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Greetings!
Welcome to our monthly E-newsletter. We hope that the stories and information you receive here will heighten your interest and awareness in criminal defense law and the issues surrounding the cases we come across.
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California's Three Strikes Amendment: New Resentencing Options, And The Need For Quality Legal Representation
On November 6, 2012, voters in California approved the passage of Proposition 36, which substantially amended the state's "Three Strikes" sentencing law. Originally enacted in 1994, the Three Strikes law required that a defendant convicted of any new felony who had a prior serious or violent felony conviction (a "strike") be sentenced to state prison for twice the term otherwise provided for the crime. If the defendant had two prior serious or felony convictions ("two strikes"), the law required that he or she be sentenced to state prison for a term of at least 25 years to life.
Two key provisions to Three Strikes sentencing were enacted upon passage of Proposition 36:
- While the previous version of the law applied to any new felony committed with two or more prior strikes, a life sentence can now only be imposed when a new felony conviction with two prior strikes is serious or violent.
- Individuals currently serving a third strike life sentence under the previous Three Strikes law can petition the court for resentencing (reduction in term) if their third strike conviction wasn't serious or violent.
It is important to note that although each defendant who meets the criteria has the right to obtain a resentencing hearing, it is at the discretion of the judge to determine if resentencing would pose an unreasonable risk to public safety. In determining such risk, the judge may consider the following:
- The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes;
- The petitioner's disciplinary record and record of rehabilitation while incarcerated; and
- Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.
But what if a petitioner's original sentence was imposed as a result of a plea bargain? Could he or she possibly face new or reinstated charges or a retrial as a consequence of a petition for resentencing?
In a January 2013 memorandum titled The Amendment of the Three Strikes Sentencing Law written by J. Richard Couzens, Judge of the Superior Court of Placer County (Retired) and Presiding Justice Tricia A. Bigelow, Court of Appeal, 2nd Appellate District, Div. 8, the following observation was made regarding what a petitioner could potentially face if they seek resentencing after having pleaded guilty in accordance with a plea bargain: As indicated in section 1170.126(i) [of the amended Three Strikes sentencing law], the petitioner may waive his or her appearance for the resentencing, "provided that the accusatory pleading is not amended at the resentencing, and that no new trial or retrial of the individual will occur." That quoted phrase is the only time Proposition 36 mentions the possibility the petitioner may face amended charges and a retrial because of the request for resentencing. There is no risk of reinstating charges for a defendant convicted after a jury trial. Principles of double jeopardy would bar the retrial of any aspect of the case. There may be a risk, however, for petitioners who were sentenced as a result of a plea bargain. It is common for the prosecution to dismiss certain felony charges or enhancements if the defendant admits to a charge that will be sentenced as a third strike. If the case comes back for a resentencing as a second strike offense, the prosecution may argue it has been denied the benefits of the previous bargain such that all dismissed charges and allegations should be put back into play. (p26; emphasis ours)
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Crazy Laws & Lawsuits:
An Unfortunate Stay Near Water
The Cecil Hotel located in Los Angeles is being sued by two prior guests for possible contamination of all water sources during a stay when a woman's body was lifted from the hotel's rooftop water tank.
Authorities report that 21-year-old Elisa Lam's body was left decomposing in one of the tank's cisterns for up to 19 days, exposing all guests to possible pathogens from the drinking water.
As CNN reports, the accusers Steven and Gloria Cott decry that the hotel did not meet its standards of providing water "fit for human ingestion and human consumption through showering" exposing the hotel to a possible class action lawsuit by all guests staying at the time.
The Public Health Department tested all water supplies and could find no traces of contamination to support the allegations, but declared the hotel could only stay open if it supplied bottled water for its guests.
Nonetheless, all guests checking into the hotel after the event were asked to sign a waiver before residing in a room; absolving the company from further lawsuits should an illness present itself from using the water in daily activities.
The Cecil is currently refusing all refunds on room expenses and the Cotts are seeking to receive the cost of their rooms, possible medical expense, and all court fees. The case is still pending.
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Testimonials
"Jeff was an amazing man to work with! He worked on my case and was able to reduce all of my felony charges down to misdemeanors.
Jeff was honest, respectful, thoughtful, and really listened to my background. He took all of the information that I provided and made a great case out of it. I would recommend Jeff Hammerschmidt to anyone and everyone who is in need of a great lawyer.
Jeff treated me like a regular guy not some criminal. I would highly advise hiring Jeff for any criminal case. If I ever need another lawyer I would not think twice to hire Jeff again... "
Dean - Criminal Defense Client
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There is as yet no case law interpreting this specific provision of the new law concerning the possible reinstatement of dismissed charges and/or a retrial for petitioners seeking resentencing. The amendment to the Three Strikes sentencing law was meant to limit its application to life sentences imposed under the old Three Strikes law to non-serious/non-violent/non-sex cases that would not qualify for Three Strikes sentencing under the new law after its effective date. The new law creates a simple procedure to allow the court----that would have otherwise lost jurisdiction----to resentence those defendants as if their sentences had been imposed by applying the new law. It remains to be seen if the phrase "provided that the accusatory pleading is not amended at resentencing, and that no new trial or retrial of the individual will occur...," with this legislative intent, gives the prosecution the authority to reopen the case anew.
