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Three Strikes

Under California’s Three Strikes Law, an offender can face up to 25 Years to Life in the State Prison if he or she is convicted of more than two eligible offenses defined as “strikes”, which are included in Penal Code section 1192.7(c) (“Serious Felonies”) and Penal Code section 667.5(c) (“Violent Felonies”). [See Cal. Penal Code § 1170.12(c)(2)].

Even if a defendant has only one “strike” on their prior record – even if they were granted probation in the case or received the adjudications as a juvenile [see Cal. WIC § 707(b)] – in the event that any other felony is charged against them, they can be facing double the amount of the ordinary punishment, and their ability to earn goodtime credits is severely reduced. [Cal. Penal Code §§ 1170.12(b)(5), (c)(1)]. This “doubling” of the term of imprisonment can, in addition, be couples with another consecutive 5-year State Prison if the current felony charged is also a “Serious Felony” under Penal Code section 1192.7(c), termed a “nickel prior”. [See Cal. Penal Code § 667(a)(1)].

The following offenses are “Serious Felonies” under California law that can be used as Strike Priors:

(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; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or any explosive with intent to murder; (18) any burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used dangerous or deadly weapon; (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine(PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1)of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code; (25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35)continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100; (37) intimidation of victims or witnesses, in violation of Section 136.1; (38) criminal threats, in violation of Section 422; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022.53; (41) a violation of subdivision(b) or (c) of Section 11418; and (42) any conspiracy to commit an offense described in this subdivision.

Cal. Penal Code § 1192.7(c).

“Violent Felonies” under Penal Code section 667.5(c) are also strikes, but the main difference is that a term of imprisonment for these crimes reduces the amount of goodtime credits a defendant can earn from the standard “50 percent” to “85 percent”. For example, an ordinary felony carrying ten years in prison would be deem served after five years of actual time in Prison. Conversely, if the crime alleged is a “Violent Felony”, that crime carrying ten years would be deemed served after eight and a half years in Prison. The following crimes are characterized as “Violent Felonies” under California law, which must be served at “85 percent” time if the defendant is sentenced to prison, and can be used as Strike Priors if a new felony is alleged against them:

(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 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.

(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.

(12) Attempted murder.

(13) A violation of Section 18745, 18750, or 18755.

(14) Kidnapping.

(15) Assault with the intent to commit a specified felony, in violation of Section 220.

(16) Continuous sexual abuse of a child, in violation of Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section 215.

(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.

(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22.

(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22.

(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.

(22) Any violation of Section 12022.53.

(23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person.

Cal. Penal Code §667.5(c).

 

There are ways to fight the unjust Three Strikes law, such as seeking to dismiss a Strike Prior in the interests of justice. [See People v. Superior Court [Romero] (1996) 13 Cal.4th 497]. Additionally, the Legislature has enacted new reforms to the justice system that have provided new opportunities to dismiss Strike Priors and enhancements that can drastically reduce exposure for clients facing these serious circumstances. [See, e.g., Cal. Penal Code § 1385].

Our knowledgeable attorneys at Honeychurch & Giambona have represented many clients charged with “Strike” offenses or cases where a Strike Prior is alleged, and have achieved great results for our clients. If you are charged with a “Strike” offense or a current felony that alleges a Strike Prior, do not hesitate to call Honeychurch & Giambona today for a free consultation to see how our effective attorneys may be able to help you achieve the best outcome for your case.