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. 


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.

Monday, November 19, 2012

In re Colonel 11/6/12: BPH wrongly denies an Inmate with EVASIVE response at Hearing

Case Name: In re Colonel , District: 6 DCA , Case #: H037166
Opinion Date: 11/6/2012 , DAR #: 15305

Comment: A big win for Lifers. Although the inmate may have been less than candid at the BOARD hearing, the Court finds no articulated link by the BOARD between that (deceitful)  fact and a current dangerousness!

Board of Parole Hearings (BPH) wrongly denies parole where there is no evidence of a nexus between inmate's evasive responses and a finding of current dangerousness. The inmate was convicted in 1988 of second degree murder when a 20-year-old woman he surreptitiously induced to ingest PCP died of an overdose.

In June 2010, the superior court granted the inmate's writ petition, vacating BPH's decision to deny parole. The warden appealed. Held: Affirmed and remanded for new hearing. The warden argued that BPH's finding that the inmate was "deceitful" provided a basis for denial of parole regardless of whether the record contains some evidence of current dangerousness.

Although the inmate may have been less than candid or evasive regarding collateral matters discussed at the hearing, there was no rational nexus cited by BPH between the inmate's alleged lack of credibility and the determination he remains a current danger. The matters cited by BPH as examples of the inmate's failure to "come to grips" with his life crime were collateral to the crime or its causative factors.

The BPH's recitation of a fact, without any articulated link between that fact and a determination of current dangerousness, is insufficient to support a determination the inmate is unsuitable for parole.

Thanks to CCAP for this summary: