Multiple Strike Priors Based on a Single
Incident |
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Most of the news coming out of three strikes appeals is bad.
Particularly disturbing is the holding that a defendant may have two (or more)
strikes based on a single incident. The criminal law in California defines a
large number of crimes, and many of the definitions overlap. District Attorneys
ordinarily include as many crimes as possible in a complaint or information, to
be sure that, even if the evidence turns out differently than expected, there
will be at least some allegation that fits the evidence. Often, the evidence
regarding a single act fits several crime definitions, and the defendant ends
up with more than one conviction for a single act of wrongdoing. In order to
avoid punishing the defendant more than once, the legislature long ago enacted
a law (Penal Code section 654) that allows for only one sentence in those
situations. But the Supreme Court now says that even if at the time of those
prior convictions, they could only give rise to one sentence, they can, after
some later offense, give rise to more than one strike. It is unlikely that the
voters intended a single wrongful act to constitute two strikes, or that they
even know that the law has that effect.
In People v. Benson
(1998) 18 Cal.4th 24, the defendant was sentenced as a third-striker because he
had two prior convictions, one for residential burglary and the other for
assault with intent to commit murder. The burglary and the assault convictions
were for a single act against a single victim with a single intent, but the
Supreme Court found no problem with assigning two strikes. The defendant's
current conviction was for shoplifting a carton of cigarettes worth $20. He was
sentenced to prison for 25 years to life. (Id. at p. 27.) Three
dissenters took the sensible position that because Penal Code section 654
prohibits multiple punishments for a single act, a single act may generate only
one strike. (Id. at p. 46, Chin, J., dissenting.)
Defendants
have also tried to avoid multiple uses of priors by relying on a provision in
Penal Code section 667, subdivision (a), that prior convictions must have
resulted from "charges brought and tried separately." Section 667, subdivision
(a), provides a five-year enhancement for each prior serious felony conviction
if the current conviction is of a serious felony. The courts have held that
subdivision (a) is a separate enhancement statute that is not part of the Three
Strikes law. Consequently, its requirement that priors have been brought and
tried separately does not apply to priors alleged under the Three Strikes law,
and so multiple strikes can arise from one prior case. (People v.
Fuhrman (1997) 16 Cal.4th 930, 937, 940; People v. Askey (1996) 49
Cal.App.4th 381, 386.)
In 1983, Michael Gallardo pled guilty to three counts, arising out of a
single incident with a single victim. Two of the sentences were stayed for that
reason. Nonetheless, Gallardo had three prior strikes when he got into trouble
with the law again. He appealed the new case, arguing that he should not have
multiple strike priors based on a single incident. The Court of Appeal rejected
the argument. Gallardo then went back to the judge in the old case and sought a
dismissal of the two stayed counts. The court refused, and Gallardo tried to
appeal from that refusal. On January 25, 2000, Division Four of the First
Appellate District decided that the refusal to dismiss the old case was not
appealable. (People v. Gallardo, 77 Cal.App.4th 971.) The Court of
Appeal also noted that Gallardo could not seek relief from the strike effect of
the old case through a petition for habeas corpus, because he was currently
confined not on the old case, but on the new one.
A defendant convicted of attempted manslaughter and assault with a firearm as
a result of a single shooting asked the trial court to dismiss one of the
convictions, instead of merely staying one of the sentences under section 654,
so that he would face only one strike if he should reoffend in the future.
When the court
refused, he appealed. Division 2 of the First District held in People v.
Ortega (2000) 84 Cal.App.4th 659, that the trial court had not abused its
discretion when it refused to strike one conviction.
Nonetheless, the court noted that if Ortiz does commit another felony in the
future, the court then deciding his fate will have to decide whether to dismiss
one of these strikes in the interests of justice.
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3-Strikes.
Date last modified: 2/21/01.
