2nd / 3rd Strikes & Contracts

85-95% of all criminal cases are resolved through plea agreements. A plea agreement is the process when a person pleads guilty to lesser charges in exchange for a reduced sentence. This plea avoids the State having to expend the resources on trials. It also avoids the defendant being exposed to the maximum amount of time that conviction on all of the charges could carry. Furthermore, it avoids the standstill the Courts would suffer if every defendant actually went to trial. In law, plea agreements are considered contracts.

Part of the contract that California had defendants agree to prior to the 1994 passage of 3X, was that they had to agree that the State could and would use the then current convictions against them in the future if they were to re-offend. This process aided the State in avoiding future appeals by Defendants, who upon re-offense, might later argue that they did not know that their prior convictions would be used to increase their future sentences. Now, that same process which aided the State, may now aid the struck out prisoner.

The reason is actually quite simple. In advising and making the defendant agree to how the conviction would be used against them in the future, the State specified how the plea would be used, (1-5 year increase for each prior conviction). Example: contained in the attached documents is the transcript of Louie Rhodes. The County of Santa Clara told Louie that he suffered from 4 prior convictions and that if he were to re-offend to a specific type of crime, a crime defined by law as violent or serious, that he would get 20 years in prison for the priors, plus whatever else the new charge carried. Therefore, if the new charge carried 7 years, Louis would get the 7, plus the 20, which would equal 27 years in prison.

With the passage of 3X, the State is ignoring the contracts it entered into with defendants, which limits how plea-agreement convictions are used. In legal filings on this issue, the State has said that they did not have to advise defendants of possible life sentences, because at the time of their pleas, the life sentence was not law; (the State has also said that 3X does not re punish the defendant for past crimes, which in law is known as ex-post facio and as it relates to the 3X, the United States Supreme Court has already denied the issue). Louie had been told of the 5-year use of his priors, (which for him totaled 20 years because he had 4 of them), but that once the law changed to 3X, he was deemed “on notice” of the stiffer penalty.

Now, pause for a moment, imagine you enter into a rental contract for two years, but with an option on a third year at a set price. You decide, for whatever reason, to exercise the option and you learn that the price has changed. It has gone up and you have to pay it despite your contract. Would you accept that you were on notice because the landlord had changed his mind about your contract and just pay it, or would you seek a legal remedy?

The State’s position on this in legal terms is that 3X is a collateral consequence, collateral in this legal sense meaning that it was just a possibility that the defendant would re-offend, thus facing a stiffer penalty for the next charge and so s/he did not have to be advised of it. State’s position is also that 2nd / 3rd strike law is a recidivist statute that punished for the persons continued criminality, not their past offenses. In law, conveniently ignoring another legal principle, which overrides their positions.

When pleading guilty, the defendant MUSTbe advised of everything that is considered a DIRECT consequence; in law everything that is a Direct consequence are things which the defendant must agree to in order for the contract to be complete. Example, when you enter into a rental agreement, if you have signed some but not all of the necessary portions, the contract is not active until all portions are signed. In Louis Rhodes and other exhibits included, you will see that they had to sign and/or orally agree that their then current convictions could be used against them in the future if they were to re-offend, in order for those past pleas to be complete.

The action of making the defendant agree to the possible future use of their plea made it a Direct consequence. If they had refused those portions of the contract, the plea would not have been complete. Once the future use portion was made into a Direct consequence, the term of how it could be used, (1-5 years in case of re-offense), was locked in stone; and upon re-offense, the State could use the old conviction to increase the new sentence, but, they were limited to how the contract said it could be used. Meaning, the State could not give life, (3rd-X), or double the terms, (2nd-X, 5 years would turn into 10), to individuals with convictions resulting from plea agreements with stipulations earlier mentioned. Moreover, remember, 85-95% of all convictions in California (and the U.S.) result from pleas agreements.

So, what does that mean? If correct, thousands of California prisoners are currently illegally sentenced. (Note: This contractual theory is also applicable to other States and Federal Recidivist laws where similar circumstances are present.) In contract law, defendants can request specific enforcement of their contractual terms, which could mean that those thousands of illegally sentenced can petition to be properly sentenced in accordance to their contractual agreements. Those re-sentences would result in many releases, and/or drastic reductions in sentences.

Note: Some defendants may not have documentation such as the exhibits included, which is not a problem. In researching this, I gathered different counties to show that it was a California Judicial/Prosecutorial practice to get defendants to agree to the possible future use of their pleas. As noted in both Louie Rhodes and Kim Gambles transcript, each Judge states that advising them of how their pleas would be used against them in the future was something that had to be done. The other two examples included are written plea forms in which the defendants had to initial the future use portion of the contract.

In the past when presented with this question, some in the legal community have responded that the California 6th Appellate Court addressed the issue in a case called Gipson, unfortunately that is misleading. Gipson did not address the contract issue as it is presented here and the difference between the Gipson case factors and those outlined here concerning collateral and direct consequences are substantial.

We continue to press this issue in the Courts through various inmates, and whenever successful we will update the site with that information. You are encouraged to download this information and research and if appropriate file your own filings.

Upholding the law in the contracts of 2nd / 3rd strikers does not diminish the law and/or make society unsafe, in fact, it substantiates the principles of what America stands for, respect for the law and protection of every citizen and his/her rights. If you are okay with one person’s rights not being protected because of their position in life it is easy to ignore them. You must then prepare yourself for the day that the Government forgets that you, too, have rights regardless of what position you may one day hold or not hold.

For comments of questions, you can write me directly at La Merle R. Johnson, J-92682, POB 409060, C15-208L, Ione, CA 95640-9060, Or email me at, allow 2-3 weeks for reply.