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If You Have Been Arrested and Charged With a Felony Criminal Offense in the State of California It Is Imperative that

You Understand the Potential Ramifications of a Conviction Including Whether or Not You Will Be Impacted by

California’s “Three Strikes” Sentencing Law

CALIFORNIA’S THREE STRIKES LAW WHAT YOU NEED TO KNOW

DOMENIC J. LOMBARDO

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If you have been

arrested and charged

with a felony criminal

offense in the State of

California it is

imperative that you

understand the

potential ramifications

of a conviction,

including whether or

not you will be

impacted by

California’s “Three

Strikes” sentencing law. When the original Three Strikes law was enacted, and for

many years thereafter, it was considered the harshest of its kind in the country.

Although the law was recently reformed, it can still add years to your sentence if

you qualify under the law. Only an experienced California criminal defense

attorney can evaluate your criminal history along with the charges you currently

face and advise you whether or not you are at risk for Three Strikes sentencing;

however, a basic understanding of the law and who it typically affects is a good

place to start.

THE ORIGINAL THREE STRIKES LAW

Judges have long taken into account a defendant’s previous criminal history, or

lack thereof, when determining a sentence after conviction of criminal offense. In

the 1990’s, however, many states took that concept one step further by enacting

“Three Strikes” sentencing laws. Although California was not the first state to

enact a Three Strikes law, California’s version was by far the broadest, and by

many accounts, the harshest. Passed in 1994, California’s Three Strikes

legislation followed on the heels of the brutal murders of Kimber Reynolds and

Polly Klass – both by recidivist offenders. The public was scared and saw

Proposition 184 as the answer to their fears, voting Proposition 184 into law with

a margin of almost three to one in favor of the law. Proposition 184 was touted as

the way to “keep murders, rapists, and child molesters behind bars, where they

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belong.”The law required an offender to be sentenced to twice the term otherwise

provided for if convicted of a felony when the offender had a previous serious

felony conviction. Conviction of a third felony after two previous strikes resulted

in a sentence of 25 years to life. The problem, as lawmakers and voters alike

eventually realized, was that the criteria for the third strike was far too broad,

effectively sending people to prison for life for things such as stealing change out

of a car or shoplifting videos.

THE REFORMATION – PROPOSITION 36

Although the original Three Strikes law did, indeed, get many serious, violent

offenders off the street, it also sent many offenders to prison to serve lengthy

sentences for non-violent offenses because of the way the original law was

written. In fact, according to Stanford Law School’s “Stanford Three Strikes

Project”, over half of all inmates sentenced under the original Three Strikes law

were sentenced for non-violent offenses. Eventually, it became clear to the voting

public that the original Three

Strikes law was too broad. To

remedy the situation, the “Three

Strikes Reform Act”, commonly

known as Proposition 36, was

passed in 2012. Although

Proposition 36 is complex, the end

result is that in most cases an

offender will not be subject to

Three Strikes sentencing if the third

felony is not a serious or violent

offense. In addition, 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 new law. Estimates place the

number of offenders who may qualify for a sentence reduction as a result of the

change in the Three Strikes law at over 3,000.

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PRIOR CONVICTIONS – WHAT QUALIFIES

Although Proposition 36 dramatically changed California’s Three Strikes law, the

law still exists and can result is a lengthy prison sentence -- up to and including a

life sentence -- to your sentence if you qualify under the new law. 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 as defined in California Penal Code Section 1192.7(c). Most of the

offenses included in the definition of “serious” or “violent” felonies are offenses

you would expect to find 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

Along with providing specific offenses under the definition of “serious” or

“violent” offenses, the 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

In addition, juvenile “sustained petitions”, the juvenile equivalent of a conviction,

may qualify as a strike if you were 16 years of age or older and several other

conditions are met. Out of state convictions may also qualify as a strike. Finally,

you can rack up more than one “strike” from the same case. If you were convicted

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of more than one qualifying felony out of the same case you could have more than

one strike against you.

EXCEPTIONS TO THE “SERIOUS” OR “VIOLENT”

REQUIREMENT

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

THREE STRIKES SENTENCING – HOW IT WORKS

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 must also count as a strike.

In other words, you are only subject to Three Strikes sentencing if you have two

previous strikes (a serious or violent offense) and are convicted of a third strike.

If your current charges do not include a serious or violent felony you will not face

a 25 year to life sentence; however, you do still face a harsher sentence for

conviction of a third felony offense even if it is not a serious or violent felony.

Conviction of a non-serious or non-violent third felony subjects you to a sentence

twice as long as you would otherwise receive.

The good news is that Three Strikes sentencing is not automatic. Prosecutors and

judges have the discretion to dismiss or “strike” allegations that a defendant is

subject to Three Strike sentencing. In addition, eligibility for Three Strikes

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sentencing must be proven by the prosecuting attorney, leaving a defendant with

the ability to fight a Three Strikes sentence.

Defendants are frequently unaware of the future impact a conviction may have

when they accept a plea agreement in a case. If you are currently charged with a

felony offense of any kind it is crucial that you consult with an experienced

California criminal defense attorney immediately. Even if you are not currently

eligible for Three Strikes sentencing you could set yourself up for a Three Strikes

sentence down the road by accepting a plea agreement now.

California Courts, California’s Three Strikes Sentencing Law

Stanford Law School, Stanford Three Strikes Project

California Department of Corrections and Rehabilitation, Definition of Serious

Felony Offenses

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About the Author

Domenic J. Lombardo

Domenic J. Lombardo, (Attorney at Law)

graduated from University of California, Los

Angeles (U.C.L.A.), earning a B.A. in

Economics-Business, before graduating with

his J.D. from University of California,

Hastings School of Law. He passed the

California Bar Examination on the first try,

and immediately began practicing as a

criminal defense attorney in San Diego,

California.

Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public

Defender from 1991 to early 1996.

Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as a sole

practitioner dedicated entirely to the defense of individuals accused of crimes.

And while Mr. Lombardo works as the primary attorney for all his cases, he does

have a team of investigators, forensic consultants, and paralegals to call on to

help achieve the best possible result in every case.

When he is not working, Mr. Lombardo is an avid family man, triathlete, and

world traveler.

The Law Office of Domenic J Lombardo

The Executive Complex 1010 Second Ave., Ste. 1820

San Diego, CA 92101

www.AttorneyLombardo.com