What’s Unreasonable Risk of Committing a Super Strike?

Proposition 47, at Penal Code § 1170.18, permits a judge to deny a petition to reduce certain felony offenses to a misdemeanor if he or she “determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety” because the reduction may result in petitioner’s release from prison or county jail.

The law directs the judge to consider: “(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 remoteness of the crimes; (2) the petitioner’s disciplinary record and record of rehabilitation while incarcerated; and (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.”  Penal Code § 1170.18(b)(1)-(3).

Proposition 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, often called “Super Strikes.”  Penal Code § 1170.18(c).

Super Strikes are listed under (iv) as:

A.    A “sexually violent offense” as defined in subdivision (b) of § 6600 of the Welfare and Institutions Code, which means 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, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of § 261 (rape), 262 (spousal rape), 264.1 (rape or penetration by foreign object), 269 (aggravated sexual assault on a child), 286 (sodomy), 287 (oral copulation), 288 (lewd or lascivious acts), 288.5 (continuous sexual abuse of a child), or 289 (forcible sexual penetration) of, or former Section 288a of, the Penal Code, or any felony violation of § 207 (kidnapping), 209 (kidnapping for ransom), or 220 (assault with intent to commit mayhem) of the Penal Code, committed with the intent to commit a violation of § 261, 262, 264.1, 286, 287, 288, or 289 of, or former § 288a of, the Penal Code.

B.     Oral copulation with a child who is under 14 years of age and more than 10 years younger than the defendant as defined by § 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by § 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 § 289.

C.     A lewd or lascivious act involving a child under 14 years of age, in violation of § 288.

D.    Any homicide offense, including any attempted homicide offense, defined in §§ 187 to 191.5, inclusive.

E.    Solicitation to commit murder as defined in § 653f.

F.    Assault with a machinegun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of § 245.

G.    Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of § 11418.

H.    Any serious or violent felony offense punishable in California by life imprisonment or death.

This legal background is important to know to appreciate the case of People v. Edward Strother, wherein Judge William Ryan determined Strother posed an unreasonable risk to public safety and was not suitable for resentencing under Proposition 47.

The Prop 47 petition was filed by Strother in 2014.  In 2003, Strother was convicted of second degree burglary (Penal Code § 459) and theft of access card information (Penal Code § 484e(d)).  He entered a Fry’s Electronics and attempted to buy a computer using a credit card.  The cashier found a problem with the credit card and appellant fled, leaving his driver’s license at the store. 

Under the Three Strikes Law, he was sentenced to two consecutive terms of 25 years to life in prison.  In 1991, he was convicted of first-degree residential burglary with personal gun use and assault with a firearm on a police officer.  In 1992, he was charged with murder, but pled guilty or no contest to voluntary manslaughter.  At the preliminary hearing, evidence was presented that Strother committed the killing because the victim knew too much about Strother’s other ongoing criminal activity.

In 2013, he filed a petition to recall his sentence pursuant to Prop 36 because his “Third Strike” was not a serious or violent felony.  This was denied because the judge found it was likely that Strother, if resentenced, posed an unreasonable risk of danger to public safety.  Judge Ryan evaluated Strother’s prior criminal history, his conduct record in prison (34 serious rule violations as documented in CDCR Form 115), his association with the KUMI 415 gang until November 2016 and his CDCR classification score of 174 (the higher the score, the more security controls the prison needs for the prisoner).

The Second Appellate District affirmed Judge Ryan’s ruling, noting that Strother had nearly committed a “Super Strike” on two prior occasions when he shot at a police officer with a semi-automatic weapon is a close as one can get to committing the super strike of assaulting a police officer with a machine gun without actually committing the super strike.  Likewise, voluntary manslaughter where the victim was killed because he “knew too much” is as close to first degree premeditated murder as one can get without actually committing the super strike.

We present this summary because criminal defense attorneys often scoff at the likelihood that a judge could deny a Prop 47 petition because a Super Strike is so extraordinary and having a judge find it was likely someone would commit this seems unlikely.  However, this case shows an example of when it was indeed found and the judge’s ruling was upheld on appeal.

The citation for the Second Appellate District Court ruling discussed above is People v. Edward Strother (2nd App. Dist., 2021) 72 Cal. App. 5th 563, 287 Cal. Rptr. 3d 565.

For more information about Prop 47, please click on the following articles: