California Proposition 36, Changes to Three Strikes Sentencing Initiative (2012)

California Proposition 36
Election date November 6, 2012
Topic Law enforcement
Status a Approved
Type State statute	Origin Citizens

California Proposition 36 was on the ballot as an initiated state statute in California on November 6, 2012. It was approved.

A "yes" vote supported changing the three strikes sentencing system established by a 1994 ballot initiative, Proposition 184, to impose life sentences when new felony convictions are serious or violent; allowed resentencing for convicts serving life sentences for felonies that were not serious or violent, except in the case of rape, murder, or child molestation.

A "no" vote opposed changing the three strikes sentencing system established by a 1994 ballot initiative, Proposition 184, that was designed to increase prison sentences for repeat offenders.

Election results

See also: 2012 ballot measure election results

California Proposition 36
Result		Votes	Percentage
Yes		8,575,619	69.30%
No		3,798,218	30.70%

Results are officially certified.

Source

Overview

Proposition 36 modified elements of California's "Three Strikes" Law, which was approved by the state's voters in 1994. In 2004, voters rejected Proposition 66, which like the 2012 measure was an attempt to change some aspects of the original "Three Strikes" Law.

California Proposition 36 (2012)

Proposition 36 changed state law to impose life sentence only when the new felony conviction is "serious or violent." It also allowed re-sentencing for offenders serving life sentences if their third strike conviction was not serious or violent. In addition, the judge must determine that the re-sentence is not a threat to public safety. Proposition 36 also imposed a life sentence penalty if the third strike conviction was for "certain non-serious, non-violent sex or drug offenses or involved firearm possession." Finally, it maintained the life sentence penalty for felons with "non-serious, non-violent third strike if prior convictions were for rape, murder, or child molestation."

One impact of the approval of Proposition 36 was that the approximately 3,000 convicted felons who were as of November 2012 serving life terms under the Three Strikes law, whose third strike conviction was for a nonviolent crime, became eligible to petition the court for a new, reduced, sentence.

Altogether, about 8,800 prisoners were serving life terms in California prisons under the 1994 law.

As of 2012, 24 states had a type of three strikes sentencing system.

California Proposition 184 (1994)

See also: California Proposition 184, Three Strikes Sentencing Initiative (1994)

The measure was designed to increase prison sentences for repeat offenders. The three-strikes sentencing model was enacted as follows:

• Strike 1: persons with no prior violent or serious felony conviction who commit a violent or serious felony receive a sentence for that felony as prescribe by state law.
• Strike 2: persons with one prior violent or serious felony conviction who again commit any type of felony receive a sentence twice the term state law otherwise required.
• Strike 3: persons with two prior violent or serious felony convictions who again commit any type of felony receive a life sentence, with a minimum imprisonment of 25 years.

The measure also counted serious or violent felony convictions received as minors, who were at least 16 years old, as previous convictions in the three-strikes sentencing model. Proposition 184 decreased the number of credits that persons who were imprisoned under the initiative for Strike 2 or Strike 3 could receive to reduce their time in prison.

Text of the measure

Full text

The full text can be read below:

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article II of the California Constitution.

This initiative measure amends and adds sections to the Penal Code; therefore, existing provisions proposed to be deleted are printed in strikeout type and new provisions proposed to be added are printed in underline type to indicate that they are new.

PROPOSED LAW THREE STRIKES REFORM ACT OF 2012

SECTION 1. Findings and Declarations:

The People enact the Three Strikes Reform Act of 2012 to restore the original intent of California's Three Strikes law--imposing life sentences for dangerous criminals like rapists, murderers, and child molesters.

This act will:

(1) Require that murderers, rapists, and child molesters serve their full sentences--they will receive life sentences, even if they are convicted of a new minor third strike crime.

(2) Restore the Three Strikes law to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime.

(3) Maintain that repeat offenders convicted of non-violent, non-serious crimes like shoplifting and simple drug possession will receive twice the normal sentence instead of a life sentence.

