Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

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California’s Three Strikes Law

What is California’s Three Strikes Law?

 California’s three strikes law is a sentencing scheme, enacted in 1994, which creates escalating consequences where a defendant has one or more “strike priors.” In essence, if a defendant is convicted of a crime and they have one or more prior convictions that are considered a strike prior, their sentence on the current crime can be doubled. (Pen. Code, § 667, subd. (e)(1).) If a defendant is convicted of a crime and they have two or more strike priors, their sentence on the current crime can be increased to 25 years to life in certain circumstances. (Pen. Code, § 667, subd. (e)(2).)

What constitutes a strike prior?

 Strike priors in California are offenses that the legislature has deemed to be either a “serious” or “violent” felony. The definitions of what constitutes a serious or violent felony are outlined in Penal Code sections 1192.7, subdivision (c) and 667.5, subdivision (c).

 Serious felonies

Penal Code section 1192.7, subdivision (c) outlines what are considered “serious” felonies in California. There are forty-two felonies in total that are considered “serious.” Here are examples of serious felonies under this statute:

  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

(Pen. Code, § 1192.7, subd. (c).)

Violent felonies

What amounts to a “violent” felony in California is defined by Penal Code section 667.5, subdivision (c). In total, the legislature has listed twenty-three felonies that it considers “violent.” Some examples of violent felonies are:

  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 287 or of former 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

(Pen. Code, § 667.5, subd. (c).)

Note that there is some overlap between what is considered a “serious” felony and what is considered a “violent” felony.

What happens after my first strike?

 If you are convicted of an offense that is deemed to be a strike prior, and it is your first conviction, no sentencing enhancement will attach to that conviction. Nevertheless, in the case of a guilty plea, the court will usually advise you of the consequences of having a strike prior on your record.

What happens after my second strike or second conviction?

 If you have a strike prior on your record and you are subsequently charged and convicted of a new crime, California’s three strikes law states that “the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (Pen. Code, § 667, subd. (e)(1).) In other words, the sentence for your new crime will be double what it otherwise would have been because of the strike prior.

What happens after my third strike?

 If you have two strike priors on your record and you have been convicted of a new crime, there are essentially two scenarios that can occur. If the new crime is a serious or violent felony, then your sentence will usually be 25 years to life. (Pen. Code, § 667, subd. (e)(2)(A).) But if the new crime is not a serious or violent felony, then your sentence will simply be doubled unless the prosecution can show (1) the current offense is a controlled substance charge with proven allegations; (2) the current offense is a felony sex offense; (3) during the commission of the current offense you used a firearm or deadly weapon; or (4) one of your strike priors was a sexually violent offense, oral copulation of a child, a lewd or lascivious act involving a child, homicide, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony offense punishable in California by life imprisonment or death. (Pen. Code, § 667, subd. (e)(2)(C).)

How can I challenge a sentence increase based on a strike prior?

 A judge has discretion under Penal Code section 1385, subdivision (a) to strike a strike prior conviction if doing so is “in furtherance of justice.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530.) A motion requesting that a judge strike a strike prior is called a “Romero motion.” When ruling on a Romero motion, a trial court “must consider whether, 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[.]” (People v. Williams (1998) 17 Cal.4th 148, 161.)

Trial courts are given a significant amount of leeway and discretion in their decision whether to strike a strike prior. In general, the decision to not grant a Romero motion can only be overturned on appeal if it is shown that the trial court’s decision “falls outside the bounds of reason under the applicable law and the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 161.)

If you have a strike prior on your record and you’re currently facing sentencing on a new felony conviction, it is imperative that your trial attorney file a Romero motion. Trial judges will generally permit letters of support and other documents showing a defendant’s good character to be submitted with a Romero motion.