Three Strikes

In 1994 California voters passed the “Three Strikes Law” Under this law if a defendant has suffered a “serious” or “violent” prior felony conviction under Penal Code §§667 or 1192 then the punishment for any new felony with one prior strike is doubled with no chance of probation, and with two prior strikes the sentence is twenty-five years to life imprisonment.

What most voters did not understand was that the “third strike” did not have to be a serious or violent felony.  Thus such trivial offenses as a petty theft with a prior, Penal Code §666, or possession of a small amount of drugs, Health and Safety Code §§11350 or 11377, could be the basis for life imprisonment.  The reckless application of this law by prosecutors in virtually every conceivable circumstance has caused California to have the highest percentage of its population in prison of any state in the nation.

Attacking the constitutionality or the factual basis of these prior convictions is essential for achieving a just result.  This approach along with a motion to dismiss the prior conviction under Penal Code §1385“in the interest of justice” as provided in the landmark Romero decision are the backbone of any good defense in a three strikes case.

Frequently Asked Questions

1. Does the three strikes law apply to “strike priors,” that is, serious or violent felony convictions that occurred prior to 1994?

Unfortunately, yes.  There is no “wash out” provision under the three strikes law.  Numerous appellate courts have held that enhancing sentences for prior convictions does not violate the ex post facto clause in the Constitution.  However, the age of the conviction and the record keeping on prior occurring before 1994 can often provide the basis for challenging the prior conviction either as to its constitutionality or its application under the Romero decision.

2. If the prior is constitutionally valid, what factors will the court consider when assessing whether or not to “strike the strike” under the Romero decision?

The court should strike the prior conviction when it is in the interest of justice to do so.  There are numerous factors to be considered which are considered to be “circumstances in mitigation” similar to those found in California Rules of Court § 4.423.  These factors are as follows:

(a)  Facts relating to the crime, including the fact that:

    • The defendant was a passive participant or played a minor role in the crime.
    • The victim was an initiator of, willing participant in, or aggressor or provoker of the incident.
    • The crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to reoccur.
    • The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense.
    • The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
    • The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim.
    • The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal.
    • The defendant was motivated by a desire to provide necessities for his or her family or self.
    • The defendant suffered from repeated or continuous physical, sexual or psychological abuse inflicted by the victim of the crime; and the victim of the crime, who inflicted the abuse, was the defendant’s spouse, intimate cohabitant, or parent of the defendant’s child; and the facts concerning the abuse do not amount to a defense.

(b)  Facts relating to the defendant, including the fact that:

    • The defendant has no prior record, or an insignificant record of criminal conduct, considering the recency and frequency of prior crimes.
    • The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime.
    • The defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.
    • The defendant is ineligible for probation and but for that ineligibility would have been granted probation.
    • The defendant made restitution to the victim.
    • The defendant’s prior performance on probation or parole was satisfactory.
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