Criminal history has always been taken into account when determining a sentence. In the 1990s, many states enacted “Three Strikes” laws. If you are a California resident you likely know something about the state’s “Three Strikes” law given the fact that the law has garnered national attention since it was originally enacted back in 1994. The intended purpose of the Three Strikes law was to provide for additional, harsh penalties for repeat offenders. The law was essentially a knee-jerk reaction to recent horrible crimes in the state, resulting in what even staunch supporters of harsh sentencing eventually agreed was unfair and unjust sentencing practices. As a result, the original Three Strikes law was amended; however, the law does still exist and could be applicable to your situation if you are currently facing criminal charges in the State of California.
The original Three Strikes Law was passed as a response to the brutal murders of Polly Klaas and Kimber Reynolds — both by recidivist offenders who were career criminals – and was considered the harshest in the country because of how broad the law was. The law required an offender to be sentenced to twice the term otherwise provided for if convicted of a felony offense when the offender had a previous serious felony conviction or “strike.” Conviction of a third felony after two previous strikes resulted in a prison sentence of 25 years to life. Almost any felony counted as a third strike.
As originally enacted, the Three Strikes law resulted in a life sentence for almost any conviction if the defendant had two prior convictions for serious or violent offenses. While the original intent of the law was to “keep murders, rapists, and child molesters behind bars, where they belong,” the result has been to send people to prison for life for offenses such as petty theft. In fact, current statistics indicate that as many as half of all the inmates currently in prison as a result of the Three Strikes sentencing are there for a conviction for a non-violent crime. Over half of all inmates sentenced under the original Three Strikes law in California were sentenced for non-violent offenses.
Almost two decades later, it became clear to voters that California’s Three Strikes law needed to be changed. The Three Strikes Reform Act, commonly known as Proposition 36, was passed in 2012. The 2012 reform resulted in two crucial provisions:
- To be sentenced as a Three Strikes offender, the new felony must be a serious or violent felony and you must have two or more prior strikes.
- Inmates currently serving a Three Strikes sentence may petition to have their sentence reduced to two strikes sentencing if they would have been eligible under the new law.
In most cases, an offender would now not be subject to Three Strikes sentencing if the third felony is not a serious or violent offense. Offenders who are currently serving a sentence under the original Three Strikes law may petition for a sentence reduction if they would not qualify for Three Strikes sentencing under the reformed law. Over 3,000 offenders may qualify for a sentence reduction.
Under the original Three Strikes law a third felony conviction, regardless of the nature of the offense, would trigger Three Strikes sentencing, meaning a 25 year to life sentence. Post-Proposition 36, the third felony offense must now also count as a strike to trigger Three Strikes sentencing, meaning it must typically be a serious or violent felony. You will still, however, face harsher sentencing for a third felony offense even if it does not count as a third strike.
To be subject to Three Strikes sentencing you must have two prior “strikes” and currently be facing a potential third “strike.” A “strike” is a conviction for a “serious” or “violent” felony offense as defined in California Penal Code Section 1192.7(c), including, but not limited to:
- Murder
- Rape
- Child molestation
- Assault with a deadly weapon
- Robbery
- Kidnapping
- Selling or furnishing a controlled substance to a minor
The Three Strikes law also includes several “catch all” definitions such as:
- any felony in which the defendant personally used a dangerous or deadly weapon
- any felony in which the defendant personally inflicts great bodily injury on any person
Juvenile “sustained petitions” may qualify as a strike as may out of state convictions. A single case can also produce more than one strike against you.
As a general rule, Proposition 36 made it a requirement that only serious or violent felony offenses count as a third strike for purposes of enhanced sentencing. There are, however, exceptions to that general rule, including but not limited to offenses involving:
- the use or intended use of a firearm in the commission of the crime
- the sale or intended sale of certain controlled substances
- many sex offenses
Eligibility for Three Strikes sentencing must be proven by the prosecuting attorney. Prosecutors and judges have the discretion to dismiss or “strike” Three Strikes sentencing provisions. While the 2012 reforms were certainly needed, the California Three Strikes law is still a concern for anyone charged with a serious of violent felony. A conviction could form the basis of a Three Strike sentence down the road, making it even more important that you consult with an experienced California criminal defense attorney now to try and prevent a conviction.
If you have a legal problem in California, contact an experienced California criminal defense attorney as soon as possible to ensure that your rights are protected. For a free and confidential consultation, call San Diego criminal defense attorney Domenic J. Lombardo at (619) 232-5122 or submit the secure form on this page.
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