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What is a “Violent Felony” in the Three Strikes law?

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Is Every Felony a “Strike” in California?

California’s “Three Strikes” law was passed in 1994.  Many people think that every felony conviction is a “strike”.  They aren’t.  Only “serious” and “violent” felonies count as “strikes” under the law.

The “serious” felonies are listed in Penal Code 1192.7.  Here is a list of the “violent” felonies from Penal Code section 667.5(c):

  1. Murder or voluntary manslaughter.
  2. Mayhem.
  3. Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.
  4. Sodomy as defined in subdivision (c) or (d) of Section 286.
  5. Oral copulation as defined in subdivision (c) or (d) of Section 288a.
  6. Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.
  7. Any felony punishable by death or imprisonment in the state prison for life.
  8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
  9. Any robbery.
  10. Arson, in violation of subdivision (a) or (b) of Section 451.
  11. Sexual penetration as defined in subdivision (a) or (j) of Section 289.
  12. Attempted murder.
  13. A violation of Section 18745, 18750, or 18755. [explode device with intent to murder; explode device causing bodily injury; explode device causing death]
  14. Kidnapping.
  15. Assault with the intent to commit a specified felony, in violation of Section 220.
  16. Continuous sexual abuse of a child, in violation of Section 288.5.
  17. Carjacking, as defined in subdivision (a) of Section 215.
  18. Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
  19. Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.
  20. Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.
  21. Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
  22. Any violation of Section 12022.53. [personal use of a firearm during the commission of certain offenses]
  23. A violation of subdivision (b) or (c) of Section 11418. [possession of a weapon of mass destruction]

Joe Dane

info@joedane.com

714.532.3600


Motion to dismiss a felony - Penal Code section 995

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What is a “995 motion”?

In felony cases, there are several procedural safeguards in place before your case goes to trial.  In California, there are two ways for your felony to move forward - either by an indictment by the grand jury or based on the filing of charges and after a preliminary hearing.

The District Attorney can choose to take your felony case to the Grand Jury.  If so, there are certain procedures they must follow, but if the Grand Jury hears the evidence and decides to indict you, they issue a “true bill”.  The District Attorney then files a charging document in court called an indictment.  That indictment lists the charges the prosecutor believes they have proven to the Grand Jury and unless something happens, those are the charges you will face at trial.

The other way for the prosecutor to go forward to trial is to file an initial charging document (a “complaint”) and then conduct a preliminary hearing.  At the preliminary hearing, they must prove each and every charge (both felonies and misdemeanors) as well as any conduct enhancements such as firearm use, great bodily injury allegations, etc.  They must prove the charges to a judge by a probable cause (or “reasonable cause”) standard.  It’s a fairly low burden of proof, but it still has to be met.  If the prosecution is able to put on sufficient evidence at the preliminary hearing and the judge holds you for trial, the prosecutor then files a new charging document called an “information”.

Challenging the charges

If we feel that the judge’s ruling or the Grand Jury’s findings were incorrect, the law provides a way for us to challenge the charges.  Under Penal Code section 995, the indictment or information shall be set aside in either of the following cases:

1.  If it is an indictment:

Where it is not found, endorsed and presented as prescribed in this code.

That the defendant has been indicted without reasonable or probable cause.

2.  If it is an information:

That before the filing thereof the defendant had not been legally committed by a magistrate.

That the defendant had been committed without reasonable or probable cause.

What does that actually mean?  Since most felony cases proceed by way of a preliminary hearing, let’s look at the two ways an information can be dismissed under Penal Code section 995.

“Not legally committed by a magistrate”

This deals with the procedural aspects of the preliminary hearing and can include constitutional violations as well.  First, there is a right to have a continuous preliminary hearing.  Some preliminary hearings only take 30 minutes, but others can take hours or even days or weeks.  You have a right to have the judge hearing your preliminary hearing devote the majority of their time to your case without interruption.  The judge can handle minor matters and take breaks, but in general, your case must take priority.  Unless you waive your right to a continuous preliminary hearing, if there is a violation, your case could be dismissed with a 995 motion.  If there are other errors (a judge denying cross-examination on the evidence or severely limiting it, etc.), those too can be reasons for a 995 motion to be granted and your case dismissed.

