California Three Strikes Lawyer
California has enacted a “Three Strikes Law” designed to punish repeat offenders. The law designates certain felonies as “strikes”. A strike is a violent or serious felony, as defined by Penal Code sections 667.5 and 1192.7. The law increases penalties if defendants have strikes on their record. Strikes will also determine whether a defendant gets county prison or state prison, how much credit a defendant can receive in prison and when a defendant is eligible for parole. Most of the time serious felony strikes and violent felony strikes are treated the same, but there is a difference when it comes to who is eligible for parole.
How does Three Strikes work?
If a defendant has a strike conviction in their past, then the next time the defendant is charged with any felony, the sentence range doubles. For example, if a person with a strike on their record is charged with second degree burglary, then the low term of 16 months is doubled to 32 months; the mid term of 2 years is doubled to 4 years; and the high term of 3 years is doubled to 6 years. It doesn’t matter if the new felony is a strike. The sentencing range doubles for ANY new felony.
If a defendant has two strikes on their record, and the new felony is also a strike, then the defendant could be punished by life imprisonment. This is the “Three Strikes” part of the law. Two strike offenses can be earned from the same case. This is especially dangerous in that one crime can lead to two strikes, which in turn makes the defendant susceptible to life imprisonment if just one more strike is picked up any point in their life.
Strikes are permanent. A defendant can be given a higher sentence even if the strike occurred thirty years ago. Strikes also remain even if the underlying felony is reduced to a misdemeanor. For example, Penal Code section 422 is a wobbler and a strike. If a defendant was convicted of a felony PC 422, then they have a strike. If that PC 422 conviction is later reduced to a misdemeanor, the defendant still has a strike.
A Romero motion is a motion by the defense requesting that the judge ignore one or more of the defendant’s prior strike offenses for sentencing purposes. The success of a Romero motion depends on many things, including how long ago the prior strike was and the defendant’s overall criminal history. If a defendant was convicted of a strike in 2000 and their very next crime was now, then a court may grant a Romero motion. But if a defendant was convicted of a strike in 2000, and then had numerous other convictions between 2000 and now, then a court probably would not grant a Romero motion.
Penal Code section 1170(h)
A defendant who has a prior strike conviction on their record, or whose current case invovles a strike conviction, becomes ineligible for sentencing pursuant to Penal Code section 1170(h). That means that if the defendant is sentenced to prison after October 1, 2011, that prison time must be served in state prison, as opposed to county jail.
Strikes can also play a role in whether a defendant qualifies for parole earlier. The Public Safety and Rehabilitation Act, commonly known as Prop 57, which passed in 2016, allows defendants in state prison to apply for parole after serving the full term of their primary offense. This means that defendants are eligible for parole much earlier than they would have been before Prop 57 passed. However, defendants in prison for a violent felony strike are not eligible for early parole. This may affect plea negotiations. Experienced defense attorneys can negotiate a plea that involves a higher sentence but a non-violent felony strike so that a defendant may actually be eligible for parole earlier than with a shorter sentence and a violent felony strike.
