What is California's three strikes law and how has it changed? California's three strikes law is a sentencing scheme that adds significant time to the prison sentences of certain repeat offenders convicted of serious or violent felonies. The three strikes law was enacted by both legislative and voter initiatives in the 's. It was amended in and again in to add additional crimes to the list of qualifying "strike" offenses. But the data is far from clear as to whether the law even reduces crime.
Three strikes can operate in a way that violates the Eighth Amendment constitutional right against cruel and unusual punishment. Before then, a "strike" sentences could be triggered by any felony conviction - even for a "wobbler" or nonviolent offense. So the old version of three strikes could lead to gravely disproportionate and even absurd outcomes, like giving someone convicted of shoplifting a longer sentence than someone convicted of murder.
Thanks to Proposition 36 , which won the popular vote in every county in California, in most cases you will only receive the longest year-to-life sentence if all three of your felony convictions were for serious or violent felonies instead of just the first two.
In , there were around 32, second strikers and 9, third strikers in California prisons. What prior convictions count as strikes for purposes of the three strikes law? In order to understand how California's three strikes system works, it's important to understand what a "strike" offense is. Simply put, a prior conviction counts as a strike if it was for a serious or violent felony as defined in the California Penal Code.
Serious or violent felonies Violent felonies under California three strikes law are listed in California Penal Code Section Most felonies involving violence are on the list.
This includes specific crimes, like murder and mayhem and rape. On the other hand, some crimes, like residential burglary and robbery, are serious crimes without regard to whether they are committed with violence in a particular instance. This means the current felony charge must have been committed after March 7, or, with respect to qualifying priors added to the list of violent or serious felonies after that date, after the dates on which those priors were added. In , Joseph is convicted of residential burglary.
The California state legislature passes the three strikes law in , while Joseph is serving time for the burglary. Shortly after passage, Joseph escapes from jail. Joseph goes on trial for felony escape. The burglary conviction counts as a prior strike in Joseph's trial on escape charges. Even though the burglary was committed prior to enactment of the law, the felony escape charge - the current offense - was committed after enactment of the law.
Juvenile sustained petitions Given the harshness of the three strikes law, it is perhaps no surprise that juvenile convictions can count as strikes. A "juvenile sustained petition" the term for a conviction in juvenile court counts as a strike under California three strikes law if three conditions are met: The conviction counts as a strike under the California Penal Code definitions of violent or serious felony;30 The crime is listed in California Welfare and Institutions Code b ; and The person was at least 16 years of age when the offense occurred.
Edwin is convicted of residential burglary and possession of burglar's tools. He has four juvenile sustained petitions for burglary. The judge dismisses three of the four priors but counts the non-dismissed burglary adjudication as a strike.
The California Supreme Court reviews the case and decides that such an adjudication can only count as a strike if it was committed in connection with a b -listed offense. Because Edwin's burglary offense was not committed in connection with a b offense, it is not a strike. Out-of-state convictions For purposes of the California three strikes law, out-of-state convictions count as strikes so long as they would have constituted qualifying strike priors in California.
Multiple strikes from a single trial A defendant can accumulate more than one strike in a single court proceeding. On one fateful day, Scott is driving a stolen car and collides with another car. When the driver of the other car tries to call the police, Scott pulls out a handgun to get her to stop. Then, he takes another car at gunpoint and uses it to flee the scene.
Scott ends up being charged and convicted, in one proceeding, of both assault with a firearm for threatening the other driver with the gun and robbery for taking the new car. Even though the two offenses were brought and tried together, Scott now has two strikes for purposes of the three strikes law. How does California's three strikes sentencing scheme work?
Sentencing in "third" strike cases Under the old version of California's three strikes law, if a person was convicted of any felony , and had two or more "strike" priors prior convictions for strike offenses , he or she would be sentenced to at least years-to-life in state prison. A third offense will only trigger a year-to-life prison sentence if the third offense is also a "strike" offense.
It is no longer the case that any old felony will do. Manuel has two strike offenses on his record-one for residential burglary and one for robbery. He is arrested for possession of cocaine-which is a felony, but not a serious or violent felony.