“Committed without reasonable or probable cause”

In every criminal charge, there are elements of the crime.  In the most basic example, a DUI, there are two elements:  1) Driving and 2) under the influence.  The prosecution must put on sufficient proof of both of those elements AND sufficient proof of you identification as the person who committed the offense before you should be held to answer.  This standard applies to all felonies and misdemeanors you’re charged with in your case.  Although the burden of proof  is relatively low, there must still be sufficient evidence.  When we file a 995 motion, we are asking a different judge to review the evidence and decide whether or not there was sufficient evidence, even at this low burden of proof.  The DA can file whatever they want in the original complaint, but they must prove it at preliminary hearing.  They can only file charges in the information that were proven at the preliminary hearing.  It boils down to this:  If it’s not in the transcript of the preliminary hearing, it didn’t happen.  The judge that will hear and decide the 995 motion is restricted to the evidence actually presented and written down in the transcript.  Not what is in the police reports, not speculation and not anything else.  Just words on the pages of the transcript.  If the elements of the crimes charged against you haven’t been proven, then the case must be dismissed.

For example, in a case I handled, the DA filed multiple counts of insurance fraud against my client.  Their allegation was that my client was claiming to have been injured and was receiving worker’s compensation, but they were not as injured as they claimed to have been.  The preliminary hearing was conducted and I argued that there was not sufficient proof of any fraudulent intent in the statements my client was alleged to have made to their doctor.  The judge at the preliminary hearing felt there was enough and ordered my client to stand trial.  When we filed the 995 motion, another judge reviewed the evidence in the transcript and agreed with me - there was not enough evidence and my client should not have been ordered to stand trial.  All charges were dismissed.

Other uses for a 995 motion

A motion under Penal Code section 995 can also be filed to dismiss a case if there were other procedural errors.  For example, after a preliminary hearing, the prosecution must file the information (that second charging document) within 15 days of the conclusion of the preliminary hearing.  If they miss that deadline, the case can be dismissed under a 995 motion.  Similarly, if you were held for trial based on illegally gathered evidence (such as an illegal search by the police or a violation of the Miranda rights), the case can potentially be dismissed with a 995 motion.

Timing of a 995 motion

Obviously, a 995 motion can only be filed after a Grand Jury indictment or after a preliminary hearing.  It also must be filed before trial.  If you (and your attorney) do not file a 995 motion, you’ve lost the ability to challenge the sufficiency of the evidence at the preliminary hearing on appeal.

Many times, a preliminary hearing is a great way to challenge the evidence and lock witnesses into their testimony under oath, but it can also be important to set the case up for a possible motion to dismiss so you get a second chance to have your case thrown out.

To discuss your case and situation further, give me a call so we can set up a confidential consultation.

Joe Dane

info@joedane.com

714.532.3600

Possession of Burglary Tools (Penal Code section 466)

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Even if you don’t actually commit a burglary by entering a structure (see this post for more information about burglary), California still outlaws the possession of certain items.  Under Penal Code section 466, it is illegal to possess any of the following items (Definitions: of what these items are below):

  • picklock
  • crow
  • keybit
  • crowbar
  • screwdriver
  • vise grip pliers
  • water-pump pliers
  • slidehammer
  • slim jim
  • tension bar
  • lock pick gun
  • tubular lock pick
  • bump key
  • floor-safe door puller
  • master key
  • ceramic or porcelain spark plug chips or pieces
  • or “any other instrument or tool”

with intent to “feloniously break or enter into” any building or other structure that would fit the definition of a ’structure’ under the burglary laws.

What does this mean?  Are all tools outlawed?

