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Name: People v. Finney
Case #: B230471
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 04/03/2012
Subsequent History: opn. mod. on 4/18/2012

For purposes of the “strike” law, an assault against a victim that is followed by a second assault against the same victim thirty minutes later constitutes two strikes. Appellant was convicted of assault with the use of a deadly weapon and infliction of great bodily injury. At the trial on alleged prior “strike” convictions, the court found two separate strike convictions true and declined to strike one of the priors. The prior strikes involved appellant’s beating of a homeless man who he left for dead but then returned 30 minutes later and kicked the victim in the head three times. The appellate court found no error, agreeing that this behavior did not constitute the same act, a single act, or even a continuous course of conduct. (See People v. Burgos (2004) 117 Cal.App.4th 1209 which treated strike allegations as a single strike because they arose from a single criminal act; but compare People v. Scott (2009) 179 Cal.App.4th 920 which found that proximity of the prior convictions and whether they arise from a single act are sentencing factors that a trial court weighs in deciding whether to exercise its discretion to strike a strike prior.) The court also found that on the basis of appellant’s lengthy and violent criminal record, the court did not err in denying a Romero motion to strike a strike prior. Once a career criminal commits the requisite number of strikes, only extraordinary circumstances justify a finding that he falls outside the spirit of the Three Strikes law.