CALIFORNIA “THREE STRIKE” LAW – A DEFENSE LAWYER GUIDE 

California’s three-strikes law is a divisive sentencing policy that requires individuals convicted of a violent or serious crime, and who have already been convicted twice before for similar offenses, to serve a state prison sentence of 25 years to life. This policy is outlined in Penal Code Section 667 PC.
Three strikes law also doubles the prison sentence:

• • If you are convicted of any California felony.
  • If you already have a violent felony or serious felony prior convictions.

Here are some examples of defendants who could face a longer sentence under California three strikes:

For example; Jack has a history of two robbery convictions, which are considered “serious felonies”. A decade later, he is charged with another serious crime, burglary of a residence. Typically, the maximum sentence for burglary in California is 6 years, but since Mark is now considered a “third striker”, he must receive a minimum sentence of 25 years to life.

What is The Three Strikes Law in California?

The Three Strikes Law is a criminal sentencing law that was implemented in California in 1994. The law mandates a life sentence for individuals convicted of three or more serious or violent felonies. This means that if an individual has two prior serious or violent felonies on their record, and is then convicted of a third, they will face a life sentence. The purpose of the Three Strikes Law is to increase public safety by providing longer prison sentences for repeat offenders, thereby reducing the chance that they would reoffend in the future.

Who Created Three Strikes Law in California?

The Three Strikes Law was created by the California State Legislature. The bill was introduced by Senator Mike Thompson and was later signed into law by Governor Pete Wilson on March 7, 1994. The law received widespread support from the public and law enforcement agencies, who saw it as a necessary step in addressing the problem of repeat offenders in the state.

When Was The Three Strikes Law passed in California?

The Three Strikes Law was passed in California on March 7, 1994. The law was implemented as part of a larger effort to address the problem of crime in the state and to increase public safety.

How Does The Three Strikes Law Work in California?

The Three Strikes Law works by requiring that individuals convicted of three or more serious or violent felonies receive a sentence of 25 years to life in state prison. This means that if an individual has two prior serious or violent felonies on their record, and is then convicted of a third, they will face a life sentence. The law applies to a wide range of serious and violent crimes, including murder, rape, robbery, and assault with a deadly weapon, among others.

Is The Three Strikes Law Still in Effect in California?

Yes, the Three Strikes Law is still in effect in California as of 2023. Despite criticism from some quarters that the law is too harsh and has resulted in the over-incarceration of non-violent offenders, it remains in place and is still widely supported by the public and law enforcement agencies.

Why Did California Pass The Three Strikes Law?

California passed the Three Strikes Law in response to a growing concern about repeat offenders and increasing crime rates. The state had experienced a surge in crime in the late 1980s and early 1990s, and many residents and law enforcement officials felt that the criminal justice system was not doing enough to protect the public from dangerous offenders. The Three Strikes Law was intended to address this concern by providing longer prison sentences for repeat offenders, and to increase public safety by reducing the chance that they would reoffend in the future.

How Does California’s Three-Strike Sentencing Work?

California’s three-strikes law mandates that individuals charged with a felony who have prior convictions, referred to as “strikes”, face longer and more severe prison sentences.

Third Strikers:

You are a “third strike” defendant if you you have:

• • Two prior convictions for serious or violent crime.
  • currently charged with another serious or violent crime felony

If both of these are true, your current charge carries a penalty of 25 years to life in prison. If an individual has two prior convictions for serious or violent crimes, known as “strike priors”, but the current felony charge does not fall under the definition of a “strike” offense, the sentence for the current charge will be doubled compared to the typical sentence for that specific crime. This is due to the “three strikes” law, which mandates enhanced penalties for repeat offenders.

For example; Jack has two prior convictions for “strike” offenses, residential burglary and robbery. He was later arrested for possession of hallucinogens for sale, a non-serious or violent felony. Under the “three strikes” law, Jack is considered a third striker, however, his current charge is not a “strike” offense. As a result, he will not receive a sentence of 25 years to life in prison, but he will face a sentence that is double the normal term for possession of a controlled substance with intent to sell.

Under the “three strikes” law in some jurisdictions, a person who has been convicted of three felonies, even if the third offense is not considered a serious or violent crime, may be sentenced to a minimum of 25 years and up to life in prison. This type of sentence is designed to target repeat offenders and serve as a deterrent to crime. This will happen if:

• • The third offense involves the possession or distribution of a substantial quantity of drugs such as cocaine, methamphetamine, heroin, or related substances.
  • The third offense is a serious sex crime and requires the person to register as a sex offender, with some exceptions for less severe offenses such as indecent exposure.
  • The person used, was armed with, or intended to use a firearm or other deadly weapon during the commission of the third offense.
  • The person intended to cause significant bodily harm to another person during the commission of the third offense.
  • One of the prior convictions is for a particularly heinous crime such as a “sexually violent” offense, a sex crime involving a child under 14 years of age, or murder or manslaughter.

