Three Strikes

1. 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.

Strike sentences can be triggered by any felony conviction – even  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 intended to stop violent recidivist offenders. But the data is far from clear as to whether the law even reduces crime. Three strikes 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. 2. How does California’s three strikes sentencing work? 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.”

California’s “Three Strikes” law targets both “second” strikers as well as “third” strikers. It also implements other punitive measures like eliminating the possibility of probation and limiting a striker inmate’s ability to earn custody credits. 2.1 Sentencing in “third” strike cases Under California’s three strikes law, if a person is convicted of any felony, and has two or more “strike” priors (prior convictions for strike offenses), he or she must be sentenced to at least 25-years-to-life in state prison.

The best way to tackle a “strike” case is by fighting the current charge. If you  can get a felony charge dismissed or reduced to a misdemeanor, or secure an acquittal at trial, then our client would avoid application of Three Strike law in the first place.

It is important to fight any charge that could result in conviction for a serious or violent felony. Those convictions can count as strikes in the future and thus lead to dire consequences down the road. 2.2. Sentencing in “second” 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.

Because a prior strike offense constitutes violent or serious felonies under the Penal Code, they qualify as “strike” priors. This means that if one is convicted of robbery, you would now face a “third strike” sentence of life in prison. If one of the strike priors is dismissed, or if the prosecutor cannot prove one of the strike allegations, then the exposure would be a “second strike”, a sentence of up to 18 years in prison. 2.3. 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, 85% of the sentence if the inmate is convicted of a violent felony.Third strikers do not receive any custody credits. 2.4. Consecutive sentences and other punitive measures Strike sentences for different counts tried in the same proceeding may 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. 2.5. 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.

3. 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. 3.1. 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 mayhem and rape. They also include generalized criminal conduct offenses like · felonies in which the defendant personally inflicted great bodily injury on the victim · felonies where a “California gang enhancement” is sustained · felonies is which defendant personally used a firearm Convictions that occurred prior to the three strikes law’s enactment 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). 3.2. Sustained juvenile petitions Given the harshness of the three strikes law, it is perhaps no surprise that juvenile convictions can count as strikes. Juvenile sustained petitions (the term for a conviction in juvenile court) counts 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 person 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.
Residential burglary is a serious felony but is not listed in W&I Code 707(b). Since if it is not committed in connection with a 707(b)-listed offense, then it is not strike. 3.3. 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). 3.4. 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).

4. Can the court excuse or dismiss prior strikes? Currently, the prosecutor and judge can move to dismiss strikes in “furtherance of justice.” The defense attorney may also ask that the court “strike a strike” by filing a Romero motion. 4.1. Prosecutors and judges can “strike” strikes Prosecutors can “strike” strike allegations up until trial.31 Judges have more time – they can dismiss strike allegations up until sentencing.32 4.2. Romero motions (defense attorneys) As we discuss in our related article Romero Motions, defense attorneys can file a motion with the court asking the judge to dismiss strike allegations in 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 history. 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. 4.3 Los Angeles District Attorney’s Office Three Strikes Policy The three strikes law is so over-the-top 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. 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. 5. Is it worth fighting a “strike” case? 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. Our attorneys can challenge the current charge and the strike allegations, move for a strike prior to be “stricken” and appeal a strike sentence to a higher court.