(4) Save hundreds of millions of taxpayer dollars every year for at least 10 years. The state will no longer pay for housing or long-term health care for elderly, low-risk, non-violent inmates serving life sentences for minor crimes.

(5) Prevent the early release of dangerous criminals who are currently being released early because jails and prisons are overcrowded with low-risk, non-violent inmates serving life sentences for petty crimes.

SEC. 2.

Section 667 of the Penal Code is amended to read:

667. (a) (1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.

(2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this subdivision to apply.

(3) The Legislature may increase the length of the enhancement of sentence provided in this subdivision by a statute passed by majority vote of each house thereof.

(4) As used in this subdivision, "serious felony" means a serious felony listed in subdivision (c) of Section 1192.7.

(5) This subdivision shall not apply to a person convicted of selling, furnishing, administering, or giving, or offering to sell, furnish, administer, or give to a minor any methamphetamine-related drug or any precursors of methamphetamine unless the prior conviction was for a serious felony described in subparagraph (24) of subdivision (c) of Section 1192.7.

(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses.

(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions as defined in subdivision (d), the court shall adhere to each of the following:

(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.

(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.

(3) The length of time between the prior serious and/or violent felony conviction and the current felony conviction shall not affect the imposition of sentence.

(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.

(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.

(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).

(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.

(8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.

(d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a serious and/or violent felony shall be defined as:

(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:

(A) The suspension of imposition of judgment or sentence.

(B) The stay of execution of sentence.

(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.

(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.

(2) A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison.A shall constitute a prior conviction of a particular serious and/or violent felony shall include a if the prior conviction in another the other jurisdiction is for an offense that includes all of the elements of the a particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.

(3) A prior juvenile adjudication shall constitute a prior serious and/or violent felony conviction for purposes of sentence enhancement if:

(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.

(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony.

(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.

(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.

(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a one or more prior serious and/or violent felony conviction convictions:

(1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.

(2) (A) If Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater greatest of:

(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions.

(ii) Imprisonment in the state prison for 25 years.

(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.

(B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.

(C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following:

(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.

(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.

(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.

(iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

(V) Solicitation to commit murder as defined in Section 653f.

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

(f) (1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has aone or more prior serious and/or violent felony conviction convictions as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction except as provided in paragraph (2).

(2) The prosecuting attorney may move to dismiss or strike a prior serious and/or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious and/or violent felony conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious and/or violent felony conviction, the court may dismiss or strike the allegation. Nothing in this section shall be read to alter a court's authority under Section 1385.

(g) Prior serious and/or violent felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior felony serious and/or violent convictions and shall not enter into any agreement to strike or seek the dismissal of any prior serious and/or violent felony conviction allegation except as provided in paragraph (2) of subdivision (f).

(h) All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993 November 7, 2012.

(i) If any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.

(j) The provisions of this section shall not be amended by the Legislature except by 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.

SEC. 3.

Section 667.1 of the Penal Code is amended to read:

667.1. Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act November 7, 2012, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act enacted during the 2005-06 Regular Session that amended this section November 7, 2012.

SEC. 4.

Section 1170.12 of the Penal Code is amended to read:

1170.12. (a) Aggregate and consecutive terms for multiple convictions; Prior conviction as prior felony; Commitment and other enhancements or punishment.

(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following:

(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.

(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.

(3) The length of time between the prior serious and/or violent felony conviction and the current felony conviction shall not affect the imposition of sentence.

(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.

(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.

(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.

(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.

(8) Any sentence imposed pursuant to this section will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.

(b) Notwithstanding any other provision of law and for the purposes of this section, a prior serious and/or violent conviction of a felony shall be defined as:

(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior serious and/or violent felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior serious and/or violent conviction is a prior serious and/or violent felony for purposes of this section:

(A) The suspension of imposition of judgment or sentence.

(B) The stay of execution of sentence.

(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.

(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.

(2) A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A shall constitute a prior conviction of a particular serious and/or violent felony shall include a if the prior conviction in another the other jurisdiction is for an offense that includes all of the elements of the particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.