For example Jack, who we mentioned earlier. Instead of having prior convictions for burglary and robbery, let’s suppose that one of his prior offenses is a serious sex crime, specifically lewd acts with a minor child. Even though Jack’s current charge of drug possession with the intent to sell is not considered a strike offense, due to his previous conviction for a serious sex crime, he may still be subject to a sentence of 25 years to life under the “three strikes” law. This demonstrates how having a prior serious offense on record can result in enhanced penalties for subsequent crimes, even if they are not considered serious or violent.

Second Strikers:

California’s “three strikes” law also operates as a “two strikes” law. If an individual has one prior strike on their record and is subsequently charged with any felony in California, he will be treated as a “second striker.” This means that the person may face a sentence that is double the normal maximum penalty for the crime they are charged with. In other words, the “three strikes” law provides for increased penalties for repeat offenders, even if they do not have three prior strikes.

For example; Jack was previously convicted of ARSON in California under Penal Code 451. After serving his sentence, Jack was released from prison. At a later time, he was charged with first-degree robbery. Generally, the maximum prison sentence for a first-degree robbery conviction is three to nine years. However, Jack’s prior arson conviction is considered a “strike” prior, making him a “second striker.” As a result, Jack may face a sentence of up to 18 years in prison for the robbery charge, which is double the normal maximum sentence. This demonstrates the impact of California’s “three strikes” law in increasing penalties for repeat offenders with serious or violent prior convictions.

Custody Credits And Consecutive Sentences:

Typically, California prisoners who exhibit good behavior can earn “custody credits” that can result in their release from prison after serving only half of their sentence. However, the “three strikes” law restricts this privilege, limiting the amount of time off a prisoner may receive for good behavior. This means that individuals who are convicted as “three strikers” under this law may be required to serve a longer portion of their sentence, with fewer opportunities for early release. Under California’s “three strikes” law, individuals who have been convicted as “second strikers” or “third strikers” must serve a minimum of 80% of their sentence before they are eligible for release. Furthermore, defendants who have been convicted of a violent felony must serve 85% of their sentence before they can be considered for release. These requirements demonstrate the stricter consequences imposed on repeat offenders by the “three strikes” law.
Under California’s “three strikes” law, consecutive sentencing is mandatory for individuals who are designated as “second” or “third” strikers. This means that if a defendant is charged with multiple crimes in a single court case, they must serve their sentences for each crime one after the other, rather than serving them concurrently. This requirement applies only if the crimes in question were committed at different times and are not related to a common set of circumstances.

What Crimes Count As Strikes Under California’s Three Strikes Law?

Under California’s “three strikes” law, a “strike” is defined as a conviction for either.

• a “violent” felony under PC 667.5, or
• a “serious” felony under PC 1192.7

Examples of violent felonies include:

• Murder or voluntary manslaughter
• Rape
• Oral copulation or sodomy by force
• Arson
• Kidnapping
• Carjacking
• Extortion/Blackmail
• Robbery
• Weapons crimes

Examples of serious felonies include:

• Any felony where the defendant personally inflicts great bodily injury or uses a firearm
• First-degree burglary
• Grand theft involving a firearm
• Robbery
• Sale of cocaine, heroin, PCP or methamphetamine to a minor

In California, a limited number of juvenile offenses can also be considered “strike” priors, but only if the defendant was at least 16 years old when the crime was committed. Additionally, convictions from other states can also be considered “strike” priors if the out-of-state crime has the same elements as a serious or violent felony in California.
Additionally, it is possible to receive multiple “strikes” in a single court proceeding.

Example; Michael was driving a stolen vehicle and was involved in a collision with another vehicle. When the other driver attempted to call the police, Michael brandished a firearm to prevent her from doing so. He then used the firearm to steal another vehicle and attempted to flee the scene. Law enforcement arrived and Michael was charged with assault with a firearm and robbery for the theft of the second car. In a single trial, Michael was convicted of both offenses, which are considered strike priors. Despite being part of the same incident, Michael now has two distinct strike prior convictions on his record.

Can A Court Remove Prior Strikes?

Courts have the ability to excuse or dismiss prior strikes in the interest of justice.
In some cases, prosecutors may choose to “strike” strike allegations, either because they believe the defendant doesn’t deserve to be treated as a striker or because they think it will be difficult to prove.

A defense attorney can also request that a judge dismiss a strike prior through a Romero motion. The judge will evaluate the motion and consider all relevant circumstances before making a decision. A Romero motion is a request made by a criminal defense attorney to dismiss a prior strike in the interest of justice. The decision is made by the judge based on all the circumstances involved, which they may take into consideration. S/he might consider:

• how long ago the prior strike took place
• the defendant’s history,
• the facts of the current charge

How Do I Appeal A Three Strikes Sentence?

