The California criminal justice system saw a significant transformation with the passing of Proposition 47 in 2014. This initiative, aimed at reducing the state's prison population and providing relief to individuals convicted of specific low-level, non-violent felonies, had a profound impact on the system.
Proposition 47, now codified as PC 1170.18, is a significant law that reclassified certain non-violent felonies as misdemeanors. This reclassification enables eligible individuals to petition for resentencing, a legal process in which a judge reviews the case and, if deemed appropriate, issues a new, typically less severe, sentence. Alternatively, they can have their past convictions expunged, thereby reducing the severity of their criminal record.
However, the law includes a critical exception that permits a judge to deny resentencing if it would present an "unreasonable risk to public safety." In legal circles, this is often referred to as "unreasonable risk of committing a super strike."
In California, "unreasonable risk of committing a super strike" means there's a significant likelihood that a defendant will commit one of the most serious violent felonies, called "super strikes," if released or granted mental health diversion.
These super strike offenses, which are the most serious violent felonies, include crimes like murder, attempted murder, and various sexually violent offenses or offenses against minors. For instance, a sexually violent offense could be rape, and solicitation to commit murder could be hiring someone to kill another person. These crimes are considered among the most heinous under the law and pose the highest potential for harm.
The phrase "unreasonable risk" in this context refers to a high likelihood that a defendant will commit one of these serious strike offenses if released from custody. This phrase is used in the context of decisions about mental health diversion, which is a program that allows certain individuals with mental health issues to receive treatment instead of prison time, and in decisions about release from custody.
If a judge finds that a defendant poses an unreasonable risk of committing a super strike, they may deny mental health diversion or other release options. But what exactly does all this mean? And what role do so-called "super strikes" play in this decision?
What Does PC 1170.18 Say?
Under Proposition 47, a judge has the authority to deny a petition to reduce certain felony offenses to misdemeanors if they determine that doing so would pose an unreasonable risk of danger to public safety. This is because the reduction may result in the petitioner's release from prison or county jail, potentially putting the public at risk.
California Penal Code 1170.18 PC says, "The court may consider all of the following:
(1) 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.
(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated.
(3) 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."
As noted above, Prop 47 states that an "unreasonable risk of danger to public safety" means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Penal Code 667 PC, called "Super Strikes" codified in Penal Code 1170.18(c).
Proposition 47 and Its Impact
Proposition 47 redefined several non-violent offenses, such as many drug possession cases and property crimes involving less than $950, reducing them from felonies to misdemeanors. Those convicted of such offenses before the law took effect were given the opportunity to petition for resentencing.
If successful, the individual's felony conviction is reduced to a misdemeanor, often resulting in lighter sentences, improved job prospects, and other substantial benefits, offering a ray of hope for those affected.
However, this relief is not automatically granted. While Proposition 47 emphasizes leniency for "low-risk" offenders, it also includes safeguards to ensure public safety. One of these safeguards is the judicial authority to deny resentencing if the defendant poses an "unreasonable risk of committing a serious violent offense." This underscores the careful consideration and responsibility that judges bear in the criminal justice system.
What Is a "Super Strike"?
Under California law, a "super strike" refers to the most violent and serious felonies that are considered extreme threats to public safety. These are the crimes that, if committed, could cause the most harm. Penal Code 667(e)(2)(C)(iv) outlines these offenses, which include:
- Sexually violent offenses
- Oral copulation, sodomy, or sexual penetration with a minor under 14 years who is more than 10 years younger than the defendant
- Lewd or lascivious acts involving a child under 14 years
- Homicides, including attempted homicides
- Solicitation to commit murder
- Assault with a machine gun on a peace officer or firefighter
- Possession of a weapon of mass destruction
- Any serious or violent felony punishable by life imprisonment or death.
These crimes are considered among the most heinous under the law and pose the highest potential for harm. Judges are particularly cautious in granting resentencing if they believe that doing so could lead to the commission of one of these offenses.
What Does PC 667 Say?
California Penal Code 667(e)(2)(C)(iv) says -
"The defendant suffered a prior serious or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies:
(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
(II) Oral copulation with a child who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 286, or sexual penetration with another person who is under 14 years of age and more than 10 years younger than the defendant, as defined by Section 289.
(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
(V) Solicitation to murder as defined in Section 653f.
(VI) Assault with a machinegun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
(VIII) Any serious or violent felony offense punishable in California by life imprisonment or death."
This legal background is essential to understanding the case of People v. Edward Strother, in which Judge William Ryan determined that Strother posed an unreasonable risk to public safety and was not suitable for resentencing under Proposition 47.
Unreasonable Risk to Public Safety
The term "unreasonable risk" comes into play when judges evaluate whether releasing or resentencing an individual could pose an elevated danger to the community.
Proposition 47 defines this specific risk as the likelihood of committing at least one super strike. This is a high bar for denial, as judges must make a forward-looking assessment of the potential danger. Judges consider various factors in making this determination, including:
- The defendant's criminal history.
- Patterns of violent or dangerous behavior.
- Psychological evaluations or other relevant assessments.
- The circumstances of the original crime.
Theoretical Example
Consider an individual convicted of felony shoplifting for stealing goods valued at $700. Under Proposition 47, this crime is eligible for reclassification as a misdemeanor.
However, during the resentencing process, the prosecution presents evidence that the defendant has a history of violent behavior, including prior assault convictions and a pattern of escalating risk-taking. Perhaps they were also found with a weapon in their possession during the shoplifting incident or have made credible threats of violence in the past.
The judge reviews this evidence and determines that releasing or reducing the sentence of the individual creates an "unreasonable risk" that they could commit a super strike, such as assault with a deadly weapon, homicide, or another violent felony. Based on this evaluation, the judge denies the resentencing petition to protect public safety.
While Proposition 47 provides a pathway to reduced sentences for many, the risk standard for super strikes adds an extra layer of complexity. Judges often have broad discretion in deciding whether to grant or deny a petition based on safety concerns, and the interpretation of "unreasonable risk" can vary significantly from case to case.
Why You Need a Defense Attorney
If you're petitioning for resentencing under Proposition 47, especially if your criminal history indicates a possible "risk of committing a strike," you should seek representation from our skilled California criminal defense attorneys.
We can evaluate your eligibility for resentencing and identify potential challenges. We can also build a compelling argument to show that you do not pose an unreasonable risk to the public.
Perhaps we can present mitigating factors, such as evidence of rehabilitation, employment efforts, or participation in community programs, to support our argument.
Perhaps we can challenge prosecutorial claims, ensuring that the court bases its decision on accurate facts rather than speculation.
For more information, contact Eisner Gorin LLP, a criminal defense law firm in Los Angeles, CA.
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