Lesson 6_ Three Strikes

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					                      LESSON 6: Three Strikes Law
Note to Teachers: Please read the Additional Information at the end of the lesson very carefully
to make sure that you understand the Three Strikes Law, which is very complicated.

                                          TAKEAWAYS

1. To help students understand a) what the Three Strikes Law is, b) why it was passed, c) how it
works, and d) how serious the consequences of multiple convictions can be, i.e., a 25-year to life
sentence.

2. To help students think critically about different perspectives on the Three Strikes Law and
about how the law tries to strike a balance between the protection of society on the one hand and
the rights of individuals who commit crimes on the other.

3. To demonstrate to students that citizens can form opinions about the law, and work to enact
new laws or get rid of or change existing laws that they do not like.


                                        INTRODUCTION

Gut-Check Option 2: Ask each student to give a short answer to one of the following questions.
   - Should people who have committed crimes before be punished more severely if they
      commit another crime? Why or why not?
   - What comes to mind when you hear „Three Strikes‟?


                                      ACTIVITY OPTIONS

Pick two of the following activities to do with your class.

THREE STRIKES LAW: The three strikes law is important and complicated so we have
provided a number of activities that will help the students understand the law. You will probably
want to do Activity 1A and 1B and then either Activity 1C or 1D.
       ACTIVITY 1A: A short history of 3 Strikes Law – the stories behind the law (short)
       ACTIVITY 1B: What is the 3 Strikes Law? Explaining the law itself (short)

       ACTIVITY 1C: Three strikes debate (long)
           OR
       ACTIVITY 1D: Focus on specific parts of the three strikes law

ROMERO MOTIONS: If your students are already familiar with the three strikes law, you may
want to expand the discussion to something else – this exercise also ties in with the importance
of working with your attorney, as we discussed in Lesson 4
       ACTIVITY 2A: Romero Motions – asking the judge to ignore a previous strike (long)


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               A SHORT HISTORY OF THREE STRIKES: ACTIVITY 1A

                    A SHORT HISTORY: ACTIVITY 1A (SHORT)
Goal of the Activity: The students should understand why the Three Strikes Law was
enacted in California.

Introduction:
   - This portion of the lesson should be told quickly. Feel free to abridge the stories
      below.
   - The goal is to demonstrate two sides of the law and to give them a human face. It is
      more effective if you bring pictures of Polly Klaas and Gary Albert Ewing, which
      can be passed around the class while you tell the stories. Older students likely will
      recognize Polly Klaas. Pictures are readily available on the internet.
   - You might also consider bringing a picture of the members of FACTS; there are
      several available on their website.

Exercise:
 Tell the following two stories about Polly Klaas and Gary Albert Ewing

        Polly Klaas: In October 1993, twelve-year-old girl Polly Klaas was kidnapped
         from her bedroom in Petaluma, California. Her body was found several weeks
         later, after a nationwide search. Police arrested a man named Richard Allen
         Davis, who later confessed to kidnapping and murdering Polly. Davis
         previously had been convicted of multiple kidnapping, assault, and burglary
         charges, and was paroled from prison shortly before Polly‟s abduction after
         serving only half of his most recent sentence. People across the nation had
         followed the Klaas case and were outraged to learn that Davis had been let out
         of prison. Polly‟s father, Marc Klaas, helped work to pass Proposition 184,i
         which became the Three Strikes Law in 1994. Under Three Strikes, criminals
         who commit multiple crimes can be punished more severely.

        Gary Albert Ewing: In 2003, ten years after Polly‟s death, the United States
         Supreme Court decided the case of Gary Albert Ewing. Ewing, a small-time
         criminal with multiple burglary and theft convictions, was on parole in 1994,
         when he walked into a pro shop in Los Angeles, stuffed three golf clubs down
         his pant leg and limped out of the store. A store employee thought Ewing
         looked suspicious and called police, who arrested Ewing in the parking lot. He
         was charged with felony grand theft of property worth more than $400; the
         charge was what is known as a “wobbler” in California because it can be
         sentenced as either a felony or misdemeanor. Despite Ewing‟s pleas, the judge
         treated the charge as a felony and, because of Ewing‟s previous convictions,
         under the newly enacted Three Strikes Law, sentenced Ewing to 25-years to
         life. Ewing took his case all the way to the Supreme Court, arguing that the law


                                                2
           violated the United States Constitution‟s Eighth Amendment guarantee against
           “cruel and unusual punishment.” By a vote of 5-4, the Court held the law was
           not unconstitutional.

