Dismissing a Strike |
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As noted in the introductory section, the courts have rejected
challenges to the constitutionality of the Three Strikes law. One
constitutional attack was successful, however. In People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 529-530, the Supreme Court found some merit
in the argument that the constitutional requirement of separation of executive,
legislative, and judicial powers might be violated unless the statute were
interpreted to allow judges to dismiss and disregard prior convictions "in
furtherance of justice" on their own initiative. The Court gave the statute
that interpretation and so avoided the constitutional problem. The ruling that
trial courts may strike prior convictions in furtherance of justice is not a
broad grant of discretion to judges to avoid the Three Strikes law, however.
The Supreme Court has held that a current or prior conviction may only be
dismissed if "in light of the nature and circumstances of [the defendant's]
present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme's spirit, in whole or in part, and hence should be
treated as though he had presently not committed one or more felonies and/or
had not previously been convicted of one or more serious and/or violent
felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
In
particular, a court may not strike a sentencing allegation "solely 'to
accommodate judicial convenience or because of court congestion' "
(Romero, supra, 13 Cal.4th at p. 531, quoting People v.
Kessel (1976) 61 Cal.App.3d 322,326), or "simply because a defendant pleads
guilty" (Romero, supra, 13 Cal.4th at p. 531), or because of "a
personal antipathy for the effect that the three strikes law would have on [a]
defendant,' while ignoring 'defendant's background,' 'the nature of his present
offenses,' and other 'individualized considerations.' " (Ibid., quoting
People v. Dent (1995) 38 Cal.App.4th 1726, 1731.)
A court also may not strike a strike in order to make the defendant eligible
for commitment to the California Rehabilitation Center. The Three Strikes
law provides that those who come under its provisions are ineligible for
CRC commitment. The Sixth District ruled in People v. Carrillo, 87
Cal.App.4th 1416, decided
March 27, 2001, that although a court may dismiss a strike and take the
defendant out of the ambit of the Three Strikes law, it could not
dismiss a strike on the condition that the defendant complete a commitment to
the CRC, or later reinstate the conditionally-dismissed strike.
Although in
other situations courts are reluctant to overturn a trial judge's exercise of
discretion (see People v. Bishop (1997) 56 Cal.App.4th 1245), they show
little restraint when the judge has exercised his discretion in a three-strikes
defendant's favor. If the appellate court believes that the defendant falls
within the spirit of the three strikes law, it will reverse a judge's decision
to dismiss a strike, sometimes with an admonition like this one: "A court may
not simply substitute its own opinion of what would be a better policy, or a
more appropriately calibrated system of punishment in place of that articulated
by the People from whom the court's authority flows." (People v.
McGlothin, (1998) 67 Cal.App.4th 468, 476-477, quoted in People v.
Thornton (1999) 73 Cal.App.4th 42, 49. See also People v. Gaston
(1999) 74 Cal.App.4th 310, 314-315.)
Nonetheless, the judicial power to
dismiss strikes does offer hope to defendants whose priors are neither many nor
particularly horrible. And some recent appellate decisions regarding dismissing
strikes are helpful. In one case, the Court of Appeal (First District, Division
Three) held that a trial court abused its discretion by failing to strike a
strike! People v. Cluff (2001) 87 Cal.App.4th 991, concerned a third-striker whose current offense
was a failure to register as a sex offender. The defendant had registered
whenever he changed his address, but had failed to confirm his address annually
as required by the sex offender registration law. The requirement of annual
re-registration had been enacted five years after the defendant was released
from prison. The Court of Appeal not only ruled that the trial court had
abused its discretion by failing to strike a strike, but also stated that the
sentence of twenty-five years-to-life "appears disproportionate by any
measure." (Id. at p. 1004.)
The Supreme Court has held that a trial
court applying the "Three Strikes" law may exercise its discretion to
dismiss a prior conviction allegation with respect to one current count and
refrain from dismissing the prior with respect to another current count.
(People v. Garcia (1999) 20 Cal.4th 490, 493-494.) This is important,
because even when it's clear the judge cannot be persuaded to dismiss a prior
strike altogether, it may yet be possible to limit the damage. In
Garcia, it was helpful that the defendant had no history of violence,
and his prior serious felony convictions arose from a single period of aberrant
behavior. (Id. at pp. 494-495.)
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Date last modified: 10/3/03.
