California’s Three Strikes Law
There are many misconceptions and misunderstandings about what a “strike” is and what the consequences of a “strike” are under California’s Three Strikes Law. This does not come as a surprise, considering this is one of the most complex, ever-changing and serious areas of California criminal law.
Not every felony offense in California constitutes a “strike” under the Three Strikes Law. For example, Penal Code §487 Grand Theft, Vehicle Code §10851 Unlawful Taking of a Motor Vehicle, and Health & Safety Code §11378 Possession of Narcotics for Sale are all felonies, but are not “strike” offenses under California’s Three Strikes Law.
A “strike” is any offense listed in Penal Code §667.5(c) or Penal Code §1192.7(c). Both penal code sections have a long list of crimes that are deemed by the legislature as “strikes” under the Three Strikes Law. “Strike” offenses listed under Penal Code §667.5(c) include, but are not limited to, murder, mayhem, rape, robbery, kidnapping and carjacking. “Strike” offenses listed under Penal Code §1192.7(c) include some of the same offenses listed in Penal Code §667.5(c) such as murder, mayhem and rape. However, Penal Code §1192.7(c) also lists other crimes as “strike” offenses that Penal Code §667.5(c) does not list. Among many other listed “strike” offense under Penal Code §1192.7(c) are assault with a deadly weapon by an inmate, criminal threats and any felony offense in which the defendant personally uses a firearm.
The Three Strikes Law in California was created and designed to punish the most egregious criminal conduct by setting longer prison terms for “strike” offenses, reducing potential good-time credits while in custody based on a current “strike” charge(s) and/or prior “strike” conviction(s), and enhancing future sentences on future crimes with the use of the prior “strike” conviction. An individual who has two prior “strikes” faces 25 Years to Life if convicted of a third “strike”. Additionally, if an individual has what is called a “Super Strike” and at least one other “strike” conviction, any felony conviction will constitute a third “strike” and result in a minimum sentence of 25 Years to Life.
A “strike” offense makes an individual presumptively ineligible for probation. However, the court will sometimes make exceptions depending on a defendant’s circumstances, and grant probation.
A “strike” offense cannot be removed or expunged from an individual’s criminal record like other cases can be after successful completion of probation. A “strike” remains on your record and can be used against you again in a future proceeding on any felony charge. However, a prior “strike” may be stricken from your record by the court for purposes of sentencing on any future felony if the court grants what’s called a Romero motion filed by defense counsel.
A Romero motion is a written motion in which defense counsel asks the court to look at the defendant’s past, present and future prospects and find that the defendant falls outside the sentencing scheme of the Three Strike Law and act as if the “strike” never occurred for purposes of sentencing on that case. If the court grants a Romero motion, the “strike” offense is not used against the defendant in that proceeding.
If you have questions regarding any of the issues discussed here, please don’t hesitate to call, email or fax my office.