Understanding California's Three Strikes Law

California's Three Strikes law is one of the most talked about and least understood sentencing rules in the state. People picture three separate crimes and an automatic life term. The reality is narrower: it is a set of sentencing rules that attach to a new felony case because of what is already on a person's record, and the first strike does most of the work.

The law lives in two nearly identical places in the Penal Code. The Legislature passed the first version in early 1994, codified at Penal Code section 667, subdivisions (b) through (i), and voters approved a parallel initiative that November, Proposition 184, codified at Penal Code section 1170.12. Prosecutors generally plead both. Voters amended the scheme again in 2012 through Proposition 36.

This guide explains which old convictions qualify, what each strike does to a sentence, and how one can be dismissed or reduced.

A Strike Is a Prior Conviction Allegation, Not a Separate Charge

There is no crime called a strike. Nobody is charged with a strike, arrested for a strike, or convicted of a strike.

A strike is an allegation the prosecution attaches to a new felony case, stating that the defendant already has a qualifying conviction on record. If both the new felony and the allegation are proved, the sentencing rules change. The allegation appears in the charging document below the counts, tracking Penal Code sections 667(b) through (i) and 1170.12.

What Counts as a Strike in California

Most felonies are not strikes. A prior qualifies only if it appears on one of two statutory lists: the serious felonies in Penal Code section 1192.7(c), or the violent felonies in Penal Code section 667.5(c). The lists overlap heavily, and a conviction on either one counts.

Offenses commonly found on the serious felony list include:

• Robbery
• First degree residential burglary, meaning burglary of an inhabited dwelling
• Assault with a deadly weapon
• Criminal threats
• Any felony in which the defendant personally inflicted great bodily injury on someone other than an accomplice, or personally used a firearm
• Any felony in which the defendant personally used a firearm

Violent felonies under section 667.5(c)

The violent felony list is shorter and covers the gravest conduct. It includes offenses such as:

• Murder, attempted murder, and voluntary manslaughter
• Forcible rape and other forcible sex offenses
• A lewd or lascivious act on a child under 14
• Kidnapping
• Carjacking
• Arson causing great bodily injury
• Any felony punishable by death or life in prison

What a Second Strike Means: The New Sentence Is Doubled

With one qualifying prior, the sentence for the new felony is doubled. The rule reaches further than people expect, because the new felony does not itself have to be serious or violent. Any felony will do.

Probation also becomes much harder to obtain, because the statute directs a state prison commitment for defendants with a qualifying prior. Most people sentenced under this law are second strikers serving a doubled determinate term, not people serving 25 years to life.

What a Third Strike Means, and What Proposition 36 Changed

With two or more qualifying priors, the scheme reaches an indeterminate life sentence with a minimum term of 25 years, or a longer minimum if the statute's calculation (which can triple the term otherwise provided) produces one. Release then depends on the parole board rather than a fixed date.

Between 1994 and 2012 that exposure could be triggered by any new felony, however minor. Proposition 36, approved in November 2012, narrowed it. A defendant with two or more strikes now generally faces the 25-to-life term only if the new felony is itself serious or violent; otherwise the sentence is ordinarily the doubled second-strike term.

Exceptions remain. The 25-to-life term still reaches a new felony that is neither serious nor violent where the offense involves specified controlled substance or sex offenses, where the defendant was armed with or used a firearm or intended to cause great bodily injury, or where the defendant has a prior conviction for one of a short list of the gravest offenses, including homicide.

Old Convictions, Juvenile Cases, and Out-of-State Priors

Strikes do not expire. There is no wash-out period and no credit for a long stretch of clean living. A conviction from the 1990s counts the same as one from last year; the statute says the time between the prior and the current offense does not matter.

Certain juvenile adjudications count too, which surprises people because an adjudication is not a criminal conviction and carries no right to a jury trial. Four conditions generally must be met: the person was 16 or older at the time, the offense was serious or violent or listed in Welfare and Institutions Code section 707(b), the minor was found fit for juvenile court, and the minor was adjudged a ward for a listed offense.

Out-of-state and federal convictions are handled differently. A prior from another jurisdiction counts only if the offense includes all the elements of a California serious or violent felony. Courts do not compare the names of the crimes, since a burglary elsewhere can mean something different from a burglary here. They look to what the conviction itself established: the elements admitted in the plea or found by a jury.