Ultimately, quality legal representation from an experienced criminal defense attorney is critical in any resentencing hearing under the amended Three Strikes sentencing law.
Proposition 36 And Legal Limbo: People v. Conley
Patrick Conley was convicted of driving under the influence of alcohol (DUI) and was given a third strike sentence of 25 years to life due to having two prior convictions ("two strikes"). He appealed his conviction, but lost. However, while his appeal was pending, California voters approved passage of Proposition 36, which amended Third Strike sentencing laws whereby third strike sentences can now only be imposed for serious or violent felonies. A DUI is not considered to be either under California law. His attorney filed a petition for rehearing in order to seek the benefit of the change in law by asking the court to vacate his sentence and remand the matter for resentencing. The Court of Appeal denied rehearing, explaining that he was not entitled to one.
"[Defendant's] appeal involves consideration of the law in effect at the time [he] was originally sentenced," said the court in its opinion, after stating that Conley's petition for rehearing was not appropriately requested. "The trial court correctly sentenced him under that law. Proposition 36 instead authorizes defendant to petition for recall in the trial court. Accordingly, we will deny his petition for rehearing."
The California Court of Appeals, citing new procedure in Proposition 36, said Conley can file a petition for a recall of his sentence with the trial court in order to seek resentencing. Under the new sentencing law, the right to seek a reduced sentence is only applicable to inmates whose third strike was not a serious or violent felony. This means that anyone serving a third strike life sentence under the previous Three Strikes sentencing law and whose conviction was not for a serious or violent crime can petition for a recall of their sentence. Under the new law, a petition for recall must be made by November 7, 2014 (two years following the law's effective date).
If Conley had been sentenced after Proposition 36 was enacted, he would not have been subject to a three strikes sentence.
How judges will apply the various factors involved in resentencing under Proposition 36 is difficult to predict. Anyone currently serving a third strike sentence who believes they meet the criteria to seek resentencing should be aware that the process can be very complex. As such, it is critical to obtain representation by a highly experienced criminal defense attorney.
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Spotlight: Criminal Defense Attorney William A. Parry To Head New South Valley Office Of Hammerschmidt Broughton Law Corporation
 We are pleased to announce that criminal defense attorney William A. Parry has joined Hammerschmidt Broughton Law Corporation, and is serving as the Managing Shareholder of our new South Valley office now operating in Hanford, California. Our new office is located in the historic Kings County Courthouse built in 1896, and which is now part of the Courthouse Square complex, at 113 Court Street, Suite 209, Hanford, California, 93230. Mr. Parry's practice at the South Valley office of Hammerschmidt Broughton Law Corporation will focus on defending adults and juveniles in California state courts and in federal courts in California.
Graduating magna cum laude from California State University, Fresno with a B.A. in English Literature, and earning his J.D. from San Joaquin College of Law, Mr. Parry has been practicing law in California since 1999. Prior to joining Hammerschmidt Broughton, Mr. Parry was with the firm of Kahn, Soares & Conway, LLP at its office in Hanford, California, where his main areas of practice were criminal defense and litigation. Mr. Parry has a "Superb" rating of 9.0 from AVVO , a highly respected national attorney rating firm.
"I'm thrilled to join Hammerschmidt Broughton as the managing shareholder of the new South Valley office in Hanford," says Mr. Parry. "Representing adult and juvenile clients in criminal litigation matters has been my passion for fourteen years, and I'm honored to continue doing so in this new capacity and with such a distinguished team of criminal defense attorneys."
Mr. Parry, who was born, raised, and continues to reside and practice law in Kings County, served four consecutive terms (2006-2009) as President of the Kings County Bar Association. He is also a member of the American Immigration Lawyers Association. Mr. Parry is quite active in the local community as well. He serves on the board of directors for the Lemoore High School Foundation for Educational Excellence, which supports and services numerous scholarships and academic programs for students of Lemoore High School, which he attended and graduated from. He has also been serving as a member of the board of directors for the Kings County Fair since 2003. Mr. Parry is also a board member of the non-profit organization 'AmeriCymru,' the nation's largest Welsh-American association.
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About Hammerschmidt Broughton Law Corporation
 The Hammerschmidt Broughton Law Corporation is dedicated to providing the highest level of legal representation to persons accused of crimes in Federal and State courts. We also represent clients in Department of Motor Vehicle driver's license revocation hearings and administrative licensure proceedings. We take on appeals, expungements and other post-conviction matters.
The firm is rated "AV" by Martindale Hubbell, the highest rating awarded to a law firm. The firm is also listed in the Bar Register of Preeminent Lawyers, a distinction reserved for the top five percent of law firms in the United States. The firm focuses on putting the client's needs first by keeping clients up to date on the status of the case, and by returning telephone calls quickly.
Contact Us to discuss your case. The sooner you call for a free consultation, the sooner we can begin working for you.
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Disclaimer: The information you obtain in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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