SB 483 Resentencing After 3 Strike Reform Act Denial?

In certain Three Strikes cases, a person may have been sentence to an indeterminate life sentence prior to the Three Strikes Reform Act of 2012, and then sought resentencing on the Third Strike after 2012, but the court may have denied to resentence the third strike as a second strike.  

Now, with the flurry of new resentencing laws, the CDCR may have recommended resentencing on the same prisoner, but for, for example, an invalid one-year prison prior under Penal Code § 667.5(b).  Does such a new resentencing order mean the same prisoner can have a second Three Strikes Reform Act resentencing hearing under SB 483’s “full resentencing” provisions?

The following case involving Kelly Vaughn Kimble from the Third Appellate District answered this question.

In November 2008, in Butte County Superior Court, a jury found Mr. Kimble guilty of stalking (Penal Code § 646.9), which for him constituted a third strike, as he had two prior convictions for strike offenses: attempted kidnapping and criminal threats (these qualify as prior strikes under Penal Code § 1192.7(c)(20) and § 1192.7(c)(38), respectively).  The judge then sentenced Mr. Kimble under the former Three Strikes law to 25 years to life, plus an additional year for a prior prison term (Penal Code § 667.5(b)).

In 2013, after passage of the Three Strikes Reform Act (Penal Code § 1170.26(b)), Mr. Kimble filed a petition for resentencing because his third strike was not a serious or violent felony.  He argued that he was eligible to have his conviction for stalking sentenced as a second strike as allowed under § 1170.26(b).  The judge, however, considered the violent nature of Mr. Kimble’s prior criminal acts, his poor performance on parole and probation, and acts of misconduct while in prison for the current offense.  After considering these factors, the judge found Mr. Kimble would pose “an unreasonable risk of danger to the public if released” and declined to resentence him as a second strike offender.  Mr. Kimble then appealed this ruling and his appeal was denied.

Effective January 1, 2022, Senate Bill 483 invalidated most prior prison term enhancements (exception for sexually violent prison term sentences).  Senate Bill 483, codified at Penal Code § 1172.75, certainly applied to Mr. Kimble.  

In July, 2022, the court appointed counsel for Mr. Kimble and that attorney filed a petition for resentencing calling for full resentencing, including application of the Three Strikes Reform Act again.  

At the resentencing hearing, the Butte County Superior Court judge assigned to the matter declined to exercise his discretion resentence Mr. Kimble except on the one year prison prior term, which the judge struck.  

On appeal, the Attorney General agreed with Mr. Kimble that he was entitled to resentencing under the Three Strikes Reform Act again, but the Third Appellate District affirmed the trial court.

The Third District explained that under the Three Strikes Reform Act, the court can decline to exercise its discretion if it determines that “resentencing a petitioner would pose an unreasonable risk of danger to public safety.” Penal Code § 1170.26(f).  

The appellate court then explained that when Mr. Kimble applied for resentencing under the Three Strike Reform Act ten years earlier, the trial court did the same analysis it required to perform as if he were to apply under the Reform Act now.  Moreover, the trial court was affirmed on appeal then.  Therefore, ten years later, the trial court was correct is following the prior rulings that denied resentencing because the law insofar as resentencing under the Three Strikes Reform Act had not changed.

The Third District commented that its position was the same as the Second Appellate District had ruled in a similar case, People v. Superior Court (Guevara) (2023) 97 Cal. App. 4th 978, 995.  Guevara held that the public safety analysis must be considered. Id.  984-985.

We present this summary because we have received several phone calls from prisoners serving sentences for third strikes asking about this exact scenario and we have cautioned such callers that a judge most likely would still engage in the public safety analysis in resentencing him or her.  The Kimble and Guevara cases confirmed our predictions.