(3) A prior juvenile adjudication shall constitute a prior serious and/or violent felony conviction for the purposes of sentence enhancement if:

(A) The juvenile was sixteen years of age or older at the time he or she committed the prior offense, and

(B) The prior offense is

(i) listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, or

(ii) listed in this subdivision as a serious and/or violent felony, and

(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and

(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.

(c) For purposes of this section, and in addition to any other enhancements or punishment provisions which may apply, the following shall apply where a defendant has a one or more prior serious and/or violent felony conviction convictions:

(1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (b) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.

(2) (A) If Except as provided in subparagraph (C), if a defendant has two or more prior serious and/or violent felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater greatest of:

(i) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions, or

(ii) twenty-five years or

(iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.

(B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.

(C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a felony described in paragraph (1) of subdivision (b) of this section, the defendant shall be sentenced pursuant to paragraph (1) of subdivision (c) of this section, unless the prosecution pleads and proves any of the following:

(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.

(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 314, and Section 311.11.

(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.

(iv) The defendant suffered a prior conviction, as defined in subdivision (b) of this section, for any of the following serious and/or violent felonies:

(I) A "sexually violent offense" as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code.

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286 or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

(V) Solicitation to commit murder as defined in Section 653f.

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

(d) (1) Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a one or more/ prior serious and/or violent felony conviction convictions as defined in this section. The prosecuting attorney shall plead and prove each prior serious and/or violent felony conviction except as provided in paragraph (2).

(2) The prosecuting attorney may move to dismiss or strike a prior serious and/or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious and/or violent conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious and/or violent felony conviction, the court may dismiss or strike the allegation. Nothing in this section shall be read to alter a court's authority under Section 1385.

(e) Prior serious and/or violent felony convictions shall not be used in plea bargaining, as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior serious and/or violent felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior serious and/or violent felony conviction allegation except as provided in paragraph (2) of subdivision (d).

(f) If any provision of subdivisions (a) to (e), inclusive, or of Section 1170.126, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.

(g) The provisions of this section shall not be amended by the Legislature except by 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.

SEC. 5.

Section 1170.125 of the Penal Code is amended to read:

1170.125. Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, general election General Election, for all offenses committed on or after the effective date of this act November 7, 2012, all references to existing statutes in Section Sections 1170.12 and 1170.126 are to those statutes sections as they existed on the effective date of this act, including amendments made to those statutes by the act enacted during the 2005-06 Regular Session that amended this section November 7, 2012.

SEC. 6.

Section 1170.126 is added to the Penal Code, to read:

1170.126. (a) The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.

(b) Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause, before the trial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section.

(c) No person who is presently serving a term of imprisonment for a "second strike" conviction imposed pursuant to paragraph (1) of subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of Section 1170.12, shall be eligible for resentencing under the provisions of this section.

(d) The petition for a recall of sentence described in subdivision (b) shall specify all of the currently charged felonies, which resulted in the sentence under paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, or both, and shall also specify all of the prior convictions alleged and proved under subdivision (d) of Section 667 and subdivision (b) of Section 1170.12.

(e) An inmate is eligible for resentencing if:

(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.

(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.

(f) Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

(g) In exercising its discretion in subdivision (f), the court may consider:

(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes;

(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated; and

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

(h) Under no circumstances may resentencing under this act result in the imposition of a term longer than the original sentence.

(i) Notwithstanding subdivision (b) of Section 977, a defendant petitioning for resentencing may waive his or her appearance in court for the resentencing, provided that the accusatory pleading is not amended at the resentencing, and that no new trial or retrial of the individual will occur. The waiver shall be in writing and signed by the defendant.

(j) If the court that originally sentenced the defendant is not available to resentence the defendant, the presiding judge shall designate another judge to rule on the defendant's petition.

(k) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.

(l) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act.

(m) A resentencing hearing ordered under this act shall constitute a "post-conviction release proceeding" under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy's Law).