Discussion:
What happened after these two cases?
    Because the Supreme Court found that the Three Strikes Law does not violate the
       Constitution, only California voters or the state legislature can get rid of it.
    A group of family members of those who have been sentenced under the Three
       Strikes Law have formed an organization called FACTS (Families to Amend
       California‟s Three-Strikes) to try to change or repeal the law. Today, Polly Klaas‟s
       father and grandfather are among those who think that the Three Strikes law has
       gone too far.
    In the fall of 2004, Proposition 66 was on the ballot in California and people could
       vote on a number of changes to the 3 Strikes law to make it more fair (for example,
       the third strike would have to be serious or violent). This law looked like it was
       going to pass, but at the last minute the people against changing the law (including
       Governor Schwarzenneger, police officers, and district attorneys) put a lot of
       money into defeating Proposition 66, and it was defeated 52.7% to 47.3%.ii
    But this does not mean that the law won‟t be changed in the future, and the fact that
       so many people were able to get organized to change the law shows that ordinary
       citizens can change the law. Also, the fact that it was such a close vote means that
       there are still many people and groups who are dedicated to finding a way to
       change this law in the future.




           WHAT IS THE THREE STRIKES LAW?: ACTIVITY 1B (SHORT)iii

                       WHAT IS THE 3 STRIKES LAW? (SHORT)
Goal of the Activity: To help students have a general understanding of how the Three
Strikes Law works and the arguments for and against it. Students should understand how
serious the consequences of convictions for multiple offenses are.
Materials Needed:
     A poster and pen or pencil; or a classroom board.
     Paper and pen or pencil for each group (three groups)
     The following information should be written on the poster or board (Time Saving
        Tip: writing these out on the board or on a poster before class will save time!)

THE LAW

First Strike
1) Offense: Must be serious or violent.
2) Sentence: Normal.



                                                3
Second Strike
1) Offense: Must be serious or violent.
2) Sentence: Double the normal sentence for the crime. Must serve 80% of the time.
(Note: The sentence for ANY felony (even a non-serious or violent one) can be doubled if
the defendant has a previous strike.)

Third Strike
1) Offense: Any felony, need NOT be serious or violent.
2) Sentence: 25 years to life. Must serve 100% of the time.

Juvenile Strikes
Certain felonies (707(b) offensesiv) committed by youth aged 16 or over count as strikes.

Discussion (understanding the basis of the three strikes law):

Walk students through the law as written on the poster or board.

Ask students the following questions:
(Note: If you feel comfortable with names, and your class is comfortable, call on students
by name to answer these questions and guide them through the answers. Call on a student
by name and then ask him or her the question. Tell students that this is how law school
classes work! Remind them that the law is very complicated for everyone, including
lawyers.)

      “Ok, imagine that two years ago, I was convicted of selling cocaine. Could that be a
       strike?”
           o Answer: Yes, because it‟s a serious felony.
      Then, imagine that a year later, I am out on probation and am convicted of armed
       robbery. Can this offense count as a strike?
           o Answer: Yes, because it‟s also a violent felony.
      If an ordinary sentence for armed robbery is 5 years, what will my sentence be after
       my second strike?
           o Answer: 10 years.
      How much of the 10-year sentence will I have to serve before I can get out on
       probation?
           o Answer: 80 percent or 8 years.
      Imagine that when I get out on probation for the armed robbery in 8 years, I steal
       $405 worth of shoes and clothes. Can this offense count as a strike?
           o Answer: Yes, because even though the crime is not serious or violent, it‟s
               my third felony if the prosecutor charges it as Commercial Burglary rather
               than petty theft. This is an example of a “wobbler” that can be charged as
               either a felony or misdemeanor. Prosecutors often charge “shoplifting” as
               Commercial Burglary now, which makes it a felony and not a
               misdemeanor).
      How long will I be sentenced for the shoplifting if it counts as my third strike?