Absolutely not.  Everybody has a screwdriver.  Lots of people have vise grip pliers or other tools listed in the law.  The difference is the intent.  The prosecution must prove that you had the specific intent to use the tool you possessed to break and enter into a structure of some sort.  Structures can include both homes and businesses as well as locked cars.  If they cannot prove that you had the specific intent to use whatever you had to break into something, they cannot prove the charge against you.

  • A picklock is a slim, flexible metal item used to trip the tumblers of a keyed lock.
  • A keybit is a device used either with a power drill or other handle to turn specifically shaped screw heads.
  • Water-pump pliers are pliers with an adjustable joint.  They are also known as channel lock pliers.
  • A slidehammer (also known as a dent-puller) is a tool with a moveable, weighted grip that slides up a shaft and is used to pull out dents or free stuck parts.
  • A slim jim is a flexible metal strip with notches used to open door locks by inserting it in between a car window and manipulating the lock mechanism inside the door panel.
  • Joe Dane

    info@joedane.com

    714.532.3600

    Orange County DUI patrols ramping up

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    DUI Patrols are increasing

    The Orange County Sheriff’s Department has announced their annual increase in the number of officers on the street for their “DUI saturation” patrols. They are calling this crackdown a “zero tolerance” approach. That’s nice, but they’ve still got to follow the rules. You also have your rights.

    They have said that they will be sending extra patrol deputies to the cities of San Clemente, Dana Point and San Juan Capistrano this weekend. They say they are targeting areas that have had high frequencies of DUI collisions and/or arrests in the past.

    Just calling it a “crackdown” doesn’t mean they can just stop everybody and check to see if they’ve been drinking. They must still have reasonable suspicion of some sort of violation before they can stop and detain you. They need to be able to at least have some sort of violation, not just a hunch because it’s 2:00 in the morning and they think anybody out at that hour must have been drinking.

    Keep your rights in mind

    I’ve written articles about your rights during a DUI stop. They won’t give you your Miranda warnings, so anything you say can only hurt you. Unless you are under 21 or are on probation for a DUI, you do not have to submit to the handheld breathalyzer they’ll want you to do.  The field sobriety tests (FSTs) are also not mandatory.

    Should you find yourself arrested for DUI, give me a call so we can discuss your case.  You may have legal or factual defenses available.  Don’t wait - you only have 10 days from the date of your arrest for me to contact the DMV and schedule a hearing or they will automatically suspend your driver’s license for four months.

    Joe Dane

    info@joedane.com

    714.532.3600

    Orange County DUI checkpoints December 2012

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    The Orange County Sheriff’s Department has announced this year’s upcoming DUI checkpoint dates and locations.  They are also conducting extra “saturation patrols” and making an effort to serve outstanding DUI arrest warrants over this month. For information about your rights and DUI checkpoints, see the following links:

    What to do when pulled over for DUI

    DUI and Miranda rights

    Passenger’s rights during a DUI checkpoint

    Here are the announced dates and locations:

    DUI and Driver’s License Checkpoints

    • Laguna Hills - Friday December 14 from 7:00 to 3:00 am
    • Los Alamitos and Seal Beach - Friday December 14 from 7:00 to 3:00 am
    • Westminster - Thursday December 20 from 7:00 to 3:00 am
    • Anaheim - Saturday December 29 from 7:00 to 3:00 am

    DUI “Saturation Patrols”

    • Friday, December 21 8:00 to 3:00 am in Los Alamitos, Orange and UC Irvine Police
    • Saturday, December 22 8:00 to 3:00 am in Placentia, Buena Park and La Habra
    • Saturday, December 22 8:00 to 3:00 am - Anaheim and Cal State Fullerton Police
    • Monday, December 31 8:00 to 3:00 am - Placentia Police

    Continuous DUI Saturation Patrols

    • Orange County Sheriff’s Department
    • Irvine Police Department
    • La Palma Police Department
    • Laguna Beach Police Department
    • Tustin Police Department

    Warrant Service

    The Orange County Sheriff’s Department and the Buena Park Police Department will be doing DUI Warrant service operations during the winter holidays.  (Click the following link to see if you have an outstanding arrest warrant in Orange County)

    Should you get arrested for DUI in one of these checkpoints, they can be attacked.  Give me a call to discuss your options.  Keep in mind that you only have 10 days from the date of your arrest to schedule a hearing with the DMV or they will automatically suspend your driver’s license for 4 months.

