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

California’s three-strikes law is a controversial sentencing scheme that imposes a state prison sentence of 25 years to life on a defendant (1) who is convicted of a violent or serious felony offense, and (2) who already has at least two prior convictions for violent or serious felony offenses. The law is codified in Penal Code Section 667 PC.

Three strikes law also doubles the prison sentence for people

• convicted of any California felony and
• who already have a violent felony or serious felony prior convictions.

Second strikers also receive a double sentence under Penal Code 667. ^{1 2}

Penal Code 667(e) states:

“(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. . . .”

Examples

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

1. Mark has two prior convictions for robbery. (This is a “serious felony.”³) A decade later, he is charged with burglary of a residence, another serious felony.⁴ Normally the maximum prison sentence for California burglary is only six years.⁵ But Mark is a “third striker.” So he faces a mandatory sentence of 25 years to life.
2. Sophia has a prior conviction for carjacking. She is charged with grand theft for shoplifting from a jewelry store. 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.

Fighting a three strikes sentence

You can fight a California three strikes sentence in different ways. You can ask a judge to remove a strike prior by way of a Romero motion. Or you can fight to have a felony charge reduced to a misdemeanor.

California’s three-strikes law has changed a lot over the past decade. Some people who were sentenced as “strikers” in the past would not be today. If you or a loved one are serving time under three strikes, you may be able to get the sentence reduced. You may also be able to apply for parole.

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
• 2. What crimes count as strikes under California’s three strikes law?
• 3. Can a court remove prior strikes?
• 4. How do I appeal a three strikes sentence?
• 5. Can three strikes defendants get parole?
• 6. What is California’s “one strike law”?
• 7. How can I fight a charge in a three-strikes case?
• 8. History of California three strikes law and criminal justice reform

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. S/he 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

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 s/he 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?

Luckily, courts can excuse or dismiss prior strikes in the interest of justice.

Sometimes prosecutors will choose to “strike” strike allegations. They might do this if they think the defendant does not deserve to be treated as a striker. A prosecutor might also get rid of a strike allegation if they think it will be too hard to prove.²²

A criminal defense attorney can also ask the judge to dismiss a strike prior. They can do this with a Romero motion

A criminal defense attorney can get a strike prior dismissed with a Romero motion.

A Romero motion asks a judge to dismiss a strike in the interest of justice. The judge will make a decision based on all the circumstances. S/he might consider

• how long ago the prior strike occurred,
• the defendant’s history, and
• the facts of the current charge.²³

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

You can appeal a three strikes sentence with the help of an experienced appellate attorney.

Proposition 36, passed by voters in 2012, 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

These inmates can appeal their sentences. If the appeals are successful, they could be released early—or immediately.

A three strikes defendant may also appeal his sentence because it is “cruel and unusual punishment.” The Eighth Amendment to the US Constitution makes this unconstitutional.²⁵

Example: Phil has two prior convictions for armed robbery. Decades later, he is charged with selling cocaine to a 17-year-old. This is a serious felony under California three strikes. He is sentenced to 25 years to life as a third striker.

Phil may be able to appeal his three strikes sentence. He and his attorney can argue that the sentence is disproportionate to the crime. This might mean that it is unconstitutional cruel and unusual punishment.

5. Can three-strikes defendants get parole?

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

California voters passed Proposition 57 in 2016. Prop 57 is an amendment to the California Constitution. It states that everyone convicted of a nonviolent felony is eligible for parole. They need to have served their “primary sentence” for parole consideration.²⁶

The “primary sentence” under Prop 57 is the maximum sentence for a given offense. It does not include sentence enhancements like three strikes.²⁷

This means that third strikers who are convicted of nonviolent crimes may apply for parole. They can do so after they complete the normal maximum sentence for their third strike.

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

Before Prop 57 was passed, Vince was not eligible for parole. But Prop 57 applies to him because he is serving time  in the Department of Corrections for a nonviolent felony.

The maximum state prison sentence for felony reckless evading is three years. So Vince is eligible to apply for parole after he has served that time.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?

There are many legal defenses to a charge in a three-strikes case. An experienced California criminal defense lawyer can help you fight a three strikes charge by arguing that:

• 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 has to prove that you have strike priors. This is called “proving the strike allegations.” Prosecutors do this with

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

Your defense attorney can argue that one or more of the priors isn’t actually a strike.

Example: Don is found guilty of aggravated assault. He has a prior conviction for discharging a firearm with gross negligence. The prosecutor argues that this is a strike prior. That would mean that Don gets double the sentence as a second striker.

But negligent discharge of a firearm is only a serious felony if the defendant personally fired the gun. If he aided and abetted someone else in firing the gun, it doesn’t count. So if the prosecutor can’t show that Don personally fired the gun, he is not a second striker.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 nonviolent 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

For additional help….

¿Habla español? Visite nuestro sitio Web en español sobre la ley de reincidencia de California (Three Strikes Law).

In Colorado? See our article on habitual offenders (CRS 18-1.3-801).

In Nevada? See our article on habitual criminals (NRS 207.010; NRS 207.012; NRS 207.014).

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