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         o Answer: 25 years to life, because this is my third strike.
      How much of that time will I have to serve?
         o Answer: All of it.

The only ways to avoid an offense that otherwise qualifies as a strike from counting are:
    The prosecutor may choose to charge a lesser rather than a more serious offense –
       this will often be a part of a plea bargain.
    The prosecutor may choose not to ask that a prior offense count as a strike – this
       will also often be part of a plea bargain.
    The defendant‟s attorney may ask the judge not to consider prior offenses in
       sentencing the defendant. This is called a Romero motion.

Prosecutors and judges seldom agree to disregard strikes. The best way to avoid a strike is
not to commit crimes.

Teaching tip: Ask the students – which strike do you think is most important? Is it number
1 (once I do that, I am on the road to more); is it number 2 (once I have that then anything
else I do that could be a felony could be 25 to life); is it number 3 (the thing that gets me 25
to life)? There is a definite argument that number 2 is the worst because it’s a threshold
and then it’s much easier to get number 3 after getting number 2 (open to debate).



                    THREE STRIKES DEBATE: ACTIVITY 1C (LONG)

                           THREE STRIKES DEBATE (LONG)

Goal of the Activity:
   To help students think about the pros and cons of the three strikes law.

Materials Needed:
   Paper and pencil so each group can write their ideas down.

Introduction (Background for Students):
    As we mentioned earlier, people can use state-wide propositions to try to change
      the laws, and that is exactly what happened in 1993 when the Three Strikes law was
      passed.
    We are now going to pretend that we are back in 1993, before the Three Strikes law
      was passed, and we are going to have a debate over whether the law should be
      passed.
    We will have a group of citizens for the proposition, another group of citizens
      against it, and a group of undecided voters who will listen to the arguments of each
      side and ask each side questions before making up their own minds about how to
      vote.




                                                  5
Exercise:

Break the students into 3 groups:
        Citizens to Repeal Three Strikes.
        Citizens in Support of Three Strikes.
        Undecided voters

Each citizens‟ group should think of stories, like those of Polly Klaas and Gary Albert
Ewing (that we talked about at the start of class) that might support their side of the debate.
They should also brainstorm a list of reasons to vote for or against the law.
        Each group should appoint a secretary to write down the group‟s arguments and
           a spokesperson to share these with the class.
        Explain that one way to make effective arguments is to try to anticipate what
           arguments the other side will make, and then counter those arguments.

The group of undecided voters should come up with questions for each side and a game
plan for questioning the two citizens‟ groups.

Give the students 5-10 minutes to work in groups, appointing one teacher per group to help
motivate discussion, or rotating teachers between groups. This is a difficult activity, so
teachers should give students a lot of encouragement and help.

Have each citizen‟s group present their arguments to the undecided voters, and let the
voters ask them questions. Then have the voters announce what arguments on each side
they found most convincing. The undecided voters don‟t need to say which side they
would vote for if they don‟t want to.


Discussion:

Congratulate each side for coming up with such good arguments and the undecided voters
for asking great questions. Explain that this is exactly what happens when a proposition
goes on the ballot: different groups of citizens argue for or against the law and then the
voters decide.
     Remind the students that whatever they think of the law, it is only the law for the
        time being and that citizens can always work to reform the law.
     Also remind students about how serious the consequences of the Three Strikes Law
        are. If I have committed 707(b) offenses (see endnote ii) as a juvenile, it is
        especially important that I don‟t commit any more offenses as an adult.v
            o Students may ask about juvenile records being sealed or “going away” when
                 the juvenile turns 18. Tell them that we will talk more about record sealing
                 in our last lesson, but that there are a couple of issues to keep in mind:
                      First, records are not sealed automatically when a juvenile turns 18.
                         In addition to turning 18, the juvenile has to be off probation and
                         must have no new offenses for a year. Then, he or she has to fill out
                         paperwork at the courthouse and pay a fee.


