California “Three-Strike” Law – A Defense Lawyer Explains

Our California criminal defense attorneys answer the following questions below:

• 1. How does California’s three-strike sentencing work?
  • 1.1. Third strikers
  • 1.2. Second strikers
  • 1.3. Custody credits and consecutive sentences

  

  “STRIKE!” – California’s “three strikes and you’re out” law gives defendants a prison sentence of 25 years to life if they are convicted of three violent or serious felonies.

  1. How does California’s three-strike sentencing work?

  California’s three-strikes sentencing law requires longer, harsher prison sentences for felony defendants who have any “strike” priors.

  1.1. Third strikers

  You are a “third strike” defendant if:

  1. You have two (2) prior convictions for serious or violent felonies; AND
  2. You are currently charged with another serious or violent crime felony.

  If both of these are true, then you face a sentence of twenty-five (25) years to life for your current charge. 7

  What if you have two strike priors for serious or violent felonies—but your current felony charge is NOT for a “strike” offense? In that case, your third strike sentence will be double the normal sentence for that felony. 8

  Example: Manuel has prior convictions for residential burglary and for robbery. These are both “strike” offenses. He is arrested for possession of hallucinogens for sale. This is a felony–but not a serious or violent one.

  Manuel is a third striker felon. But his third strike is not for a serious or violent felony. So he will not be sentenced to 25 years to life. But he will face double the normal prison term for possession for sale of a controlled substance.

  In a few cases, a third striker can receive 25 years to life even if their third offense is not a serious or violent felony. This will happen if:

  • The third conviction is for a drug offense involving a certain quantity of cocaine, methamphetamine, heroin, or related drugs.
  • The third offense is a felony sex crime and/or requires sex offender registration. (There are exceptions to this for more minor sex crimes like indecent exposure.)
  • The defendant used a firearm or was armed with a firearm or deadly weapon when they committed the third offense.
  • The defendant intended to cause great bodily injury when they committed the third offense; OR
  • One of the strike priors is on a shortlist of particularly serious offenses. These include “sexually violent” offenses, sex crimes involving children under 14, and murder or manslaughter. 9

  Example: Let’s take Manuel from our example above. Instead of burglary and robbery, let’s say that one of his strike priors was lewd acts with a minor child.

  Manuel’s current charge of drug possession for sale is not a strike offense. But he has this serious sex crime on his record. So he can receive a 25-year-to-life sentence under three strikes law for this charge.

  1.2. Second strikers

  California’s “three strikes” law is technically a “two strikes” law as well.

  Let’s say you have one strike prior on your record and then are charged with any California felony. In that case, you will be punished as a “second striker.” This means that you can receive double the normal maximum sentence for that crime. 10

  Example: Angel is convicted of California arson under PC 451. He completes his sentence and is released from prison. Many years later, he is charged with first-degree robbery.

  The normal maximum prison sentence for first-degree robbery is three to nine years. But arson is a “strike” prior, so Angel is a second striker. 11 This means he may be sentenced to up to 18 years in prison on the robbery charge.

  1.3. Custody credits and consecutive sentences

  Normally California prison inmates earn “custody credits” for time served with good behavior. This can lead to release from prison after serving only 50% of the sentence. But three strikes law limits this privilege.

  Second or third strikers have to complete 80% of their sentences before they can be released. 12 Defendants convicted of a violent felony must serve 85% of the sentence. 13

  California’s three-strikes law also requires that strike sentences be served consecutively.

  Let’s say a defendant who falls under the three-strikes law is charged with more than one crime in one court case. They cannot complete the sentences for the different charges at the same time. Instead, they must be served one after another. (This applies only if the charged crimes were committed at different times and aren’t part of the same set of facts.) 14

  

  An example of a violent felony would be rape.

  2. What crimes count as strikes under California’s three strikes law?

  A “strike” under California three strikes law is a conviction for either

  • a “violent” felony under PC 667.5, or
  • a “serious” felony under PC 1192.7(c). 15

  Examples of violent felonies include:

  • Murder or voluntary manslaughter,
  • Rape,
  • Oral copulation or sodomy by force,
  • Arson,
  • Kidnapping,
  • Carjacking, and
  • Extortion. 16

  A felony where the defendant personally uses a firearm is a serious felony under Three Strikes.

