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The ABCs of Three Strikes
By Alex Ricciardulli
Edited by Peg Healy
Category: Criminal Law
No criminal statute in California has generated as much sound and fury over the past few years as the three strikes law, which mandates heavy sentences for recidivist offenders. The most controversial part of the law is that while a defendant's two prior convictions, or "strike priors," must be serious or violent as defined by the statute, the third crime can be any felony under the sun.
But there is a lot more to the law than just "three strikes and you're out." The law also has a two-strikes provision, a reduction of custody credits clause, and other intricacies. After several years of going through the crucible of appellate scrutiny, the basic workings of the three strikes law are now well established, if somewhat complex.
Nuts and Bolts
The three strikes law is actually two different laws: one enacted by the Legislature in Penal Code section 667(b)-(i), and another enacted by the voters through an initiative (Proposition 184) in Penal Code section 1170.12. Thankfully, the California Supreme Court has held that these laws are virtually identical (People v Hazelton (1996) 14 C4th 101), so for simplicity's sake, all references here will be to section 667. In a nutshell, here are the three major components of the law.
A defendant who commits any felony and has two or more strike priors on his or her record must be sentenced to a minimum of 25 years to life in state prison for the current felony. Pen C §667(e)(2). A defendant who commits any felony with one strike prior must be sentenced to twice the base term of the current felony. Pen C §667(e)(1). A defendant who commits any felony with one strike prior must serve at least 80 percent of the sentence in prison, so the defendant's good-time or work-time while in prison cannot exceed one-fifth of the total term in prison. Pen C §667(c)(5). Normally, defendants in prison serve only 50 percent of their sentences. See Pen C §2933.
Underscoring the severity of the law, a defendant who commits a felony with two or more strike priors gets no good-time/work-time credits while in prison towards his or her 25-years-to-life sentence. In re Cervera (2001) 24 C4 1073.
What Are Strikes?
One issue that created a veritable forest of appellate opinions is whether the strike priors had to be sustained after the law took effect on March 7, 1994. Courts uniformly rejected all ex post facto and statutory arguments, holding that strike priors could originate from cases before March 7, 1994. See Gonzales v Superior Court (1995) 37 CA4th 1302 (collecting cases). On the other hand, it is equally well settled that the current felony that triggers the application of the law must have occurred on or after March 7, 1994, for the three strikes law to apply. People v Cargill (1995) 38 CA4th 1551. And for priors added by Proposition 21 to apply, the current felony has to have occurred on or after that proposition went into effect (March 8, 2000). Pen C §§667.1, 1170.125.
Although the defendant's current crime can be any felony, the strike priors are more limited. There are three different types of strikes.
The first type is convictions in California for violent felonies listed in Penal Code section 667.5(c) or serious felonies listed in section 1192.7(c). Pen C §667(d)(1). Those include crimes such as robbery, rape, child molestation, and murder. The list in Penal Code section 1192.7(c) also counts burglaries of residences-even if no one was home and no violence was used-as serious felonies. The burglary of a garage attached to a house counts as a residential burglary and is thus considered a strike. People v Ingram (1995) 40 CA4th 1397.
The second type of strike priors is convictions from outside California's jurisdiction for felonies that have all the elements of violent or serious felonies under Penal Code sections 667.5(c) and 1192.7(c). Pen C §667(d)(2). The California Supreme Court has specifically held that priors from outside California count as strikes. Hazelton, 14 C4th 101.
The third type of strike priors is juvenile adjudications of wardship under Welfare and Institutions Code section 602 for designated felonies in cases in which the juvenile was 16 or 17 years old at the time of the offenses. Pen C §667(d)(3). The general rule regarding adjudications is that the prior has to be for a crime listed in Welfare and Institutions Code section 707(b). People v Garcia (1999) 21 C4th 1. This list is narrower than the adult list of strike priors. For example, priors for residential burglary are not listed in section 707(b), as the Garcia court points out.
There are two exceptions to this general rule. First, under Garcia, if the defendant was found a ward of the court for an offense listed as a serious or violent felony under the three strikes law (Pen C §§667.5(c), 1192.7(c)) that was not listed in Welfare and Institutions Code section 707(b), and at the same time the defendant was also found a ward of the court for a crime that was listed in section 707(b), then the non-707(b) offense does count as a strike (and so does the section 707(b) offense). Second, under People v Leng (1999) 71 CA4th 1, if the defendant was found a ward of the court for a section 707(b) offense, and that crime was not also listed as a serious or violent felony, then the offense does not count as a strike.
