Metropolitan News-Enterprise


Monday, January 11, 2021


Page 1


Court of Appeal:

Allegation of Strike As to One Count Applies to Others

Majority Says That Mandatory Nature of Alleging Strikes Means Defendant Is Put on Notice That Enhancing of Sentence Is Sought As to All Counts As to Which Three Strikes Law Would Apply; Chaney Dissents


By a MetNews Staff Writer


The Court of Appeal for this district, in a 2-1 opinion, held on Friday that where an information alleged in connection with three counts a prior which, under the Three Strikes Law constituted a “strike,” the trial judge did not err in doubling the sentence under another count although a strike had not been pled as to that count.

Both the majority opinion, by Justice Helen I. Bendix, and a concurring and dissenting opinion, authored by Justice Victoria Chaney, recite a proposition that Los Angeles County’s new district attorney, George Gascón, is contesting: that a prosecutorial agency is legally obliged to allege all strikes.

Bendix, who was joined by San Luis Obispo Superior Court Judge Rita Coyne Federman, sitting on assignment, took the position that alleging a prior in connection with one count provides notice of the allegation as to other counts although not repeated. Bendix differed, writing:

“Requiring a defendant to assume that a Three Strikes law enhancement is pleaded as to expressly omitted counts because a prosecutor has no discretion to not plead Three Strikes enhancements is tantamount to requiring a defendant assume Three Strikes treatment on counts to which the enhancement would apply even if there is no Three Strikes allegation in the pleading. That a prosecutor has a duty to do something does not render it done; people who have duties to do things sometimes fail to comply with those duties. In addition to violating a defendant’s due process, deeming an enhancement alleged as to all counts when it is expressly not alleged as to certain counts may well enable sloppy pleading at best and devious practice at worst. The consequence for a prosecutor’s failure to perform a duty should not be borne by the defendant.”

Statutes Cited

Bendix pointed to §667 and §1170.12 of the Penal Code. Sec. 667(e)(1) provides that “If a defendant has one prior serious or violent felony conviction,” as defined, “that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction,” and §1170.12 (c)(1) is to like effect.

Although the information did not allege a strike in connection with a particular count, the jurist said, “the language of sections 667 and 1170.12, both of which were cited in the information, provided adequate notice that count 6 also would be subject to a doubled sentence.”

Concerns expressed last year by the California Supreme Court in People v. Anderson over the lack of notice that sentencing enhancements would be pursued are not present in the case at hand, Bendix said, explaining:

“The information in the instant case expressly invoked the Three Strikes law, and the plain language of that law provided adequate notice that it must apply to all eligible offenses unless the trial court exercised its discretion to strike the strike.”

Inartful but Adequate

She added:

“[A]lthough the prosecution drafted the information in the instant case inartfully, and purported to allege the prior strike only as to some eligible counts, it would be evident to defendant on the face of the Three Strikes law that the prior strike would apply to all eligible counts, unless the trial court dismissed the strike either on its own motion or in response to a motion by the prosecution or defense….In short, an information invoking the Three Strikes law and alleging a prior strike, in tandem with the language of the Three Strikes law itself, provides adequate notice that the prosecution is charging the defendant as a recidivist offender subject to the Three Strikes sentencing regime on all eligible offenses.”

Bendix pointed to the California Supreme Court’s 1999 decision in People v. Garcia. There, then-Justice Ming Chin (now retired) observed that “a defendant’s prior conviction status does not change from one count to another” and that “it is appropriate to allege that status only once as to all current counts.”

Chaney responded:

“Alleging Three Strikes treatment generally as to all applicable counts, however, is not the same as alleging that the Three Strikes law applies to specific counts and then requiring the defendant to assume the allegation is universal.”

 Six Counts

The information alleged a strike as to Counts 1, assault with a firearm; Count 2,  assault upon a peace officer, and Count 3, possession of a firearm by a felon. It did not contain a strike allegation as to Count 6, solicitation of a murder.

The Three Strikes Law did not apply to a count for murder, because the slaying was committed on in artfully Nov. 11, 1995, before strikes were accrued, and did not pertain to the count for resisting, delaying, or obstructing a peace officer because it’s a misdemeanor.

Defendant Elliot Kimo Laanui was convicted of all charges—including the 1995 “cold” murder case, solved with the use of DNA technology. Los Angeles Superior Court Judge Edmund Willcox Clarke Jr. doubled the sentence as to Count 6, as well as Counts 1-3.

Of his nine contentions on appeal, only the doubling of the sentence on Count 6 was dealt with in a published portion of the majority’s opinion.

Even if he had prevailed with respect to the sentencing under Count 6, with an undoubling of the term, it would have made no practical difference for Laanui; his sentence on that count was for four years in prison, to be served consecutively. He was sentenced on April 18, 2019, at age 42, to one day shy of 48 years and eight months in prison.

The case is People v. Laanui, B297581.

The two opinions in Laanui, each reciting that the charging of all priors is mandated by statute, come at a time when Gascón is ordering deputies not to allege any strikes. Although the requirements of the Three Strikes Law have been upheld in the past, the opinions add reinforcement to the position of the Association of Deputy District Attorneys (“ADDA”), which has brought a Los Angeles Superior Court action against Gascón to block some of the “special directives” issued by him on Dec. 7, his first day in office, including his prohibition on alleging strikes.

A hearing on a preliminary injunction is scheduled to be heard by Judge James Chalfant on Feb. 2.

Gascón on Dec. 18 backed down from his initial total ban on seeking sentencing enhancements, allowing it in cases “involving the most vulnerable victims and in specified extraordinary circumstances.”

However, he reiterated that “this Office will not pursue prior strike enhancements, gang enhancements, special circumstances enhancements, out on bail/O.R. enhancements” or enhancements under Penal Code §12022.53 entailing use of a gun in the commission of specified serious felonies.


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