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Ohio Murderers Seek Execution Stay:  Three condemned Ohio murderers are asking U.S. Supreme Court Justice Elena Kagan to stay their executions on Eighth Amendment grounds.  The Associated Press reports that after losing a ruling by a divided Sixth Circuit Court of Appeals last month, child killer Ronald Phillips is running out of time.  His execution is scheduled for July 26 for the 1993 rape and murder of his girlfriend's 3-year-old daughter.  If it is carried out, Phillips execution will be Ohio's first in three years. The other murderers are scheduled to be executed on September 13 and October 18.  The murderers claim that the use of the sedative midazolam in the state's execution process creates an unconstitutional risk of pain.

Released Criminal Assaults Police Officer:  A habitual felon recently released from a California prison is facing charges of attempted murder after a Monday attack on a San Diego police officer.   The Associated Press reports that Daniel Moses Cook was high on methamphetamine when he was confronted by the officer after he robbed a Dollar Tree store and was stealing soft drinks from a KFC restaurant.  Cook attacked the officer, knocking him to the ground and beating him unconscious.  Fox5 reports that a bus driver who saw the attack called the police, who had to tase Cook in order to take him into custody.  At a hearing Thursday, Cook pleaded not guilty to attempted murder, robbery, and drug charges.  If there is not enough evidence to prove the attempted murder charge and it is reduced to assault on a police officer, under current California law the worst punishment Cook can receive if convicted is time in county jail.


While I agree that AB 109 (realignment) was the beginning of some very unwise criminal justice policies here in CA, there are several reasons why Moses' attack would still warrant a prison sentence (not county jail). The robbery is a violent felony and therefore one that would get him to prison. Additionally, knocking the officer unconscious should bring about a PC 12022.7(a) allegation which would also bring about a prison sentence. Finally, the linked articles strongly suggest that Moses is being charged with strike priors. As a result, he is not eligible for a county jail sentence under PC 1170(h).

Even if Moses is sent to prison, given the way CDCR is interpreting Prop 57 and granting accelerated credits on all crimes including murders, sending him to prison is not necessarily much of an improvement. Outside of this case, there will be cases where sending someone to county jail will, in fact, yield more custody time than prison because of Prop 57. Prop 57s parole eligibility policies are very generous and CDCR is interpreting them even more generously by classifying violent offenders as not being violent once their sentence for the violent term is complete. This is true even when they have substantially more time to serve on crimes non classified as violent (which includes assaults and many other apparently violent crimes).

You may be right, but under Proposition 57, Mr. Moses' priors will not count for parole eligibility if he does get to prison. Prop. 57 only counts the sentence for on the primary felony for parole eligibility. I don't know for sure if he was armed during the Dollar Tree robbery, but if he wasn't he may not be prison eligible for strong armed robbery. There is a reason that the DA has charged him with attempted murder. Even assault with a deadly weapon on a peace officer or firefighter (Penal Code section 246) is not considered a violent crime under Prop. 57. And in this case Moses did not have a weapon when he beat down the cop. It has not been litigated yet, but we suspect that county jail inmates may also qualify for the same benefits Prop. 57 gives to prison inmates.

Mr. Rushford, I agree that Prop 57 exempts prior convictions for parole eligibility. However, all robberies are violent felonies under Penal Code section 667.5(c) and therefore prison eligible (under 1170(h) and given current CDCR regs not eligible for the parole provisions of Prop 57.

Of course, it appears that any non-violent felony time imposed even on someone who has a current violent felony is being considered by CDCR as eligible for Prop 57 parole eligibility as soon as their violent felony time is done.

This stuff is enough to make one's head spin. We can no longer tell victims what sentence anyone is likely to serve in prison (or county jail) and the number imposed has become largely symbolic. We have effectively moved back to indeterminate sentencing, but it's more complicated.

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