    Joe Dane

    info@joedane.com

    714.532.3600

    Arrested for shoplifting? Here are the possible charges

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    There isn’t really one charge of “shoplifting” in the California Penal Code.  There are theft charges and other related crimes on the books.

    First - Petty Theft (Penal Code 484 and 488)

    In general, theft is defined in Penal Code 484.  From there, theft is classified under a different code section depending on the dollar amount of the property taken, what was taken or how it was taken.  Petty theft )(Penal Code section 488 is theft of anything under $950.  This is the typical “shoplifting” charge.  In order to prove petty theft, the prosecution must prove beyond a reasonable doubt that you “took and carried away” property of someone else without consent and that it was valued at under $950.  [The law used to be under $400, but it's now $950]  Petty theft is a misdemeanor and carries as a maximum punishment six months in county jail and/or a thousand dollar fine.  There can also be probation for up to three years and other court costs and consequences.

    Another common shoplifting charge - Burglary (Penal Code section 459)

    If the police think that you entered the store with the intent to steal, they can also charge you with burglary.  One of the typical things they look for is whether you had money, credit or debit cards or other ways to pay for the merchandise with you at the time.  If you had no way to pay for the items, they try to argue that you must have intended to steal when you went it since you had no money. They try to make it into a burglary charge if they think you brought something in with the intent to use it to hide merchandise.  Many women get wrongfully accused of burglary since they were carrying an oversized purse or bag.  Why is it a big difference whether or not you’re charged with burglary?  Petty theft is a misdemeanor.  Burglary can be charged either as a felony or a misdemeanor by the prosecutor.  Even as a misdemeanor, it carries a much higher maximum sentence (one year instead of just six months for petty theft). For more information about burglary and the intent required, see this post:  Burglary and intent in a shoplifting case

    Grand theft (Penal Code 487)

    If the dollar amount of the merchandise was over $950, the charge is most likely going to be grand theft. Grand theft can be charged either as a felony or a misdemeanor.  As a felony, it caries up to 3 years in custody.  As a misdemeanor, it is up to one year in jail.

    Possession of burglary tools (Penal Code 466)

    Another possible charge that could be filed in a shoplifting case is possession of burglary tools.  In most cases, the “tools” they are referring to are things that are used to break into a building or car, but it can include anything that “is intended to be used in committing a misdemeanor or felony.”  So - a pair of pliers intended to be used as a tool to remove sensor tags from clothing and even possibly nail clippers or a small pocketknife could be charged under this section.  It is a misdemeanor that carries up to six months in county jail.

    What to do if you have been arrested for shoplifting or petty theft

    The sooner we start working on your defense, the better.  There may be things we discuss that get you in a better position for a good outcome in court.  Our goal is the very best outcome possible.  Do we have legal defenses?  Factual defenses? Can we try for a resolution that doesn’t involve a theft conviction on your record?  All those things are possible.  The only way to know which way your case is headed is to sit down and discuss it in detail.

    Civil Demand letters

    As one final note - often in shoplifting situations, the store or a law firm on their behalf will issue a “civil demand” letter, asking for hundreds of dollars.  We can discuss that letter and why my recommendation is to not pay their outrageous demands when we meet.

    Give me a call or send an email so we can discuss your case.

