BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 327
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          Date of Hearing:  January 10, 2012
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 327 (Davis) - As Amended:  January 4, 2012
           
           
           SUMMARY  :  Amends the "Three Strikes" Law, subject to voter 
          approval, to require that the current conviction be a "serious" 
          or "violent" felony in order to subject a defendant to an 
          enhanced sentence under the 25-years-to-life (third strike) 
          provisions.  Specifically,  this bill  :  

          1)Requires the current conviction to be a serious or violent 
            felony in order for the third-strike (25-years-to-life term) 
            provisions of the Three Strikes Law to apply.

          2)States that this bill affects an initiative statute and shall 
            only become effective when submitted to, and approved by, the 
            voters of California.

           EXISTING LAW  :

          1)Defines a "strike" prior as serious felonies listed in Penal 
            Code section 1192.7(c) and 1192.8, and violent felonies listed 
            in Penal Code section 667.5(c).  ĘPenal Code sections 
            667(d)(1) and 1170.12(b)(1).]   

          2)Provides that a defendant who commits any felony and has 
            previously been convicted of one "strike" prior conviction 
            must be sentenced to twice the base term of the current 
            felony.  ĘPenal Code sections 667(e)(1) and 1170.12(c)(1).]   

          3)Provides that a defendant who commits any felony and has 
            previously been convicted of two or more "strike" prior 
            convictions, must be sentence to at least 25-years-to-life in 
            state prison.  ĘPenal Code sections 667(e)(2) and 
            1170.12(c)(2).]

          4)Requires consecutive rather than concurrent sentencing for 
            multiple offenses committed by strikers, unless the current 
            felony convictions arise out of the same set of operative 








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            facts.  ĘPenal Code sections 667(c)(6) and 1170.12(a)(6).]

          5)Requires affected defendant be committed to state prison, and 
            disallows diversion or probation.  ĘPenal Code sections 
            667(c)(2) and (c)(4), and 1170.12(a)(2) and (a)(4).]

          6)Limits conduct credits for strikers to 20% of the term.  
            ĘPenal Code Sections 667(c)(5) and 1170.12(a)(5).]

          FISCAL EFFECT  :   Unknown

           COMMENTS  : 

           1)Author's Statement  :  According to the author, "At a time with 
            high prison overcrowding in this state, which has come at 
            great cost to the taxpayer, AB 327 is common sense policy for 
            California.  The original intent of 'Three Strikes' was to 
            protect the public from violent offenders by extending the 
            sentences of violent offenders.  Current policy however, has 
            gone beyond this intent by extending the sentences of all 
            third time felony offenders, not simply those for violent or 
            serious felony offenders.  Ultimately, this has led to unfair 
            sentencing as well as prison overcrowding.  The solution is 
            simple; amend 'Three Strikes' so that the third strike must be 
            a 'serious' or 'violent' felony.  This will help California 
            direct its resources toward the real threat to public safety." 
                

           2)Background  :  There are actually two Three Strikes laws:  one 
            enacted by the Legislature in Penal Code section 667(b)-(i), 
            and another enacted by initiative, Proposition 184, and 
            codified in Penal Code section 1170.12.  Both laws are 
            virtually identical.  ĘPeople v. Hazelton (1996) 14 Cal.4th 
            101.]

            Because one of the Three Strikes laws was enacted by voter 
            initiative, the Legislature may not amend the statute without 
            subsequent voter approval unless the initiative permits such 
            amendment, and then only upon whatever conditions the voters 
            attached to the Legislature's amendatory powers.  ĘPeople v. 
            Superior Court (Pearson) (2010) 48 Cal.4th 564, 568; see also 
            Cal. Const., art. II, § 10, subd. (c).]

            Proposition 184, section 4 states:  "The provisions of this 
            measure shall not be amended by the Legislature except by 








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            statute passed in each house by rollcall vote entered in the 
            journal, two-thirds of the membership concurring, or by a 
            statute that becomes effective only when approved by the 
            electors."  If passed, this provision of this bill would be 
            submitted for voter approval.  

