The L.A. Times reports that my boss, Steve Cooley, has joined up with defense attorney Brian Dunn to co-sponsor an amendment to the Three Strikes Law. You can read the proposal here.

The L.A. Times does not mention that another proposal to amend the law has been submitted — this one by Deputy District Attorney Steve Ipsen. Ipsen is the president of the Association of Deputy District Attorneys. He is someone I know personally (though not well), and he was a tireless opponent of Proposition 66. His proposal is here.

Close readers of the comments here already knew about both proposals, as commenter Steve M. provided both links four days ago.

I have not had time to read either proposal, and I am too busy to do so for the next few days at least. So I’m not wading into the middle of this right now. However, I provide the links as a public service, and invite comments from anyone who has read the proposals.

One thing is obvious, however: opponents of Proposition 66 (including both Cooley and Ipsen) apparently feel a need to change the law in some way. The only question is how best to do so. (By mentioning Cooley’s proposal and ignoring Ipsen’s, editors of the L.A. Times apparently are throwing in their lot with Cooley’s version.) It sounds like a pretty good bet that some version of reform will pass . . .

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

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.

Regular readers will recall that, last month, the L.A. Times ran an editorial and a letter to the editor falsely claiming that someone is serving 25-to-life under the Three Strikes law for stealing pizza. After badgering the “Readers’ Representative” for a correction, I’ve gotten a response, which I will summarize as: “No, we won’t issue a correction. Why? Because we said so.”
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This morning the L.A. Times editorializes:

Two dozen states and the federal government have passed “three strikes and you’re out” laws, but only in California can any felony, even a petty theft, trigger a 25-year-to-life sentence. Everyone has heard the stories — of the guy who swiped a slice of pizza and the father who pinched diapers for his kids. Of California’s 7,300 third-strikers, 4,200 are like these lifers, put away for relatively minor offenses. Their “three hots and a cot” cost taxpayers $31,000 a year each.

The only reasonable interpretation of this passage is that “the guy who swiped a slice of pizza” is currently serving life for that offense.

Not so. A 1996 decision of the California Supreme Court held that judges have discretion to dismiss strikes in appropriate cases, in the interests of justice. As this article explains:

In fact, the notorious “pizza thief” was a recipient of this discretion. [Jerry DeWayne] Williams, who was originally sentenced to an indeterminate life sentence, later had his sentence reduced to six years. Citing his nonviolent criminal history, lack of weapon use, and relatively minor third strike offense, the sentencing judge agreed to strike a prior conviction in order to promote the interest of justice.

The “pizza thief” case is actually an argument against modification of the Three Strikes law, as it demonstrates that existing judicial discretion can ameliorate the worst cases.

While I am sympathetic to the notion that the Three Strikes law needs modification, I would like to see the decision based on factual and truthful arguments. By suggesting that the pizza thief is serving life, when he is not, the Times is perpetuating an urban legend. This merits a correction.

The Reader’s Representative can be reached at Readers.Rep@latimes.com. Call me defeatist, but I’m not bothering to write her, even though this is a clear error. It’s a gut feeling, but I just don’t see them admitting error on this one. If you write her, please copy the text of your e-mail in the comments — and let us know any response you receive.

I am through fretting and am prepared to declare that Proposition 66 has been defeated.

I said a while back about Proposition 66:

This initiative will not be defeated absent something startling — a huge influx of money, a strong campaign waged by Governor Arnold, or a massive and spirited talk-radio campaign. Chances are, even all three will not be enough.

But, though I predicted defeat, I wasn’t a defeatist. There is a difference between assessing your chances as low, and giving up. I thought we would lose this battle — but in life, it’s often most important to fight the battles you think you are going to lose. As I said then:

The road ahead will be tough — so tough that it’s tempting simply to give up. But we can’t. Although it will be a difficult and expensive fight, it’s a fight worth fighting.

The road was tough. A few weeks back, we had a lot of good talk radio support, but Arnold had not stepped up to the plate, and the money was not there.

Eventually, we got all three — and it was enough.

I have had my doubts about Arnold in the past, but he came through for us here.

But the most important part was the money, which allowed opponents of 66 to educate the public about what was really at stake. And so, as alert reader Hank K. points out to me, we owe a big debt of gratitude to Henry Nicholas, who largely financed the opposition in the closing days of the campaign. I have absolutely no doubt that Mr. Nicholas’s contributions to the anti-66 campaign saved lives. He should be the happiest man in California tonight, knowing that he has helped to keep our streets safe.

Join me in thanking Henry Nicholas.

