CALIFORNIA’S “THREE STRIKES” LAW

By:  Roman P. Mosqueda, Esq.

            A felony conviction with imprisonment in state prison results from a plea of guilty or no-contest or guilty verdict of a jury.  Jail sentence of more than one year in state prison is served.  The defendant is out on parole.

            Is this a “strike” prior?  What is the “Three Strikes” law in California? Basically, it means that people who are convicted of three felonies may end up facing life in prison.

            There are two “Three Strikes” statutes in this state, to wit: Penal Code Section 667(b)-(i), enacted by the Legislature, and Penal Code Section 1170.12, enacted by initiative, Proposition 21.  Both laws are “virtually identical.”

Consequences Of The

Three Strikes Law:

            The consequences of three strikes consist of the following:

1.  three strikes under Penal Code Section 667(e)(2) states that a defendant who commits any felony with two or more strike priors must be sentenced to at least 25 years to life in state prison;

2.  two strikes under Penal Code Section 667(e)(1) states that a defendant who commits any felony with one strike prior must be sentenced to twice the base term of the current felony; and

3.  (a)  a defendant who commits a felony with two or more strike priors is not entitled to good-time and work-time credits toward the 25-year to life sentence while in prison;

(b)  under Penal Code Section 667(c)(5), a defendant who commits a felony with one strike prior is required to serve at least 80 percent of the sentence in prison, and good-time and work-time credits cannot exceed one-fifth of the total term in prison.

When Is A Prior

Felony Conviction

A Strike?

A.     Time of Prior Conviction:

In order to be classified as a strike prior, the felony conviction may have occurred before or after March 7, 1994, the date when Penal Code Section 667(b)-(i) was enacted.

Or the felony conviction may have occurred before or after March 8, 2000, the date when Penal Code Section 1170.12 became effective under Proposition 21.

B.     Time of Commission of New Felony:

Moreover, the new felony for which a defendant is being sentenced must have been committed on or after 2:45 p.m. on March 7, 1994, for the “three strike” law under Penal Code Section 667(b)-(i) to be applicable.

Or the new felony must have occurred on or after March 8, 2000, in order to use a Proposition 21 strike prior.

Classes Of Strike Priors

In California:

        This Author has a client who was convicted of robbery in 1991 and sentenced to two years of imprisonment in state prison.  He is out on parole.  The Deputy District Attorney in the Downey Court considers this a strike prior of the defendant, now being charged with embezzlement.

        Applying the one strike provision in Penal Code Section 667(e)(1), the prosecutor has made an offer of 32 months in state prison, which is twice the base term of 16 months of the current embezzlement charge.

        But is the defendant’s prior robbery conviction a “good” strike?

        Under Penal Code Section 667(d), there are three classes of strike priors, to wit:  (1) convictions for “violent felonies” or “serious felonies” under Penal Code Section 667.5(c) and Penal Code 1192.7(c); (2) convictions from outside California’s jurisdiction for felonies that have all the elements of “violent” or “serious” felonies under Penal Code 667.5(c) and 1192.7(c ); and (3) juvenile adjudications for certain offenses listed in Welfare & Institutions Code § 707(b) when juvenile was 16 or 17 years old at the time of the offense.

A.     “Violent” Felonies: 

Section 667.5(c) lists “violent” felonies as: murder or voluntary manslaughter, mayhem, rape, sodomy, oral copulation, lewd acts on a child under 14 years of age, felony punishable by death or imprisonment for life in state prison, felony of infliction of great bodily injury or felony with use of firearm, any robbery, arson, attempted murder, other violations, kidnapping, assault with intent to commit mayhem, rape, sodomy or oral copulation, continuous sexual abuse of a child, carjacking, extortion, threats to victims or witnesses, burglary of the first degree, etc.

B.     “Serious” Felonies:

        And Penal Code Section 1192.7(c) enumerates 42 “serious” felonies, the common ones, in addition to the felonies listed as “violent” felonies in Section 667.5(c), being: exploding a destructive device with intent to injure, selling, giving, or offering a minor with heroin, cocaine, PCP, meth drug, grand theft involving a firearm, throwing acid or flammable substance, discharge of a firearm at an inhabited dwelling, vehicle or aircraft, shooting from a vehicle, etc.

C. Juvenile Adjudications:

            A juvenile adjudication constitutes a prior felony conviction if:

(a)    the juvenile was 16 years of age or older at the time he or she committed the prior offense;

(b)   the prior offense is listed in subd. (b) of Section 707 of the Welfare & Institutions Code, such as murder, arson of inhabited building, robbery while armed with dangerous or deadly weapon, kidnapping, sodomy etc.;

(c)    the juvenile was found to be fit and proper subject to be dealt with under the juvenile court law; and

(d)   the juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare & Institutions Code.

Consequently, conviction of any robbery is a “good” strike prior.  Conviction of lewd act on a child under 14 years of age is likewise a “good” strike prior.  Michael Jackson was reportedly acquitted of this lewd act charge.

The Superior Court Judge decides whether the prior conviction qualifies as a strike.  The prosecutor can present the record of conviction.  The defendant can rebut the prosecution’s evidence in a trial of a prior.

Commissions and convictions of “violent” or “serious” felonies should be avoided.   These are “good” strike priors under the “Three Strikes” laws of California.  Convictions of two or more “good” strike priors results in mandatory 25 years to life sentence in state prison. 

            Three strikes and you’re out!

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(The Author, Roman P. Mosqueda, trained as a prosecutor with the Los Angeles City Attorney’s Office.  He has been practicing criminal law defense for more than two years.  He is an active member of the California Public Defenders Association.

He was notified on 2/15/05 of his membership in the Million Dollar Advocates Forum because of a final judgment of $1.160 million entered on 02/02/04, which he obtained in an immigration-real-estate investment case in the Orange County Superior Court in Santa. Ana, California)