Penal Code § 667.61 PC – California’s “One Strike” Law

Penal Code § 667.61 PC is California’s one-strike law. This section imposes additional prison time for a number of sex crimes when committed under specific aggravating circumstances. Depending on the case, this section could increase a prison sentence by

• 15 years,
• 25 years, or
• life in prison.

PC 667.61 is often referred to as a “one-strike rule” because it can lead to a life sentence for a single conviction, even if the defendant has no prior strike convictions.

For example, under this statute, the sentence for

• a rape conviction (per PC 261) can be extended by 25 years to life imprisonment if the defendant had a prior rape conviction.
• a conviction of sexual penetration (under PC 289) can be extended by 25 years to a life term if the defendant tortured the victim.
• a sodomy conviction (per PC 286) can be extended by 15 years if the defendant also kidnaps the victim.

Luckily, there are several legal defenses that a person can raise in order to avoid a harsher sentence. These include showing that the accused sex offender:

• did not commit a sex offense listed in the statute;
• did not commit an aggravating circumstance; and/or,
• was arrested without probable cause.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What crimes qualify for the enhancement?
• 2. Legal defenses
  • 2.1. No commission of a One Strike offense
  • 2.2. No commission of an aggravating circumstance
  • 2.3. No probable cause
• 3. Related laws
  • 3.1. 10-20-Life: use a gun and you’re done law – PC 12022.53;
  • 3.2. “Hate crime” laws – PC 422.55, 422.6, 422.7 and 422.75; and,
  • 3.3. Gang sentencing enhancement law – PC 186.22

1. What crimes qualify for the enhancement?

Penal Code 667.61 is also known as California’s “One Strike” law. This law imposes sentence enhancements, or harsher sentences, if “certain crimes” are committed via aggravating factors.¹

The “certain crimes” that the One Strike law applies to are

• rape (“sexual assault”), per PC 261,
• spousal rape, per PC 262,
• rape, spousal rape, or sexual penetration, per PC 264.1,
• lewd or lascivious acts (“lewd acts”), per PC 288,
• sexual penetration, per PC 289,
• sodomy, per PC 286,
• oral copulation, per PC 287, and
• continuous sexual abuse of a child (“child molestation”), per PC 288.5.²

Some of the “aggravating factors” are that a defendant committed one of the above sexual offenses and also

• had a prior conviction of one of the above qualifying offenses,
• inflicted bodily harm on the victim,
• succeeded to kidnap the victim,
• used a dangerous weapon in the commission of the offense,
• tied or bound the victim, and
• administered a controlled substance to the victim.³

Depending on the facts of a case, and the type and number of aggravating factors committed, Penal Code 667.61 can extend a sentence for:

• 15 years,
• 25 years, or
• a life sentence.⁴

2. Legal Defenses

There are several legal defenses that a person can raise in order to avoid a harsher sentence by a trial court judge. These include showing that an accused party:

• did not commit an offense listed in the statute;
• did not commit an aggravating circumstance; and/or,
• was arrested without probable cause.

2.1. No commission of a one-strike offense

Please note that Penal Code 667.61 only applies to those crimes listed above (and listed under PC 667.61(c)). This means if a defendant did not commit one of these offenses, any sentence for the offense cannot get extended under the One Strike law.

2.2. No commission of an aggravating offense

Please also note that the One Strike law only applies when certain aggravating factors are included within the facts of a case. Some of these factors are listed above. If an accused did not commit any of these factors, then a sentence cannot get extended in a superior court under Penal Code 667.61.

2.3. No probable cause

If a defendant is charged with one of the crimes listed under PC 667.61, he can always challenge the charge by showing he was arrested without probable cause. The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime. If a person was stopped or arrested for committing a One Strike offense, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case.

3. Related Laws

There are three laws related to this section. These are:

1. 10-20-Life: use a gun and you’re done law – PC 12022.53
2. “hate crime” laws – PC 422.55, PC 422.6, 422.7 and 422.75
3. gang sentencing enhancement law – PC 186.22

3.1. 10-20-Life: use a gun and you’re done law – PC 12022.53

Penal Code 12022.53 PC is California’s “10-20-life – use a gun and you’re done” law.

The law provides an “enhancement” to a California state prison sentence for certain serious felonies when the perpetrator uses a gun in the commission of the crime. It “enhances” sentences by making them significantly longer.

Penal Code 12022.53 PC adds to a felony sentence:

• 10 years in prison for “using” a gun,
• 20 years for firing a gun, or
• 25 years to life for killing or seriously injuring another person with a gun.⁵

The enhancement is in addition to…and consecutive to…the sentence for the underlying felony conviction.

3.2. “Hate crime” laws – PC 422.55, 422.6, 422.7 and 422.75

Several California penal code sections provide for enhanced sentences for certain “hate crimes.”

Some of these sections include:

• PC 422.55,
• PC 422.6,
• PC 422.7, and
• PC 422.75.

California’s hate crime statutes impose severe, additional penalties for harming, threatening or harassing someone because of the person’s

• disability,
• gender
• nationality,
• race or ethnicity,
• religion, or
• sexual orientation.⁶

3.3. Gang sentencing enhancement law – PC 186.22

California Penal Code 186.22 PC is the State’s street gang enhancement law.

PC 186.22 provides that anyone who commits a felony for the benefit of a gang will receive a mandatory prison sentence . . . in addition and consecutive to the penalty s/he receives for the underlying felony.⁷

Depending on the circumstances of the offense, PC 186.22(b) could mean an additional two to fifteen years, or even twenty-five years to life, in prison.⁸

For further assistance…

If you or someone you know is subject to a possible sentence enhancement under Penal Code 667.61 PC, we invite you to contact us for a free consultation. We serve clients facing misdemeanor and felony charges in Los Angeles, San Diego, San Francisco, and throughout the state of California.

Also see our article on California’s Three Strikes Law.

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