California’s Three Strikes sentencing law was originally enacted in 1994. The essence of the Three Strikes law was to require a defendant convicted of any new felony, having suffered one prior conviction of a serious felony to be sentenced to state prison for twice the term otherwise provided for the crime. If the defendant was convicted of any felony with two or more prior strikes, the law mandated a state prison term of at least 25 years to life.

On November 6, 2012 the voters approved Proposition 36 which substantially amended the law with two primary provisions:

  • The requirements for sentencing a defendant as a third strike offender were changed to 25 years to life by requiring the new felony to be a serious or violent felony with two or more prior strikes to qualify for the 25 year-to-life sentence as a third strike offender; and
  • The addition of a means by which designated defendants currently serving a third strike sentence may petition the court for reduction of their term to a second strike sentence, if they would have been eligible for second strike sentencing under the new law.

What Are “Serious” or “Violent” Felonies (Strike Priors)?

Serious and Violent felonies are defined in Penal Code sections 1192.7(c) and 667.5(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.

What Happens With One “Strike” Prior?

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.

What Happens With Two or More “Strike” Priors?

A defendant with two or more “strike” priors (a third striker) faces a minimum of 25-years-to-life in prison. He earns no time off for good behavior or working. After serving the determinant minimum amount of time (25 years on a 25-to-life sentence) he is then eligible for, but not guaranteed, parole.

Is The “Three Strikes” Punishment Mandatory In All 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.