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Name: People v. Conley
Case #: C070272
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/10/2012
Subsequent History: Rehearing granted, Depublished, Vacated

Defendant whose appeal was pending when Proposition 36 (Three Strikes Amendment) was enacted is not entitled to new sentencing hearing and must instead file a petition for recall in the trial court. Defendant was convicted of various offenses related to a drunk driving incident. The trial court sentenced him to 25 years to life under the Three Strikes Law. While defendant's appeal was pending, Proposition 36, which imposed new limits on three strike sentences, was enacted. If the defendant had been sentenced after the new law went into effect, he would not have been subject to…

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Name: People v. Washington
Case #: D060411
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/31/2012

An Illinois conviction for aggravated battery is a serious felony within the meaning of Penal Code section 1192.7, subdivision (c) and thus qualifies as a "strike." Following his conviction of various offenses, appellant admitted a prior Illinois conviction for aggravated battery (720 Ill. Comp. Stat. 5/12-4 (a) (2003)) and the trial court found that the conviction qualified as a "strike" under California law. On appeal, appellant argued that the element of "great bodily harm" under Illinois law does not equate to "great bodily injury" as required under Penal Code section 1192.7, subdivision (c)(8) (personal infliction of great bodily injury). …

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Name: People v. Rocco
Case #: B229861
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/16/2012

Where defendant's misdemeanor conviction is elevated to a felony because of a section 186.22, subdivision (d) gang finding, he is subject to sentencing under the Three Strikes law. Appellant was tried for attempted murder and other offenses. He admitted a prior serious felony. A jury convicted him of simple assault (Pen. Code, § 240), with a finding the offense was committed for the benefit of a gang (Pen. Code, § 186.22, subd. (d)). The court found the gang enhancement elevated the misdemeanor to a felony and doubled the term under the strikes law. On appeal, defendant challenged the use of…

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Name: In re Coley
Case #: S185303
Court: CA Supreme Court
District CalSup
Opinion Date: 08/30/2012

Twenty-five-year-to-life sentence under "Three Strikes" law is not cruel and/or unusual punishment for a defendant who intentionally failed to comply with sex offender registration law. In People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), the Third Appellate District concluded that a 25-year-to-life sentence under the Three Strikes law constituted cruel and/or unusual punishment as applied to a defendant whose triggering offense was the failure to update his registration within five days of his birthday. In Carmony II, the defendant had properly registered at a new address a month before his birthday, continued to reside at the same address, had…

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Name: People v. Vargas
Case #: B231338
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/04/2012
Subsequent History: Review granted 9/12/12: S203744

Where the prior "strike" convictions arise from a single act, the court may consider this as a factor in determining whether to dismiss a "strike," but retains discretion to decline to dismiss the prior "strike." Appellant was convicted of burglary, grand theft, and conspiracy to commit grand theft, with two prior "strike" convictions, and was sentenced to a life sentence. In 1999, she had been convicted of carjacking and robbery, and following the conviction, had violated parole on two occasions, and committed a new crime, misdemeanor trespass, in addition to the instant offense. On appeal she contended…

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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…

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Name: People v. Smith
Case #: B223181
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 02/24/2012
Subsequent History: Rev. granted 5/9/12 (S201186)

The offense of resisting arrest, Penal Code section 148, is not a lesser included offense of Penal Code section 69 and there is no duty to instruct on it as a lesser included offense. There are two separate ways that Penal Code section 69 can be committed: attempting by threats or violence to deter an officer from performing a duty imposed by law; or, resisting by force or violence an officer in the performance of a lawful duty. Even though the offense was alleged to include both alternatives, the prosecutor elected at trial to rely only on the second form.…

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Name: People v. Roberts
Case #: H035158
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/24/2011

The nature of a prior conviction may not be proven by the record of statements made after a plea of guilty on the basis that there was an adoptive admission under an exception to the hearsay rule. The challenge was to the sufficiency of evidence to prove that a conviction from Washington state for second degree assault constituted a strike. Proof of the prior was based on the introduction of the documents reflecting the conviction: the information, the plea, and judgment; and, the transcript of the plea and sentencing hearing. The guilty plea included admission of the element of substantial…

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Name: People v. Koontz
Case #: B224697
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 03/02/2011
Subsequent History: 5/18/11: review granted (S192116)

Penal Code "section 1385 vests the trial court with the discretion to strike a prior serious felony conviction in order to afford the maximum allowable presentence conduct credits." Appellant pled guilty to child endangerment, and admitted a strike prior and two prison priors in exchange for an indicated three-year sentence. The court struck the strike prior and one of the prison priors to arrive at that sentence. Appellant then requested one-for-one conduct credits under amended section 4019. The court said it could not give those credits due to the prior strike conviction. Appellant argued that…

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Name: People v. Miranda
Case #: B217708
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 01/31/2011

As long as a conviction is supported by substantial evidence, an inconsistent verdict on an enhancement will not require reversal. Appellant and three other gang members approached the victim as he was smoking marijuana in the parking lot of a gas station. When the victim declined to share the marijuana, one of appellant's companions ripped a chain from the victim's neck. The victim chased after the man who took the chain, and appellant shot him. A jury found appellant guilty of attempted murder, robbery, assault with a firearm and possession of a firearm by a felon,…

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