Under the old three strikes law, Manuel would have been subject to 25 years to life in prison after his possession conviction. But under the new three strikes law. Manuel will not face this lengthy sentence, because his third offense was not a serious or violent felony. However, because he does have two strikes on his record, Manuel will receive twice the normal sentence for cocaine possession.
Exceptions to the reform under the new three strikes law Even under the new three strikes law, though, there are exceptions to the rule that a third strike has to be a serious or violent felony to earn a years-to-life sentence. Here are the major exceptions: If your third offense involves possession for sale, sale or transportation, or manufacturing of cocaine, heroin, methamphetamine, or related substances, you will receive the maximum three strikes penalty.
Some of the prior strike offenses that can lead to this result are: Any "sexually violent offense" meaning a sex offense committed by means of force, violence, or threats , b.
Oral copulation, sodomy, or forcible sexual penetration of a child under 14 who is more than 10 years younger than the defendant, c. Lewd acts with a child under 14, d. Murder or manslaughter, or solicitation to commit murder, e.
Assault with a machine gun on a peace officer or firefighter, and f. Any serious or violent felony for which the possible penalties include life in prison or the California death penalty. Sentencing in "second" strike cases Under both the old and the new three strikes laws, if a person is convicted of any felony and has one "strike" prior, that person must be sentenced to double the prison term on the current conviction.
Angel is on trial for robbery in a residence. If convicted under ordinary circumstances, he faces a sentence of three, six, or nine years in state prison. Custody credit calculation in strike sentences California prison inmates earn "custody credits" for time served with good behavior. Third strikers do not receive any custody credits. Consecutive sentences and other excessively punitive measures As if the second and third strike sentencing enhancements were not punishment enough, the three strikes law also: Mandates that strike sentences for different counts tried in the same proceeding be served consecutively.
Jimmy, who has a criminal record, steals a bottle of brandy from a neighborhood store. As security personnel pursue him, Jimmy runs across a vacant lot and into Elizabeth's backyard. In his panic, Jimmy strikes Elizabeth with the brandy bottle. He is convicted of petty theft with a prior and assault with a deadly weapon. Because of Jimmy's criminal record, both of these convictions were considered third strikes under the old three strikes law. The judge decides that the theft and assault were committed on separate occasions.
Therefore, because it's a three strikes case, Jimmy is given two consecutive life sentences. He is not eligible for probation and he must serve his time in prison as opposed to an alternative facility.
If the jury decides the allegations are true, then the three strikes law and all its penalties apply. The prosecutor typically uses court records, prison records, fingerprint records and booking photos in attempting to prove that the accused did in fact sustain the alleged strike priors.
As prosecutors, we had to prove strike allegations against defendants. Now that we represent people accused of crimes, we use our "inside knowledge" to expose weaknesses in the district attorney's case. That can mean the difference between years behind bars or probation. Let's look at an example: Don is tried and found guilty of aggravated assault.
But negligent discharge of a firearm only qualifies as a serious felony and therefore a strike if the defendant personally discharged a firearm. So the prosecutor must prove that Don actually discharged the firearm and was not merely an aider and abettor in the prior case. Can the court excuse or dismiss prior strikes? Thankfully, there is room for discretion even within the very strict three strikes law.
The prosecutor and judge can move to dismiss strikes "in the furtherance of justice. Prosecutors can "strike" strikes Prosecutors can "strike" strike allegations up until trial. Romero motions defense attorneys Judges also may dismiss strikes.
They can do this at any time up until sentencing. If your son or husband or other loved one faces a strike case, our California Three Strikes Defense Lawyers may be able to persuade the judge that your loved one does not fall within the "spirit" of the three strikes scheme.
Can I appeal a three strikes sentence? Even if the worst happens, and you are convicted and sentenced under the three strikes scheme, you may have a ground for a legal appeal to a higher court. Appeals of California three strikes cases are often successful. In an appeal, you might be able to argue that your sentence is so disproportionate to the crime that it constitutes cruel and unusual punishment.
And not only that If you or a loved one is in this position, you should contact a California criminal defense attorney right away Is it worth fighting a "strike" case?
One way to tackle a "strike" case is by fighting the current charge. If our California Three Strikes Defense Lawyers can get a felony charge dismissed or reduced to a misdemeanor - or secure an acquittal at trial - we can help our client avoid application of the dreaded law in the first place.