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                       If the juvenile commits a felony when he or she is age 16 or over, it
                        is very hard to seal. If the juvenile commits a serious or violent
                        felony when he or she is age 14 or over, that is very hard to seal, too.



                       MORE ABOUT THREE STRIKES: ACTIVITY 1D

                       MORE ABOUT THREE STRIKES (SHORT)

Goal of the Activity:
To better understand the technicalities of the Three Strikes Law: Three Strikes is a
complicated, strict law that increases the penalties for repeat offenders, and doesn‟t give
judges or lawyers much choice in how to sentence someone who is convicted of a strike. In
addition, to understand how difficult it is to strike a balance between the need to protect
society and to help individuals who have committed crimes.

Materials Needed:
   A board or poster to write on so that the whole class can see.
   Worksheets for four groups (following the lesson).

Introduction (Background for Students):
Go over the following four aspects of the law, and facts about how the law is applied
today. Then, discuss proposed amendments to the law. Write up summaries as you go.

(1) The third strike can be for any felony, not just serious or violent felonies.
       Fact: Nearly 75% of second strikes and 50% of third strikes are for non-violent
       felonies (those that are “serious” but not violent).vi
       Note: this is one of the changes that Proposition 66 tried to make. This is probably
       the biggest criticism of the three strikes law – that the third strike doesn‟t have to be
       violent or serious.

(2) First or second strikes can be felonies that occurred even before 1994 when the law was
first passed. The second or third strike, however, must have occurred during or after 1994.
         Example: If I committed armed car-jacking in 1992 and then arson in 1995, the
         prosecutor could say that the car-jacking was my first strike, even though there was
         no such thing as a strike under the law in 1992 because the Three Strikes Law
         wasn‟t yet passed. This is what happened to Gary Albert Ewing (see story above).
                 This is usually an instance of prosecutorial discretion – the DA can
                    choose whether to ask prior felonies to be considered strikes.
                 My lawyer should be allowed to argue why they should not be counted
                    as strikes. This is called a Romero Motionvii (see below).

(3) The law can count multiple counts during a single act as multiple strikes.
       Example: If George is convicted of robbing a store with a gun and assaulting the



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       owner on his way out, he could get two strikes.

(4) Juvenile offenses can count as strikes.
       Example: If I commit a 707(b) offense (see endnote ii), that can count as a strike.
       Then, even if my record is sealed, that strike will count against me if I commit
       another crime that counts as a strike as an adult.

Exercise:
Divide the students up into four groups. They will each work on one of the four aspects of
the Three Strikes Law above. Provide each group with the appropriate worksheet for the
aspect of the law they are discussing. (Note: Worksheets are included at end of lesson).

Each group will come up with three arguments as to why that aspect of the law should be
changed and three arguments as to why it should remain the same. Give the students about
five minutes to work in groups. Teachers should be assigned to groups or rotate,
encouraging students to think of arguments from both sides. Students should think about
both the interests of individuals who have committed crimes and about the need of other
members of society to be safe.

After about 5 minutes, each group can have a spokesperson to summarize their discussion
and arguments for the entire class. Teaching Tip: You could also try a “scrambler,” where
the groups quickly reorganize so that there are four new groups, with one member each
from the old groups. Then, each student can discuss with his or her new group the findings
of the old group.

Discussion:
Explain to students that they may think this exercise is far removed from what happens in
the real world, but in reality, citizens often organize to look at different aspects of the laws
and discuss how they might be changed. The group the we mentioned earlier, FACTS,
wants to change the four aspects of the Three Strikes Law that we discussed today, as well
as other aspects of it.viii FACTS and the many groups that tried to pass Proposition 66 are
groups made up of people like you and me who think the law needs to be changed and are
trying to do something about.