           3)Application of the Law  :  According to a May 2011 fact sheet 
            prepared by the Legislative Analyst's Office (LAO), "As of 
            December 31, 2010, there were roughly 41,000 inmates serving 
            time in state prison under the Three Strikes Law, making up 
            about 25 percent of the total prison population. Of the 
            striker population, more than 32,000 are second strikers, and 
            about 8,700 are third strikers."  (See Impact of Three Strikes 
            on the Criminal Justice System, May 2, 2011.)

            The LAO reports that there is considerable variation among 
            counties in the likelihood that a defendant is prosecuted and 
            convicted under the law.  In a 2005 report evaluating the 
            impact of the Three Strikes Law after a decade, the LAO noted: 
             "local county justice systems have developed various 
            strategies for handling their Three Strikes caseloads, based 
            on different policy priorities and fiscal constraints.  Thus, 
            the manner in which the law is implemented at the local level 
            by prosecutors and judges varies across counties.  In some 
            counties, for example, prosecutors seek Three Strikes 
            enhancements only in certain cases, such as for certain types 
            of crimes that are particular problems in their county or 
            where the current offense is serious or violent.  In other 
            counties, prosecutors seek Three Strikes enhancements in most 
            eligible cases.  Similarly, judges vary in how often they 
            dismiss prior strikes, based on discretion afforded to them 
            under the Romero decision.  In addition, variation in the 
            application of Three Strikes not only exists across counties, 
            but can also occur within counties.  In particular, 
            prosecution practices change over time as counties experience 
            turnover of district attorneys and judges and as they develop 
            new methods for handling Three Strikes cases."  (A Primer: 
            Three Strikes - The Impact After More Than a Decade, October 
            2005, < 
             http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm  >.)

           4)Effectiveness in Reducing Crime  :  Supporters of the Three 
            Strikes Law say it has been a major factor in reducing crime 
            rates in California.  









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          In contrast, a recent report by the Center on Juvenile and 
            Criminal Justice (CJCJ), argues that the law has not reduced 
            violent crime.   CJCJ concluded:  "Analysis of strike 
            sentencing and crime trends by age group and county 
            consistently found no evidence supporting the law's deterrent 
            or selective incapacitation effect on targeted populations or 
            in the jurisdictions most affected.  The populations that 
            demonstrated the greatest decline in violent crime rates since 
            1994 were youths and young adults, which experienced the least 
            strike sentencing, while those ages 40-59, which experienced 
            much heavier strike sentencing, have shown little or no 
            improvement in violent crime rates.  The eight largest 
            counties that applied the law the most (Kern, Sacramento, Los 
            Angeles, Tulare, San Bernardino, Riverside, San Diego, and 
            Stanislaus), incarcerated strike offenders at a rate averaging 
            2.2 times greater than the eight major counties that invoked 
            the law least (San Francisco, Contra Costa, Alameda, Ventura, 
            Orange, Santa Clara, San Joaquin, and Fresno). Yet, counties 
            that vigorously enforced the 'Three Strikes' law did not 
            experience declines in violent crime relative to counties that 
            used the law sparingly.  Despite their nearly six-fold greater 
            use of 'Three Strikes' law, Kern and Sacramento (the highest 
            strike-sentencing counties) experienced lesser reductions in 
            violent crime trends than Contra Costa and San Francisco 
            counties (which rarely use the law)."  (See Striking Out: 
            California's "Three Strikes And You're Out" Law Has Not 
            Reduced Violent Crime, 
            <  http://www.cjcj.org/files/Striking_Out_Californias_Three_Strik
            es_And_Youre_
          Out_Law_Has_Not_Reduced_Violent_Crime.pdf  >.)

