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

California’s “three strikes” law under Penal Code 667 PC imposes a prison sentence of 25 years to life if you are convicted of your third violent felony or serious felony.¹

Penal Code 667 PC also has a “two strikes” law which doubles the prison sentence of any felony conviction if you already have one prior strike conviction.²

Examples

• Mark has two prior convictions for robbery (a serious felony).³ A decade later, he is charged with burglary of a residence (another serious felony) in California.⁴ Normally the maximum prison sentence for burglary is six years.⁵ Though since Mark is a “third striker,” he faces a mandatory sentence of 25 years to life.
• Sophia has a prior conviction for carjacking. She is later charged with grand theft. Because carjacking is a serious felony, she is a “second striker.”⁶ This means her potential prison term for the grand theft charge will be twice as long as the normal sentence.

Below our California criminal defense attorneys discuss the following topics:

• 1. Three Strikes Law
• 2. Strike Crimes
• 3. Removing Strikes
• 4. Appeals
• 5. Parole
• 6. One Strike Law
• 7. Fighting Strikes
• 8. History of the Law
• Additional Reading

1. Three Strikes Law

California’s “three strikes” sentencing law requires longer, harsher prison sentences if you get convicted of a strike crime with prior strikes on your record.

Third Strikers

You are a “third strike” defendant if:

1. You have two 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 25 years to life for your current charge.⁷

If you have two prior strikes – but your current felony charge is not a “strike” offense – then your 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. Instead he will face double the normal prison term for possession for sale of a controlled substance.

In a few cases, you can receive 25 years to life even if your 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 for more minor sex crimes like indecent exposure);
• You used a firearm or were armed with a firearm or deadly weapon when you committed the third offense;
• You intended to cause great bodily injury when you committed the third offense; or
• One of your prior strikes 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 us take Manuel from our example above. Instead of burglary and robbery, say one of his prior strikes was instead lewd acts with a minor child.

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

Second Strikers

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

Say you have one strike on your record and are later 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 arson. 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. Though since arson is a “strike,” Angel is a second striker.¹¹ This means he may be sentenced to up to 18 years in prison on the robbery charge.

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. However, the “three strikes” law limits this privilege.

Second or third strikers have to complete 80% of the 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 (one after the other instead of at the same time). This applies only if the charged crimes were committed at different times and aren’t part of the same set of facts.¹⁴

2. Strike Crimes

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

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

Examples of “violent felonies” include:

• murder or voluntary manslaughter,
• rape,
• oral copulation or sodomy by force,
• arson,
• kidnapping,
• carjacking, and
• extortion.¹⁶

Examples of “serious felonies” include:

• any felony where you personally inflict great bodily injury or use a firearm,
• first-degree burglary,
• robbery,
• grand theft involving a firearm, and
• sale of cocaine, heroin, PCP or methamphetamine to a minor.¹⁷

Some juvenile convictions count as strikes if you were at least 16 when you committed the crime.¹⁸ Out-of-state convictions can also count as strikes if they have all the elements of a serious or violent felony in California.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 strike crimes in the same trial. Even though the two crimes arose from the same situation and were tried at the same time, they count as two separate strikes on his record.²¹

3. Removing Strikes

If you are facing a second- or third-strike sentence, we can file a Romero motion asking the judge to dismiss your prior strike(s) in the interest of justice. In this motion, we argue that you do not deserve to be treated as a striker based on such circumstances as:

• how long ago the prior strike occurred,
• your 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 your 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. Appeals

We can try appealing your “three strikes” sentence in California by arguing that one or more of your 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.

5. Parole

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. 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. 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 if you were convicted of certain crimes with certain “aggravating factors.” These crimes include:

• rape,
• lewd or lascivious acts,
• sodomy,
• oral copulation, and
• 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. Fighting Strikes

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

1) You Are Not Guilty of the Current Charge

Certainly, the most common strategy to prevent an increased sentence under 667 PC 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.

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 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:

Example: 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 Don 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 the Law

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 because it:

• can violate the constitutional right against cruel and unusual punishment,
• impacts minority and disabled defendants at a much higher rate,³⁷
• keeps California prisons overcrowded and expensive, and
• 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.

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