In 1994, Californians voted overwhelmingly for Proposition 184 and enacted the “Three Strikes and You’re Out” law, which was later codified by Penal Code §667. The goal of the new law was to increase public safety and to reduce the crime rate by giving repeat offenders harsher sentences. In its original version the law required that the sentence for any felony committed by a defendant with one prior serious or violent felony conviction be doubled, and imposed a sentence of 25 years to life to any person for any felony, if the person had two prior convictions for serious or violent felonies.

In the years since its inception, the Three Strikes law has had a devastating effect on thousands of defendants. The law has led to mass incarceration and has disproportionately affected people of color, as well as the mentally ill and physically disabled defendants. Moreover, while the financial cost to the taxpayers has been exorbitant, research has shown that the extreme sentences have had little to no effect on the reduction of crime rates.

Very early on, the severity of the new law was plainly visible in the landmark Romero case, where the defendant had two prior serious felonies and as a result faced a sentence of 25 years to life for simple possession of minor quantity of narcotics. In that case, the judge indicated that, if the defendant pled guilty, he would dismiss one of defendant’s prior strikes and sentence him to six years instead. On appeal, the California Supreme Court held that trial court has the power to dismiss a strike prior “in furtherance of justice.”

California’s Three Strikes Law Today

It took more than a decade after the Romero decision, but fortunately, in 2012 California voters approved Proposition 36, which amended the Three Strikes law, and limited its harshest provisions to those whose third strike is a serious or a violent felony. As a result of the amendment, thousands of inmates who had been sentenced under the original law would no longer be considered as third strikers. The provisions of the amendment were made retroactive, so if a person’s third offense is not serious or violent, he or she can appeal their sentence and be resentenced under the amended law.

If you or a loved one has been sentenced under the original law, you can contact the experienced appeals attorneys at the Justice Firm today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

While Proposition 36 limited the number of defendants that would face the harshest penalties of the Three Strikes law, the law is still here and continues to affect people everyday. As it currently stands, the law calls for double the prison sentence for a current conviction for any felony, if the individual has one or two strikes prior (serious or violent felony convictions), and for 25 years to life sentence for those with two strikes prior, if the current offense is a serious or violent felony.

Some of the felonies that the law categorizes as violent or serious include murder or manslaughter; rape; any felony in which the defendant inflicts great bodily injury on a person; oral copulation and sodomy by force; any robbery; attempted murder; arson; carjacking; kidnapping; burglary in the first degree; and the sale or attempt to sale or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug.

The above list is not exhaustive, and there are also exceptions where the third offense is not considered either violent or serious, but would still trigger the 25 years to life provision:

• If the third offense is a drug related offense involving a certain amount of a controlled substance;
• If the third offense is a felony sex offense and/or an offense that requires the registration as a sex offender;
• If during the commission of the third offense, the person used a firearm, intended to cause great bodily injury, or had a firearm or a deadly weapon;
• And if a prior strike was a particularly serious offense, including “sexually violent offenses,” murder, manslaughter, and sex offenses involving a child less than 14 years of age.

It is worth noting that, for purposes of the Three Strikes law, out of state convictions would be considered a “strike,” if the offense includes all the elements of a particular violent or serious felony as defined in the California Penal Code.

Finally, certain prior juvenile convictions would be considered a strike prior, if the defendant was 16 years or older at the time of the commission of the crime.

How To Fight the Consequences of the Three Strikes Law

The consequences of a charge under the Three Strikes Law can be draconian, however, there are several ways a defendant can fight the severe penalties triggered by the Three Strikes law.

First, as already mentioned above, if you have already been convicted and the third conviction is not for a serious or violent felony, you can appeal your sentence. In addition, you may be eligible for parole. In 2016, California passed Proposition 57, which amended the state’s Constitution and allowed defendants who were convicted of a nonviolent felony offense to apply for a parole consideration after completing the full term of their primary offense. In 2018, in the In re Edwards case, the California Court of Appeal confirmed that the amendment applies to “third strike” nonviolent offenders as well.

Furthermore, some of the recent reforms to the California criminal justice system have given additional options to defendants to have their sentences reduced. One such option is for defendants to petition the district attorneys to revisit and re-evaluate their sentences and, in the interest of justice, to recommend a sentence recall and reduction under AB 2942.

