Friday, November 23, 2012

Prop-36 Three strikes Law passes by a 68% to 32% vote

On November 6th, 2012 the voters enacted drastic changes to California’s old 1994 Three Strikes Law of 25 to Life. Under California Proposition 36 Three Strikes sentencing,  those whose new offense is non-serious will receive a sentence double the usual prison term.  Some current qualifying Three Strikers may have their sentence reduced. 

WHAT TO DO? 

FIRST an analysis must be done to see if the Inmate-Defendant is eligible for re-sentencing of his third strike. If you retain the services on Attorney Diane T.  Letarte, you will need to first fill out a Prop-36 QUESTIONNAIRE  to assist in the analysis. The questionnaire can be found under Attorney Letarte's website.

SECOND, you must file a Petition [under newly created Penal Code 1170.126] in Court before the November 6, 2014 DEADLINE.


The Courts have the discretion not to re-sentenceJudges should understand (more than the non-attorney BPH Commissioners)  that re-sentencing is the expected outcome of the petition. A Refusal to re-sentence the three-striker is reserved for the Exceptions.  This means the court will give a 2nd-strike sentence, unless the petitioner would pose an “unreasonable risk … to public safety.” See CA  Penal Code  1170.126, subd. (f). Thus, The re-sentencing is a “post-conviction release proceeding  therefore a lack of rehabilitation in prison, Misconduct (CDC-115, etc.)  or other abnormal individual case factors may foster the refusal to re-sentence the inmate at a lower sentence than the current 25 to Life.


More specifically, under amended PC 667, Inmate (defendant) is now facing only a 2nd-strike sentence unless 1) The current offense involves drugs, with an HS 11370.4 or 11379.8 allegation; or 2) The current offense is a felony; or 3) the current offense involves firearm(s); or 4) has a prior serious or violent offense-conviction for an enumerated number of offenses, such as “sexually violent offense",  homicide or attempted homicide, Solicitation to commit murder, etc.

Unlike the Petition to Advance Parole Hearings (aka PTA, BPH Form 1045(a)) where there is a limit to three times to file the PTA. The new Prop-36 law is silent on the number of times a Petition can be filed and the possible "wait" period between re-filing, if allowed. The only deadline known at this time is the 2-year as stated above.

REMEMBER: The re-sentencing is a “post-conviction release proceeding” under Cal. Const. art. I, § 28. Hiring an experienced attorney with Post-conviction expertise such as (Attorney Diane T. Letarte, MBA, LLM, MS)  may make the difference in a successful re-sentencing Petition in  your case.

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