The Three Strikes Law is one of the best known sections of California’s legal code. While most people are aware that, as the name implies, those convicted of three “strikes” under the law can be sentenced to life imprisonment, there are still a lot of details about the law that most people are unfamiliar with, including sentencing increases for those facing a second strike and how you can fight the mandatory sentencing enhancements.
What is the Three Strikes Law?
To put it simply, the three strikes law (sometimes written as the “3 strikes law”) is a piece of legislation in California that requires mandatory sentence increases for those with certain serious and violent felony convictions on their records. In theory, this should discourage people from committing these crimes and keep more violent criminals off the streets, though in practice the effectiveness of this law is debatable. One undoubtable effect of these laws is the fact that it has resulted in the mass incarceration of Californians and the dramatic overcrowding of the state prison system. In fact, prior to a major revision of the law in 2012, as many as 25% of the state’s inmates were serving time as a result of the law.
How Does the Three Strikes Law Work?
When a defendant is convicted for a second strike, they will have their sentence doubled. They must also serve at least 80% of the sentence before they are eligible for parole. Those with two prior strikes will face a sentence of 25 years to life in prison (for a third serious or violent felony).
What Crimes Fall Under the Three Strikes Law?
One of the most common questions people ask about this law is “what are considered strikeable offenses in California?” At its most basic, a strike can be any violent or serious felony. That includes serious sex crimes such as child molestation or rape and violent crimes such as battery with serious bodily injury, robbery or kidnapping. Additionally, many non-violent crimes with a gang enhancement can also be considered a strike, such as vandalism or drug sales.
While the third strike must generally be a violent or serious felony as well, this is not the case if one of the first two strikes was for rape, murder, child molestation or a felony committed with a firearm. In these rare circumstances, the third strike can be for any felony.
California’s three strikes law has specifically define what is or is not a strike, so whether something is a violent felony or a serious felony is not up to the judge, but has been predetermined by the legislature. Some of the crimes that are considered strikes include, but is not limited to:
- kidnapping
- murder
- battery with serious bodily injury
- robbery
- assault with a deadly weapon
- terrorist threats
- rape
- child molestation
- forcible penetration with a foreign object
- unlawful sodomy
- forced oral copulation
- human trafficking
- any felony that carries a life sentence or the death penalty
- arson
- carjacking
- residential burglary
- mayhem
- domestic violence with great bodily injury
- drive by shootings
- gang crime-related felonies
- felony DUI with great bodily injury
- Any felony with personal infliction of great bodily injury
While strikes can arise from juvenile crimes, this will only happen if you were 16 or older at the time the crime took place. Attempted crimes for crimes that would otherwise be strikes can count as strikes as well.
How Has the Law Changed?
When the law first took effect, anyone who received two strikes on his or her criminal record would automatically receive a life sentence for any additional felony they committed, no matter how minor the crime. In fact, some people were sentenced to life after simply committing a non-violent grand theft offense.
In the 2012 November election, voters overwhelmingly supported Prop 36 in California, a revision changed the law so the final strike had to be some type of violent or serious crime, with the exception of those who received any of their first two strikes for rape, murder or child molestation or those who were armed with a firearm while committing a felony.
This also allowed for those already convicted under the three strikes law to appeal for resentencing if their conviction would not meet the revised version of the law. Over 3,000 prison inmates were eligible to petition for a reduced sentence or to be released based on time served.
Can Multiple Strikes Come From a Single Case?
Yes. If you had two strike-level offenses related to a single crime. That means any serious or violent felony in the future could leave you behind bars for the rest of your life. This is why it is so important to always work with a top violent crimes attorney, as he may be able to negotiate a plea bargain that leaves you with only one strike on your record.
Can Out-of-State Convictions Count as Strikes?
Yes. If the conviction would have counted as a strike under California law, it will still count against you if you face charges for a future strikeable offense. This remains true even if the conviction was removed from your record under that state’s laws.
But your three strikes defense attorney in San Diego may help you fight the use of the out-of-state conviction as a strike.
Do Juvenile Crimes Fall Under This Law?
Sometimes, but only if the crime was a violent or serious felony committed when the minor was 16 or older.
Can Those Convicted Under the Three Strikes Law Get Paroled?
Yes, depending on how many offenses are on your record. If you are convicted for your second strike, you must serve 80% of your sentence before you can qualify for parole, whereas normally you would only need to serve 50% of the sentence. If you are convicted for a third strike, you must serve you must serve 80% of the 25 years before becoming eligible for parole. Of course, the parole board can still deny parole which is why conviction of a third strike is potentially a life sentence.
Can you remove a strike from your record?
Once a strike is on your record, it will stay there, but either a judge or DA can agree to strike a strike. If the judge does it, it is called a Romero Motion and requires extensive briefing by your three strikes lawyer. When making the determination on whether or not to strike a strike, the judge will consider the circumstances around the strike, the rest of your criminal record, your age at the time of the offense and more. Even if the judge ignores your prior strike though, it will still remain on your record and count against you if you are charged with any felony in the future.
If you have any questions about the three strikes law or are being charged with a crime that may be a strike, please contact Peter M. Liss by calling (760) 643-4050 to schedule a free initial consultation.
