Hello. I'm Tricia Bigelow from the Second District Court of Appeal and with me
today is Richard Cousins,
also a judge, retired from Placer County.
We're gonna talk to you about the new prop thirty-six.
And the new prop thirty-six is an amendment to the California
three-strikes law.
Prop thirty-six brings about two major changes to the three-strikes law,
Changes that have not been made to the three-strikes law since its inception
almost twenty-eight years ago. There have been no major changes to it since that
time,
but were presented with them now.
And let me explain to you the two major changes. The first is
there's an amendment
as to who qualifies to be a third strike offender subject to the twenty-
five to life sentence.
Now,
only those persons who have been convicted
of serious or violent sentences
will... on the current offense, will be eligible for a twenty-five to life
sentence.
All other defendants
will be sentenced as second strike offenders.
Trish, does this mean that
uh... if the current crime is not serious or violent, even though the guy has six,
seven, eight prior strikes, uh... the sentence still would be as a second strike offender?
It seems unusual, but that is in fact the case.
They could have a history of
six, seven, and more serious or violent felonies, but if the current offense is
not for a serious or violent felony,
they would be treated as a second strike offender.
The second part of the major changes
is that it allows certain defendants to petition the court
for resentencing
as a second strike offender.
Let's talk first about the effective date of the statute.
As we all know and voted on, prop thirty- six,
uh... it was on November sixth... pursuant to the plain statutory reading
of the words of proposition thirty-six,
that statute becomes effective the next day,
November 7th, 2012.
Interestingly in this statute, there is no savings clause. And by that I mean
there's nothing in the statute that says this is to apply only
to those offenses occurring after November 7th of 2012.
Given that there is no savings clause,
uh... the Supreme Court case of Estrada would apply
and these... this new statute will only be applicable to cases that are not
yet final. Or I should say it will be applicable to all cases not yet final
as to... as of November 7th, 2012.
um... That brings about a very important difference for certain
defendants.
Cases are considered not yet final
if the...
they have not been resolved by a traditional appellate review process,
allowing for a time for petition for rehearing, a petition for review by the
California Supreme Court,
and even the time to file a writ of certiorari before the United States Supreme
Court.
So there's a large window of persons who will have
their sentence being uh... subject to this offense
where their cases are not yet final.
And it does make a difference. It makes a difference because, as you will see when
we talk about this in the future, persons who have to petition the court
for resentencing
are required to demonstrate to the court that they will not be
an unreasonable danger to the society, or actually what happens is the court is
gonna make a determination of whether or not
resentencing is appropriate um... and resentencing must be granted if the
defendant
uh... is not an unreasonable risk of harm to uh... society.
This important diff... distinction does not apply to those cases that are not
yet final.
As to those cases that are not yet final, that threshold showing
will not be required to be made, to be determined by a judge, or otherwise. Those
persons whose cases are not yet final
simply qualify for resentencing under the three-strikes law.