P.S. Just because this flawed proposition was voted down, does not mean that all is hunky-dory with the Three Strikes law. Californians were educated about the deficiencies in this proposed fix, but they clearly think the law should be changed. And, in some cases, it’s the right thing to do. So let’s preempt another such initiative, and work with the legislature to pass reasonable reform.

Any such reform cannot let dangerous criminals out, regardless of whether their current crime is a petty theft or a drug offense. I don’t want the criminals I have discussed in my numerous anti-66 posts getting out. But judges should be given wider discretion to reduce third-strike sentences retroactively. And there should be a presumption that prosecutors are not to seek 25-to-life for current non-strike offenses — but a presumption that can be overcome when the criminal’s history is particularly egregious, or the current offense indicates dangerousness, or a lack of reform on the defendant’s part.

Keep Jerry Keenan five miles away from it. Sam Clauder, too. Get DAs in on the discussion. But with that in mind, let’s get something done.

P.P.S. PrestoPundit reports that my energetic colleague Steve Ipsen was instrumental in inspiring Nicholas to get involved. Great going, Steve!

With 100% of the precincts reporting, Proposition 66 is behind as of 6:41 a.m., 46.6% yes to 53.4% no.

As I said last night (in an update to this Angry Clam post), I am cautiously optimistic, though I still worry about the impact of any uncounted absentee ballots.

If you live in California, the most important vote you will cast today is the one on Proposition 66. I have written over 40 posts explaining why this is the most disastrous initiative to come up for a vote in recent memory.

I see that a lot of people are interested — I am getting a lot of Google hits from searches related to Proposition 66. That’s a good thing. I am convinced that the more you learn about this proposition, the worse it looks. All we need is for people to be educated.

Please — if you are thinking of voting “yes,” look at the posts in my No on 66 category, and consider voting no.

Our safety is at stake.

If you support Proposition 66, you are a pawn of a millionaire trying to buy his son’s freedom.

By now you must be aware that the man providing major financing for Proposition 66, millionaire Jerry Keenan, has a son serving a prison sentence for manslaughter. That sentence may be substantially reduced by an obscure provision — inserted into Proposition 66 by Keenan’s lawyer — which would lessen the penalty for personally causing great bodily injury to another during the course of a felony.

In an interview with the Sacramento Bee, Keenan has claimed, quite implausibly, that his almost $2 million in financial support for the proposition has nothing to do with trying to get his son out of prison early. “I can guarantee you, the money I put into this wasn’t about Richard. It was about fairness.”

Horse hockey. It’s all about Jerry Keenan’s son and always has been. And I have the proof.
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The version of Proposition 66 that we will vote on Tuesday is not the same version that was shown to voters when signatures were being collected. How different the two versions are in substance remains to be seen. But if the proposition passes, opponents should look into this issue further. The differences between the two versions could be significant enough to give opponents a legal challenge to the measure if it passes.

Here is my evidence:
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Via PrestoPundit, here is a radio segment from the John and Ken show featuring Cal State Los Angeles Professor Jennifer Walsh, who has done a study on the effectiveness of Three Strikes called Tough for Whom?

Prof. Walsh concludes that the law has been very effective in targeting the right people. She also mentions a very important point that I have made before: Three Strikes actually saves money, by preventing crimes that would cost society millions. At the very least, these savings should be considered as an offset against increased prison costs.

Finally, she makes a fascinating point that I have overlooked in this discussion: many people serving second-strike sentences are actually third-strikers who already received leniency from a judge in the form of having one or more of their strikes stricken. If the law is interpreted to apply retroactively to second-strikers, then these people will end up getting two breaks — the one they already got from a judge, and a second break from Proposition 66.

I have a question for the readers. Has my coverage of Proposition 66 had any influence on how you (or anyone close to you) will vote on the initiative? Is there anyone whose mind was changed by reading my posts? If so, what was the most significant factor in your decision?

I would truly appreciate any feedback on this.

The Daily Breeze, a South Bay newspaper, has announced that it opposes Prop. 66. The paper cites the case of child molester Joseph Noble, who was prosecuted by my wife, as an example of the type of criminal who could be released by the initiative:

Among the prisoners serving three-strikes sentences who could qualify for such resentencing hearings is Joseph Noble, the region’s most infamous child molester. Noble has a 26-year criminal history that has included kidnapping and indecent exposure.

In 2001, Noble was sentenced to 25 years to life based on his conviction for a nonviolent third strike: two counts of indecent exposure for masturbating in front of two women jailers. Should Proposition 66 pass, Noble could see his prison sentence reduced, leading to an early release.

The truth is, the three-strikes law was designed to put away those who, like Noble, are serious threats to communities.

The bottom line is that the Daily Breeze has done enough articles about the little girls molested by Joseph Noble. They don’t want to do any more.