California’s Three Strikes Sentencing Law

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California's Three Strikes Sentencing Law

Enacted in 1994, California's Three Strikes Sentencing Law was created to require that a defendant who is convicted of a new felony, having been convicted of at least one prior felony, be sentenced to state prison for twice the term which would otherwise be provided for the crime. If the defendant had previously been convicted of a felony with two or more prior strikes, the law mandates that defendant serve a state prison term of at least 25 years to life. On November 6, 2012 voters approved Proposition 36 which substantially amended the above law with two chief provisions:1) The above requirements for sentencing a defendant as a third-strike offender were altered to 25 years to life by requiring that the new felony be a serious or violent felony with two or more prior strikes for defendant to qualify for the 25 year-to-life sentence as a third-strike offender.2) An addition stating that designated defendants currently serving a third-strike sentence can petition the court for a reduction of his/her term to a second-strike sentence, if they would have been eligible for a second-strike sentencing under the new law.

What Prior Convictions Count as Strikes for Purposes of the Three Strikes Law?

•Serious or violent felonies

•Juvenile sustained petitions

•Out-of-state convictions

•Multiple strikes from a single trial

Serious or Violent Felonies

You can find serious felonies listed in Penal Code Section 1192.7(c).You can find violent felonies listed in Penal Code Section 667.5(c).Most violent felonies are on the list, including specific crimes, such as murder and mayhem and rape. It also includes general criminal conduct offenses like:

•Felonies within which the defendant personally perpetrated great bodily injury of a victim

•Felonies where a California Gang Enhancement is sustained

•Felonies in which the defendant personally used a firearm.

In other words, some offenses can be strike offenses if they are committed in a specific way (such as using a firearm). On the other hand, some crimes, like robbery, are serious crimes without regard to whether or not they are committed with violence in a specific instance. Convictions which occurred prior to the three strikes law do apply, but only if the current felony was committed after enactment of the law. So essentially, this means the current felonies must have been committed after March 7, 1994. Or, current felonies with respect to meeting the requirements of priors and added to the list of violent or serious felonies after that date, after the dates on which the priors were added. This can be a bit confusing, so let's look at an example:

In 1993, David is convicted of a robbery. The Three Strikes Law is enacted in 1994, while David is serving time in prison for the robbery conviction. Shortly after enactment, David escapes from prison. David goes to trial for the felony escape. The 1993 robbery conviction counts as a prior strike in David's trial on escape charges. Even though the robbery was committed prior to enactment of the three strikes law, the escape charge was committed after the enactment of the law. Juvenile Sustained Petitions

Juvenile convictions can be counted as strikes under the three strikes law. A juvenile sustained petition, or a conviction in juvenile court, counts as a strike if three conditions are met:

•The conviction counts as a strike under California Penal Code classifications of violent or serious felonies

•The crime is listed in the California Welfare and Institutions Code 707(b)

•The individual convicted was at least 16 years old when the offense occurred.

Out-of-State Convictions

Out-of-state convictions count as strikes as long as they constitute qualifying strike priors in California.

Prior felony convictions count even if they were converted to misdemeanors, unless the judge converted them to misdemeanors upon sentencing.

Multiple Strikes from a Single Trial

A defendant is able to accrue more than one strike in a single court proceeding. There is no need for the qualifying strikes to have been brought and tried separately. Even though two or more offenses are brought and tried together, they still count for two or more strikes under the three strikes law. How Does the Three Strikes Sentencing System Work?

The three strikes law is designed to ensure longer prison terms and harsher punishment for individuals who commit a felony and have previously been convicted of one or more serious and/or violent offenses. The law may read “three” strikes, but it also targets “second strikers”. It implements some extremely punitive measures, such as eliminating the possibility of probation and sometimes limiting the inmate's capability to earn custody credits.

Sentencing in Third Strike Cases

Under the new version of the law, a third offense will trigger a 25-year-to-life prison sentence if the third offense is also a “strike offense”. If the third offense is not a strike offense, the defendant will still face a higher sentence. The defendant will be sentenced to twice the normal sentence for the third offense. He/she will be treated as though they were a second striker. Exceptions to the Reform under the New Three Strikes Law Under the reformed version of the three strikes law there are exceptions to the rule that a third strike must be a serious or violent felony to receive a 25-year-to-life prison term. Below are the most important exceptions:

1) Your third offense involves possession for sale, transportation, and manufacturing of cocaine, heroin, methamphetamine, or any other related substances. This being the case, defendant would then receive the maximum three strikes penalty.