Prop. 21 added several crimes to the list of violent and serious felonies in Penal Code sections 667.5(c) and 1192.7(c). The major new priors include making terrorist threats (Pen C §422), committing felonies on behalf of a gang (Pen C §186.22), intimidating witnesses (Pen C §136.1), conspiring to commit violent or serious felonies, and committing unarmed robberies that lead to juvenile adjudications. See Pen C §1192.7(c)(28), (37), (38), (39), (41); Welf & I C §707(b)(3).
An issue which has now been resolved is the extent to which felony assaults in violation of Penal Code section 245 count as strikes under Prop. 21. Prop. 21 amended the list of serious felonies to add the following: "assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245." Pen C § 1192.7(c)(31). Yet, Penal Code section 245(a)(1) also includes assaults by means likely to produce great bodily injury. These are assaults with hands or feet where no weapon is used, which did not count as strikes before Prop. 21. People v Rodriguez, (1998) 17 C4 253.
Prosecutors argued that, although these assaults are not specifically listed under section 1192.7(c)(31), the reference to 'Section 245' was meant to incorporate all violations of section 245, including ones by hands and feet. However, the three published Court of Appeal cases that considered the issue rejected it, holding that, even after Prop. 21, assaults with hands or feet where no weapon is used and where no great bodily injury is actually inflicted still do not count as strikes. Williams v Superior Court (2001) 92 CA4th 612; People v Winters (2001) 93 CA4th 273; People v Haykel (2002) 96 CA4th 146.
Dispositions Affecting Strikes
Whether a conviction becomes a strike is determined by what happens at the time of the initial sentencing. Pen C §667(d)(1). Thus, even if the defendant was not sentenced to prison when he or she was convicted of the prior, it still counts as a strike.
However, if a case was reduced to a misdemeanor under Penal Code section 17(b) at the time of the initial sentencing, then it is not a strike prior. People v Glee (2000) 82 CA4th 99. On the other hand, if the reduction to a misdemeanor occurred years later, such as after completion of probation, then the prior is still a strike. People v Franklin (1997) 57 CA4th 68. Furthermore, if a prior is expunged under Penal Code section 1203.4 after the initial sentencing, it also counts as a strike. People v Diaz (1996) 41 CA4 1424.
A question of great importance is whether a defendant can get multiple priors from a single past case. The California Supreme Court found that a defendant could indeed get "two strikes from one swing," holding that strike priors do not have to be brought and tried separately. People v Fuhrman (1997) 16 C4th 930. This contrasts with the five-year enhancement for priors under Penal Code section 667(a). Even if the restriction on multiple punishment in Penal Code section 654 had prohibited more than one sentence on the counts in the old case, multiple strike priors still result. People v Benson (1998) 18 C4th 24.
When a defendant is convicted of any new felony, and the defendant has one strike prior that has also been proved, the judge selects the base term for the current felony and doubles it. Pen C §667(e)(1); People v Martin (1995) 32 CA4th 656. This term could be the low, middle, or high sentence of a statute, depending on aggravating or mitigating circumstances. Pen C §1170(b). Conduct enhancements, such as for use of a gun or infliction of great bodily injury, and enhancements for prior convictions like the five-year enhancement for priors in Penal Code section 667(a), are not doubled. People v Dominguez (1995) 38 CA4th 410. If the current felony carries a life sentence and states a minimum parole eligibility period (such as second-degree murder, which is 15 years to life), this period is doubled. Pen C §667(e)(1). If the current felony calls for a sentence of life in prison but fails to specify a minimum term for parole eligibility (such as attempted premeditated murder), the judge doubles the seven-year minimum term set forth in Penal Code section 3046. People v Jefferson (1999) 21 C4th 86.
When two or more strike priors are proved, the sentence for the current felony must be at least 25 years to life. Pen C §667(e)(2). If the current offense is first-degree murder, the sentence is 75 years to life. Pen C §667(e)(2)(A)(i); People v Mendoza (2000) 78 CA4th 918 (tripling the 25-year term for murder). If the current offense is second-degree murder, the sentence is 45 years to life. Pen C §667(e)(2)(A)(i). In other circumstances, such as when a defendant has many strike priors, the sentence for a single count may exceed 25 years to life. See Ingram, 40 CA4th 1397.
