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California’s Three Strikes Law

While California is on the cutting-edge of criminal justice reform, in large part, this is due to the extremely harsh sentencing laws enacted in decades past. Most notably, California’s three strikes law, codified in Penal Code § 667, provides for increasingly harsh sentences for those who have been convicted of certain felony crimes. In some cases, the California three strikes law can result in an additional 25-year to life sentence on top of the sentence for the most recent conviction.

The History of the California Three Strikes Law

Back in 1994, during the height of the war on drugs and while many California cities were plagued by the highest rate of violent crime in history, Governor Wilson signed AB 971 into law. AB 971 was known as the “Three Strike and You’re Out” law or, more commonly, as the “Three Strikes Law.”

While the idea of “three strikes and you’re out” sounds straightforward, in reality, the three strikes law was quite complex. However, its effect was very clear—the number of California inmates skyrocketed to unprecedented levels. Since then, various laws and judicial decisions have altered the three strikes law significantly.

Where the Three Strikes Law Stands Today

Currently, the California three strikes law calls for sentencing enhancements, ranging from five years to 25-years to life, based on a defendant’s prior record. The three strikes law applies to anyone convicted of a “violent” or “serious” felony. In other words, any conviction for a “serious” or “violent” felony is considered a strike.

What Is a “Violent” Felony?

In the context of the three strikes law, a “violent” felony includes any of the following:

  • Murder
  • Voluntary manslaughter
  • Mayhem
  • Rape
  • Oral copulation by sodomy or force
  • Arson
  • Kidnapping
  • Carjacking
  • Extortion
  • Robbery
  • Continuous sexual abuse of a child
  • Burglary of the first degree

What Is a “Serious” Felony?

For the purposes of the three strikes law, “serious” felonies are outlined in Penal Code § 1192.7, and include:

  • Any felony in which the defendant personally inflicts great bodily injury on another person
  • Any felony in which the defendant personally uses a firearm
  • Any felony punishable by death or life in prison

Each of these lists is not exhaustive, meaning there are other crimes considered “violent” or “serious” offenses and thus, count as strikes under the three strikes sentencing scheme.

The Role Strikes Play in Sentencing

Despite its name, the three strikes law does not only apply to those defendants who have two strike priors. In fact, thousands of California inmates are sentenced under the three strikes law each year even though they only have one strike prior. However, the most extreme sentences are handed down to those with two strike priors.

Under the California three strikes law, if you have two strike priors, the judge can sentence you to an additional 25-year to life on top of the sentence for the current offense, provided it too is a strike. However, even if the most recent conviction does not qualify as a strike, your sentence for the current offense will be doubled.

For those with only one strike prior, the impact of the three strikes law is not as extreme—although it still results in significant sentencing enhancements. If you have a single strike and are convicted of any other felony, regardless of whether it is a strike, your sentence for the most recent crime will be doubled.

Do Judges Need to Sentence Under the Three Strikes Law?

When the three strikes law was originally passed, judges were required to impose strike sentences, regardless of any hesitation they may have about a sentence’s fairness. However, that changed in 1998, when a California appellate court issued an opinion in the case People v. Romero.

Romero was convicted of possession of .13 grams of cocaine base, hardly a large amount. However, because the district attorney alleged that Romero had two strike priors, he was facing a potential life sentence. Had the three strikes law not applied, Romero would have been looking at a maximum term of six years imprisonment.

However, the judge indicated that if Romero pleaded guilty, he would entertain a motion to dismiss one of his prior strikes. The prosecution objected, but the court ultimately allowed Romero to enter a guilty plea. At sentencing, the court dismissed one of Romero’s prior strikes and sentenced him to six years in prison. The prosecution appealed.

On appeal, the appellate court upheld a judge’s ability to dismiss a prior strike if doing so is “in furtherance of justice.” Since Romero, defendants routinely ask the court to dismiss strike priors by filing what has aptly become known as a Romero motion.

In a subsequent opinion, People v. Williams, the court elaborated on what a judge must consider when deciding whether to dismiss a strike prior. In Williams, the court explained that a reviewing judge should consider, “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”

Thus, just because you qualify as a second or third striker does not necessarily mean that you will be sentenced as such.

Is What the Prosecution Calls a Strike Really a Strike?

The burden is on the government to prove that a prior conviction counts as a strike. In some cases, it’s fairly clear whether a conviction counts as a strike. However, when prosecutors pursue three strikes sentences based on older convictions or for offenses that are not necessarily strikes, it isn’t so clear. For example, often, the court records, or dockets, related to older convictions are not crystal clear in terms of the allegations or the jury’s findings. In other cases, a crime could be a strike, but it depends on the circumstances. This opens the door to challenging whether a purported strike is actually a strike.

Challenging a Three Strikes Sentence

Once a court hands down a sentence, it is usually final after the appellate court affirms the conviction and sentence. However, there are a variety of methods in which an inmate sentenced under the three strikes law can challenge their sentence. For example, Proposition 36, passed in 2012, changed how the three strikes law operates, narrowing the class of third strikers.

Additionally, more recent criminal justice reforms open additional doors to those sentenced under the three strikes law. For example, under AB 2942, an inmate can petition the district attorney of the convicting county, asking for a resentencing hearing. Similarly, inmates can file a petition with the California Department of Corrections and Rehabilitation under Penal Code § 1170(d)(1) asking for the CDCR’s recommendation for a resentencing hearing. In each of these petitions, inmates should make a clear case that they have rehabilitated themselves and are ready to be reintroduced into society.

While the three strikes law was originally a mandatory sentencing scheme with little chance of early release, that is no longer the case. An experienced California post-conviction and appeals attorney can help advise inmates and their families on the best ways to pursue the ever-increasing options for relief.

Contact a Renown California Criminal Appeals Team

If you or your loved one was convicted and sentenced under the California three strikes law, Barhoma Law, P.C. can help. At Barhoma Law, P.C., leading Post-Conviction and appellate attorneys have can help assess your matter. To learn more, and to schedule a free consultation with a California appeals lawyer at Barhoma Law, P.C., call 213-800-7664 today.

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