In 1994, California passed the “Three-Strikes” law through voter referendum, imposing a mandatory sentence of 25 years to life on defendants who have been convicted of three “violent” or “serious” felony offenses, which is codified in Penal Code 667.5 PC.
In other words, certain felony crimes are considered a “strike” for the purposes of the three-strikes law, which is one of the harshest sentencing statutes in the United States.
These offenses can be either serious or violent and are listed in Penal Code 1192.7 PC, which lays out the crimes that are automatically charged as strike offenses, resulting in much longer prison sentences for any subsequent felony convictions.
Also, the most serious crimes listed in PC 1192.7 will require you to serve a higher percentage of your sentence, but exceptions exist. If convicted of a strike case, you will usually be required to serve up to 85% of your time in prison rather than 50%.
If charged with two or more strike cases, or you have two prior strike cases and are convicted of a third, which does not have to be a serious or violent offense, you could be sentenced to up to 25 years to life in prison.
The law was designed to crack down on repeat offenders and reduce crime rates in the state, although there has been some debate as to its effectiveness, and several attempts have been made to repeal or amend the law in recent years.
In conjunction with the three strikes law, Penal Code 667.5 PC lists certain “violent felonies” that count as “strikes.” It also imposes additional sentencing for subsequent prior “strikes” for committing these felonies, although Los Angeles prosecutors currently do not press for these sentencing enhancements. Let's examine this topic in further detail below.
Which Violent Crimes Are Classified as Prior Strikes?
PC 667.5 provides an extensive list of violent crimes that count as strikes under California's Three Strike Law. These include, but are not limited to:
- PC 187 murder or PC 192 voluntary manslaughter;
- Penal Code 664/187 PC attempted murder;
- Penal Code 203 PC mayhem;
- Penal Code 261 PC rape;
- Penal Code 286 PC sodomy (by force, violence, duress, or threat);
- Penal Code 287 PC oral copulation (by force, violence, duress, or threat);
- Penal Code 264.1 PC commission of rape or sexual penetration in concert with another person (e.g., “gang rape”);
- Penal Code 288.5 PC continuous sexual abuse of a child;
- Penal Code 288 PC any lewd or lascivious act committed on a child under 14;
- Penal Code 451 PC arson;
- Penal Code 460 PC first-degree burglary;
- Penal Code 211 PC robbery or bank robbery;
- Penal Code 207 PC kidnapping;
- Detonating an explosive or destructive device with intent to cause injury or murder;
- Detonating an explosive or destructive device resulting in bodily injury, great bodily injury, or mayhem;
- Penal Code 487(d)(2) grand theft involving a firearm;
- Penal Code 215 PC carjacking;
- Any felony punishable by the death penalty or life imprisonment or an attempt to commit such a felony;
- Any felony involving personal infliction of great bodily injury or use of a firearm;
- Any felony involving the use of a dangerous or deadly weapon;
- Assault with intent to commit rape or robbery;
- Assault with a deadly weapon or instrument on a peace officer;
- Assault by a life prisoner on a non-inmate;
- Penal Code 4500 PC assault with a deadly weapon by an inmate;
- Penal Code 220 PC assault with the intent to commit mayhem, rape, sodomy, or oral copulation;
- Penal Code 244 PC assault with caustic chemicals;
- Assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm. Or assault on a peace officer, firefighter, public transit employee, custodial officer, or school employee;
- Selling or providing certain controlled substances to a minor (e.g., heroin, cocaine, PCP, meth);
- Felonies that qualify for Penal Code 186.22 PC street gang sentencing enhancements;
- Discharging a firearm at an inhabited dwelling, vehicle, or aircraft;
- Penal Code 26100 PC shooting from a vehicle (e.g., “drive-by shooting);
- Penal Code 136.1 PC intimidation of victims or witnesses;
- Penal Code 422 PC criminal threats;
- Any attempt to commit a “serious felony” other than an assault;
- Any conspiracy to commit a “serious felony.”
Readers should note that out-of-state convictions will count as a “strike” for California's three strikes law if they would have qualified as a violent or serious offense if it were committed here.
What Are Serious Felonies?
As noted, in addition to “violent felonies,” California law also enumerates crimes identified as “serious felonies” under Penal Code 1192.7(c) and 1192.8(a), which also count as strikes.
Many of the felonies categorized as “serious” overlap with the list of violent felonies in PC 667.5—the primary differences being found in the context and circumstances in which the crime is committed, along with the defendant's prior history.
The main takeaway is that many of these crimes may still count as “strikes” even if they are not committed in a manner categorized as a “violent” crime.
What Are the Defenses Against Violent Felony Charges?
Because the penalties may go up considerably for any felony that classifies as a strike under the three strikes law, a good defense attorney will utilize specific defense strategies either to try and exonerate you of the charges or to reduce the charge, so it does not qualify as a strike. Some examples are discussed below.
Perhaps we can argue that you didn't intend to cause injury or death. For crimes of intent (such as explosive devices), it's not a strike if your attorney can show you had no intention of causing injury—i.e., it was accidental.
Perhaps we can argue there was no use of force, violence, or threat. For example, if you're charged with certain sex crimes (e.g., sodomy, oral copulation) in which the use of force or threats qualifies it as a “strike,” your attorney could argue that you didn't threaten or use force in committing the crime.
Perhaps you weren't part of a gang. Crimes that qualify for gang sentencing enhancements also qualify as strikes—so if your attorney can show you didn't commit the crime to assist gang activity, it might not count as a strike.
Suppose you were accused of a serious or violent crime listed under California Penal Code Sections 1192.7 or 667.5 PC. In that case, you will need an experienced defense team to have the best chance at a favorable outcome. We can help you.
Eisner Gorin LLP is located in Los Angeles, California. We provide legal representation across the state. You can contact us for a case evaluation by phone or using the contact form.