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ned · #1 08-16-2011, 07:53 PM

The CDCR has decided that 245 (a) (1) assault with means likely to produce GBI, as it is stated in the abstract, is both serious and a strike. This was a plea and verified by 2 attorneys and a CDCR legal analyst in Sacramento as a not a "violent" or "serious" felony and not a strike before it was accepted. There are no priors and no enhancements, but they are calling it a serious felony and a strike. How do we get it corrected??

Gryphon · #2 08-17-2011, 06:50 PM

It depends. For what purpose are they doing this, and how is impacting the inmate?
Can he get something in writing that says so?

Quote:

Originally Posted by ned

The CDCR has decided that 245 (a) (1) assault with means likely to produce GBI, as it is stated in the abstract, is both serious and a strike. This was a plea and verified by 2 attorneys and a CDCR legal analyst in Sacramento as a not a "violent" or "serious" felony and not a strike before it was accepted. There are no priors and no enhancements, but they are calling it a serious felony and a strike. How do we get it corrected??

ned · #3 08-19-2011, 11:29 AM

Quote:

Originally Posted by Gryphon

It depends. For what purpose are they doing this, and how is impacting the inmate?
Can he get something in writing that says so?

This was done by the institution's records department when he returned from court. As far as getting something in writing it's been difficult, after 9 weeks without any access to yard, phone calls or contact visits he was convinced to sign away his right to attend committee which is where he would have been given the documentation. I know it's wrong from a lengthy conversation with records. The abstract is correct, the CDCR acknowledged it as non-violent but have apparently interpreted the term GBI (which is theoretical not actual with this charge: likely to produce is what is on the abstract) as having happened. PC 1192.7 clearly states what elements must be present for a 245 (a) (1) to be "serious" and this case meets none of the criteria. I know were right and that the abstract is right I just don't know how to get the CDCR to correct it's misinterpretation. As far as impact there's a big difference between having a strike and not, without a prior record. Having one strike leaves you vulnerable to a life sentence if you should ever find yourself facing felony charges again, which would not be the case if you did not have a prior strike as they can't strike you out in a single case. Also as a 'serious' offender your parole looks quite different (as the law stands presently anyway.) And lastly our plan is to go for a Cert of Rehab (I know, a long shot) and I suspect this would have a degree of bearing on that as well. And the least important impact is it is yet another thing that they got wrong that we have to put time and energy into fixing, we won the appeal, are near our out date, just want to get on with it and stop fighting... it's exhausting! Any help would be greatly appreciated.

2sleepy · #4 08-21-2011, 09:56 PM

why doesn't he put in a request for an Olson review? that will give him access to everything in his file

Gryphon · #5 08-21-2011, 10:43 PM

Quote:

Originally Posted by ned

I just don't know how to get the CDCR to correct it's misinterpretation. As far as impact there's a big difference between having a strike and not, without a prior record. Having one strike leaves you vulnerable to a life sentence if you should ever find yourself facing felony charges again, which would not be the case if you did not have a prior strike as they can't strike you out in a single case. Also as a 'serious' offender your parole looks quite different (as the law stands presently anyway.) And lastly our plan is to go for a Cert of Rehab (I know, a long shot) and I suspect this would have a degree of bearing on that as well.

What CRCR decides to call it is NOT what makes 245a a strike. It is a strike, or not, based on the records from the conviction (mostly the change of plea in combination with the Abstract of Judgement.)
My suspicion is that the Sentence Abstract/Abstract of Judgement is somehow open to interpretation and doesn't entirely reflect the Change of Plea Transcript.
If you can get something to verify the problem exists, the trial attorney could recalendar the case to "clarify" the original sentencing and orders, or to "clarify" the Abstract of Judgement. Orders will then be forwarded by the court clerk to CDCR.
Another approach is to get certified copies (official court stamp) of the change of plea transcript, the written waiver of rights, and the Sentence Abstract. Armed with those, perhaps a Sentence Analyst at CDCR could be enlisted to help correct the problem. An administrative review could be requested at CDCR.