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-sentence. Judges 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.
Attorney Diane T. Letarte: LIFER Parole Hearings CALL 619-233-3688. BLOG Focuses on the Law/News that impacts inmates with LIFE, long-term DSL (SB260 & 261, AB1308, 3X'er, LWOP) Suitability Hearings are governed mostly by Penal Code 3041, et seq. LAWRENCE and SHAPUTIS CA Supreme Court cases are 2008 Landmark cases. 3/4/13, In Re Vicks Reversed by CA Supreme. 2/22/16, Gilman v. Brown was reversed by the 9th Cir. Marsy's Law aka (prop 9, 89) remains Law. Butler reversed
Friday, November 23, 2012
Prop-36 Three strikes Law passes by a 68% to 32% vote
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