California’s Three Strike law is designed to punish those that have prior convictions for violent or serious offense and continue to commit felonies. Under the Three Strikes law, a person who commits a new serious or violent felony offense and has suffered two prior strike (violent or serious offenses) convictions faces a sentence of 25 years to life. That means, a person would have to be convicted (either by plea or jury verdict) before committing a new felony. Prior to the passage of Proposition 36 changing the three strikes law in November 2012, the last felony did not have to be a violent or serious offense to trigger the life sentence. Currently, in order to receive a 25 years to life sentence, a person with two or more prior strike convictions would have to be convicted of a new strike offense. The new law allowed for a reduction in sentence for many serving a life term of imprisonment. It should be noted that a prior juvenile adjudication may qualify as a strike under the law in certain cases.
If a person has one prior strike conviction and then commits another felony, the Two Strike law requires a prison sentence (no probation) and the doubling of the ordinary sentencing triad. Every felony in California has a specified triad. For instance, the triad for a low level felony such as grand theft is 16 months, 2 years or 3 years in state prison. The ordinary sentencing scheme for grand theft would have the court consider probation (with a punishment of up to one year in county jail) and if probation was not deemed appropriate then the court could sentence a defendant to either the low term of 16 months, the middle term of 2 years or the upper term of 3 years in state prison. Under the Two Strike law, the sentencing scheme changes the court’s options to 32 months, 4 years or 6 years with no consideration for probation.
Under California Penal Code section 1385 or People v. Romero the court has the discretion to strike a strike. What that means is that a judge is able to ignore a prior conviction in the interests of justice. A number of factors are considered in such a decision. It is always wise to try to convince the district attorney to agree to strike a strike using the factors in Romero. For example an experienced San Francisco three strikes defense attorney would effectively present and argue before a San Mateo county judge why a strike should be stricken. As former prosecutor, the Attorney Cintean and has experience dealing with the factors affecting whether or not a prior strike should be dismissed. Attorney Dudek has also successfully argued numerous Romero motions. It should be noted that when the current allegations are particularly egregious, it is less likely that a court would be inclined to strike the prior strike.
California’s current restructuring of its prison system allows non-violent, non-serious offenders to serve their custody time in county facilities as opposed to prison. The law however does not allow people sentenced under the Two Strike or Three Strike law to serve their time in county jail. Also, if the current offense is a strike and a person with no prior strikes was denied probation, the sentence will also be served in prison as opposed to county jail.
If you are facing a strike offense San Francisco Bay Area or have prior strike convictions, an experienced and respected criminal defense lawyer is needed to fight back and protect you. The attorneys at Alin Cintean, Attorney at Law and Richard Dudek, Attorney at Law have vast experience fighting all forms of strike cases and can protect you or your loved ones from the harsh penalties involved.