SEC. 7. Liberal Construction:

This act is an exercise of the public power of the people of the State of California for the protection of the health, safety, and welfare of the people of the State of California, and shall be liberally construed to effectuate those purposes.

SEC. 8. Severability:

If any provision of this act, or the application thereof to any person or circumstance, is held invalid, that invalidity shall not affect any other provision or application of this act, which can be given effect without the invalid provision or application in order to effectuate the purposes of this act. To this end, the provisions of this act are severable.

SEC. 9. Conflicting Measures:

If this measure is approved by the voters, but superseded by any other conflicting ballot measure approved by more voters at the same election, and the conflicting ballot measure is later held invalid, it is the intent of the voters that this act shall be given the full force of law.

SEC. 10. Effective Date:

This act shall become effective on the first day after enactment by the voters.

SEC. 11. Amendment:

Except as otherwise provided in the text of the statutes, the provisions of this act shall not be altered or amended except by one of the following:

(a) By statute passed in each house of the Legislature, by rollcall entered in the journal, with two-thirds of the membership and the Governor concurring; or

(b) By statute passed in each house of the Legislature, by rollcall vote entered in the journal, with a majority of the membership concurring, to be placed on the next general ballot and approved by a majority of the electors; or

(c) By statute that becomes effective when approved by a majority of the electors.

Fiscal impact

See also: Fiscal impact statements for California's 2012 ballot propositions

This is a summary of the initiative's estimated fiscal impact on state and local government prepared by the California Legislative Analyst's Office and the Director of Finance.

State savings related to prison and parole operations of $70 million annually on an ongoing basis, with even higher savings—up to $90 million annually—over the next couple of decades. These estimates could be higher or lower by tens of millions of dollars depending on future state actions. One-time state and county costs of a few million dollars over the next couple of years for court activities related to the resentencing of certain offenders.

Support

Logo for the "Yes on 36" campaign

Yes on 36 led the campaign in support of Proposition 36.

Supporters

• The NAACP Legal Defense and Educational Fund
• Mike Romano, a Stanford University law professor who founded the "Three Strikes Project" in 2006
• Geri Silva of "Families Against California's Three Strikes"
• California Democratic Party

Official arguments

The arguments in favor of Proposition 36 in the state's official voter guide were submitted by Steve Cooley, the District Attorney for Los Angeles County; George Gascon, the District Attorney for San Francisco; and David Mills, a professor at Stanford Law School:

“

The Three Strikes Reform Act, Proposition 36, is supported by a broad bipartisan coalition of law enforcement leaders, civil rights organizations and taxpayer advocates because it will: MAKE THE PUNISHMENT FIT THE CRIME Precious financial and law enforcement resources should not be improperly diverted to impose life sentences for some non-violent offenses. Prop. 36 will assure that violent repeat offenders are punished and not released early. SAVE CALIFORNIA OVER $100 MILLION EVERY YEAR Taxpayers could save over $100 million per year—money that can be used to fund schools, fight crime and reduce the state’s deficit. The Three Strikes law will continue to punish dangerous career criminals who commit serious violent crimes—keeping them off the streets for 25 years to life. MAKE ROOM IN PRISON FOR DANGEROUS FELONS Prop. 36 will help stop clogging overcrowded prisons with non-violent offenders, so we have room to keep violent felons off the streets. LAW ENFORCEMENT SUPPORT Prosecutors, judges and police officers support Prop. 36 because Prop. 36 helps ensure that prisons can keep dangerous criminals behind bars for life. Prop. 36 will keep dangerous criminals off the streets. TAXPAYER SUPPORT Prop. 36 could save $100 million every year. Grover Norquist, President of Americans for Tax Reform says, 'The Three Strikes Reform Act is tough on crime without being tough on taxpayers. It will put a stop to needlessly wasting hundreds of millions in taxpayers’ hard-earned money, while protecting people from violent crime.' The California State Auditor projects that taxpayers will pay millions to house and pay health care costs for non-violent Three Strikes inmates if the law is not changed. Prop. 36 will save taxpayers’ money. TOUGH AND SMART ON CRIME Criminal justice experts and law enforcement leaders carefully crafted Prop. 36 so that truly dangerous criminals will receive no benefits whatsoever from the reform. Repeat criminals will get life in prison for serious or violent third strike crimes. Repeat offenders of non-violent crimes will get more than double the ordinary sentence. Any defendant who has ever been convicted of an extremely violent crime—such as rape, murder, or child molestation—will receive a 25 to life sentence, no matter how minor their third strike offense. JOIN US With the passage of Prop. 36, California will retain the toughest recidivist Three Strikes law in the country but will be fairer by emphasizing proportionality in sentencing and will provide for more evenhanded application of this important law. Please join us by Voting Yes on Proposition 36. Learn more at www.FixThreeStrikes.org