Tell the students that they did a great job of thinking about the arguments on both sides of
the debate and that, whatever they think about the law, they now have much more
information about how the law works. This information can help them to make better
decisions about their own conduct, and to think about how they can become more involved
in the process of making and changing law.




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                        ROMERO MOTION: ACTIVITY 2A (LONG)

                                   ROMERO MOTION
Goal of the Activity: Explain a Romero motion, have students understand what lawyers
and judges do.
Take-away: A defense lawyer makes a Romero motion if he or she wants the judge to
disregard (define: ignore) the defendant‟s prior conviction. The judge can grant or deny the
motion.

Materials Needed:
 Paper and pen or pencil for each group to take notes
 If appropriate for your class, bring any other props to bring the role play to life (a gavel
  for the judge, a nice folder for the lawyers to use)

Introduction & Background for Students:
    There was a case in California in 1996 called People v. Romero.ix In that case, the
      California Supreme Court said that, if the judge wants to, she or he can ignore prior
      convictions.
    For example, if I committed a serious or violent felony two years ago and I am now
      being sentenced for another serious or violent felony, the judge can decide not to
      count my prior conviction as a strike, instead, they can just ignore it.
    Normally, a judge always considers past convictions but a Romero motion is a way
      that a person‟s lawyer asks the judge to ignore a prior conviction.

Exercise – student lawyers argue a Romero motion to student judges that the defendant‟s
(Street Law teacher) prior conviction should be disregarded and not counted as a strike.
     If you have two teachers: divide the class into three groups, two of the groups will
        have one teacher acting as a defendant and the students acting a team of lawyers,
        the other group should be a group of two (2) judges (one to hear each motion).
     If you have three teachers: same as above, but there is one teacher with each group
        and the teacher with the judges just helps them brainstorm
     If you have four teachers: have three groups with teacher as defendant and
        students as lawyers and one group of three (3) judges.
     The groups with a teacher as the defendant and students as lawyers: the students‟
        job is to come up with as many arguments as they can about why (the defendant‟s)
        prior conviction should be disregarded. (Teaching Tip: The teacher should just
        make up what the prior conviction is and think of mitigating factors that will help
        the lawyers argue. For an example, go to endnotesx). The students should pick one
        representative who will represent the group and make their arguments to the judge.
     Group of judges: the students‟ job is to think about their role as judges and
        brainstorm things that might make them want to ignore the prior conviction or
        things that might make them want to count it as a strike.
                  Initially, you should go over with them what the judge‟s job is (be fair
                    and neutral, uphold the law, make sure justice is served).
                  Tell the judges that they will either grant or dismiss the motion



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                   depending on the arguments that they hear. Define the following:
                   motion granted = the prior conviction doesn‟t count as a strike; motion
                   dismissed = prior conviction counts as a strike. (Teaching Tip: write this
                   up on the board for the judges).
      Come back together as a group. Each group of attorneys argues their motion to one
       of the judges. After the attorney argues, the judge tells them what factors they
       think are important and either grants or dismisses the motion.

Discussion:
    Previous Lesson Tie-In: Tie what they just did back into the lesson from a few
       weeks ago when we talked about the importance of an attorney and the importance
       of cooperating with your attorney. Ask them – how would you have felt, as an
       attorney, if I hadn‟t talked to you or told you anything good about my past? Would
       you have been able to argue well for me?
    Discuss the role of judges and link that to the importance of working with your
       attorney – are judges mind readers? How can they find out things that might make
       them want to give me a lesser sentence or ignore a prior conviction? (if my attorney
       tells them) Is my attorney a mind reader? How can they find out good things to tell
       the judge (if I tell them).
    Emphasize that, especially with the Three Strikes Law, there are still a lot of
       complications that are being sorted out and as they can see, there is a lot of
       discretion involved with whether a conviction counts as a strike or not. (Ask: what
       is “discretion”?). Remind them that offenses that can count as strikes aren‟t
       automatically counted as strikes – the DA, the defense attorney and the judge all
       have a say and there are many factors that go in to deciding if a previous offense
       will count as a strike.
    Previous Lesson Tie-In: Also, tie in plea bargaining – another benefit of plea
       bargaining is that I can get rid of offenses that would have been strikes (e.g., I‟m
       charged with 5 felonies, 3 could count as strikes, I agree to plead to the 2 felonies
       that aren‟t strikes and the others are dismissed).




