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California Three Strikes Law

California’s “Three Strikes ” law is one of the harshest sentencing schemes in the country and a law that can send people convicted of even nonviolent offenses to prison for life. Just ask Leandro Andrade. The father of three languishes in California state prison with two consecutive life sentences for shoplifting nine children’s videos on two occasions in November 1995.

Andrade is not alone. About one in four inmates in the overcrowded California state prison system has been sentence under this law. More than 1300 of those inmates are serving second or third strike sentences for petty theft with a prior (compared with 583 inmates incarcerated for second degree murder).

A growing movement of people dedicated to repealing or reforming the unfair three strikes law is being led by criminal defense attorneys throughout the state and by such organizations as California Attorneys for Criminal Justice (CACJ).

What is California's three strikes law?

California’s three strikes law is a sentencing scheme that adds significant time to the prison sentences of certain repeat offenders convicted of felonies.  

As of June 30, 2010, the California state prison population included 32,479 second strikers and 8,647 third strikers. Because “strike” sentences can be triggered by any felony conviction – even for a “wobbler” or nonviolent offense – strikers are serving lengthy and life sentences for convictions ranging from receiving stolen property to possession of a controlled substance to kidnapping to murder.

The three strikes law was enacted by both legislative and voter initiatives in the 1990’s. It was amended in 2000 and again in 2006 to add additional crimes to the list of qualifying “strike” offenses. The crimes which constitute strike offenses are discussed later in this article.

Passed in the anger and panic that followed the tragic murders of 18-year old Kimber Reynolds and 12-year-old Polly Klaas by men with prior significant criminal records, the “Three Strikes” law was intended to stop violent recidivist offenders. But the data is far from clear as to whether the law even reduces crime.

In addition, the law is flawed in other respects:

  • The ‘Three Strikes’ provision is triggered by any felony and not just violent or serious felonies. 
  • “Three Strikes” can lead to gravely disproportionate and even absurd outcomes, like giving someone convicted of shoplifting a longer sentence than someone convicted of murder. 
  • “Three Strikes” can operate in a way that violates the Eighth Amendment constitutional rightagainst cruel and unusual punishment and seems to fly in the face of he constitutionally guaranteed protection against ‘double jeopardy’. 
  • “Three Strikes” disproportionately impacts minority defendants. 
  • “Three Strikes” needlessly exacerbates the already overcrowded California prison system. 
  • “Three Strikes” unnecessarily shifts to the taxpayers the cost of caring for aging offenders who pose no significant threat to the public. 
  • “Three Strikes” has not led to a demonstrable reduction in crime. 
  • “Three Strikes” leaves no realistic room for rehabilitation, redemption or hope. 

How does California's ‘Three Strikes’ sentencing scheme work?

According to the statute, the “Three Strikes” law is designed to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”

Contrary to popular belief, the California “Three strikes,” Also severely impacts “second” strikers as well. It also implements other excessively punitive measures like eliminating the possibility of probation and limiting a striker inmate’s ability to earn custody credits.

Sentencing in 3rd strike cases

Under California’s “Three Strikes” law, if a person has two or more “strike” priors (prior convictions for strike offenses), and is subsequently convicted of any felony, he or she must be sentenced to at least 25-years-to-life in state prison. 

Consequently, it’s important to fight any charge that could result in conviction for a serious or violent felony, because those convictions can count as ‘strikes’ in the future and, therefore, lead to dire consequences. 

Sentencing in 2nd strike cases

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.

Let’s look at an example:

Example: Defendant X is on trial for robbery. If convicted under ordinary circumstances, he faces a sentence of three, six, or nine years in state prison. But Defendant X has a criminal record. His priors include arson and making criminal threats.

Because his prior offenses constitute violent or serious felonies under the Penal Code, they qualify as “strike” priors. This means that if Defendant X is convicted of robbery, he faces a “third strike” sentence of life in prison.

If one of Angel’s strike priors is dismissed, or if the prosecutor can’t prove one of the strike allegations, Defendant X faces a “second strike” sentence of six, twelve, or 18 years in prison.

Custody credit calculation in “Strike” sentences

California prison inmates earn “custody credits” for time served with good behavior. Because of these credits, an inmate normally serves only 50% of the sentence. But the three strikes law limits this privilege.

A second striker must complete at least 80% of his or her sentence before being eligible for release (and 85% of the sentence if the inmate is convicted of a violent felony).

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: 

1. Mandates that strike sentences for different counts tried in the same proceeding be served consecutively, without aggregate term limits, so long as the counts were not committed on the same occasion or arise from the same set of operative facts.

2. Eliminates the defendant’s eligibility for probation.

3. Mandates that the defendant serve his or her time in prison as opposed to a rehabilitation-oriented facility.

Let’s look at an example:

Example: Defendant X, who has a criminal record for petty theft, steals a bottle of brandy from a neighborhood store. As security personnel pursue him, Defendant X runs across a vacant lot and into a person’s backyard while the person is present. In his panic, Defendant X strikes the person with the brandy bottle. He is convicted of petty theft with a prior and assault with a deadly weapon.

The judge decides that the theft and assault were committed on separate occasions. Therefore, because it’s a three strikes case, Defendant X 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.

Prosecutor must prove “Strike” allegations

Given the grave consequences that can befall a defendant in a “strike” case, at least the accused can take comfort that the prosecutor must prove each and every strike allegation – just as the prosecutor must prove the current charges. This means that the defendant is presumed innocent of the “strike allegations” unless and until the prosecutor proves them beyond a reasonable doubt.

If the accused is acquitted of the new felony charges, the strike allegations get set aside. But if he or she is convicted, then the jury will decide whether the strike allegations are true. 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. 