  Examples of serious felonies include:

  • Any felony where the defendant personally inflicts great bodily injury or uses a firearm,
  • First-degree burglary,
  • Robbery,
  • Grand theft involving a firearm, and
  • Sale of cocaine, heroin, PCP or methamphetamine to a minor. 17

  There are a limited number of California juvenile crimes that count as strike priors too. These juvenile convictions will count only if the defendant was at least 16 when they committed the crime. 18

  Out-of-state convictions can count as strike priors. If the out-of-state crime has all the elements of a serious or violent felony in California, it will count. 19

  Finally, you can get two (or more) strikes at one time, in a single court proceeding. 20

  Example: Scott is driving a stolen car and gets in an accident with another car. The other driver tries to call the police. Scott pulls out a handgun to get her to stop. He then takes another car at gunpoint and tries to flee the scene.

  Law enforcement arrives, and Scott is charged with assault with a firearm and robbery (for taking the second car). He is convicted of both crimes in the same trial. Both crimes count as strike priors.

  The two crimes arose from the same situation and were tried at the same time. But Scott still has two separate strikes on his record now. 21

  3. Can a court remove prior strikes?

  Yes. When we have a client facing a second- or third-strike sentence, we file a Romero motion asking the judge to dismiss the prior strike(s) in the interest of justice. In this motion, we argue that our client does not deserve to be treated as a striker based on such circumstances as:

  • how long ago the prior strike occurred,
  • our client’s history, and
  • the facts of the current charge. 22

  Predictably, Romero motions are easier to win when the past “strike” crimes were non-violent and occurred long ago.

  Another tactic we take is to try to convince prosecutors that our client’s past strike charge(s) are too difficult for them to prove due to ambiguous court records. 23 We have seen many prosecutors simply “strike” a strike allegation once they realize they have insufficient evidence.

  4. How do I appeal a three-strikes sentence?

  We have had great success in appealing “three strikes” sentences in California by arguing that one or more of our client’s prior convictions no longer qualify as “strikes” under current law.

  Passed in 2012, Proposition 36 made significant changes to California’s three-strikes law. Thousands of inmates sentenced as third strikers under the old law would not be third strikers now. 24

  Once we determine that Proposition 36 applies to you, we can appeal your sentence immediately. Depending on your case, you could be released early or right away.

  Another effective ground for appeal is to argue that your three strikes sentence is “cruel and unusual punishment” and therefore unconstitutional under the Eighth Amendment. 25

  This tactic is particularly effective when we can show that an increased “three strikes” sentence is plainly disproportionate to whatever crimes you were convicted of:

  Example: Phil has two prior convictions for armed robbery. Decades later, he is charged with selling cocaine to a 17-year-old. He is sentenced to 25 years to life as a third striker. If Phil can argue that the sentence is disproportionate to the crime, the judge may reduce it on the grounds of it being cruel and unusual punishment.

  

  Some three-strikes defendants may be eligible for parole in California.

  5. Can three-strikes defendants get parole?

  Yes, we have helped many “three strikes” defendants obtain parole under California law. The conditions are that:

  • the conviction you are currently serving time for is non-violent; and
  • you have already served your “primary sentence.” 26

  The “primary sentence” is the maximum sentence for a given offense. It does not include sentence enhancements like three strikes. 27

  Example: Vince has two strike priors on his record when he is convicted of felony reckless evading under Vehicle Code 2800.2 VC. He is sentenced to 25 years to life as a third striker.

  The maximum state prison sentence for felony reckless evading is three years, and that crime is non-violent. Therefore Vince is eligible to apply for parole after he has served the three years. 28

  6. What is California’s “one strike law”?

  California’s one-strike law, Penal Code 667.61 PC, extends prison sentences for certain sex crimes. It is called the “one strike law” because the longer sentences apply on the first conviction. 29

  The one-strike law applies to people convicted of certain crimes with certain “aggravating factors.” The crimes it applies to include:

  • PC 261 rape,
  • PC 288 lewd or lascivious acts,
  • PC 286 sodomy,
  • PC 287 oral copulation, and
  • PC 288.5 continuous sexual abuse of a child. 30

  The aggravating factors that can trigger a one-strike law sentence include:

  • 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, or
  • Giving the victim a controlled substance. 31

  The one-strike law can extend a sentence for one of these crimes by 15 or 25 years. It can even lead to a life sentence. 32

  7. How can I fight a charge in a three-strikes case?

  Here at Shouse Law Group, we have represented literally thousands of people charged as second- or third-strikers. In our experience, the following two defenses are the best ways to fight an increased sentence under PC 667.