”

Opposition

Logo for the "No on 36" campaign

No on 36 led the campaign in opposition to Proposition 36.

Opponents

• Mike Reynolds
• California Republican Party.

Arguments

• Mike Reynolds, who wrote the language for California's "Three Strikes" Law. He said, "Once someone has been convicted of two serious or violent offences, I suggest it's pretty clear what they are capable of. If this passes, we are likely to see property crimes going up all over the state, and in very short order."

The arguments in opposition to Proposition 36 presented in the state's official voter guide included:

Official arguments

The arguments against Proposition 36 in the state's official voter guide were submitted by Sheriff Keith Royal, the president of the California State Sheriff’s Association; Carl Adams, the president of the California District Attorneys Association; and Harriet Salerno, the president of Crime Victims United of California:

“

In 1994 voters overwhelmingly passed the Three Strikes law —a law that increased prison sentences for repeat felons. And it worked! Almost immediately, our state’s crime rate plummeted and has remained low, even during the current recession. The reason is pretty simple. The same criminals were committing most of the crime—cycling through our courts and jails—over and over again. The voters said enough—Three Strikes and You’re Out! In 2004, the ACLU and other opponents of tough criminal laws tried to change Three Strikes. The voters said NO. Now they are back again with Proposition 36. They couldn’t fool us last time and they won’t fool us this time. Just like before, Proposition 36 allows dangerous criminals to get their prison sentence REDUCED and then RELEASED FROM PRISON! So who does Proposition 36 apply to? Criminals so dangerous to society that a District Attorney chose to charge them with a Three Strike offense; Criminals so dangerous that a Judge agreed with DA’s decision to charge; Criminals so dangerous that a jury convicted them of that offense; Criminals so dangerous that a Judge imposed a 25-to-life prison sentence; and Criminals whose legal appeals were denied. After all that, Proposition 36 would let those same criminals ask a DIFFERENT Judge to set them free. Worse yet, some of these criminals will be released from prison WITHOUT PAROLE OR ANY SUPERVISION! Here’s what the Independent Legislative Analyst says about the early release of some prisoners under Proposition 36: 'Some of them could be released from prison without community supervision.' No wonder Proposition 36 is OPPOSED by California Police, Sheriff’s and law enforcement groups, including: California Police Chiefs Association California State Sheriff’s Association California District Attorneys Association Peace Officers Research Association of California Los Angeles Police Protective League What do you think these newly released hardened criminals will do once they get out of prison? We already know the answer to that: They will commit more crimes, harm or kill more innocent victims, and ultimately end up right where they are today—back in prison. All of this will cost taxpayers more than keeping them behind bars right where they belong. No wonder Proposition 36 is opposed by victim rights groups, including: Crime Victims United of California Crime Victim Action Alliance Citizens Against Homicide Criminal Justice Legal Foundation At the time Three Strikes was approved by the voters, some thought it might be too harsh or too costly. Voters rejected that view in 2004. But even if you believe that the Thee Strikes law should be reformed, Proposition 36 is not the answer. Any change to the sentencing laws should only apply to future crimes committed—it should not apply to criminals already behind bars—cutting their sentences short. It is simply not fair to the victims of crime to have to relive the pain of resentencing and early release of these dangerous criminals. We kindly ask you to VOTE NO ON PROPOSITION 36. www.save3strikes.com

