Via reader Steve M., I have learned that there will likely be a new proposition next year to alter the Three Strikes Law. You can read it here.
I will do a comprehensive analysis of the measure in the near future, but here are the broad strokes:
Like Proposition 66, it would mandate that 25-to-life sentences may be imposed only when the third strike is serious or violent.
Like Proposition 66, it provides for doubling of the sentence in second-strike cases only when the second strike is serious or violent.
Like Proposition 66, it would redefine what is serious or violent to exclude certain crimes that are now strikes. Residential burglary is off the list unless it is pled and proved that a person was home during the burglary. Further, no “wobbler” (a crime that can be charged either as a misdemeanor or felony) can be a strike. This will be portrayed as an effort to keep petty theft with a prior from being a third strike. But the provision also covers crimes such as death threats, witness intimidation, and (my favorite) assault with a deadly weapon.
Like Proposition 66, it provides for re-sentencing of most criminals sentenced to 25-to-life under the older version of the law.
There are differences as well — and they are clever. The proponents have learned from the battle over Proposition 66. The resentencing provisions are explicitly limited to third strikers, meaning that opponents will not be able to claim that 42,000+ criminals may be resentenced and possibly released. The number will likely be less than 5000. Also, some of the more insidious provisions of Proposition 66 have been eliminated, such as the one that treats multiple strikes as a single strike, if they arise from the same case. The Charlie Manson and Richard Ramirez examples will not have the same force this time around.
By striking two simple words (“or judge”), the proposed proposition also allows plea-bargaining by judges in Three-Strikes cases — something explicitly prohibited by current law.
At this point, my main concerns are 1) the potential consequences of saying that wobblers can never be strikes, 2) the total lack of discretion for District Attorneys, and 3) the flood of violent criminals that will be released.
Point #1 is of particular concern. Some “wobblers” cover a huge range of activity. Penal Code section 245 is a good example. That provision covers not only assaults with a deadly weapon (which are strikes if prosecuted as felonies), but also “assault by means of force likely to cause great bodily injury,” which is not a strike.
The activity prohibited by Penal Code section 245 thus covers a wide range of behavior, from a particularly severe assault with fists and feet, all the way to a gang member shooting at rivals. The fact that some such conduct might be considered misdemeanor conduct is no reason to take all such conduct out of the realm of serious or violent felonies.
Indeed, due to an ambiguity in the proposed law as drafted, you could potentially have a defendant with two prior murder convictions charged with shooting at a group of people . . . and as long as he was not convicted of attempted murder, but rather only assault with a deadly weapon, he could receive at most 14 years in prison — depending on how the courts ultimately interpret the law.
The proposed proposition is still in its early stages. It was submitted to the Attorney General on November 15, and is thus still within the 15-day period during which the AG assigns it a title and summary. Collection of signatures will begin soon.
We’ll be hearing a lot more about this.
P.S. I should emphasize that this is a preliminary analysis, based upon reading through the proposal twice. It is possible that I have missed subtle points that could alter the conclusions I have stated.