such as petty theft with a prior. The answer here is very simple. It is not simply a petty theft because there is a past record that converts it into a potential felony if the district attorney charges it as a felony. Further, it only remains a felony if the judge does not declare it to be a misdemeanor and if neither the district attorney nor the judge strike one or more third strike-qualifying priors. This means that a district attorney has exercised discretion to charge it as a felony rather than a misdemeanor. The judge has exercised his/her discretion not to reduce it to a misdemeanor with full knowledge of the consequences. The district attorney has exercised discretion by filing all the priors that qualify the offender for sentencing under the doubling formula or the sentence of 25-life and by not striking the prior or one of the two prior "serious" or "violent" poor convictions for purpose of sentencing. The judge has used his/her discretion with full knowledge of the consequences to not strike one or more of the prior "serious" or "violent" prior convictions. In sum, such offenders have convinced the judge and the officers of the court that their past records demonstrate such sentences under the Three Strikes Law are appropriate.

Of the remaining "theft" type offenses, they consist of Grand Theft (stealing property of a value greater than $400), receiving stolen property, vehicle theft and forgery/fraud. For second strike offenders (people with one prior serious or violent felony conviction) the percentage of offenders in the other theft categories is 11.5%. For third strike offenders (two prior serious or violent felonies) the percentage of offenders in the other theft categories is 14.4%. In each of these other "theft" type offenses, the district attorney and the judge have made the same type of discretionary decision as with those who have a petty theft with a prior petty theft or prior felony. Many layers of discretion have been exercised for the defendant to receive the sentencing consequences of a second or third strike felon. This is not an automatic consequence or a consequence in which discretion or serious decision making has been ignored or abdicated by those with the greatest knowledge of the consequences.

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