Finally, if you are currently facing a charge that could put you under the realm of the Three Strikes law, you can take advantage of a Romero motion and ask the judge to dismiss a strike prior. Furthermore, PC §667 requires that a district attorney has to prove the strike allegations, i.e. has to prove that you actually have the strike priors. This requirement opens the door for a defense attorney to argue and challenge whether an alleged strike is actually a strike.

At the Justice Firm, we know that the attorney-client relationship is an important aspect of your legal journey and our highly skilled and experienced attorneys are here to help and answer any questions you might have. If you or a loved one is currently serving a sentence under the Three Strikes law or is facing a charge under it, contact our California attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.

Fortunately, in 1996, in the landmark case of People v. Superior Court (Romero), the California Supreme Court gave defendants a glimpse of hope when it held that a trial court, pursuant to section 1385(a) of the California Penal Code, may, on its own, and “in furtherance of justice” strike or vacate an allegation that a defendant has been previously convicted of a serious and/or violent felony.

In that case, the defendant, Jesus Romero, was charged with possession of 0.13 grams of cocaine. The offense by itself would have resulted in up to 3 years in prison. However, the prosecutor in the case also alleged that Romero had two prior “strike” convictions for residential burglary and for an attempted residential burglary, and under the new Three Strikes law, he was facing 25 years-to-life prison sentence for simple possession of narcotics.

The trial judge in the Romero case considered such a sentence as too severe and offered to dismiss one of his strikes priors by exercising his discretion under PC 1385 to dismiss an action “in furtherance of justice.” In the end, in exchange for Romero pleading guilty, the trial judge dismissed one of his prior serious felony convictions and sentenced him to six years. Following an appeal by the prosecution, the California Supreme Court sided with the trial judge and held that the power to dismiss an action granted to a judge by PC 1385, includes the lesser power to strike an allegation or to vacate a finding relevant to sentencing that a defendant has prior felony convictions.

At the time, the California Supreme Court did stress that the court’s power to strike a prior felony conviction, while broad, is not absolute, but rather it is limited and a subject to review for abuse of discretion.

Two years after the Romero case, in People v. Williams, the California Supreme Court clarified the standards that should govern the trial court’s discretion in dismissing a strike. According to the Williams decision, when considering whether to dismiss a strike allegation a trial court should abide by the following guidelines:

• The court should consider and balance the defendant’s right to be free from cruel and unusual punishment with society’s legitimate interests in public safety and the fair prosecution of crimes;
• A court should not dismiss a strike allegation solely to accommodate judicial convenience or court congestion;
• Similarly, a court should not dismiss a strike allegation simply because a defendant pleads guilty;
• Furthermore, the dismissal should be for a reason(s) that would motivate a “reasonable judge”;
• In addition, a court should not dismiss a strike allegation solely because of the court’s personal dislike for the harsh effect that the three strikes law would have on the defendant without considering the defendant’s background, the nature of the current offense, and other “individualized considerations”;
• And a court should also consider whether, given the nature and circumstances of the present felony and past convictions, as well as the defendant’s background, character, and prospects, the defendant could be regarded to be “outside the scheme’s [three strikes law] spirit.

In addition to the above guidelines, the trial court must enter the reasons for the dismissal in an order entered on the “minutes” of the court proceedings, which basically means that the trial court has to state the reasons for dismissal in open court.

Procedurally, while a Romero Motion is usually filed after the preliminary hearing, in reality, this type of motion could be submitted at any point during the criminal proceedings, up to and at the time of a sentencing hearing. While a successful Romero motion could keep a defendant from spending life in prison, it is important to note that a judge’s dismissal of a prior “strike” felony for purposes of sentencing for a current conviction, does not make the prior felony conviction(s) disappear from a defendant’s criminal record. Therefore, if a defendant is convicted of a subsequent felony, the prior “stricken” conviction can be used to enhance a future sentence.

Still, the Romero Motion is a vital and significant tool for defendants and criminal attorneys that can be used to avoid an unjust punishment and an excessive prison term under the California Three Strikes law.

If you or a loved one has been charged with a second or third strike offense, our experienced Criminal Attorneys are here to help. At the Justice Firm, we understand the value of a solid attorney-client relationship, and are ready to work with you or your loved ones to achieve the best outcome possible.

If you want to know more about a Romero Motion or California’s Three Strikes law, or need help with any criminal manner, our highly skilled and reliable attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.