List of Common Strikes that are both Violent pursuant to Penal Code section 667.5(c) and Serious pursuant to Penal Code section 1192.7
- Arson – Arson defined by Penal Code sections 451(a) or (b)
- Assault with intent to commit felony as defined by Penal Code section 220 (assault with intent to commit mayhem or certain sex crimes)
- Burglary, First Degree, where a person other than an accomplice is present
- Carjacking– Penal Code section 215(a)
- Child molestation – see Lewd or Lascivious Act
- Continuous sexual abuse of a child – Penal Code section 288.5
- Firearm, personal use – in violation of Penal Code sections 12022.3(a), 12022.5 or 12022.55
- Gang, for the benefit of – Extortion (Penal Code section 518) and Witness Intimidation (Penal Code section 136.1) pursuant to Penal Code section 186.22
- GBI – any felony where defendant personally inflicts great bodily injury on someone other than on an accomplice – Penal Code sections 12022.7, 12022.8 and 12022.9
- Lewd or lascivious act – violations of Penal Code section 288(a) or (b) (where victim is under the age of 14)
- Murder or attempted murder – Penal Code section 187
- Oral copulation as defined by Penal Code sections 288a(c) or (d)
- Rape – violations of Penal Code section 261(a)(2) or (6)
- Rape of spouse – violations of Penal Code section 262(a)(1) or (4)
- Robbery – Penal Code section 211
- Sexual penetration as defined by Penal Code section 289(a)
- Sodomy as defined by Penal Code section 286(c) or (d)
- Voluntary manslaughter
- Any felony punishable by death or life imprisonment
Violent not serious
Oral Copulation as defined by Penal Code section 288a(c)(1) – oral copulation on a minor under the age of 14 where perpetrator is more than 10 years older
Sexual penetration as defined by Penal Code section 289(j)
Sodomy as defined by Penal Code 286(c)(1) – sodomy on a minor under the age of 14 where perpetrator is more than 10 years older
Serious not violent
- Arson – Arson as defined by Penal Code section 451(c)
- Assault with a deadly weapon on a peace officer or firefighter as defined by Penal Code section 245
- Assault with a deadly weapon on a transit officer (PC 245.2), custodial officer (PC 245.3) or school employee (PC 245.4)
- Assault with a deadly weapon by an inmate
- Assault with intent to commit robbery
- Burglary of the first degree – Penal Code section 459-460(a)
- Criminal Threats – Penal Code section 422
- Deadly weapon – any felony where defendant personally uses dangerous or deadly weapon
- Drugs – selling or furnishing heroin, cocaine, PCP or meth to minors
- Firearm – any felony where defendant personally uses one
- Firearm – discharging at inhabited dwelling, vehicle or aircraft – Penal Code section 246
- Gang, for the benefit of – all violations of Penal Code section 186.22
- Grand theft involving a firearm
- Lewd or lascivious act – all violation of Penal Code section 288 including 288(c) (where victim is 14 or 15 years old)
- Rape – all violations of Penal Code section 261 and 262
- Threats to witnesses or victims – PC 136.1
The list of serious but not violent offenses is important for early parole pursuant to Proposition 57. It is also important for determining credits when a person is in custody. If a defendant is convicted of a violent felony, then he only gets 15% credits in county jail but may receive 20% credits while in prison. If a defendant has a strike prior on their record, then he only gets 20% credits in county jail.
Any attempt or conspiracy of a serious felony also constitutes a serious felony (except assault – cannot attempt an assault because an assault is already an attempt) pursuant to Penal Code section 1192.7(c). However, an attempt of a violent felony is not a violent felony with the exception of attempted murder pursuant to Penal Code section 667.5(c).
A complete list of strike offenses is listed in Penal Code sections 667.5(c) and 1192.7(c).
Not only can a strike conviction lead to higher criminal penalties, but it can also have drastic employment, licensing and immigration consequences. Any strike conviction is considered to be one of the worst offenses possible. Having a strike conviction can prevent a person from finding a job or lead to a person being fired from their current job. Furthermore, many professions that require licensing from a state board, such as doctors, pharmacists, nurses, lawyers, accountants, contractors, teachers, real estate agents and stock brokers, all require background checks. A professional who has a strike conviction on their record risks losing their professional license, or never acquiring it in the first place. Perhaps the most severe impact of a strike conviction involves immigration consequences. Non-citizens who are permanent residents, with green cards, or temporary visitors, with a visa, can be denied admission, denied naturalization or even deported, with almost any strike conviction on their record.
The Right Lawyers
Choosing the right criminal defense lawyer will be the most important decision someone can make when a facing a strike charge. You need an attorney who will listen to your side of the story carefully, who will evaluate the evidence thoroughly, who will negotiate with the judge and the District Attorney’s office skillfully, and who will fight in trial aggressively. You need an attorney from the Right Choice Law Firm. All of our attorneys are experienced lawyers who are either former Deputy District Attorneys or Deputy Public Defenders. For an example of our work, please see our case results on strikes and read our client testimonials. With offices in Newport Beach, Anaheim, Long Beach, Los Angeles, Pasadena, Rancho Cucamonga, Riverside and Murrieta, our team of lawyers have criminal defense experience in Orange, Los Angeles, San Bernardino and Riverside Counties.