”

Media editorials

See also: Endorsements of California ballot measures, 2012

Support

2012 propositions
June 5
Proposition 28
Proposition 29
November 6
Proposition 30
Proposition 31
Proposition 32
Proposition 33
Proposition 34
Proposition 35
Proposition 36
Proposition 37
Proposition 38
Proposition 39
Proposition 40
Donations • Vendors
Endorsements • Full text
Ballot titles • Fiscal impact
Local measures

• The Bay Area Reporter: "This measure provides that a life sentence on the third strike could be imposed only for a serious or violent felony. Currently, untold numbers of inmates whose third strike was for non-violent drug possession are serving life sentences. This is a waste of money. Our priorities as a society are backward when we spend increasing amounts of money on incarceration and less and less on education."

• The Contra Costa Times: "This would fix some of the flaws in the Three-Strikes Law that have caused overcrowding in our state's prisons and jails. No one wants violent criminals back on the streets, and Proposition 36 doesn't do that."

• The Daily Democrat (Woodland, California): "This initiative would modify the state's 'three-strikes' law to limit excessive and unjustified punishments and ensure punishments are applied equally."

• The Fresno Bee: "Opponents say the Three Strikes law has led to the drop in the crime rate, and we agree that it is one of the many reasons for reduced crime. But this adjustment in the Three Strikes law makes sense."

• The Lompoc Record: "A major flaw in the existing three-strikes law is that some people are given life behind bars for low-level third-strike felonies, which tends to fill prisons with three-strikers who aren’t necessarily a threat to society. Prop. 36 doesn’t let those third-strike criminals completely off the hook. A non-violent third strike would earn a sentence twice what such an offense would normally draw — while saving taxpayers an estimated $100 million over the next decade."

• The Long Beach Press-Telegram: "Not only does this change make the punishment fit the crime, it would make Three Strikes uniform throughout the state."

• The Los Angeles Daily News: "It's unfortunate that any inmate must be released early. But as long as that's the order of the high court, it should be done fairly, sensibly and cost-effectively. That's not happening now. Make Three Strikes better and vote for Prop. 36."

• The Los Angeles Times: "Proposition 36 would create a level playing field and reserve harsh penalties only for dangerous criminals."

• The Marin Independent Journal: "The proposition makes sure the law targets the worst criminals by imposing a life sentence only when the new conviction is 'serious or violent' or involved firearm possession."

• The Merced Sun-Star: "Los Angeles County District Attorney Steve Cooley, the Republican candidate for attorney general in 2010 and hardly a bleeding heart, is one of its main backers."

• The Modesto Bee:

• The North County Times: "The plain truth is that our prison system is broken. Given the state's financial straits, the only realistic way to restore it to health is to reduce the load on it."

• The Orange County Register: "For, while Californians continue to support three strikes, which mandates a prison sentence of 25 years to life for offenders convicted of a third 'strike,' many who otherwise support the law are concerned that a nonserious, nonviolent third conviction potentially can send an offender away for the rest of his life. Proposition 36, the Three-Strikes Reform Act, would address that concern by revising the 18-year-old law to impose a 25-to-life sentence only when the third strike is violent or otherwise serious."

• The Press-Enterprise: "Prop. 36 would set a more coherent approach to crime without letting criminals escape justice. California should punish crimes — but that effort needs to be fair and sensible as well as tough-minded."

• The Sacramento Bee: "Proposition 36 would sand down some of the law's rough edges and ensure that it is applied equally across all 58 counties, but leave the law's strong heart in place."

• The San Bernardino Sun: "The original law said a third strike could be a petty theft or a drug possession. The result was to fill up the jails with people who had stolen socks or fallen off the wagon of their 12-step program. That is not what voters intended, and should be fixed. Prop. 36 would do that by requiring that the third strike be serious or violent - unless the first convictions were for rape, murder or child molestation. Things won't change for the state's most violent predators."

• The San Diego Union-Tribune: "Proposition 36...would make a smart improvement to 'three strikes'."