Let’s look at an example:

Example: Defendant X is tried and found guilty of aggravated assault. The prosecutor tries to double the defendant’s sentence by contending that he suffered a prior “strike” conviction for discharging a firearm with gross negligence (California Penal Code 246.3).

But PC 246.3 only qualifies as a serious felony (and therefore a strike) if the defendant personallydischarged a firearm. So the prosecutor must prove that the defendant actually discharged the firearm and was not merely an aider and abettor in the prior case. If his lawyer can defeat the prosecutor’s attempt to do this, the Defendant X won’t face a double sentence.

What prior convictions count as “Strikes”?

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
Serious felonies are listed in California Penal Code Section 1192.7(c), and violent felonies are listed in California Penal Code Section 667.5(c).
Most felonies involving violence are on the list. These include specific crimes, like murder and mayhemand rape. They also include generalized criminal conduct offenses such as:
1. Felonies in which the defendant personally inflicted great bodily injury on the victim
2. Felonies where a “California gang enhancement” is sustained
3. Felonies is which defendant personally used a firearm
This means that some offenses, such as in our example above regarding discharging a firearm with gross negligence, may constitute a strike offense if it is committed in a certain way (like where the defendantpersonally used a firearm). On the other hand, some crimes, like residential burglary and robbery, constitute serious crimes without regard to whether they are committed with violence in a particular instance.
Prior convictions that occurred before the enactment of the “Three Strikes” law’ do apply, but only if the current felony offense is committed after enactment. This means the current felony charge must have been committed after March 7, 1994 (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).
Let’s look at an example:
Example: In 1993, Defendant X is convicted of residential burglary. The California state legislature passed the three strikes law in 1994, while Defendant X is serving time for the burglary. Shortly after passage, Defendant X escapes from jail.
Defendant X goes on trial for felony escape. The 1993 burglary conviction counts as a prior strike in Defendant X ‘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.
Sustained juvenile petitions
Given the harshness of the “Three Strikes” law, it is perhaps no surprise that juvenile convictions cancount as strikes. Juvenile sustained petitions (the term for a conviction in juvenile court) count as a strike under California three strikes law if three conditions are met:
1. The conviction counts as a strike under the California Penal Code definitions of violent or serious felony;
2. The crime is listed in California Welfare and Institutions Code 707(b); and
3. The juvenile was at least 16 years of age when the offense occurred.
If a conviction is for an offense on the serious or violent felony list but is not on the W&I Code 707(b) list, the offense is eligible as a strike if it was committed in connection with an offense that is on the 707(b) list.
Let’s look at an example:
Example: Juvenile X 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 doubles Juvenile X’s sentence on the current offense by counting the non-dismissed burglary adjudication as a strike.
Residential burglary is a serious felony but is not listed in W&I Code 707(b). 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 707(b)-listed offense. Because Juvenile X’s burglary offense was not committed in connection with a 707(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 priors in California.

Prior felony convictions count even if they were stayed or converted to misdemeanors (unless the judge converted them to misdemeanors upon sentencing).

Multiple “Strikes” from a single trial

The 1997 Fuhrman case clarified that an offender can accumulate more than one strike in a single court proceeding. There is no need for the qualifying strikes to have been “brought and tried separately,” as is the case with the California Penal Code Section 677(a) 5-year enhancement.

In the Fuhrman case, the defendant received a “Three Strikes” sentence on the basis of two strike priors garnered from events that occurred on the same day – assault with a firearm (on a woman with whom he had a car collision) and robbery (of a man whose car he had taken at gunpoint as he fled from the earlier car collision).

Can the court excuse or dismiss prior “Strikes”?

Yes, 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 “interest & furtherance of justice.” The defense attorney can also ask that the court “strike a strike” by filing a Romero motion.

Prosecutors and judges can strike Strikes.

Yes, prosecutors can “strike” (dismiss) strike allegations up until trial. Judges have more time – they can dismiss strike allegations up until sentencing.

Romero motions (defense attorneys)

Defense attorneys can file a motion with the court asking the judge to dismiss ‘strike’ allegations in the furtherance of justice.

In deciding a Romero Motion, the court will consider all of the circumstances, including the nature of the current charge, how long ago the ‘strike’ priors occurred, the underlying facts of the ‘strike’ priors, and everything about the defendant’s personal and criminal history.

If your son or husband or other loved one faces a ‘strike’ case, you should consult with a competent, experienced criminal defense attorney immediately.


Los Angeles District Attorney's Office “Three Strikes” Policy

The three strikes law is so draconian that even some California prosecutors recognize the law can benefit from restraint. These prosecutors have implemented policies about how they will exercise their discretion in “Three Strikes” cases. One such policy is Special Directive 00-02 : Los Angeles County District Attorney’s Three Strikes Policy.

Special Directive 00-02 provides that as a general rule Los Angeles County prosecutors will not prosecute a case as a three strikes case unless the current offense is a violent or serious felony. 

Can I appeal a “Three Strikes” sentence?

Yes, 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. For example, you might be able to argue that your sentence is so disproportionate to the crime that it constitutes cruel and unusual punishment. Of course, on a case by case basis, there may be other legitimate grounds to file an appeal on your behalf.

Is it worth fighting a Strike case?

YES, it is absolutely worth fighting a California “Three Strikes” law case. And with the stakes so high, it is critical to leave no stone unturned. An attorney must challenge the current charge and the ‘strike’ allegations, move for a strike prior to be “stricken” and entertain an appeal of a ‘strike’ sentence to a higher court.

Your future and that of your loved one is absolutely worth fighting for. We can help you do that.

If you or someone you know is about to be engaged in a legal matter, contact John J. Stanley & Associates at 818.769.5200 for your free consultation.  

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