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Prop 36 Resentencing Denied Due to Prior Juvenile Rape

California’s Three Strikes Law was often criticized as overbroad in punishing those convicted of a minor offense as a “Third Strike.”  Once the latest offense qualified as a third strike (if it was any felony), the minimum punishment allowed was an indeterminate term of twenty five years to life in prison.
Brief Synopsis: Under the Three Strikes Reform Act, Prop 36, the judge may look back to juvenile adjudications that are considered sexually violent offenses in deciding whether to modify a sentence to change a third strike (and the resulting minimum 25 years to life sentence) to a second strike sentence.
The fundamental unfairness of this sentencing scheme was epitomized by a case several years ago in Redondo Beach where a man stole a single piece of pizza from a restaurant at the Redondo Pier.  The thief was arrested and charged with felony commercial burglary, Penal Code § 459.  This type of crime is normally punished as a misdemeanor with a maximum punishment of six months in county jail and a fine of $1,000, although even that punishment is rare.

However, this thief had two prior convictions for offenses considered “strikes,” so he was sentenced as a “third” striker, meaning his sentence was a minimum of twenty-five years to life.

Court of Appeal First Appellate District San FranciscoCourt of Appeal First Appellate District San Francisco

In 2012, however, the People of the State of California passed the Three Strikes Reform Act of 2012.  This was presented to the electorate as Proposition 36 (Prop 36).  Prior to its passage, a defendant like the pizza thief above who had been previously convicted of two or more serious or violent felonies was subject to an indeterminate sentence of 25 years to life upon conviction for any new felony.  People v. Chubbuck (2014) 231 Cal. App. 4th 737, 740.

With passage of Prop 36, a “Third Striker” who is serving an indeterminate sentence of twenty-five years to life for a crime that was not a serious or violent felony, and who is not otherwise disqualified, may have his sentenced recalled and be resentenced as a second strike offender.  This means the base sentence is doubled, which can be a lot less than twenty-five years to life.

Prop 36 did carve out an exception to resentencing as a “second striker.”  This is when the judge determines that “resentencing… would pose an unreasonable risk of danger to public safety.”  Penal Code § 1170.26(a), (f), (m).  Under Penal Code § 1170.26(e)(3), an inmate is not eligible for resentencing if he or she has a prior conviction for any offense appearing in section 667(e)(2)(C)(iv) or section 1170.12(c)(2)(C)(iv).

These offenses include offenses deemed a “sexually violent offense,” as defined by Welfare and Institution Code § 6600(b).  Section 6600(b) defines a “sexually violent offense” as meaning the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person… or a violation of Section 261.”  Section 261 is rape.  

Mr. Anderson Purnell Thurston was sentenced in 2002 under the Pre-Prop 36 Three Strikes Law to an indeterminate term of 27 years to life.  His “Third Strike” was felony driving in disregard for safety of persons or property while fleeing from a pursuing police officer (Vehicle Code § 2800.2(a)).  Thurston had three prior strike convictions for two robberies and another violation of Vehicle Code § 2800.2.  In one of the prior strikes, the court sentenced him as a second striker upon a Romero motion.

In November, 2012, after Prop 36 was passed and while Thurston was serving his 27 years to life sentence, he applied for resentencing under Prop 36.  The trial court, however, denied the request for resentencing because it found Thurston had a prior juvenile adjudication for forcible rape.  

Thurston appealed, arguing that the prior forcible rape adjudication was not a conviction, so the court could not consider it for purposes of finding he was ineligible under Prop 36.  Thurston appealed to the First Appellate District.

The First Appellate District, however (as 2016 DJDAR 516), affirmed the trial court, finding that such records were relevant to Thurston’s request for resentencing.  

We find this appellate court ruling significant because it extends the definition of a conviction to juvenile adjudications, which technically are not convictions.

The citation for the First Appellate District Court of Appeals ruling discussed above is People v. Anderson Purnell Thurston (1st App. Dist., 2016) 244 Cal.App.4th 644.

For more information about Prop 36 resentencing, please click on the following articles:
  1. Under New Three Strikes Law, Man Is Ineligible for Resentencing for His Spousal Rape Conviction
  2. Resentencing a Three Strikes Sentence Often Involves Difficult Document Gathering Challenges
  3. Prop 36 If One’s Resentenced, How Do Excess Credits Apply?
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