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                                        CONCLUSION

Summarize the Activity:
This week, we talked about the Three Strikes Law. You came up with great arguments and
questions about the law, and through our exercise we saw how citizens can form opinions about
laws and organize to change the law.

Reinforce how information can aid better decision-making:
        Given the Three Strikes Law, it is important that juveniles who commit crimes learn a
lesson from being convicted once or twice of a serious crime, and not do it again.
        Under the Three Strikes Law, juveniles can be held responsible for their past actions with
very harsh consequences. Sentencing laws are getting tougher because some people think they
will scare others into committing fewer crimes if they know they can go to jail for such a long
time.
        It is important to know all of this information about the laws and their consequences so
that students can use it to make better informed, more positive decisions.

Next Week: We will talk about group crimes, Proposition 21 and gang laws.




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                               ADDITIONAL INFORMATION
Please read thoroughly! The Three Strikes Law is EXTREMELY complicated and if you don‟t at
least review the background information below, you will not be able to answer any of the
questions that students will inevitably have. That said, of course, if you don‟t know the answer
to one of their questions – don‟t make it up! Just tell them you don‟t know, write it down, and
bring them the answer next time.


i
Q: How are laws made in California?
A: In California, laws are made in two ways:
          1) Ballot Initiative = citizens must first get enough signatures for the law to get on the
             ballot. Once it‟s on the ballot, people vote to decide if it will become a law.
          2) Legislators = citizens elect legislators and they have hearings on different laws and
             decide which laws to pass. Those laws then have to be signed by the governor and then
             they become the law of the state.

 For more information on Proposition 66…
ii

A very good website with more in-depth information on the law from many perspectives is:
http://www.smartvoter.org/2004/11/02/ca/state/prop/66/
Also helpful is the official California website with information on all propositions and arguments
for and against:
http://www.voterguide.ss.ca.gov/propositions/prop66-title.htm

 Q: What is the 3 strikes law?
iii


A: Here‟s a very helpful overview of the Three Strikes law from the San Diego Public
Defenders Office: (www.co.san-diego.ca.us/public_defender/strikes.html)
         How does the 3-Strikes law work? California‟s 3-Strikes and You‟re Out Law went into
          effect on March 7, 1994. Its purpose is to dramatically increase punishment for persons
          convicted of a felony who have previously been convicted of one or more "serious" or
          "violent" felonies. A "serious" or "violent" felony prior is commonly knows as a "strike"
          prior.

         What is a felony? A felony is a crime punishable by a state prison (as opposed to county
          jail) sentence. Felonies run the range from petty theft with a prior and possession of small
          quantities of drugs through kidnapping, rape, robbery, and murder. Any new felony,
          regardless of how minor, may be punished under the 3-Strikes law if the defendant has
          one or more "serious" or "violent" felony priors.

         What are "serious" or "violent" felonies (strike priors)? are defined in Penal Code
          sections 667.5(c) and 1192.7(c). They include: residential burglary, robbery, kidnapping,
          murder, most sex offenses like rape and child molestation, any offense in which a weapon
          was personally used whether or not anyone was injured, any offense in which great
          bodily injury was inflicted, arson, crimes involving explosive devices, or attempts to
          commit any of those offenses.


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   What happens with one "strike" prior? A defendant who is convicted of any new
    felony who has one "strike" prior (known as a second striker) must go to prison (i.e.,
    cannot be sent to a rehab facility or placed on probation) for twice the sentence otherwise
    prescribed for the new offense. Additionally, he must serve 80% of the sentence imposed
    whereas non-strike prisoners generally get between on-third and one-half off of the
    sentence imposed for good behavior and working while in prison.