    Joe Dane

    info@joedane.com

    714.532.3600

    DUI Checkpoint tonight in Orange County (December 20, 2012)

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    Checkpoint in Westminster tonight

    As previously announced, there will be a DUI and Driver’s License checkpoint tonight in Westminster from 7:00 pm until 3:00 tomorrow morning.  The specific location hasn’t been announced, but you can be pretty sure it will be on a major road.  There are certain procedures the police must follow in setting up a checkpoint, including advance notice, warning signs, “escape routes” for those that are approaching it and don’t want to participate, etc.

    Be safe.  Keep your rights in mind.  For more details, see these links:

    What to do when pulled over for DUI

    DUI and Miranda rights

    Passenger’s rights during a DUI stop

    Joe Dane, Orange County Defense Attorney

    info@joedane.com

    714.532.3600

    Arrested in Orange County? Now what?

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    First - Should you post bail?

    If your loved one has been arrested, the first decision to make is whether or not to post bail.  When a person is booked into jail, the top charge will determine how much the bail should be.  If they are booked through the Orange County Jail, a Detention Release Officer will review the case and can, in some situations, authorize a release on their own recognizance (an “OR” release).  If they aren’t released, bail is set.  There are some offenses that are not eligible for bail.  From the Orange County Bail Schedule, the following are not eligible for bail:

    1. Capital crimes (i.e. murder with special circumstance), when the facts are evident or the presumption great.
    2. Felony offenses involving act of violence on another person when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or
    3. Felony offenses when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

    In cases where bail is set, you can post cash or property sufficient to cover the bail amount or go through a bail bonds company. Bail bond agents typically charge 8 to 10% of the bail amount as their charge to post a bond for the entire bail.  Here is a link to the Orange County Bail Schedule (opens link to PDF file).

    Before deciding to posting bail, take a minute to read another post I wrote - “Should I post bail?”

    Next - get a lawyer.

    In fact, you may want to get a lawyer before making the decision to post bail.  Why?  There may be things I can do to get my clients released without having to post bail and/or reduce the amount of the bail.  Sometimes, that release can be accomplished the same day.  If not, by preparing for the first court date (the “arraignment”), a reduction in bail or an “OR” release can happen.  Yes, it means they stay in jail for a couple of days before going to court, but it may save you thousands of dollars.  If bail is required, I can recommend a bail bond company I know will work quickly and efficiently on behalf of my clients to get them released as soon as possible.

    Don’t make a snap decision about which attorney to hire.  Be careful with ones that are in a rush to get you to sign up over the phone right away.  I always wonder how attorneys can quote a fee for representation without knowing anything about the case either.  I always like to find out as much as I can - the facts, my client’s prior record (if any) and any legal issues with the case.  That gives me a better idea what it will take to get the best outcome - and is what I find to be the fairest way to set fees.  For more, see  “How to choose a criminal defense attorney”.

    To discuss the case further, give me a call or send an email.

    Joe Dane, Orange County Defense Attorney

    info@joedane.com

    714.532.3600


    Negligent Discharge of a Firearm - Penal Code 246.3

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    California has two laws on the books for discharge of a firearm or BB gun in a manner that might cause harm.  Ordinarily, laws are designed to punish for what you have done and not just what might happen.

    Negligent Discharge of a Firearm or BB gun

    Penal Code section 246.3(a) makes it unlawful to “willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person.”  It is a “wobbler”, meaning it can be prosecuted as either a felony or a misdemeanor.  As a felony, it carries up to 3 years in custody.  As a misdemeanor, the maximum punishment is one year in county jail.

    Definitions:

    • Willful - done deliberately or non-accidentally.
    • Firearm - any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion (but NOT by compressed air, compressed gas or by a spring)
    • Grossly negligent manner - it is defined as “more than ordinary carelessness, inattention or a mistake in judgment.  A person acts with “gross negligence” when they act in a reckless way that creates a high risk of death or great bodily injury AND a reasonable person would have known that acting that way would create such a risk.  Essentially, it is acting with disregard for human life or indifference to the consequences of the act.