An experienced appellate attorney can assist in appealing a three strikes sentence. The passage of Proposition 36 in 2012 brought significant alterations to California’s three strikes law, potentially leading to the early release or immediate release of thousands of inmates previously sentenced as third strikers under the previous law. A defendant sentenced under the three strikes law may also challenge the sentence as cruel and unusual punishment, which is prohibited by the Eighth Amendment of the US Constitution.

Example; Dave, who has two prior convictions for armed robbery, may be able to challenge his three strikes sentence of 25 years to life for selling cocaine to a 17-year-old. With the help of an experienced appellate attorney, he can argue that the sentence is excessively harsh in comparison to the crime and therefore violates the Eighth Amendment of the US Constitution, which prohibits cruel and unusual punishment.

Can Three Strikes Defendants Get Parole?

Under California law, some three-strikes defendants may become eligible for parole through the passage of Proposition 57. The amendment, which was passed by California voters in 2016, states that all individuals convicted of a non-violent felony can apply for parole after serving their primary sentence. The primary sentence under Prop 57 refers to the maximum sentence for the crime, without considering enhancements like the three strikes rule. Thus, three-strikes defendants convicted of non-violent crimes may apply for parole once they have served the normal maximum sentence for their third strike.

For example; John has two prior strikes on his criminal record. He is then convicted of a nonviolent felony of grand theft under Penal Code 487 PC. He is sentenced to 25 years to life as a third striker.

Before the passage of Prop 57, John would not have been eligible for parole. However, as Prop 57 applies to individuals serving time for nonviolent felonies, John is now eligible to apply for parole.

The maximum state prison sentence for grand theft under Penal Code 487 PC is three years. Thus, John is eligible to apply for parole after he has served that time.

What is California’s “One Strike Law”?

Penal Code 667.61 PC in California is known as the “one-strike law” and it increases the prison sentences for specified sexual offenses. This law is referred to as the “one-strike” law because the extended sentences are imposed upon the first conviction. The one-strike law in California, Penal Code 667.61 PC, imposes longer prison sentences for specified sex offenses that have certain “aggravating factors.” The crimes affected by this law include:

• • • PC 261 rape
    • PC 288 lewd or lascivious acts
    • PC 286 sodomy
    • PC 287 oral copulation
    • PC 288.5 continuous sexual abuse of a child

The one-strike law sentence can be triggered by the presence of certain aggravating factors, including:

• • • • Having previously committed one of these crimes
      • Inflicting bodily harm on the victim
      • Kidnapping the victim
      • Using a dangerous weapon to commit the crime
      • Tying or binding the victim
      • Giving the victim a controlled substance

The one-strike law can result in a sentence extension of 15 or 25 years, or even a life sentence, for a conviction of a crime with certain aggravating factors.

How Can I Fight A Charge in A Three-Strikes Case?

There are a variety of legal defenses available to challenge a three-strikes case. An experienced California criminal defense attorney can help defend against such a charge by presenting arguments such as:

• • • You are not guilty of the current charge, and/or
    • You do not actually have the alleged strike priors

The prosecutor in a three-strikes case must establish the existence of your prior strikes. This is known as “establishing the strike allegations”. Prosecutors accomplish this through evidence such as:

• • • court records
    • prison records
    • fingerprint records, etc.

A Los Angeles Criminal Defense attorney can defend against a three-strikes case by challenging the validity of one or more of the prior convictions being used as strikes.

For instance, consider the case of Matt. He is convicted of assault with a deadly weapon. The prosecutor claims that Matt has a previous conviction for armed robbery, which would classify him as a second striker.

However, the defense attorney could argue that the armed robbery conviction is not a valid strike. They might do this by proving that the prior conviction was obtained through a violation of Matt’s constitutional rights, such as an unlawful search or seizure, or an inadequate defense. If the prior conviction is thrown out, Matt would not be considered a second striker and his sentence could be reduced.

History of California Three Strikes Law And Criminal Justice Reform

California’s three-strikes law, enacted through a voter initiative and criminal justice system legislation in the 1990s, aimed to reduce crime rates and enhance public safety by placing repeat offenders in jail. Initially, anyone convicted of a felony would be considered a third striker if they had two previous serious or violent felonies. This meant that even nonviolent theft or drug crime convictions could result in a sentence of 25 years to life.

However, in 2012, Proposition 36 was passed in California, which only imposed third-strike penalties if the third conviction was also a serious or violent felony, except for certain crimes such as sex offenses or crimes committed with firearms.

Prop 36 demonstrated recognition of the flaws in the three-strikes law, including potential violations of the constitutional protection against cruel and unusual punishment, disproportionate impact on minority and disabled defendants, overcrowding and expense of California prisons, and denial of the chance for rehabilitation.

Despite this, the Three Strikes system in California continues to face criticism from criminal justice reform advocates, who call for substantial changes or its full repeal.