California “Three Strikes” Law

california three strikes law

California’s “Three Strikes” sentencing law is one of the toughest in the United States. While the law is spread across several sections of the California Penal Code and contains many complex provisions, the basic concept is simple: If you are facing a current felony case, and you have one prior serious or violent felony conviction, then your sentence can be doubled. If you have two or more serious or violent prior felony convictions, then you can be sentenced to twenty-five years to life in prison.

However, if you are convicted of a “serious” felony as described below, and have a prior conviction for a serious felony, you can be given an extra five years just for this, in addition to other “strike” related penalties.

California’s “Three Strikes” law is set forth in California Penal Code Section 1170.12 (c), which provides as follows:

(c) For purposes of this section, and in addition to any other
enhancements or punishment provisions which may apply, the following
shall apply where a defendant has a prior felony conviction:
(1) If a defendant has one prior felony conviction that has been
pled and proved, 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) If a defendant has two or more prior felony convictions,
as defined in paragraph (1) of subdivision (b), that have been pled
and proved, 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 greater of
(i) three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions, or
(ii) twenty-five years or
(iii) the term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) of
paragraph (2) of this subdivision shall be served consecutive to any
other term of imprisonment for which a consecutive term may be
imposed by law. Any other term imposed subsequent to any
indeterminate term described in subparagraph (A) of paragraph (2) of
this subdivision shall not be merged therein but shall commence at
the time the person would otherwise have been released from prison.
(d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has a prior
felony conviction as defined in this section. The prosecuting
attorney shall plead and prove each prior felony conviction except as
provided in paragraph (2).

California Penal Code Section 667.5 (c) defines “violent felonies” as follows:
(c) For the purpose of this section, “violent felony” shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society’s
condemnation for these extraordinary crimes of violence against the
person.

California Penal Code Section 1192.7(c) defines “serious” felonies as follows:
(c) As used in this section, “serious felony” means any of the
following:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
sodomy by force, violence, duress, menace, threat of great bodily
injury, or fear of immediate and unlawful bodily injury on the victim
or another person; (5) oral copulation by force, violence, duress,
menace, threat of great bodily injury, or fear of immediate and
unlawful bodily injury on the victim or another person; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (15) exploding a destructive device or any
explosive with intent to injure; (16) exploding a destructive device
or any explosive causing bodily injury, great bodily injury, or
mayhem; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) robbery
or bank robbery; (20) kidnapping; (21) holding of a hostage by a
person confined in a state prison; (22) attempt to commit a felony
punishable by death or imprisonment in the state prison for life;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) selling, furnishing, administering, giving, or
offering to sell, furnish, administer, or give to a minor any heroin,
cocaine, phencyclidine (PCP), or any methamphetamine-related drug,
as described in paragraph (2) of subdivision (d) of Section 11055 of
the Health and Safety Code, or any of the precursors of
methamphetamines, as described in subparagraph (A) of paragraph (1)
of subdivision (f) of Section 11055 or subdivision (a) of Section
11100 of the Health and Safety Code; (25) any violation of
subdivision (a) of Section 289 where the act is accomplished against
the victim’s will by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault
weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Section 245.2, 245.3, or 245.5; (33)
discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 26100; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.

While the above code sections are mostly a list of offenses that are “strikes”, there are some provisions that bear special mention: For example, if extortion or witness intimidation is charged with a gang enhancement under California Penal Code Section 186.22, it becomes a “violent” strike. Any other crime which is charged with a gang enhancement under California Penal Code Section 186.22 becomes a “serious” strike. In addition, a conspiracy charge where the underlying charge is a strike offense, is also a strike.

There are defenses to strike allegations. First, in the event your case goes to trial, you are entitled to a separate trial on the strikes, and the prosecution has the burden of proving that the prior strike convictions are strikes, that they are convictions, and that they are yours. You can have this trial before the same jury that presided over the phase of the case determining innocence or guilt, or you can have this trial before the judge.
In a case that has not gone to trial, a prosecutor or judge can “strike” prior strikes by dismissing them from the complaint.

Even if the strikes are not removed in this manner, and if they are proven after trial, your attorney can file a Romero motion asking the judge to strike the prior strikes in the interest of justice.

However, there is one “strike” provision that cannot be removed by a Judge under Romero: the five year, “serious on serious” enhancement.

If you have one or more prior strike convictions, you need to be represented by a knowledgeable and experienced attorney.