Why “Strike” Felonies are Extremely Serious and Fighting Gang-Related Strike Priors after the Ulloa Decision

I. What is a “Strike” and Why Are They Serious?

Under California’s Three Strikes Law, an offender can face up to 25 Years to Life in the State Prison if he or she is convicted of more than two eligible offenses defined as “strikes”, which are included in Penal Code section 1192.7(c) (“Serious Felonies”) and Penal Code section 667.5(c) (“Violent Felonies”). [See Cal. Penal Code § 1170.12(c)(2)].

Even if a defendant has only one “strike” on their prior record – even if they were granted probation in the case or received the adjudications as a juvenile [see Cal. WIC § 707(b)] – in the event that any other felony is charged against them, they can be facing double the amount of the ordinary punishment, and their ability to earn goodtime credits is severely reduced. [Cal. Penal Code §§ 1170.12(b)(5), (c)(1)]. This “doubling” of the term of imprisonment can, in addition, be couples with another consecutive 5-year State Prison if the current felony charged is also a “Serious Felony” under Penal Code section 1192.7(c), termed a “nickel prior”. [See Cal. Penal Code § 667(a)(1)].

The following offenses are “Serious Felonies” under California law that can be used as Strike Priors:

(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or any explosive with intent to murder; (18) any burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used dangerous or deadly weapon; (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine(PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1)of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35)continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022.53; (41) a violation of subdivision(b) or (c) of Section 11418; and (42) any conspiracy to commit an offense described in this subdivision.

Cal. Penal Code § 1192.7(c).

 

“Violent Felonies” under Penal Code section 667.5(c) are also strikes, but the main difference is that a term of imprisonment for these crimes reduces the amount of goodtime credits a defendant can earn from the standard “50 percent” to “85 percent”. For example, an ordinary felony carrying ten years in prison would be deem served after five years of actual time in Prison. Conversely, if the crime alleged is a “Violent Felony”, that crime carrying ten years would be deemed served after eight and a half years in Prison. The following crimes are characterized as “Violent Felonies” under California law, which must be served at “85 percent” time if the defendant is sentenced to prison, and can be used as Strike Priors if a new felony is alleged against them:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.

(4) Sodomy as defined in subdivision (c) or (d) of Section 286.

(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.

(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.

(7) Any felony punishable by death or imprisonment in the state prison for life.

(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.

(9) Any robbery.

(10) Arson, in violation of subdivision (a) or (b) of Section 451.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 18745, 18750, or 18755.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person.

Cal. Penal Code §667.5(c).

“Strike” felonies are thus a class of felonies that are extremely serious, aggravated felonies that are treated much differently in terms of punishments than other felonies under California Law. Therefore, an experienced California Criminal Defense Lawyer is absolutely essential if you or a loved one is charged with such an offense.

II. People v. Ulloa (2009) 175 Cal.App.4th 405, 413 held that Penal Code section 186.22(d) is not a serious felony if the underlying offense to which it attaches is a misdemeanor.

Penal Code section 1192.7(c)(28), qualifies as a “serious felony”, “any felony offense, which would also constitute a felony violation of Section 186.22.” (See Cal. Penal Code § 1192.7(c)(28)). Under Penal Code section 186.22(d):

(d) A person who is convicted of a public offense, punishable as a felony or a misdemeanor, that is committed for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members, shall be punished by imprisonment in a county jail not to exceed one year, or by imprisonment in a state prison for one, two, or three years, provided that a person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until the person has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail.

Cal. Penal Code § 186.22(d).

In Ulloa, a defendant with a prior conviction for an offense had been punished under the alternate penalty provision of section 186.22(d), which gives the court discretion to treat as a felony a misdemeanor committed for the benefit of a criminal street gang. (People. v. Ulloa (2009) 175 Cal.App.4th 405, 409). The defendant noted that the abstract of judgment did not indicate whether the underlying offense was a misdemeanor or a felony with respect to the Penal Code section 186.22(d) conviction. (Id.) When sentencing for current offenses, the trial court nonetheless imposed a three-strike sentence and an enhancement for a prior serious felony. (Ulloa, supra, 175 Cal.App.4th at 408-409.) The appellate court reversed, concluding that a misdemeanor treated as a felony under section 186.22(d) is not a serious felony under section 1192.7(c)(28). (Id. at 413.)

Critically, section 1192.7(c)(28) provides that a serious felony includes “any felony offense, which would also constitute a felony violation of Section 186.22.” Thus, the concern in Ulloa was using the defendant’s gang conduct to elevate a misdemeanor to a felony under section 186.22(d), and bootstrapping the same gang conduct into a serious felony under section 1192.7(c)(28). (Ulloa, supra, 175 Cal.App.4th at 412-413, citing People v. Briceno (2004) 34 Cal.4th 451, 462 [“[T]he section 1192.7(c)(28) phrase, `felony violation of Section 186.22,’ simply distinguishes crimes that are felonies regardless of section 186.22 from crimes that are initially misdemeanors, but become felonies by virtue of section 186.22.”].). The Court in Ulloa thus held that:

[b]ecause the record does not disclose the substantive offense underlying appellant’s 2004 conviction, we must presume that he was convicted of a misdemeanor. For the reasons explained above, a misdemeanor conviction is not a serious felony for the purposes of section 1192.7, even if a felony sentence is imposed pursuant to section 186.22, subdivision (d).

Ulloa, supra, 175 Cal.App.4th at 413.

As a result of the Ulloa opinion, the Penal Code “section 1192.7, subdivision (c)(28), definition of a serious felony as a ‘felony offense, which would also constitute a felony violation of Section 186.22’ does not include a misdemeanor punished as a felony pursuant to section 186.22, subdivision (d)”. (Ulloa, supra, 175 Cal.App.4th at 413).

While the circumstance of the Ulloa decision is not commonplace, the facts and rule of the case demonstrate how complex this area of the law is and why hiring an experienced, knowledgeable criminal defense lawyer is necessary if you or a loved one are charged with, or alleged to have at a prior time been convicted of, a “strike” serious or violent felony.

Call Honeychurch & Boyd Today for a Free Consult if You or a Loved One are Facing Felony Charges

Clearly, if you or a loved one are facing allegations involving a felony or alleging a prior “strike” conviction, you are in a very serious predicament and need a knowledgeable, proven attorney to assist you in getting the best result possible. Call our office at Honeychurch & Boyd today for a free consultation as to how we can help advocate for you at this hard time.

Court of Appeal Publishes Citable Opinion Upholding Court’s Dismissal of Gun Case Represented by Honeychurch & Boyd

Early Termination of Probation for Good Cause after Completion of all Probation Terms

Diversion for Individuals with Cognitive and Developmental Disabilities under Penal Code sections 1001.20 through 1001.34

New Law Cracks Down on Discrimination in Jury Selection Process

New Addition to Penal Code Requires Release, Bail, or Judicial Explanation to Detain for Those Accused of Probation Violations