   What happens with two or more "strike" priors? A defendant with two or more
    "strike" priors (a third striker) faces a minimum of 25-years-to-life in prison. He earns no
    time off for good behavior or working. After serving the determinant minimum amount
    of time (25-years on a 25-to-life sentence) he is then eligible for, but not guaranteed,
    parole. Whether and when an eligible life prisoner (prisoners serving life-without-parole
    sentences for murder are never eligible for parole) is paroled is up to the Board of Prison
    Terms (BPT). The BPT is made up of members appointed by the Governor and tend to be
    very conservative about paroling eligible life inmates. Since no 3-Strike life prisoner has
    become eligible for parole and none will until 2019, no one knows how the BPT will deal
    with 3-Strike inmates.

   Is 3-Strikes punishment mandatory in all cases? In certain circumstance where the
    sentencing court finds that a second or third strike defendant falls outside the "spirit" of
    the 3-Strikes Law, the court may, either on motion of the prosecutor or on the court‟s
    own motion, strike or dismiss one or more "strike" priors. This is done pursuant to the
    power vested in the courts since 1860 to dismiss all or part of an action for good cause
    and in furtherance of justice. The court must state on the record and include in the court
    minutes the facts that the court finds justify dismissing the prior. A decision to strike or
    dismiss a "strike" prior is appealable by the prosecution and reviewable by the Court of
    Appeal and the Supreme Court. The San Diego Public Defender‟s Office is proud to have
    been the law firm that established this rule of law in the California Supreme Court in the
    first 3-Strikes case to be decided by the Supreme Court. (People v. Superior Court
    (Romero) (1996) 13 Cal.4th 497.)

   Do judges dismiss "strike" priors often? Generally, sentencing judges will strike or
    dismiss a prior only when it is old and the new offense is minor and the defendant has a
    non-violent history. It is extremely rare if not unheard of for a court to strike or dismiss a
    prior when the new offense is also serious or violent. Even though the court can strike
    priors, California‟s prisons still receive more drug offenders sentenced as second or third
    strikers than any other class of crime.

   What can be done to make the 3-Strikes law more fair? Of course, not everyone
    thinks the 3-Strikes law is unfair. More than 60% of the voters who voted, voted for 3-
    Strikes. However, a lot of people who voted for 3-Strikes were not aware of what it really
    means and does. This is not surprising since it is very poorly drafted, very long, and very
    technical. The campaign literature in support of 3-Strikes talked about putting repeat
    rapists, robbers, and murderers away for a long time. It didn‟t talk about putting petty
    thieves and drug users away for 25-years-to-life. As a result of the realization by some
    that 3-Strikes is much harsher than they originally thought and that it costs a whole lot of


                                              13
          money ($20+ thousand/year) to keep people in prison, certain members of the California
          Legislature are starting to rethink 3-Strikes to a certain extent. There have been proposals
          to limit its application to cases where the new offense is a "serious" or "violent" crime.
          No legislation has yet passed modifying 3-Strikes. It will be very difficult to modify it
          also, since it take a 2/3 vote of the Legislature to change 3-Strikes or another initiative
          measure passed by the voters. If you are interested in what is pending in the California
          Legislature on this or any other issue, you will find the state senate and state assembly
          web sites very interesting, informative, and useful.
iv
     Q: What juvenile offenses can count as a strike?
A: Juvenile Offenses ("Strikes") Within the Meaning of Welfare and Institutions Code Sections
707(b)
          1. Murder.
          2. Arson of an inhabited building.
          3. Robbery while armed with a dangerous or deadly weapon.
          4. Rape with force or violence or threat of great bodily harm.
          5. Sodomy by force, violence or threat of great bodily harm.
          6. Lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal
             Code.
          7. Oral copulation by force, violence, duress, menace, or threat of great bodily harm.
          8. Any offense specified in Section 289 of the Penal Code.
          9. Kidnapping for ransom.
          10. Kidnapping for purpose of robbery.
          11. Kidnapping with bodily harm.
          12. Assault with intent to murder or attempted murder.
          13. Assault with a firearm or destructive device.
          14. Assault by means of force likely to produce great bodily injury.
          15. Discharge of a firearm into an inhabited or occupied building.
          16. Any offense described in Section 1203.9 of the Penal Code.
          17. An y offense described in Section 12022.5 of the Penal Code.