In some situations, a defendant can avoid a prison sentence even if the defendant has strike priors. If the current crime is a "wobbler," punishable either as a felony or as a misdemeanor, such as receiving stolen property or possession of methamphetamine, the judge can reduce the offense to a misdemeanor, thereby avoiding a three strikes sentence. People v Superior Court (Alvarez) (1997) 14 C4th 968. If the current crime is a minor drug offense, even if the defendant has strike priors, the judge can defer judgment under Penal Code section 1000 to order the defendant to participate in a drug-counseling program and dismiss the case when the defendant successfully completes the program. People v Davis (2000) 79 CA4th 251. But if the defendant falls off the deferred entry of judgment program, he or she faces sentencing on the underlying charge and sentencing on the strikes, including a possible sentence of 25 years to life in prison.
With at least one strike prior, consecutive sentencing on multiple counts is mandatory unless the current felony convictions are "committed on the same occasion" or arise "from the same set of operative facts." Pen C §667 (c)(6). The same occasion refers to a "close temporal and spatial proximity" between the criminal acts. People v Deloza (1998) 18 C4th 585, 594. Arising out of the same set of operative facts means that the counts share common acts or criminal conduct that establishes the elements of the current felonies. People v Lawrence (2000) 24 C4th 219.
If a defendant has one strike prior and the judge orders that the multiple counts must be served consecutive to one another, the count in which the defendant receives the greatest punishment is the principal term, and the remaining ones are the subordinate terms. Pen C §1170.1(a). The defendant receives twice the base of the principal term but only a third of the middle term doubled for the subordinate terms. People v Nguyen (1999) 21 C4th 197. If the defendant has two or more strike priors and the judge orders consecutive sentences, a separate 25 years to life sentence must be given for each count. People v Cartwright (1995) 39 CA4th 1123 (sentence of 375 years to life).
To Strike or Not to Strike
The California Supreme Court has held that a judge has the power to sentence a defendant to less time than the maximum under the three strikes law. A judge can strike or dismiss strike priors in furtherance of justice under Pen C §1385. Thus, in an appropriate case, a judge can dismiss one of a defendant's two strike priors and sentence the defendant to a doubled sentence instead of 25 years to life. People v Superior Court (Romero) (1996) 13 C4th 497. A judge can even dismiss all of a defendant's strike priors and sentence the defendant to probation. People v Aubrey (1998) 65 CA4th 279.
A judge also has considerable flexibility in fashioning a sentence. A judge has the power under Penal Code section 1385 to dismiss strike priors with respect to individual counts. For example, in People v Garcia (1999) 20 C4th 490, the defendant was convicted of two current felonies-residential burglaries. He had multiple strike priors from "a single aberrant period" much earlier in his life. The potential sentence under the three strikes law was 50 years to life. The judge dismissed the strikes with respect to one current felony and imposed a 25 years to life sentence for one of the current felonies and a small sentence for the other.
Although a judge's power to dismiss is broad, it is not limitless. If a judge abuses the power to dismiss strike priors, the sentence may be reversed if a defendant's record or current offense is so aggravated that the defendant falls within the spirit of the three strikes law. People v Williams (1998) 17 C4th 148, 160; People v Gaston (1999) 74 CA4th 310 (abuse of discretion to dismiss prior conviction for armed robbery). In properly dismissing strikes under Penal Code section 1385, a judge must not act "solely to accommodate judicial convenience or because of court congestion," nor dismiss "simply because a defendant pleads guilty," nor dismiss "guided solely by a personal antipathy for the effect that the three strikes law would have on a defendant." The judge must weigh "the defendant's background, the nature of his present offenses, and other individualized considerations." Romero, 13 C4th 497, 531.
In sum, three strikes is an intricate law mandating some very lengthy sentences. In determining whether to impose one life sentence, two, or none at all, much depends on the judge's determination and on the appellate court's review for abuse of discretion.
Alex Ricciardulli is a deputy public defender in Los Angeles County specializing in appellate practice and coauthor of the Three Strikes Manual (Compendium Press, 1997).
Updated: December 2003