Penal Code 667.61 (California’s “One Strike” Law)

Penal Code 667.61 PC is the California statute that imposes “sentence enhancements” for certain crimes (if committed under specific aggravating circumstances). Depending on the facts of a case, this section could extend a sentence by 15 years, 25 years, or by life in prison.

For example, under this statute, the sentence for

Luckily, there are several legal defenses that a person can raise in order to avoid a harsher sentence. 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.

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

man behind bars
Penal Code 667.61 PC is the California statute that imposes “sentence enhancements” for certain crimes (if committed under specific aggravating circumstances)

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

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

  • previously committed one of the above offenses,
  • inflicted bodily harm on the victim,
  • kidnapped 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
  • to life in prison.4
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There are legal defenses available...

2. Legal Defenses

There are several legal defenses that a person can raise in order to avoid a harsher sentence. 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 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

Will you potentially receive a sentence enhancement for a crime committed in California? Call us for help…

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Call us for help at (855) LAW-FIRM

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 can be reached 24/7 at 855-LawFirm.


Legal References:

  1. California Penal Code 667.61 PC provides that:

    (a) Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.

    (b) Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.

    (c) This section shall apply to any of the following offenses:

    (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.

    (2) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262.

    (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

    (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288.

    (5) Sexual penetration, in violation of subdivision (a) of Section 289.

    (6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.

    (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 287 or former Section 288a.

    (8) Lewd or lascivious act, in violation of subdivision (a) of Section 288.

    (9) Continuous sexual abuse of a child, in violation of Section 288.5.

    (d) The following circumstances shall apply to the offenses specified in subdivision (c):

    (1) The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).

    (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).

    (3) The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206.

    (4) The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c).

    (5) The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 287 or former Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (2), (3), or (4) of this subdivision.

    (6) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.5312022.7, or 12022.8.

    (7) The defendant personally inflicted bodily harm on the victim who was under 14 years of age.

    (e) The following circumstances shall apply to the offenses specified in subdivision (c):

    (1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207209, or 209.5.

    (2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary in violation of Section 459.

    (3) The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 1202212022.312022.5, or 12022.53.

    (4) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.

    (5) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.

    (6) The defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75.

    (7) The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 287 or former Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (1), (2), (3), (5), or (6) of this subdivision or paragraph (6) of subdivision (d).

    (f) If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section.  However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), (j), or (l) and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law.

    (g) Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section.

    (h) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section.

    (i) For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.

    (j)(1) Any person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole.  Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life.

    (2) Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.

    (k) As used in this section, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c).

    (l) Any person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall be punished by imprisonment in the state prison for life without the possibility of parole.  If the person who was convicted was under 18 years of age at the time of the offense, he or she shall be punished by imprisonment in the state prison for 25 years to life.

    (m) Any person who is convicted of an offense specified in subdivision (n) under one of the circumstances specified in subdivision (e) against a minor 14 years of age or older shall be punished by imprisonment in the state prison for 25 years to life.

    (n) Subdivisions (l) and (m) shall apply to any of the following offenses:

    (1) Rape, in violation of paragraph (2) of subdivision (a) of Section 261.

    (2) Spousal rape, in violation of paragraph (1) of subdivision (a) of Section 262.

    (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

    (4) Sexual penetration, in violation of paragraph (1) of subdivision (a) of Section 289.

    (5) Sodomy, in violation of paragraph (2) of subdivision (c) of Section 286, or in violation of subdivision (d) of Section 286.

    (6) Oral copulation, in violation of paragraph (2) of subdivision (c) of Section 287 or former Section 288a, or in violation of subdivision (d) of Section 287 or former Section 288a.

    (o) The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact.

  2. Same.

  3. Same.

  4. Same.

  5. California Penal Code 12022.53 PC.

  6. California Penal Code 422.55 PC.

  7. California Penal Code 186.22 PC.

  8. See same.

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