                                                   14
           18. Any felony offense in which the minor personally used a weapon listed in subdivision
               (a) of Section 12020 of the Penal Code.
           19. Any felony offense described in Section 136.1 or 137 of the Penal Code.
           20. Manufacturing, compounding, or selling one-half ounce or more of any salt or
               solution of a controlled substance specified in subdivision (e) of Section 11055 of the
               Health and Safety Code.
           21. Any violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code,
               which would also constitute a felony violation of subdivision(b) of Section 186.22 of
               the Penal Code.
           22. Escape, by the use of force or violence, from any county juvenile hall, home, ranch,
               camp, or forestry camp in violation of subdivision (b) of Section 871 where great
               bodily injury is intentionally inflicted upon an employee of the juvenile facility
               during the commission of the escape.
           23. Torture as described in Sections 206 and 206.1 of the Penal Code.
           24. Aggravated mayhem as described in Section 205 of the Penal Code.
           25. Carjacking, as described in Section 215 of the Penal Code, while armed with a
               dangerous or deadly weapon.
v
  The topic of record-sealing may come up at this point. Tell them that we have a whole lesson
where we talk about record sealing and planning for the future. For now, the two main points
that you should get across are:
     It‟s true that with the 3-Strikes law, my record will never be completely sealed if I
        committed 707(b) offenses as a juvenile (but only if I was 16 or older) but there‟s so
        much discretion involved that those offenses won‟t necessarily count as strikes (but they
        could!)
     Any juvenile offenses, even if they could be strikes, won‟t matter if I don‟t re-offend as
        an adult! The 3-Strikes law carries serious consequences and the most important thing is
        not to get that third strike.
vi
      Source: www.facts1.com. This is the website of Families to Amend California‟s Three-Strikes.
vii
       Cite: People v. Romano, 13 Cal. 4th 497 (1996).

viii
       Q: What is FACTS?
A: FACTS stands for “Families to Amend California‟s Three-Strikes.” Their major purpose is
to amend the 3-Strikes law in California so it is only applicable to violent felonies. Nearly 75%
of 2nd and 50% of 3rd strikes within California are for non-violent offenses.
In addition, they advocate that the law be amended in the following ways:


                                                    15
          (1) the law should not be applicable to crimes committed before its enactment in 1994;
          (2) the law should not count multiple counts during a single act as multiple strikes;
          (3) the law should include a “wash-out” period such that convictions older than ten years
          do not count as strikes;
          (4) burglary of unoccupied dwellings should not count as “serious or violent” strikes; and
          (5) the law should not be applicable to juvenile offenses.
FACTS plans to continuously grow and stay active until they get the law amended. They are a
state-wide organization that is actively trying to influence the news media, the public, and
politicians so they learn about the problems with the 3-Strikes law.
FACTS understands the public‟s fear, anger and perception of crime. Some of them felt the same
way and supported the 3-Strikes law as a way to protect the innocent from violent criminals. But
the facts and experiences, not widely known except by the families whose lives have been
destroyed by the 3-Strikes law, support their belief that the 3-Strikes law does not serve or
benefit the people of California but rather the growing Prison Industrial Complex.
Source: www.facts1.com.

ix
     Cite: 13 Cal. 4th 497 – to read the entire decision.
x
  EXAMPLE: my prior conviction was for armed robbery, but I didn‟t actually do the armed
robbery myself, my boyfriend did it and I just drove the getaway car. My current conviction is
for selling cocaine, which I only just started doing so that I can get enough money to help my
mom pay her rent. I know I shouldn‟t have done it and I really regret doing it. I wish I would
have just gotten a job instead, even if it didn‟t pay as well, because selling drugs just isn‟t worth
this. I have had jobs off and on, I dropped out of high school in 11th grade, and I want to go to
community college to learn to be an auto mechanic.




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