing provisions of this measure would apply retroactively to many three-strike cases, resulting in the immediate or early release of probably several thousand three-strike prisoners. (The issue of retroactivity and the full implications of the complex resentencing provisions require further study.)
1) It appears that most of the provisions of this measure would apply to all pending strike cases and all strike cases that are not final on appeal.
2) Defendants who are serving a three-strike life sentence for a current offense that is not a serious or violent felony as defined and limited by this measure will be resentenced within 180 days as follows:
a) Most of these defendants will be resentenced to a determinate term that is twice the term otherwise provided as punishment for the current felony (similar to a two-strike penalty).
b) Defendants who have one prior conviction for a sexually violent offense, second degree murder, or felony murder, will have the minimum term of their life sentence reduced to twice the term otherwise provided as punishment for the current felony. (A prior PC 288(a) without substantial sexual conduct probably does not qualify.)
c) Defendants who have one prior conviction for first degree murder (except felony murder), PC 288a(c)(1), or PC 289(j), or more than one prior conviction for a sexually violent offense or PC 288, will be excluded from the resentencing provisions.
3) Defendants who are serving a three-strike life sentence for a current offense that is a serious or violent felony as defined and limited by this measure are not covered by the resentencing provisions. (The issue of retroactive benefits, if any, for these defendants requires further study.)
4) Defendants who are serving a two-strike sentence are excluded from the resentencing provisions. It appears that resentencing three-strike defendants to a two-strike penalty solves the equal protection problem with respect to two-strike defendants that was raised by Proposition 66.
5) Other than the resentencing of three-strike defendants as described above, the amendments to the definition of serious and violent felonies are not to be applied retroactively.

There you have it.

6 Responses to “Chuck Nickel on the New Prop. 66”

  1. The defining of ADW as not serious or violent should be a show-stopper. It’s hard to see how people would vote for that if the point is driven home.

    Kevin Murphy (6a7945)

  2. Thank you for staying on top of this. I had not seen Chuck Nickel’s full analysis until you posted it.

    Chuck Nickel’s analysis (and yours) is very similar to my own admittedly uninformed opinion about the effects of the proposal.

    As you know, I emailed some three strike experts (including yourself and Chuck Nickel) with my concerns about the proposed proposition’s minor change Penal Code Section 667(d)(1).
    I wondered whether this change was the result of sloppy drafting (i.e., they wanted to insert “serious and/or violent” before the word felony wherever it appeared regardless of context) or whether it was deliberately inserted so that its proponents could argue that the crime does not qualify as a prior strike unless it was on the serious and/or violent felony lists at the time of the conviction (i.e., no convictions prior to 1994 would qualify, none of the crimes added by proposition 21 would qualify unless the conviction occurred after proposition 21 was effective).

    To update you on that issue, Chuck Nickel called me and said that he suspected it was sloppy drafting and felt that something more blatant would have to be written into the proposition to change the rule that serious and/or violent prior convictions predating “three strikes” are counted as strikes. Chuck Nickel is the expert and I will gladly accept his opinion unless and until we see evidence that proponents of this proposition are lying in wait much like Prop 66’s proponents were (See Patterico’s “Smoking Gun emerges on three strikes initiative” post).

    Keep up the good work!

    Steve M. (0f514a)

  3. Removal of gang offenses sealed it for me.

    This new assault on Three Strikes must be defeated.

    Darleen (f20213)

  4. Like Prop 66, this new Prop not only waters down sentencing, but seeks retroactive application, the latter feature amounting to a legalized prison break funded by fantastically-wealthy backers.

    We remember how Prop 66 was funded by a millionaire dad who wanted to spring his 3-strike son early.

    Opponents of the New Prop 66 should be able to beat this Prop like a bongo drum by stressing the arm-long rap sheet of serious, violent felonies this Prop declassifies as 3-Strike material.

    In fact, the phrase “arm-long rap sheet of serious, violent felonies” should be worked into every opposition advertisement; “Assault with a deadly weapon,” should be strobed across the screen.

    That having been said it’s all about whether opponents can muster more funding than proponents. It is incredible the extent to which voters are swayed by sheer quantity of campaign funding.

    Kudos to Patterico, who through public awareness played a real part in helping defeat Prop 66, and who I am sure will have no small part in helping defeat the New Prop 66 as well.

    clark smith (313e19)

  5. It looks like the sponsors of this proposition have withdrawn it and submitted a new proposition that is co-sponsored by Patterico’s boss.

    See it here: http://ag.ca.gov/initiatives/pdf/sa2006rf0001.pdf

    At a first glance, the new one does not appear as drastic as the original (it makes “second strike” or “third strike” sentences apply only to new serious or violent offenses and states that if a person has two prior serious or violent and commit a non serious or violent felony the maximum sentence for the new felony is doubled). It also provides for resentencing of three strikers serving indeterminate terms for non-serious or non-violent offenses.

    There has also been a “law enforcement” initiative dealing with three strikes. It is way too complex to summarize here. You can find that one at:

    http://ag.ca.gov/initiatives/pdf/sa2006rf0005.pdf

    I’d love to hear all your thoughts.

    Steve M.

    Steve M. (887ca3)


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