  7.1. You are not guilty of the current charge

  Certainly, the most common strategy to prevent an increased sentence under PC 667 is to argue that you are not guilty of the current felony charge. If we can persuade the D.A. to dismiss the charge or reduce it to a misdemeanor, then the “three strikes” sentencing scheme becomes moot.

  How best to fight your current charge of course depends on the specific allegations and your particular situation. In every case, we compile all the available evidence that may prove your innocence such as:

  • video surveillance
  • eyewitnesses
  • medical records
  • expert testimony
  • GPS records
  • recorded communications

  As long as there is reasonable doubt as to your guilt, the D.A. must drop the current charge. Then you will not be subjected to a “three strikes” sentence.

  7.2. Prosecutors are wrong about you having prior strike convictions

  For you to receive a “three strikes” sentence, prosecutors first have to show the court that you have prior strike convictions. This is called “proving the strike allegations,” and the evidence prosecutors rely on are:

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

  In many cases, we have had success in arguing to the court that your prior convictions do not actually count as strikes. Here is an example of how this can work:

  Don is convicted of aggravated assault (a strike crime). He has a prior conviction for discharging a firearm with gross negligence, which the prosecutor argues is a strike crime and therefore subjects Don to “second striker” sentencing.

  However, negligent discharge of a firearm is a “strike” only if the defendant personally fired the gun. If we can show that Dom merely aided and abetted someone else in firing the gun, then Don is not a second striker and does not face an increased sentence. 33

  8. History of California three-strikes law and criminal justice reform

  California’s three-strikes law dates back to the 1990s. The enactment of this new law was by voter initiative and criminal justice system legislation in that “tough on crime” era. The purpose was to decrease the crime rate and improve public safety by putting repeat offenders behind bars.

  Originally, California three strikes law made you a third striker if you were convicted of any felony. If you had two serious or violent felonies on your record, any third felony triggered three strikes. 34 People were being sent away for 25 years to life after a non-violent theft or drug crime conviction. 35

  But in 2012, California voters passed Proposition 36. 36 Under Prop 36, the harsh “third striker” penalties are only triggered if the third conviction is also for a serious or violent felony. (There are a few exceptions, like if the third strike is a felony sex crime or was committed with a firearm.)

  Prop 36 showed that California voters recognize what a flawed law three strikes is. It can violate the constitutional right against cruel and unusual punishment. It impacts minority and disabled defendants at a much higher rate. 37 It keeps California prisons overcrowded and expensive, and it strips defendants of the hope of rehabilitation. 38

  California’s Three Strikes system remains much maligned among criminal justice reformers with many notable voices advocating for significant changes or its complete repeal. 39

  Additional reading

  For more in-depth information, refer to these scholarly articles:

  • Striking out: The Failure of California’s Three Strikes and You’re out Law – Stanford Law & Policy Review.
  • California’s Three Strikes Law: History, Expectations, Consequences – McGeorge Law Review.
  • “Three Strikes and You’re Out”: The Impact of California’s New Mandatory Sentencing Law on Serious Crime Rates – Crime & Delinquency.
  • The effect of three-strikes legislation on serious crime in California – Journal of Criminal Justice.
  • Does Three Strikes Really Deter? A Statistical Analysis Of Its Impact On Crime Rates In California – College Teaching Methods & Styles Journal.

  Legal References:

  1. Penal Code 667(e)(2) PC — Habitual criminals; Enhancement; Exceptions [Three strikes law].
     

  “(e) . . . (1) If a defendant has one prior serious or violent felony conviction . . . the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2 (A) . . . [I]f a defendant has two or more prior serious or violent felony convictions . . . , the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions. (ii) Imprisonment in the state prison for 25 years. . . .”