            According to a 2005 report by the LAO, "The overall crime rate 
            in California, as measured by the Department of Justice's 
            California Crime Index, began declining before the passage of 
            the Three Strikes law.  In fact, the overall crime rate 
            declined by 10 percent between 1991 and 1994.  The crime rate 
            continued to decline after Three Strikes, falling by 43 
            percent statewide between 1994 and 1999, though it has risen 
            by about 11 percent since 1999. Similarly, the violent crime 
            rate declined by 8 percent between 1991 and 1994 and then fell 
            an additional 43 percent between 1994 and 2003.  It is 
            important to note that these reductions appear to be part of a 
            national trend of falling crime rates.  National crime 
            rates-as reported by the Federal Bureau of Investigation's 
            Uniform Crime Report-declined 31 percent between 1991 and 








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            2003, with violent crime declining 37 percent over that 
            period.  Researchers have identified a variety of factors that 
            probably contributed to these reductions in national crime 
            rates during much of the 1990s including a strong economy, 
            more effective law enforcement practices, demographic changes, 
            and a decline in handgun use."  (See, A Primer: Three Strikes 
            - The Impact After More Than a Decade, 
            <  http://www.lao.ca.gov/2005/3_strikes/3_
            strikes_102005.htm  >.) 

           5)Incarceration Costs  :  A 2010 report by the California State 
            Auditor (CSA) concluded that nearly 25% of the inmate 
            population is incarcerated under the Three Strikes Law.  The 
            CSA estimated that the increase in sentence length due to the 
            Three Strikes Law will cost California an additional $19.2 
            billion over the duration of the incarceration of this 
            population.  (See Special Report to Assembly and Senate 
            Standing/Policy Committees, February 2010 Report 2010-406, p. 
            122 <  http://www.bsa.ca.gov/pdfs/reports/2010-406.pdf  >.) 

           6)The Three Strikes Reform Act of 2012 Initiative  :  A new ballot 
            initiative written by Stanford professors David Mills and 
            Michael Romano was filed with the Attorney General on October 
            18, 2011.  The initiative is intended for the November 2012 
            ballot if sufficient signatures can be gathered this winter.  
            In detail, the initiative:

             a)   Revises the Three Strikes Law to impose a 25-to-life 
               sentence only when a new felony conviction is serious or 
               violent, except continues to impose a 25-to-life sentence 
               if a third strike conviction was for certain non-serious, 
               non-violent sex or drug offenses, or involved firearm 
               possession.

             b)   Maintains a life-sentence penalty for felons with a 
               non-serious, non-violent third strike if the prior 
               convictions were for rape, murder, or child molestation.

             c)   Provides that repeat offenders who commit a new 
               non-violent, non-serious crime receive double the ordinary 
               sentence instead of a 25-to-life term. 

             d)   Allows prisoners currently serving life sentences for 
               non-serious, non-violent crimes to apply for a sentence 
               reduction.  However, a judge can reduce the 25-to-life 








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               sentence to a term of years no less than double an ordinary 
               sentence if the judge determines that the sentence 
               reduction would not cause "an unreasonable risk to public 
               safety."

           7)Previous Reform Efforts  :  There have been several legislative 
            efforts to change the Three Strikes Law, but they have all 
            failed.  Additionally, in 2004, the voters rejected 
            Proposition 66, which would have required that a third strike 
            be a serious or violent crime and would have reduced the 
            number of offenses deemed serious under state law.  Although 
            the proposition failed to pass, 47% of the voters did vote in 
            favor of the measure.

           8)Arguments in Support  :  According to the  California State 
            Conference of the National Association for the Advancement of 
            Colored People  , "Mandatory minimum sentences, such as 
            California's 'Three Strikes' law, are not only ineffective in 
            stopping crime, but they are also a powerful drain on our 
            resources in a manner which discriminates against entire 
            communities."  

          "Nearly two-thirds of the people sentenced under California's 
            'Three Strikes' law are convicted of non-violent offenses; 
            African Americans 'struck out' at 12 times the rate of their 
            Caucasian counterparts, and the Latino incarceration rate for 
            a third strike is 45% higher than that of whites." 

            "California's 'Three Strikes' law has cost the state an 
            additional $8.1 billion over the past 10 years, and has had an 
            untold impact on the lives and communities that are ruined 
            when a nonviolent offender is given a sentence of 
            25-years-to-life.  This is $8.1 billion that could rather have 
            been spent on education, job creation, health care, 
            interdiction and alternatives to incarceration programs."

