California made a major reform of its “Three Strikes” law through a ballot initiative known as Proposition 36 in 2012.  The reform required that the third strike, or third crime for which a person is convicted, must be a serious and/or violent felony as defined by the California Penal Code.  The reform applies both prospectively, to future criminal defendants, as well as retroactively, applying to people currently incarcerated.  The new law allows for people who are currently serving an indeterminate term for life to request a recall of their sentence if the third strike was not a serious and violent felony.  As a result of this law, several people who feel that they are eligible for their sentence to be reduced have applied for the recall provided for in the “Three Strikes” reform initiative.  This article is a review of some of those cases.  For the latest legal news, please continue to visit our blog at LA Jewish Lawyer.  Please also contact us for a FREE CONSULTATION on your legal issue at 855-977-1212.

Several different Courts of Appeal have reviewed petitions from inmates convicted under the Three Strikes law.  One issue that came before the Second Appellate District was how to define a serious and/or violent felony.  Braziel v. Superior Court, ___ Cal. App. 4th ___ (2014) (Second Appellate District filed 4/23/14). Yesterday, a number of cases have been heard in the Fifth Appellate District concerning whether a person was “armed” during the commission of the crime for which s/he was convicted. E.g. People v. Superior Court, ___ Cal. App. 4th ___ (2014) (Fifth Appellate District filed 4/24/14) (“Cervantes”); People v. Superior Court, ___ Cal. App. 4th ___ (2014) (Fifth Appellate District filed 4/24/14) (“Martinez”).

The Second Appellate District clarified how to define a serious and/or violent crime in Braziel.  On August 4, 1999, Homer Braziel was convicted of assault by means to produce great bodily injury, assault with a deadly weapon and making a criminal threat (at the time “making a terrorist threat”).  On May 7, 2013, Braziel petitioned for a recall of his 25 years to life sentence.  He argued that since making a criminal threat was not defined as a serious crime at the time of his conviction he should be eligible to have his sentence recalled for not committing a serious crime with his third strike. In March 2000, “making a terrorist threat” (the crime of which Braziel was convicted) became the crime of making a criminal threat and was upgraded to a serious and violent felony under Proposition 21.  The issue before the Second District Court of Appeal was should a Court use the definition of whether a crime is serious and violent based on what it was at the time of the petitioner’s conviction or what it is was at the time of the petition to recall one’s sentence.

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The Second Appellate District reviewed Proposition 36 and other relevant statutes to determine if it could grant Braziel’s petition.  Proposition 36 states that people who are convicted and sentenced under the the Three Strikes law are able to petition for a recall of their sentence if the felony or felonies for which s/he were convicted “are not defined as serious and/or violent” by the California Penal Code. The use of the present tense indicates that whether a felony is serious and/or violent depends on if it was defined as such at the time of the petition.  If the authors of the initiative had meant for the definition of the crime as serious and/or violent to be determined by what it was at the time of the conviction, then they would have used the past tense.  Therefore, a determination of whether a third strike conviction is for a crime that is serious and/or violent is made based on how the crime was defined at the time of the petition. For the reasons above, the Second Appellate District denied Braziel’s petition for a recall of his sentence.  

On April 24, 2014, the Fifth Appellate District delivered its opinion in five different cases (two of which are cited above) in which an inmate petitioned for a recall of his sentence.  In each case, the prisoner did not commit a serious and/or violent felony as defined by the California Penal Code.  Yet, Proposition 36 imposes an indeterminate sentence of life if the felony was committed while the person was armed with a firearm, even if the offense for which the person was convicted was not a serious and/or violent felony.  The question before the Fifth Appellate District in those cases was if the prisoner could be said to be have been “armed with a deadly weapon” despite the fact that no weapon was found on his person at the time of the arrest.  

Each of the petitioners that came before the Fifth Appellate District were eligible for a recall of his sentence, yet the facts of each case show that a weapon was close by the person at the time of his arrest.  In Cervantes, a hand gun was found in Cervantes wife’s purse in an adjacent bedroom.  In Martinez, a sawed-off shotgun was in the same room as Martinez at the time of his arrest, as well as, another sawed-off shotgun and a hunting rifle located in the closet of his residence.  The other three cases published yesterday had similar facts.  In none of the cases was a firearm found on the inmate’s person.  The Court ruled that as long as the firearm is “available for immediate offensive or defensive use” at the time of the commission of the felony, then the person was “armed with a firearm” for the purposes of the Three Strikes Reform.  Thus, each of the prisoners petitioning for a recall of their sentences were denied, because they lost eligibility when they were armed with a firearm during the commission of their felony.   

We at LA Jewish Lawyer will continue to review the cases from the Three Strikes Reform and will bring to you information about the initiative’s progress.  For further information about the latest legal developments, continue to visit our blog.  Please also contact us  at 855-977-1212 to receive a FREE CONSULTATION on your Employment Law issue.