Review of The Three Strikes Law in California
The “three strikes” law in California under Penal Code 667 PC is a sentencing scheme where a defendant will receive a prison sentence of 25 years to life if they are convicted of three serious or violent felony crimes.
This law was originally enacted in 1994 and California voters approved Proposition 36 in November 2012, which substantially amended the law.
California's notorious three strikes law, codified under PC 667, mandates a twenty-five-year to life sentence for defendants whom authorities convict of multiple felony crimes.
The same statute doubles the sentence for defendants whom authorities convict of any felony when the defendant has a prior violent or other serious felony.
In California, both two strikes and three strikes can bring a very long prison sentence.
You can challenge a sentence under California's three strikes law by asking a judge to remove a prior strike using a Romero motion, or you can attempt to get your felony charge reduced to a misdemeanor.
The unusual severity of two strike and three strike sentences under Penal Code Section 667 has led to several changes in the law over the past two decades.
Those changes can result in sentence reduction and freedom for some if they retain skilled counsel to challenge their three strikes sentence.
The changes can also result in avoiding what would years ago have been a two strike or three strike sentence. You might also be able to apply for parole.
For more detailed information, our Los Angeles criminal defense lawyers are providing an overview below.
The Three Strikes Law Statute
California's three strikes statute, Penal Code 667 PC, states in pertinent parts of its key subsection (e) that:
- “(1) … If a defendant has one prior serious or violent felony conviction …, the minimum term shall be twice the term provided as punishment for current felony conviction.”
- “(2) … If a defendant has two or more prior serious or violent felony convictions …, the term for current conviction shall be life imprisonment with a minimum term of: (i) Three times the term for each current felony conviction. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court for underlying conviction, including any enhancement ….”
Thus, the statute is clear that two qualifying felonies often mean a double sentence and three qualifying felonies a life or twenty-five-year sentence, with certain exceptions.
The statute's subsection (b) reinforces it by stating the intent of the Legislature is to ensure longer prison sentences for defendants who commit a felony and have been previously convicted of one or more serious or violent felony offenses.
The big questions, though, are what felonies qualify and what are the exceptions to the stiffer sentences.
How Does the Three Strike Sentencing Work?
As you can see, the three strikes law mandates longer prison sentences for a defendant convicted of a felony and has prior “strikes” on their record.
A defendant is considered to have a “third strike” under the following circumstances:
- they have two prior convictions for serious or violent felonies, and
- they have been currently charged with a serious or violent felony crime.
In this scenario above, a defendant will receive a prison sentence of 25 years to life for the current felony charge.
Current charge NOT a “strike”
In a situation where you have two strike priors for serious or violent felonies, but the current charge is not a “strike” offense, then the third strike sentence will be double the normal sentence for that felony crime.
However, in some cases, the defendant could still get 25 years to life even when their third crime is not a serious or violent felony, for example:
- third offense is a felony sex crime requiring sex offender registration,
- third offense involves large quantities of drugs, such as methamphetamine, cocaine, heroin,
- a firearm was used or defendant possessed a deadly weapon when the third offense was committed,
- defendant had intent to cause someone a great bodily injury (GBI) when the third offense was committed.
If you have one prior strike on your record and then charged with a California felony offense, then you will receive punishment as a “second striker.” This means you could receive double the normal maximum sentence for that specific crime.
Prison inmates in California typically earn custody credits for time served with good behavior. This means they could get released from prison after serving just half of their sentence.
However, the three strikes law places a limit on this privilege. For example, if you are a second or third striker, you will be required to complete 80% of your sentence before you can get released from prison.
If convicted of a violent felony crime, you must serve 85% of the sentence. If charged with more than one crime, then you will be required to serve the strike sentences consecutively.
What Crimes are “Strikes” under the Three Strikes Law?
In California, a “strike” under the three strikes law is a conviction for a violent felony crime under Penal Code 667.5 PC, or a serious felony crime under Penal Code 1192.7 PC.
Some examples of what crime would be considered a violent or serious felony include:
- Penal Code 187 PC – murder,
- Penal Code 664/187 PC - attempted murder,
- Penal Code 192(a) PC - voluntary manslaughter,
- Penal Code 203 PC – mayhem,
- Penal Code 261 PC - rape,
- Penal Code 286 PC – sodomy
- Penal Code 287 PC - oral copulation by force,
- Penal Code 288 PC - lewd acts on a child under age fourteen years,
- Penal Code 297 PC – kidnapping,
- Penal Code 215 PC – carjacking,
- Penal Code 451 PC – arson,
- any felony or felony attempt punishable by death or life imprisonment;
- any felony in which the defendant inflicts great bodily injury;
- any felony in which the defendant uses a firearm or dangerous weapon;
- assault with intent to commit rape or robbery;
- assault with a deadly weapon or instrument on a peace officer;
- arson and exploding destructive devices with certain forms of intent;
- first-degree burglary, robbery, and bank robbery;
- kidnapping and hostage-taking by a state prisoner;
- certain serious drug felonies involving heroin, cocaine, and other drugs;
- discharge of a firearm at an inhabited dwelling, vehicle, or aircraft;
- witness or victim intimidation, and certain criminal threats.
Despite the law's clarity, three strikes disputes often arise around what constitutes a qualifying felony, especially when the conviction occurred in another state or California law has changed as to the crimes.
Removing a Strike
The California Supreme Court Case People v Superior Court (Romero) also permits a defendant to ask the trial court to remove a prior strike.
In other words, courts can excuse or dismiss prior strikes in the interest of justice.
In some cases, a prosecutor will choose to “strike” a strike allegations because they believe the defendant doesn't deserve to be treated as a striker.
A criminal attorney could ask the judge to dismiss a prior strike with a Romero motion. The judge considers many factors to make their decision, such as defendant's criminal history, facts of current case, and how long ago the strikes occurred.
If the defendant prevails on that request, it will relieve the defendant of the harsh effect of the three strikes law.
Getting a trial court to exercise that authority is no easy task. The defendant must convince the trial court that applying the three strikes law is outside the law's spirit, considering the defendant's understandable history, general good character, and good prospects.
Our Certified Criminal Law Specialist have the skill and experience to prepare compelling Romero motions.
Appealing a Three Strike Sentence
With legal representation from an appellate lawyer, you can appeal a three strikes sentence in California.
Proposition 36 in 2012 made substantial changes to the three strikes law, which allowed inmates to appeal their sentences. If successful, the could get released early or even immediately.
A defendant could also appeal their sentence for being unconstitutional based on the Eight Amendment of the United States Constitution for cruel and unusual punishment.
Criminal Defense for Three Strike Cases
California's three strikes law significantly raises the stakes for facing a serious or violent felony charge.
Those who face serious California felony charges need aggressive representation from criminal defense lawyers who have the experience to fight these charges.
At Eisner Gorin LLP, we know how to challenge, reduce, and defeat serious felony charges. We also know how to convince the trial court to remove prior strikes to avoid the harsh effect of California's three strikes law.
We might be able to argue that you are not guilty of the current charge or you don't have alleged prior strikes. Further, we could argue that one or more of your priors are not actually a strike.
Be aware of California's infamous three strike law any time you face a qualifying felony charge. Avoid even a first strike or second strike, no less than a third strike.
if you or a family member are serving an old three strike sentence, our law firm could review the sentence for possible reduction.
Contact us at (877) 781-1570 for an immediate response to your call.