    Discharging a BB gun in the same grossly negligent manner is a misdemeanor and can carry up to a year in county jail.  [Penal Code 246.3(b)]

    Defenses:

    What are some possible defenses to a charge of negligently discharging a firearm or BB gun?  Built into the crime elements is that the act must be done NOT in self-defense or in the defense of others.  For example, if you were in a situation where your life was in danger and firing a “warning shot” would stop the attack, that could be a complete defense to this charge.  The “defense of others” would apply if you were acting to save somebody else’s life or to prevent them from suffering great bodily injury.

    Another defense would be that if a person honestly believed the firearm was unloaded at the time it was shot, they would not have the necessary mental state and would therefore be NOT GUILTY of the crime.  This charge requires that a person willfully (deliberately) fire a gun.  If you didn’t know the gun was loaded, how could you be intentionally meaning to fire it?

    Firearms and New Year’s Eve

    Every year, in celebration of New Year’s Eve, people fire guns into the ground, into the air or in other ways.  The police are always looking to crack down and catch people firing guns and arrest them for negligent discharge of a firearm.  If they think the evidence shows that the gun was aimed at a building or vehicle, there could be more serious charges filed (Penal Code 246 - Shooting at an inhabited house or occupied motor vehicle).

    Joe Dane, Orange County Defense Attorney

    info@joedane.com

    714.532.3600

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    What are the changes in the Three  Strikes law after the recent election?

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    Essentially, the change to the three strikes law requires that the new case is a serious or violent felony before a life sentence is imposed.  For example, under the old law, if a person had two strikes for two residential burglary convictions, any new felony could subject them to a 25-life sentence. Even a simple possession of drug charge could get them a life sentence. Originally, the judge could not do anything and had to impose 25-life for any new felony if the defendant had 2 prior strikes. Then, a case [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] decided that a judge could exercise their discretion to not give a 25-life sentence. Essentially, they could “strike a strike” for the purpose of sentencing and get around the 25-life sentence. It was discretionary and they could still impose the life term, even if the new offense wasn’t serious or violent.
    The changes in the law for Prop 36 are now in Penal Code 1170.126. The full text is at the bottom of this post.

    Some important concepts about the three strikes law

    First - not every prior felony conviction is a strike. Only serious and violent felonies are. Violent offenses are listed here:

    And serious offenses are listed here:

    If an inmate has been sentenced to 25 to life on a felony after having 2 prior strikes, they can petition for resentencing if:  (I’m summarizing)
    Their prior strike crimes are not one of the listed sex offenses, solicitation to commit murder, assault with an automatic weapon on a peace officer, homicide (including attempted murder) and;
    Their current offense is not itself a strike.

    If the inmate qualifies, they get a hearing in front of a judge.

    The resentence is not automatic just because they are doing 25-life on a non-serious, non-violent offense. That just qualifies them for a hearing. At that hearing, the judge can still leave the original sentence in place if they feel the defendant poses an “unreasonable risk of danger to public safety”.  They can look at things like the defendant’s entire criminal history, how serious the underlying strikes were, whether or not the defendant has been involved in any disciplinary actions while incarcerated, etc.
    These cases are just now starting to come thought the court system. If an inmate qualifies for resentencing, the judge will hold a hearing.  Typically, the DA will obtain the inmate’s file from prison as part of the evaluation.  The prosecution is looking for any rules violations or instances of criminal (particularly violent) activity while in prison.  The defense can present evidence of rehabilitation, such as education, training and counseling the inmate has participated in while in state prison.
    If the judge feels a defendant is not a risk, they resentence them as though they only had one prior strike. With one strike, it doubles your sentence, plus any additional terms for things like prison priors, etc.

