Tuesday, February 17, 2026
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Justice Liu Urges Legislature to Rethink Sentencing Scheme
Jurist Pens Concurring Statement to Denial of Review in Case That Held That Prior Offense Can Underpin Both High-Term, Three-Strikes Penalty, Calling for Legislature to ‘Examine’ if Result Is in Tension With 2022 Law
By a MetNews Staff Writer
California Supreme Court Justice Goodwin H. Liu has written a concurring statement to the high court’s denial of a petition for review in a case in which Div. Five of this district’s Court of Appeal held that 2022 amendments to the Penal Code, which favor the imposition of a midterm sentence and provide that an “enhancement” cannot be used to both add time and justify imposition of a high term, do not have any effect on the Three Strikes sentencing scheme.
Acknowledging that the amendments, as written, leave open the possibility that trial judges may rely on a defendant’s prior conviction as a factor in aggravation—justifying the imposition of a high term—and as the basis for increasing the penalty under the Three Strikes law, Liu called upon the Legislature to “examine whether a carve-out” for the alternative penalty scheme is in tension with the ameliorative purposes underpinning the statutory charges.
At issue is Penal Code §1170, which, as amended, provides that “[w]hen…[a] statute specifies three possible terms, the court shall…order imposition of…the middle term” unless “there are circumstances in aggravation…that justify” a higher term and “the facts underlying those circumstances have been…found true beyond a reasonable doubt,” conceded by the defendant, or consist of prior convictions which are supported by a certified record.
Sec. 1170(b)(5) further specifies:
“The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”
Prior Conviction
Raising the question of whether relying on a prior conviction for a strike offense to justify the imposition of a high-term sentence and the doubling of the penalty under the Three Strikes scheme is permitted under §1170 was Jaime Castaneda-Morales. He was found guilty of forcible rape and misdemeanor child molestation charges in late 2021.
On Jan. 26, 2022, shortly after the changes to the sentencing law went into effect, Los Angeles Superior Court Judge Robert G. Chu sentenced him to the high term on the rape charge, 8 years, based on findings that the victim was vulnerable as well as that the defendant had a propensity for violence, and doubled the penalty based on his prior strike conviction. Div. Five reversed in 2023, saying that §1170 demands that any aggravating factors be proven at trial.
On remand, Chu considered only the defendant’s certified rap sheet and again sentenced the defendant to 16 years in prison, this time saying that he is “taking [the] prior strike” into consideration…as an aggravating factor.”
On Oct. 30, Div. Five affirmed the ensuing judgment. Justice Carl H. Moor authored the divided opinion, joined in by Presiding Justice Brian M. Hoffstadt, declaring:
“[T]he Three Strikes law is an alternative sentencing scheme, not an enhancement subject to the dual use proscription.”
Justice Lamar Baker dissented, saying that “I agree with the result…even though it seems in tension with the apparent ameliorative purpose” behind the amendments. However, he remarked:
“The Legislature…retains the prerogative to clarify the statutory text if the result we reach—which permits dual use of prior second ‘strike’ offenses—is not what it intended.”
Castaneda-Morales’ petition for review was denied on Wednesday, and Liu’s concurrence was posted on the California Courts website on Friday.
Alternative Sentencing Scheme
Liu said that Div. Five reached the conclusion that §1170(b)(5) did not preclude the sentence imposed based on a determination that the Three Strike sentencing law is an alternative sentencing scheme rather than an “enhancement.” Characterizing the decision as “not illogical,” Liu pointed out that “we have cautioned that ‘[a]rguments based on supposed legislative acquiescence rarely do much to persuade.’ ”
Saying that “[t]he outcome here effectively carves out an exemption for our state’s ‘most common sentencing enhancement,’ ” he questioned whether the result jives with the legislative purposes behind the 2022 amendments, which were concerned with addressing racism and inequality in the structures of the judicial system. He wrote:
“Against this backdrop, it seems odd to say the Legislature intended the bill and others like it…to leave the Three Strikes law untouched….At any given time, over a third of people incarcerated in California are serving sentences that were doubled or tripled under the law….It would surprise no one to infer that the Legislature understood the law to be a ‘sentencing enhancement statute.’ ”
The justice added:
“I agree with Justice Baker that ‘[i]t is hard to imagine why the Legislature would have intended to forbid ‘dual use’ when an enhancement is involved…but to permit dual use in case of a prior strike conviction—which will often have a more severe impact on a defendant’s sentence than dual use where an enhancement is concerned.’…I join him in inviting the Legislature to examine whether a carve-out for the Three Strikes law in section 1170, subdivision (b)(5) is ‘in tension with the apparent ameliorative purpose animating passage of’ the provision and should be reformed.”
The case is People v. Castaneda-Morales, B341744.
Given that the Three Strikes law was initially adopted by a voter-approved initiative in 1994, a legislative change to §1170(b)(5) that would undermine the ability of a judge to impose an increased sentence under the alternative sentencing scheme might face legal challenges. Sec. 10 of Article II of the California Constitution provides:
“The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.”
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