Court Improperly Finds Wisconsin Conviction a Prior Strike

In 2007, Jose Saez used a garrote (a wire weapon used to strangle someone) to assault a women in broad daylight on a San Francisco street. A witness called police, reporting that he was “stomping” on the woman as she lay on the sidewalk.

Brief Synopsis: Prior finding that a Wisconsin conviction for false imprisonment is a strike in California is reversed because the Wisconsin statute under which defendant was convicted did not require that he use a firearm to commit false imprisonment.

When police arrested Saez, he commented that his stomping could not have hurt the woman because “the bitch was already dead.” The woman actually did not die. Police then found a homemade garrote in his pocket.

A jury found Saez guilty of attempted murder and also found that the crime was premediated. The jury further found that he personally inflicted great bodily injury, defined under Penal Code § 12022.7.

The judge then found that Saez had two prior convictions in Wisconsin that could possibly be strikes under California’s Three Strikes law. The jury then found the two prior convictions were true and the judge sentenced Saez to 39 years to life in prison under Penal Code § 667(b) – (i) and § 1170.12.

Court of Appeal First Appellate District San Francisco
A little background information may be helpful for the reader. A qualifying strike under California’s Three Strike law includes, “[a] prior conviction in another jurisdiction for an offense that if committed in California, is punished by imprisonment in the state prison… if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular… serious felony as defined in subdivision (c) of section 1192.7.”

Section 1192.7 (c) then lists many offenses that constitute “serious felonies” and includes “any felony in which defendant personally uses a firearm.” This firearm provision is at § 1192.7(c)(8).

The key issue on Saez’s appeal was whether Saez’s conviction for false imprisonment while armed constituted a strike because the conviction itself does not establish that he used a firearm in the commission of the crime. After all, the Wisconsin statute under which Saez was convicted did not contain all of the elements necessary to find it was a qualifying offense under California Penal Code § 1192.7 (c). Most importantly, California requires use of the weapon, where Wisconsin only requires possession and nothing more.

---