2) Your third offense is a felony sex offense or a felony which results in required registration as a sex offender. In most cases, defendant will receive the maximum three strikes penalty. There are, however, exceptions for some minor sex crimes, like indecent exposure.

3) If, in the charge of your third offense, you used a firearm or deadly weapon, then you will receive the maximum three strikes penalty.

4) If one of defendant's prior strike offenses is on the list of serious crimes, then defendant will receive the maximum sentence. More or less, some prior strike offenses that can lead to this result are:

•Any sexually violent offense

•Oral copulation, sodomy, or forcible sexual penetration of a child under 14 who is more than 10 years younger than defendant

•Lewd acts with a child under the age of 14

•Murder or manslaughter – solicitation to commit murder

•Assault with a machine gun on a peace officer or firefighter

•A serious or violent felony within which the penalties include a life prison term or the death penalty

Sentencing in Second Strike Cases

Under both the old and the new laws, if an individual is convicted of a felony and has one prior strike, that individual must be sentenced to double the prison term on the current conviction.

Custody Credit Calculation in Strike Sentences

Prison inmates can earn “custody credits” for time served with good behavior. Due to these credits, an inmate can normally serve only 50% of his/her sentence. However, the three strikes law limits the privilege. A second striker must finish at least 80% of her/her prison term before becoming eligible for release. If he/she is convicted of a violent felony, the inmate must complete 85% of the prison term. Third strikers cannot receive any custody credits.

Consecutive Sentences and Other Excessively Punitive Measures

The three strikes law also:1) Mandates that strike sentences on different counts which are tried in the same proceeding be served consecutively, with combined term limits, as long as the counts were not committed on the same occasion and didn't arise from the same set of facts.2) Excludes striker eligibility for probation.3) Calls for strikers to serve their prison time as opposed to any rehab-oriented facility.

The Prosecutor Must Prove the Strike Allegations

At the time that the defendant has been convicted on the new felony charge, the jury will then decide whether or not the defendant has one or more prior strikes. In other words, the jury cannot assume that the defendant has prior strikes just simply because the prosecutor says so. The prosecutor must prove that the strikes exist. If the jury does, in fact, find that the allegations are true, then the penalties of the three strikes law will apply. Usually, the prosecutor will use court records, prison records, fingerprint records and booking photographs in an attempt to prove that the defendant did obtain the prior strikes.

Can the Court Dismiss or Excuse Prior Strikes?

There is room for discretion within the strict three strikes law. Both the prosecutor and the judge can move for a dismissal of the strikes. The defense can also request that the court excuse or dismiss a strike by filing a Romero Motion.

When Can Prosecutors Dismiss Strikes?

Prosecutors can move to dismiss strikes up until trial. A prosecutor may do this if:•He/she believes that it will be too difficult to plead and prove all of the strike allegations

•He/she does not believe that the defendant deserves to be treated as a striker based on the nature of his/her past offenses together with the present offense.

Romero Motions

Romero motions are filed by the defense. The motion requests that the court dismiss strikes. This can be done at any time right up until sentencing. In deciding the Romero motion, the judge will contemplate the following circumstances:

•The nature of the present offense

•How long ago the strike priors happened

•The primary facts of the strike priors

•Everything surrounding the defendant's history

Can You Appeal a Three-Strike Sentence?

Yes, you may have grounds for an appeal to a higher court. Appeals of this nature are often successful. For instance, your attorney may be able to argue that your sentence is so inconsistent to the crime that it establishes cruel and unusual punishment. Now that Proposition 36 has changed the three strikes law, inmates serving time on a third strike can petition the court to have their sentences reduced if his/her third strike was not a serious or violent felony. If you or your loved one finds yourself in this position, it is extremely important that you contact an experienced and knowledgeable criminal defense attorney.

Do you have questions about a case? Visalia and Bakersfield area criminal defense attorneys at Martens & Brusseau can assist you with criminal charges. With years of criminal defense experience, our firm has handled thousands of cases.  Attorneys here have the skills and knowledge needed to defend your rights. Serving the Visalia, Fresno, and Bakersfield areas, Martens & Brusseau can provide expert criminal defense counsel. CONTACT US AT 559-302-9722 OR 661-466-2142 TODAY


Would it be worth it to fight a Strike Case?

The first thing to remember would be to effectively fight your current charge. If your defense attorney can get the charge dismissed, or reduced to a misdemeanor, or secure an acquittal, you can then avoid this feared law to begin with. It is very important to fight any charge on a serious or violent felony. It will result in conviction, and that conviction will count as a strike in the future.

CONTACT US AT 559-302-9722 OR 661-466-2142 TODAY

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