FREQUENTLY ASKED QUESTIONS: Three (3) Strikes
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California’s 3-Strikes and You’re Out Law went into effect on March 7, 1994. Its purpose was to dramatically increase punishment for persons convicted of a felony who have previously been convicted of one or more "serious" or "violent" felonies. A "serious" or "violent" felony prior is commonly knows as a "strike" prior. Three Strikes law was modified by Proposition 36, enacted on November 6, 2012. Proposition 36 scaled back the more draconian aspects of the original Three Strikes law so that persons convicted of less-serious, non-violent and non-sex crimes will serve significant time in prison but will not receive life sentences.
A felony is a crime punishable by a state prison (as opposed to county jail) sentence. Felonies run the range from petty theft with a prior and possession of small quantities of drugs through kidnapping, rape, robbery, and murder. Any new felony, regardless of how minor, may be punished under the 3-Strikes law if the defendant has one or more "serious" or "violent" felony priors.
They are defined in Penal Code sections 667.5(c) and 1192.7(c). They include: residential burglary, robbery, kidnapping, murder, most sex offenses like rape and child molestation, any offense in which a weapon was personally used whether or not anyone was injured, any offense in which great bodily injury was inflicted, arson, crimes involving explosive devices, or attempts to commit any of those offenses.
A defendant who is convicted of any new felony who has one "strike" prior (known as a second striker) must go to prison (i.e., cannot be sent to a rehab facility or placed on probation) for twice the sentence otherwise prescribed for the new offense. Additionally, he must serve 80% of the sentence imposed whereas non-strike prisoners generally get between on-third and one-half off of the sentence imposed for good behavior and working while in prison.
Until November of 2012, every defendant with two or more "strike" priors (a third striker) faced a minimum of 25-years-to-life in prison, even if the currently charged offense was not itself a "strike." This was modified by Proposition 36, enacted on November 6, 2012. This is a very complex law. Most defendants now only face a life sentence if the person has two or more "strike" priors and their currently charged offense is also a "strike) (meaning it is on the serious or violent felony list).
If the current offense is not a serious or violent felony then the
person will, in many cases, be sentenced as a "second striker" which
means their potential sentence is the "usual" term doubled, rather than
a life sentence. There are, however, however, there are many exceptions
Proposition 36 also provided that some defendants currently in prison serving life sentences as third strikers can return to court to be resentenced as second strikers. This law is also very complex. The Public Defender's Office has a Unit working on these cases.
In certain circumstance where the sentencing court finds that a second or third strike defendant falls outside the "spirit" of the 3-Strikes Law, the court may, either on motion of the prosecutor or on the court’s own motion, strike or dismiss one or more "strike" priors. This is done pursuant to the power vested in the courts since 1860 to dismiss all or part of an action for good cause and in furtherance of justice. The court must state on the record and include in the court minutes the facts which the court finds justify dismissing the prior. A decision to strike or dismiss a "strike" prior is appealable by the prosecution and reviewable by the Court of Appeal and the Supreme Court.
Generally, sentencing judges will strike or dismiss a prior only when it is old and the new offense is minor and the defendant has a non-violent history. It is extremely rare if not unheard of for a court to strike or dismiss a prior when the new offense is also serious or violent. Even though the court can strike priors, California’s prisons still receive more drug offenders sentenced as second or third strikers than any other class of crime.