How Strikes Are Pleaded and Proved

The prosecution has to plead each prior conviction allegation and prove it. Nothing is automatic, and nothing is assumed from a rap sheet.

A defendant can admit the priors or deny them. If they are denied, there is a trial on the allegations, usually held after the verdict on the new charge and decided by the jury unless a jury is waived, except on whether the defendant is the person named in the old record, which the judge decides. The priors are tried separately for a practical reason: the jury deciding the current felony should not hear about old convictions.

Proof comes from the record of the earlier case, and where those documents do not establish the facts the current definition requires, the allegation can fail.

Custody Credits Are Limited for Strike Defendants

Most people sentenced to prison in California earn conduct credits that reduce time served. The Three Strikes law restricts that: credit cannot exceed one-fifth of the total term, usually called the 20 percent rule.

Penal Code section 2933.1 separately limits credit to 15 percent for anyone convicted of a violent felony listed in section 667.5(c), and a defendant serving an indeterminate third-strike term earns little or no credit against the 25-year minimum. A strike sentence is served closer to its full length than an ordinary one.

Romero Motions: Asking a Judge to Dismiss a Strike

A judge is not required to impose a strike sentence in every case. In People v. Superior Court (Romero), decided in 1996, the California Supreme Court held that a trial court keeps its authority under Penal Code section 1385 to dismiss a prior strike allegation in the furtherance of justice. Such a request is now called a Romero motion.

Two years later, in People v. Williams, the court explained what a judge weighs in deciding whether a defendant falls outside the spirit of the scheme:

• The nature and circumstances of the current felony
• The nature and circumstances of the prior strikes, including how old they are
• The defendant's background, character, and prospects
• Any documented treatment, education, or law-abiding years since the prior

What a granted Romero motion does

Dismissing a strike does not erase the conviction or dismiss the new charge. It removes the allegation for sentencing in the present case. For a defendant with one prior, that turns a doubled term into an ordinary one. For a defendant with two, it turns a potential life term into a determinate second-strike sentence.

Proposition 36 Resentencing and Proposition 47 Reductions

Proposition 36 also created a petition process, in Penal Code section 1170.126, for people already serving an indeterminate term for a third strike that was not serious or violent. An eligible petitioner can ask to be resentenced as a second striker, and the court can deny relief if resentencing would pose an unreasonable risk of danger to public safety.

Proposition 47, approved in 2014, is a different tool that often gets mixed into the same conversation. It reduced certain theft and drug felonies to misdemeanors, with a petition process in Penal Code section 1170.18. Because those offenses are generally not on the serious or violent lists, a Proposition 47 reduction usually does not remove a strike.

The reduction that can eliminate one is different. Some offenses, including assault with a deadly weapon, are wobblers chargeable as either a felony or a misdemeanor. A conviction reduced under Penal Code section 17(b) becomes a misdemeanor for all purposes, which generally means it can no longer serve as a strike.

What a Strike Means in Plea Negotiations

In an ordinary felony case, the central question in a negotiation is how much custody time is on the table. When strikes are involved, the offense a person pleads to also determines whether a new strike is created.

Two resolutions that look identical on paper can be very different. A plea to a serious felony with no custody time can be worse in the long run than a plea to a non-serious felony with a short sentence, because only one adds a permanent multiplier to every later case.

If You Are Facing Strike Allegations in San Diego

Strike allegations appear in felony cases, which in San Diego County are prosecuted by the District Attorney and heard at the downtown Central Courthouse at 1100 Union Street or at the Vista, El Cajon, or Chula Vista branches.

Do not discuss the case with police or with anyone in custody, since statements about old convictions are as usable as statements about the new charge. Gather what you have from the earlier cases, including court records and any paperwork showing a later reduction, because whether a prior qualifies is a real question answered by those documents. Get a lawyer involved before the first court date.

Marc S. Kohnen, of the Law Office of Marc S. Kohnen at 425 Tenth Avenue in downtown San Diego, has defended criminal cases in the county since 2008 and has taken cases to jury verdict. He is available 24 hours at (619) 398-2500. Every case is different and prior results do not guarantee a similar outcome, but a strike case should be reviewed by someone who tries them.

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