San Diego Three Strikes Defense Attorney

California's Three Strikes law, codified at Penal Code sections 667 and 1170.12, is a sentencing scheme rather than a charge. It does not appear as a count in the complaint. It appears as prior conviction allegations attached to the new case, and those allegations often matter more to the outcome than the new charge does.

The arithmetic is severe. One qualifying prior doubles the term on any new felony, whatever that felony is. A second qualifying prior can expose you to 25 years to life. Because of that, the real defense in a strike case frequently has less to do with the new offense than with the priors — whether they legally qualify, whether they are provable, and whether the judge can be persuaded to set one aside. Marc Kohnen has been trying serious felony cases in San Diego since 2008, including jury-trial not-guilty verdicts on felony charges.

What Counts as a Strike

Not every felony is a strike. A prior qualifies only if it is a serious felony as defined in Penal Code section 1192.7(c) or a violent felony as defined in Penal Code section 667.5(c). Those are specific statutory lists — residential burglary, robbery, most sex offenses, offenses involving great bodily injury or a firearm, and others.

Two features make the scheme harsher than people expect. Strikes do not wash out: a qualifying conviction from decades ago still counts, no matter how long you have gone without a case since. And certain juvenile adjudications can count as strikes, even though a juvenile adjudication is not a criminal conviction and came with no right to a jury trial.

Second Strike and Third Strike

With one prior strike, the sentence on the new felony is doubled, and the new felony does not itself have to be serious or violent for that to apply. Any felony will do, which is how a relatively minor new case turns into a lengthy prison term.

With two or more prior strikes, the exposure reaches an indeterminate term of 25 years to life. Voter reforms in 2012 narrowed this considerably: for most defendants the third strike must itself be a serious or violent felony to trigger the indeterminate term, with exceptions for certain offenses and certain criminal histories. Where the new offense is not serious or violent, the correct sentence is generally the doubled determinate term rather than 25 to life — a distinction worth getting right, and one that is sometimes alleged incorrectly.

The Romero Motion

The most important tool in a strike case comes from the California Supreme Court's decision in People v. Superior Court (Romero), which confirmed that a trial court has discretion under Penal Code section 1385 to dismiss a prior strike allegation in the furtherance of justice. Striking a strike converts a 25-to-life exposure into a determinate term, or a doubled term into a normal one.

The motion asks the court to find that you fall outside the spirit of the Three Strikes scheme. That is a judgment about the whole picture, and it is built rather than argued:

• How long ago the prior occurred and what you have done since
• How serious the prior actually was, as opposed to how it is labeled
• Whether the new offense is minor relative to the exposure it triggers
• Your age, health, work history, and family responsibilities
• Documented treatment, education, or rehabilitation
• Whether the prior was a juvenile adjudication or arose from a single incident with another alleged strike

Attacking the Priors Themselves

Before reaching discretion, there is a threshold question the defense should never concede: do these priors actually qualify? The People bear the burden of proving each prior conviction allegation, and that proof comes from the record of the earlier case.

Several arguments live here. An out-of-state or federal conviction counts only if the conduct it involved would satisfy the California definition of a serious or violent felony, which is not automatic and often not met. Older California convictions may rest on statutes that have since been amended, and the record may not establish the specific facts the current definition requires. A prior obtained without a valid waiver of counsel, or without a proper advisement of rights, may be subject to challenge. And where two alleged strikes arose from the same incident, there is an argument they should not be counted separately.

There are also post-conviction routes that reach backward. An eligible felony reclassified as a misdemeanor under Proposition 47 is no longer a felony that can support a strike allegation, and a prior reduced under Penal Code section 17(b) changes the calculus too. Reviewing the old files, rather than accepting the list in the complaint, is where these cases are frequently won.

Why the Plea Decision Is Different Here

In an ordinary felony case, a plea to a reduced charge is often the sensible resolution. In a strike case, the analysis changes, because a conviction for a serious or violent felony creates a strike that will follow you into every future case for the rest of your life. A plea that looks favorable on the immediate custody terms can be the worse outcome if it adds a strike.

That means the negotiation is not only about time. It is about which offense you plead to, whether it is on the serious or violent lists, and whether the prior allegations are dismissed as part of the resolution. Those distinctions are easy to miss and very difficult to undo, and they are the reason strike cases need to be evaluated by someone who tries them.

If you are facing a new felony with prior strike allegations anywhere in San Diego County, call (619) 398-2500 for a free, confidential case evaluation. Marc is available 24 hours.

More on Criminal Defense

• Outstanding Warrants — Clearing bench and arrest warrants before they clear you out of a job or a home.
• Bail Hearings — The schedule amount is a starting point — reduction, OR release and conditions under PC §1275.
• Probation Violations — PC §1203.2 hearings — no jury, a lower burden of proof, and the suspended sentence back in play.
• Criminal Appeals — 60 days to appeal a felony, 30 for a misdemeanor — plus habeas where the record cannot reach.

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