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I wanted to know that in the star of California if a person…

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Hello I wanted to...

Hello I wanted to know that in the star of California if a person has been tried and convicted of a crime he served time for a received a strike for the crime...can the prosecutor come back on a totally different case that he gets convicted of also add another strike to the first one the person already served time from which makes him have 3 strikes?

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state this is in?

California

Lawyer's Assistant: Have you talked to a lawyer yet?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

My husband and I are challenging the verdict in the case he has been put in prison for ...he did not commit the crime for which he was accused and sentenced. He had asked for a separate trial than the 2 others involved one of which the police intimidated with violence and lies. The other man who committed the crime did a affidavit saying my husband was not with him and the other guy during a robbery and was not involved in no way. Yet they denied my husband request for a separated trial from the two who are really guilty. All that he was convicted on was the other young man’s testimony who had been brutally persuaded to change his testimony...years later(7) I reached out to find this young man via FB and I did...but we had no commutation because he had to respond to my request as s friend on FB...about 8mis later he finally called me and explained why he lied on my husband and was crying saying he was sorry for putting a innocent man in prison and that he would right his wrong and help my husband get out of prison. I told him all we wanted from him was the truth nothing more n nothing less. So he did a affidavit explaining what really happened. So now the star witness and the other man has testified under oath my hus band had nothing to do with the crime. My husband recently gathered up ALL the details of his case and submitted to the courts, but they still will not open a new trial...what can we do next?

Submitted: 4 months ago.Category: Criminal Law
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Answered in 7 hours by:
3/13/2018
Criminal Lawyer: James Daloisio, Lawyer replied 4 months ago
James Daloisio
Category: Criminal Law
Satisfied Customers: 724
Experience: 30 years experience in criminal law, continuing education.
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Hi, my name is ***** ***** welcome to Just Answer.

As to your question about strikes:

Any conviction of an offense listed in Penal Code Section 1192.7(c) or 667.5(c) constitutes a "strike" on a person's record. If a person has one prior conviction for a "strike" offense, and gets charged with a new felony, he is said to be a "second-striker."

If a person has two prior convictions for strike offenses and gets charged with a new felony, he is said to be a "three striker."

The punishment for being a second striker, basically, is that the normal sentence for the crime is doubled. For example, if a second strike defendant is charged with robbery (no weapon) the normal range for sentencing is 2, 3, or 5 years. But as a second strike defendant, the punishment doubles to 4, 6, 0r 10 years.

The punishment for being a third striker is most often a 25 to life prison sentence for each new offense.

As to your husband's appeal rights:

There is a roadmap of sorts when a California defendant is convicted of a felony.

First, you appeal the conviction to the Court of Appeal for the district in which you were convicted. If the Court of Appeal refuses to hear the case, or hears it and denies it, you petition for a rehearing, and if denied, you petition the state Supreme Court for review of the Court of Appeal's decision. If the state Supreme Court refuses to accept the case, then you've "exhausted your state remedies."

You can file a petition for writ of habeas corpus pursuant to Penal Code Section 1473; to be successful you have to show that the new evidence, in this case the admission of perjured testimony, would have definitely resulted in a different result at trial.

You can also file a petition for a writ of habeas corpus at the federal level pursuant to 28 U.S.C. 2254.

Of all the reasons that people have to attack their convictions, perjured testimony is the most difficult to use to obtain a positive result. Courts traditionally view these claims with a high degree of suspicion.

Here's the California statutes relating to habeas petitions:

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&division=&title=12.&part=2.&chapter=1.&article=

And here's the links to help with filing a 2254 petition in federal court; I don't know which district you're in so I included all three.

(Southern District of CA)

http://www.adi-sandiego.com/practice/mcle/MCLE_New_Petition_Form.pdf

(Central District of CA)

http://court.cacd.uscourts.gov/cacd/forms.nsf/0/c6f26bf08eb5632488256fd70000193d/$FILE/State%20Habeas%20Corpus%20Packet.pdf

(Northern District of CA)

file:///Users/jd77/Downloads/Petition_for_Writ_of_Habeas_Corpus_28-USC-2254.pdf

(Eastern District of CA)

http://www.cae-fpd.org/Sac2254Inst.pdf (No form attached to this file; use generic 2254 petition here: http://www.caed.uscourts.gov/caednew/assets/File/2254%20Application.pdf

Hope that helped. You have a lot of work ahead of you.

The only other thing I'd advise is to have your witness's testimony recorded on audio/video with a court reporter pursuant to the requirements of Penal Code Section 1335-1345. The grounds would be that the witness may be in danger, or may not appear for further proceedings. Warning: I've never done this in a case where there's already been a judgment and you want to preserve the testimony for appellate/habeas corpus proceedings. You should consult with an appellate lawyer to see if it can be done. If not, at the very least you want this statement recorded, and not just in the words of the witness but by the witness in response to questions asked by an attorney. Your affidavit that's already been provided could be used to support your habeas corpus petitions but you really need a professional examination of the witness; that's still no guarantee it would be admissible but being that you're betting the farm on this one witness's testimony, I'd want to preserve it as best as I could. Also, in his statement there should be information that tends to establish the truthfulness of his allegations. He should be very specific as to how the crime was planned, what preparations were made, how it was decided who would do what, and at each step how your husband was not included in that sequence of events and how he came to be present (if he was) at the scene. You are starting out at a disadvantage by using the concept of perjured testimony so you have to be incredibly detailed in your witness's presentation.

I hope that helped. If so, please don't forget to rate this answer. You can always return here with follow up questions on this topic at no additional charge. And thank you for using Just Answer!

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