    Example:

    For example, auto theft carries a maximum of 3 years in prison. With one prior strike, it doubles for a maximum of 6 years. If a defendant was  sentenced to 25-life in 1999, he would now have served 13 years. If he is resentenced, he will have served way beyond the maximum he could have served, plus an additional 3 years he would have been on parole. If resentencing is granted, he should be released free and clear.
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    714.532.3600
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    Full text of California Penal Code 1170.126 (the Three Strikes resentencing law)

    1170.126.  (a) The resentencing provisions under this section and
    related statutes are intended to apply exclusively to persons
    presently serving an indeterminate term of imprisonment pursuant to
    paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
    subdivision (c) of Section 1170.12, whose sentence under this act
    would not have been an indeterminate life sentence.
       (b) Any person serving an indeterminate term of life imprisonment
    imposed pursuant to paragraph (2) of subdivision (e) of Section 667
    or paragraph (2) of subdivision (c) of Section 1170.12 upon
    conviction, whether by trial or plea, of a felony or felonies that
    are not defined as serious and/or violent felonies by subdivision (c)
    of Section 667.5 or subdivision (c) of Section 1192.7, may file a
    petition for a recall of sentence, within two years after the
    effective date of the act that added this section or at a later date
    upon a showing of good cause, before the trial court that entered the
    judgment of conviction in his or her case, to request resentencing
    in accordance with the provisions of subdivision (e) of Section 667,
    and subdivision (c) of Section 1170.12, as those statutes have been
    amended by the act that added this section.
       (c) No person who is presently serving a term of imprisonment for
    a "second strike" conviction imposed pursuant to paragraph (1) of
    subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of
    Section 1170.12, shall be eligible for resentencing under the
    provisions of this section.
       (d) The petition for a recall of sentence described in subdivision
    (b) shall specify all of the currently charged felonies, which
    resulted in the sentence under paragraph (2) of subdivision (e) of
    Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
    or both, and shall also specify all of the prior convictions alleged
    and proved under subdivision (d) of Section 667 and subdivision (b)
    of Section 1170.12.
       (e) An inmate is eligible for resentencing if:
       (1) The inmate is serving an indeterminate term of life
    imprisonment imposed pursuant to paragraph (2) of subdivision (e) of
    Section 667 or subdivision (c) of Section 1170.12 for a conviction of
    a felony or felonies that are not defined as serious and/or violent
    felonies by subdivision (c) of Section 667.5 or subdivision (c) of
    Section 1192.7.
       (2) The inmate's current sentence was not imposed for any of the
    offenses appearing in clauses (i) to (iii), inclusive, of
    subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
    or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph
    (2) of subdivision (c) of Section 1170.12.
       (3) The inmate has no prior convictions for any of the offenses
    appearing in clause (iv) of subparagraph (C) of paragraph (2) of
    subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
    paragraph (2) of subdivision (c) of Section 1170.12.
       (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). 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.
       (g) In exercising its discretion in subdivision (f), the court may
    consider:
       (1) The petitioner's criminal conviction history, including the
    type of crimes 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.
       (h) Under no circumstances may resentencing under this act result
    in the imposition of a term longer than the original sentence.
       (i) Notwithstanding subdivision (b) of Section 977, a defendant
    petitioning for resentencing may waive his or her appearance in court
    for the resentencing, provided that the accusatory pleading is not
    amended at the resentencing, and that no new trial or retrial of the
    individual will occur. The waiver shall be in writing and signed by
    the defendant.
       (j) If the court that originally sentenced the defendant is not
    available to resentence the defendant, the presiding judge shall
    designate another judge to rule on the defendant's petition.
       (k) Nothing in this section is intended to diminish or abrogate
    any rights or remedies otherwise available to the defendant.
       (l) Nothing in this and related sections is intended to diminish
    or abrogate the finality of judgments in any case not falling within
    the purview of this act.
       (m) A resentencing hearing ordered under this act shall constitute
    a "post-conviction release proceeding" under paragraph (7) of
    subdivision (b) of Section 28 of Article I of the California
    Constitution (Marsy's Law).




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