THREE STRIKES CASES, POST CONVICTION & APPEALS
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California’s Three Strike Law
California’s Three Strike law is designed to punish those that have prior convictions for violent or serious offense and continue to commit felonies. Under the Three Strikes law, a person who commits a new serious or violent felony offense and has suffered two prior strike (violent or serious offenses) convictions faces a sentence of 25 years to life. That means, a person would have to be convicted (either by plea or jury verdict) before committing a new felony.
Prior to the passage of Proposition 36 changing the three strikes law in November 2012, the last felony did not have to be a violent or serious offense to trigger the life sentence. Currently, in order to receive a 25 years to life sentence, a person with two or more prior strike convictions would have to be convicted of a new strike offense. The new law allowed for a reduction in sentence for many serving a life term of imprisonment. It should be noted that a prior juvenile adjudication may qualify as a strike under the law in certain cases.
If a person has one prior strike conviction and then commits another felony, the Two Strike law requires a prison sentence (no probation) and the doubling of the ordinary sentencing triad. Every felony in California has a specified triad.
For instance, the triad for a low level felony such as grand theft is 16 months, 2 years or 3 years in state prison. The ordinary sentencing scheme for grand theft would have the court consider probation (with a punishment of up to one year in county jail) and if probation was not deemed appropriate then the court could sentence a defendant to either the low term of 16 months, the middle term of 2 years or the upper term of 3 years in state prison.
Under the Two Strike law, the sentencing scheme changes the court’s options to 32 months, 4 years or 6 years with no consideration for probation.
Under California Penal Code section 1385 or People v. Romero the court has the discretion to strike a strike. What that means is that a judge is able to ignore a prior conviction in the interests of justice. A number of factors are considered in such a decision. It is always wise to try to convince the district attorney to agree to strike a strike using the factors in Romero.
California’s current restructuring of its prison system allows non-violent, non-serious offenders to serve their custody time in county facilities as opposed to prison. The law however does not allow people sentenced under the Two Strike or Three Strike law to serve their time in county jail. Also, if the current offense is a strike and a person with no prior strikes was denied probation, the sentence will also be served in prison as opposed to county jail.
If you are facing a strike charge or have prior strike convictions, an experienced and respected Criminal Attorney in Sacramento at Wing & Parisi is needed to fight back and protect you. The attorneys at Wing & Parisi have vast experience fighting all forms of criminal defense cases and can protect you or your loved ones from the harsh penalties involved.
Filing an appeal following a felony conviction requires the help of competent counsel. Sacramento criminal attorneys at Wing & Parisi have extensive appellate experience and have filed numerous appellate briefs as well as argued cases before the courts of appeal.
The process begins with the filing of a “Notice of Appeal” which is filed in the Superior Court of the county where the conviction took place. The notice must be filed within 60 days from the date of sentencing. From there the clerk and the court reporter are required to transfer the “normal record of appeal” to the appropriate court of appeal. The appellate attorney is also given a copy of the record and then reviews the record for completeness. Applications to augment the record are not uncommon. Our criminal attorneys then thoroughly search for any issues that may help the appellant. Extensive and exhaustive research of case law and statutes is then supplemented with legal argument in what is called an opening brief. Counsel for the attorney general’s office has a chance to file a brief in opposition. We are then afforded a last opportunity to reply to the attorney general’s opposition. At this point, the case is considered fully briefed.
After a case is fully briefed, we wait for the notice from the court of appeal. This may take anywhere from six months to two years. The court may request further briefing and legal argument or set the appeal for oral argument. At the oral argument, the panel of three judges that will decide the case may question the attorneys. Thereafter, the court will write an opinion (the decision). Depending upon the outcome of the appeal, further decisions will need to be made as to petitioning the California Supreme Court or requesting a rehearing.
Having extensive experience our criminal attorney in Sacramento are uniquely suited to help you or your loved one in pursuit of regaining freedom and overturning a bad decision. With extensive appellate and trial court experience, our attorneys are able to effectively present and identify the proper issues for a successful appeal.
CALIFORNIA MISDEMEANOR APPEALS
Misdemeanor appeals in California must be noticed within 30 from the date of sentencing. The record on appeal is not automatically transcribed and the client may need to pay for a transcript of the proceedings at trial or the motion.
Misdemeanor appeals are heard by the Appellate Division of the Superior Court in the county where the conviction took place. For example an appeal following a trial in Sacramento County must be filed in Sacramento, where the main branch of the court sits. The appeal will be heard in Sacramento county.
Generally, the briefing schedule is the same as in felony appeals.
Because of the complexities in identifying viable issues, researching pertinent law and writing in an effective, coherent manner, it is always advisable to hire experienced appellate counsel to handle any appeal. Criminal attorney in Sacramento at Wing & Parisi have over years of combined experience handling criminal appeals and trials. This experience and knowledge is the necessary ingredient for a successful appeal.
NEW TRIAL MOTIONS
A motion for a new trial usually needs to be heard prior to any sentencing. Because appeals only deal with the record in the trial court, it may be advisable to bring a new trial motion so that the record now contains the “new evidence” or other information which may be appealed.
There are specific statutory grounds for the bringing of a new trial motion.
Because it may not be advisable to file a new trial motion (sometimes trial judges will adversely comment or supplement their rulings to the detriment of the client’s appellate issues), consulting and retaining experienced trial and appellate counsel prior to sentencing may be vital to preserving and ultimately gaining relief after conviction either through a new trial motion or appeal.
There are many different types of writs that can be taken during a criminal case and after conviction. Generally speaking, a writ is the avenue to be taken where the record on appeal does not reflect or adequately reflect the issues that a defendant may wish to raise.
Because of the complexities of presenting any writ, it is imperative to hire experienced skilled counsel. Our team of investigators (and experts, if necessary) and attorneys have the skill, passion and experience to right the wrong. With years trial experience, the defense team at Wing & Parisi is ready to fight for you and your loved ones. Appeals, motions for new trial, and writs are all time sensitive legal matters and must be handled quickly. Call our office today at (916) 441-4888 for a consultation with a criminal attorney in Sacramento.