Three Strikes Cases

In 1994, California voters passed an initiative known as “three strikes and you’re out.” The initiative classified some crimes as serious felonies, or strikes. A conviction for a strike can carry penalties that last a lifetime. If you are charged with a strike offense, or alleged to have a prior strike conviction, it’s essential to have effective and experienced representation.

What Is a Strike Offense?

A strike is a “serious felony” as listed in Penal Code Section 1192.7(c). Over time, the legislature has identified certain felonies that are considered particularly worse or harmful and named them as particularly consequential. Criminal threats, residential burglary, some cases of drug sales to minors, some assaults, and many crimes involving the use or discharge of a firearm, and many other crimes are all considered serious felonies.

Most serious felonies don’t just carry potential prison time - a conviction has major consequences for the future. If someone is convicted of a strike offense and then later convicted of another felony, they would be ineligible for probation. They would serve a double sentence, in prison, with rules limiting the amount of custody credits they could get – meaning that a striker sentenced to prison would actually serve more than double what a non-striker would serve. If someone has two strike convictions and subsequently gets convicted of a third strike, they can be sentenced to 25 years to life.

Some serious felonies are also classified as “violent felonies.” Homicide and forcible sex offenses, for example, are considered violent felonies. So are robbery, and any felony resulting in great bodily injury, and residential burglary when there is someone home. A person in prison for a violent felony conviction is limited in the amount of extra credits they can earn through good behavior and programs like fire camp.

Defending Strike Cases

If you or a loved one is charged with a serious felony, it is especially imperative to get ahead of the charges and get all options on the table. There are many ways to defend a strike, but it starts with preparation. Analyze the charges and options early, and start working to mitigate the consequences. First and foremost, no matter how serious the offense, you have the same rights as anyone else – the right to remain silent, the right to counsel, the right to be free from unreasonable search and seizure, the right to the jury trial, and the presumption of innocence.

The difference between a strike and a non-strike, or guilty versus not guilty in a strike offense, can turn on very small facts. Even a small-value shoplift can become a robbery if the shoplifter uses any force against a store employee. A person who enters an attached garage to steal may be guilty of first-degree burglary – a strike – while if that same person does the same thing in a detached garage, it would be a second-degree burglary non-strike. For a person to be convicted of criminal threats, a jury has to find that the person had an intent to threaten, and that the victim was actually and reasonably afraid. Sales of some drugs, but not of some other drugs, to a minor may be a strike. A crime may be a strike if the perpetrator caused “great bodily injury” – a legal term with a very inexact definition that prosecutors often try to stretch pretty far. If you are charged with a strike offense, you need an attorney who is ready, willing, and able to challenge charges and work for you in every way to get the best possible outcome.

A strike can be attacked other ways as well. Many strikes are still “wobblers” that can get negotiated or litigated to a misdemeanor, negating the strike consequences. There are alternative charges that can get negotiated in many cases as well. There are options for challenging a prior strike as well; most prominently, a Romero motion allows the defense to request to dismiss prior strikes in the interest of justice, thereby lowering possible prison sentences dramatically and also making probation available upon conviction. Even if you are charged with a current or prior strike, you may be eligible for an alternative resolution such as mental health diversion.

The consequences for a strike offense can be dire, but a good lawyer can help you navigate the case and get the best possible outcome. Sam Berns has had great success in defending strikes cases. In Sam’s very first felony motion as a fresh lawyer in 2010, a judge ruled that his client’s burglary charge was not a strike, and his client ultimately avoided what would have been a life sentence for a third strike. In the decades since, Sam has continued to fearlessly and effectively defend strike cases; results include not guilty verdicts, negotiation of lesser charges including misdemeanors, grants of diversion, Romero grants, reduction of charges to misdemeanors, and many other extremely favorable outcomes. If you or a loved one is charged with a current or prior strike offense, or with any other offense, please contact our office for a consultation.