           9)Arguments in Opposition  :  According to the  California District 
            Attorneys Association  , "Despite the fears and protestation of 
            opponents, the Three Strikes law has been used sparingly and 
            allows for discretion (that is regularly exercised) at both 
            prosecutorial and judicial levels.  The prosecution is 
            permitted to request that the court dismiss a felony strike 
            either in furtherance of justice pursuant to Penal Code 
            section 1385 or if there is insufficient evidence to prove the 
            prior conviction.  In fact, many of California's district 








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            attorneys have approved policies governing the exercise of the 
            prosecutor's discretion in moving the trial court to dismiss 
            strikes in furtherance of justice.  Additionally, in People v. 
            Superior Court (Romero) of 1996, the California Supreme Court 
            interpreted the Three Strikes law to allow for judicial 
            discretion to dismiss serious and/or violent felony prior 
            convictions on the court's own motion for purposes of 
            two-strike and three-strike sentencing . . . . "

          "Despite the sparing use of the law and the protections 
            described above, proponents of this bill have in the past and 
            will undoubtedly continue to blame Three Strikes for 
            California's prison overcrowding.  Nothing could be further 
            from the truth.  As of September 30, 2011, the California 
            Department of Corrections and Rehabilitation (CDCR) reports 
            that there were 8,813 third-strikers in California prisons.  
            When compared with the current total prison population of 
            approximately 135,000, offenders serving third-strike 
            sentences only comprise 6.5% of prison inmates.  We must 
            additionally note that because every one of these third 
            strikers was convicted of a felony and has at least two 
            serious and/or violent felony convictions, it is likely that 
            most would serve a prison term even without the enhanced 
            punishment made available by the Three Strikes law."

           10)Prior Legislation  :

             a)   AB 1751 (Ammiano), of the 2009-10 Legislative Session, 
               would have deleted a prior juvenile adjudication from the 
               definition of "prior felony conviction" for the purposes of 
               sentencing under the Three Strikes Law.  AB 1751 failed 
               passage on the Assembly Floor.

             b)   SB 1642 (Romero), of the 2005-06 Legislative Session, 
               would have amended the life-term provisions of the Three 
               Strikes Law to include persons convicted of  serious or 
               violent offenses, persons convicted of non-serious offenses 
               in the current case who have specified "super-strike" prior 
               convictions, and persons convicted in the current case of 
               specified drug trafficking crimes and sex crimes, and would 
               have allowed prison inmates who would not have received a 
               25-year-to-life term under the amended law to file a 
               petition for re-sentencing.  SB 1642 was never heard on the 
               Senate Floor.









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             c)   AB 112 (Goldberg), of the 2003-04 Legislative Session, 
               would have amended the Three Strikes Law to require that 
               the current conviction be a "serious" or "violent" felony 
               in order to subject a defendant to an enhanced sentence.  
               AB 112 died on the Assembly's Inactive File.

             d)   AB 1790 (Goldberg), of the 2001-02 Legislative Session, 
               would have amended the Three Strikes Law to require that 
               the current conviction be a "serious" or "violent" felony 
               in order to subject a defendant to an enhanced sentence.  
               AB 1790 was held on the Assembly Appropriations Committee's 
               Suspense File.

             e)   SB 1517 (Polanco), of the 2001-02 Legislative Session, 
               would have amended the Three Strikes Law to exempt certain 
               felonies from triggering application of the law.  SB 1517 
               died on the Senate's Inactive File.

             f)   AB 2447 (Wright), of the 1999-2000 Legislative Session, 
               would have amended the Three Strikes Law to require that 
               the current conviction be a "serious" or "violent" felony 
               in order to sentence a defendant to a minimum term of 
               25-years-to-life in the state prison.  AB 2447 failed 
               passage on the Assembly Floor.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Attorneys for Criminal Justice
          California State Conference of the National Association
            for the Advancement of Colored People
          Friends Committee on Legislation of California

           Opposition 
           
          California District Attorneys Association
          Crime Victims United of California
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744 












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