• The San Francisco Bay Guardian: "On Nov. 4, 1995, a small-time criminal named Leando Andrada stole $150 worth of videotapes from K-Mart. The father of three was charged with felony theft — and since he'd had prior convictions for burglary and marijuana transportation, his conviction led to a sentence of 25 years to life. That's nuts — but it's the result of a very bad 1994 law that has made California one of the harshest states in the nation for repeat offenders — and has overcrowded the state prisons and cost taxpayers hundreds of millions of dollars."

• The San Francisco Chronicle: "There was a problem with this state's version of three strikes that has led to gross injustices as well as a huge waste of taxpayer money. Unlike in other states, the third felony conviction - or strike, triggering a sentence of 25 years to life - does not need to be a serious or violent offense."

• The San Gabriel Valley Tribune: "The voters absolutely did the right thing when they approved the measure back in 1994. Three Strikes has been a huge factor in helping reduce violent crime in California, but it had unintended consequences and it needs improvement."

• The San Jose Mercury News

• The Santa Cruz Sentinel: "We choose to believe that voters who support the original intention of three strikes realize locking up drug addicts for life because they are repeat offenders is both unfair and costly. Some 40 percent of third-strike prisoners in our state are nonviolent offenders."

Opposition

• The Redding Record Searchlight: "As crime is already rising, Proposition 36 would only put the law-abiding at further risk."

• The Ventura County Star: "Proposition 36...favors criminals over crime victims. Proposition 36 would allow about 3,000 third-strikers to seek resentencing by a judge if their third strike was not a serious or violent offense, thus reducing prison costs, proponents of the measure say. What they aren't telling voters is that the majority of these three-strikers are career criminals, who once freed from prison will likely commit new crimes. When arrested, they will again clog an overburdened court system, offsetting any saving as cities and counties, many dealing with shrinking budgets, will be forced to retry them."

Polls

See also: Polls, 2012 ballot measures

A USC Dornsife/Los Angeles Times poll was conducted from September 17-23, 2012.

Date of Poll	Pollster	In favor	Opposed	Undecided	Number polled
September 17-23, 2012	USC Dornsife/Los Angeles Times	66%	20%	14%	1,504
October 7-9, 2012	SurveyUSA	44%	22%	34%	700
October 7-10, 2012	California Business Roundtable	72.0%	17.1%	10.9%	830
October 15-21	USC Dornsife/Los Angeles Times	63%	22%	15%	1,504
October 21-28, 2012	California Business Roundtable	67.4%	22.0%	10.6%	2,115

Path to the ballot

See also: California signature requirements

• Dan Newman submitted a letter requesting a ballot title on October 21, 2011.
• The ballot title and ballot summary were issued by California's attorney general's office on December 15, 2011.
• To qualify for the ballot, 504,760 valid signatures.
• The 150-day circulation deadline for #11-0057 was May 14, 2012.
• Sponsors submitted over 830,000 signatures to county election officials in late April.
• On June 11, 2012, sponsors were notified that Proposition 36 had qualified for the November 6, 2012, ballot.

Cost of signature collection:

See also: California ballot initiative petition signature costs

The cost of collecting the signatures to qualify Proposition 36 for the ballot came to $1,475,775.

The signature vendor was Progressive Campaigns (PCI).

See also

2012 Measures

• 2012 Measures
• Criminal sentencing on the ballot
• Criminal trials on the ballot
• 2012 legislative sessions

California

• California ballot measures
• California ballot measure laws

News and analysis

• Ballot measure lawsuits
• Ballot measure readability
• Ballot measure polls

External links

Suggest a link

Basic information:

• Complete November 6, 2012 official voter guide
• Letter requesting a ballot title for Initiative 11-0057

Supporters:

• Fix Three Strikes, website supporting Proposition 36
• "Yes on 36" on Facebook
• "Yes on 36" on Twitter
• Campaign finance reports of the "Yes on 36" campaign committee

Opponents:

• Save 3 Strikes, website opposing Proposition 36
• Campaign finance reports of the "No on 36" campaign committee