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THREE STRIKES POLICY

DECEMBER  19, 2000

- SPECIAL DIRECTIVE 00-02 -


The Three Strikes law, Penal Code Section 1170.12 (a)-(d), provides a powerful tool for obtaining life sentences in cases involving habitual criminal offenders. However, unless used judiciously, it also has the potential for injustice and abuse in the form of disproportionately harsh sentences for relatively minor crimes. The Three Strikes statutory scheme appropriately authorizes the use of prosecutorial discretion in its implementation. As prosecutors, it is our legal and ethical obligation to exercise this discretion in a manner that assures proportionality, evenhanded application, predictability and consistency. Moreover, the potential for coercive plea-bargaining must be avoided. Penal Code Section 1170.12(d)(2) authorizes prosecutors to move to dismiss or strike a qualifying prior felony conviction in the furtherance of justice pursuant to Penal Code Section 1385. In this context, "in furtherance of justice" requires consideration of the constitutional rights of the defendant and the interests of society. (See People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 and its progeny, e.g., People v. Williams (1998) 17 Cal. 4th 148 and People v. Ortega (2000) 84 Cal. App. 4th 659). Proper exercise of prosecutorial discretion protects society and preserves confidence in and respect for the criminal justice system.

This policy supercedes all previous conflicting policy directives concerning the Three Strikes law. It is designed to provide clear guidelines for the exercise of prosecutorial discretion in this important area. Special Directive 00-02 is attached.

Implementation of this policy and its effects will be closely monitored to assure that its objectives are being fulfilled. If the results of this policy indicate the need for modifications in the future, they will be promulgated accordingly.


SPECIAL DIRECTIVE 00-02

December 19, 2000

PRELIMINARY MATTERS

All qualifying prior felony convictions shall be alleged in the pleadings pursuant to Penal Code Section 1170(d)(1). Prior to seeking dismissal of ANY strike, the prior strike case files shall be reviewed, if available, in order to fairly evaluate mitigating and aggravating factors. If it is determined that proof of a prior strike cannot be obtained or that the alleged strike is inapplicable, dismissal of the strike shall be sought after obtaining approval of the appropriate Head Deputy.

PRESUMED THIRD STRIKE CASES

If a defendant has two or more qualifying prior felony convictions, the case is PRESUMED to be a Third Strike case warranting a minimum 25 years-to-life sentence when at least one of the new charged offenses is a serious or violent felony or is any controlled substance charge in which an additional enhancement pursuant to HEALTH AND SAFETY CODE Sections 11370.4 or 11379.8 is alleged.

This presumption may be rebutted. If the current offense does not involve the use or possession of a firearm or deadly weapon, injury to a victim, violence or the threat of violence, the Head Deputy may authorize seeking dismissal of a strike after consideration of all of the following:

1. Remoteness of the strikes.

2. Whether the strikes involved the use or possession of a weapon, injury to a victim, violence or the threat of violence.

3. Whether the strikes arose from one incident or transaction, and

4. Any other mitigating or aggravating factors enumerated in the California Rules of Court, Rules 421 and 423.

PRESUMED SECOND STRIKE CASES

If a defendant has two or more qualifying prior felony convictions, the case is PRESUMED to be a Second Strike case if none of the charged offenses is a serious or violent felony or is any controlled substance charge in which an additional enhancement pursuant to HEALTH AND SAFETY CODE Sections 11370.4 or 11379.8 is alleged.

This presumption may be rebutted. The Head Deputy may decline to seek dismissal of a strike if the current offense involves the use or possession of a firearm or deadly weapon, injury to a victim, violence or the threat of violence.

If in the judgment of the Head Deputy, factors other than those enumerated above warrant a Third Strike sentence, that recommendation supported by a written memorandum should be referred to the appropriate Bureau Director for final decision. The memorandum should include an evaluation of the seriousness of the current crime, the facts underlying the prior convictions and the defendant's character, background and any other aggravating and mitigating factors set forth in the California Rules of Court, Rules 421 and 423.

In all instances where a case is pursued as a Second Strike case, all Penal Code Section 667.5(b) priors shall be pled and proved or admitted.

DOCUMENTATION OF THIRD STRIKE CASES

1. The Head Deputy shall prepare a Head Deputy Third Strike Disposition report in all Third Strike Cases.

2. This report shall be prepared in every case in which the pleadings at any stage of the proceedings allege two or more strikes against a defendant.

3. The original report shall be placed in the District Attorney case file. A copy shall be sent to the appropriate Bureau Director within five days after the case is concluded. A file of all Third Strike Disposition Reports shall be maintained in the office of the Head Deputy.

4. If a Head Deputy authorizes dismissal of a strike in a presumed Third Strike case, the traditional Disposition Report shall discuss the applicability of the factors set forth in this Special Directive.

5. If a Head Deputy authorizes prosecution as a Third Strike case in a presumed Second Strike case, the traditional Disposition Report shall discuss the applicability of the factors set forth in this Special Directive.

SECOND STRIKE CASES

In a case with only one qualifying strike, the Head Deputy may authorize seeking the dismissal of a strike in the interests of justice and agree to an appropriate prison or probationary sentence ONLY when:

1. The current offense is not a serious or violent felony; and
2. The strike offense occurred more than 10 years ago; and
3. The strike offense did not involve the use or possession of a firearm or deadly weapon, injury to a victim, violence or the threat of violence; and
4. There exist mitigating factors enumerated in the California Rules of Court, Rules 421 and 423.

Whenever a Head Deputy authorizes seeking the dismissal of a strike pursuant to this section, a traditional Disposition Report shall be prepared.

CASE SETTLEMENT

The decision of whether or not to seek dismissal of a strike SHALL be made at the earliest practicable stage. Once that decision is made, it shall be promptly communicated to the court and defense counsel. This procedure shall be followed even if a defendant chooses to proceed to trial.


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