PC 667 (b) - (i)
The Three Strikes Law in California
What has come to be known as the “Three Strikes Law” in California was in fact the result of a sentencing enhancement scheme brought about by the legislature in 1994 and codified under California Penal Code § 667(b) – (i). Another Penal Code section was enacted by voters towards the end of 1994 namely § 1170.2, under Proposition 184. “Strike” is the word used by the California legislature meaning imposition of “harsher sentencing”. The Three Strikes Law is really a special type of habitual offender law, used in many states and many countries to punish repeat offenders (recidivists) who already have prior felony convictions. In 1994, California voters overwhelmingly supported the Three Strikes Law initiative following the murders of 18-year old Kimber Reynolds and 12-year old Polly Klaas by repeat offenders. In some cases, where prior strikes included an armed robbery conviction (Taylor v Lewis, 9th Circuit 2006), the Three Strikes Law made more sense, as it did in the Reynolds and Klaas cases. However, in others, where such almost trivial crimes such as nonviolent shoplifts were termed “strikes”, it made less and less sense (Ramirez v Castro, 9th Circuit 2004). Through its application spanning almost two decades, the Three Strikes Law caused many notable unnatural results, and soon became a highly controversial subject. In several California criminal cases, the defendants convicted under this law and facing dramatically increased sentences, often unfairly, appealed to the US Supreme Court, some without success, even when claiming Cruel and Unusual Punishment in violation of the 8th Amendment of the Federal Constitution. Some of these cases showing markedly disproportionate results included:
- Ewing v California (2003) 538 US 11, 155 L Ed 2d 108, 123 S Ct 1179: a theft of three golf clubs, each worth $400, became the justification for sending the defendant to a 25 years to life sentence because he had a prior criminal record which included strikes for one robbery and a burglary;
- Locker v Andrade (2003) 538 US 63, 155 L Ed 2d 144, 123 S CT 1166: many prior nonviolent strikes became the motivation behind imposing a 50 years to life imprisonment sentence for stealing nine children’s videotapes collectively worth $150 (petty theft);
The Original Sentencing Scheme of the 1994 “Three Strikes Law”
A person who had one or more prior convictions automatically qualify for a harsher sentence under the “Three Strikes Law”. Specifically, there are 2 sentencing schemes under the “Three Strikes Law”. First, if a person is convicted of a new crime but already has a conviction for a single prior strike, the sentence imposed for the new conviction is automatically doubled. This is known as a “Second Strike”. Further, the sentence imposed for a person with a record showing two or more prior strikes is a life sentence. This result is accurately referred to as “Three Strikes”.
Determining which prior convictions can be charged as “strikes”
- All prior serious or violent felony convictions can be charged as a strike
- Some out-of-state convictions can be a strike
- Some juvenile delinquency adjudications can be strikes
Prior serious or violent felony convictions
The California Penal Code specifically enumerates those felonies which qualify as “violent” and “serious” felonies. “Violent” felonies are defined under California Penal Code § 667.5(c) as 23 possible crimes, some of which are murder/manslaughter, mayhem, any robbery, arson, kidnapping, rape, spousal rape, extortion and so forth. Some 42 felonies have been listed as “serious” felonies under California Penal Code § 1192.7(c), some of which are included here as murder/manslaughter, mayhem grand theft involving a firearm, continuous sexual abuse of a child, intimidation of victims or witnesses and so on.
As long as the conviction in a foreign court would have been classified as a strike-type conviction in California, the out-of-state conviction can be used for sentencing in California under the Three Strikes Law. For example, in a 2002 California case, the prosecution successfully argued that a Texas conviction for burglary with intent to commit “theft” could indeed be used in California as an underlying strike offense for a new conviction of arson. People v Avery (2002) 27 Cal.4th 49, 115 CR2d 403. A lot of litigation in this case revolved around the “intent” requirement for theft under the Texas code, which at first appeared to be significantly different to that of California’s Penal Code. If it were in fact different, then the prosecution would not be able to prove “serious” felony and the Three Strikes Law would not apply to the extent that it did. However, the Supreme Court of California concluded that Texas’s “intent to deprive the owner of property temporarily but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment”, was sufficiently the same as California’s requirement for theft to “permanently” deprive the owner of property. So the Three Strikes Law applied.
Even juvenile convictions can be used as strikes if:
- The defendant was 16 or older when he/she committed the offense;
- The prior offense is a “serious” or “violent” crime as defined in the California Penal Code;
- The prior offense is listed under California’s Welfare and Institutions Code § 707(b) (enumerating a list of 30 offenses);
- The defendant appeared to be a fit and proper subject for purposes of juvenile law; and
- The defendant was made a ward of the court (under 18 years of age and unable to manage his or her own assets) under California’s Welfare and Institutions Code § 602, the reason being that the juvenile defendant committed one of the offenses listed under the Welf & I C §707(b) or Pen C §§667(d)(3)(D) or 1170.12(b)(3)(D).
To “strike a strike”: When the presiding court has discretion to reduce a sentence
In some situations, the sentencing court may have discretion to strike one or even more of the prior convictions of a defendant. This may drastically cut some of the defendant’s sentence. However, this is not always the case as sometimes it may be an abuse of the court’s discretion to strike one or more prior convictions.
California classifies certain offenses as “wobblers”. Examples include receipt of stolen property under CP §496 and burglary under CP §459. That a crime is classifiable as a wobbler means the prosecutor has discretion to charge the defendant with either a misdemeanor or a felony conviction, and this depends on several factors like the facts and circumstances surrounding the defendant’s actions. The judge will have the final decision as to whether to convict a defendant of a misdemeanor or felony. Likewise, under the Three Strikes Law, the court has discretionary powers to reduce a “wobbler” offense to a misdemeanor, regardless of whether a defendant had one or more prior strikes. By the same token, if circumstantial evidence merits the opposite result in the court’s discretion, the court is free to impose a felony conviction on the defendant.
Some other reasons California courts have decided to dismiss prior felony convictions have included insufficient evidence or in furtherance of justice under California Penal Code §1385. In a well-known case, the California supreme court explained its exercise of discretion by stating the following: if the “nature and circumstances of the present felonies and prior serious and/or violent felony convictions” together with defendant’s “background, character and prospects” are not the kind considered under sentencing enhancement schemes, then the court can ignore the previous, albeit violent, felony conviction(s) of the defendant. People v Williams (1998) 17 Cal.4th 148, 161, 69 CR2d 917.
However, some courts have been found to abuse their discretionary powers by striking prior convictions when they shouldn’t have. For instance, in People v Gaston (1999) 74 Cal.4th 310, 87 CR2d 829, the defendant’s auto theft to “support his drug habit” should have been a third strike, and not a second strike, so it was abuse of the trial court to ignore one of the felonies in his prior criminal record (robbery and kidnapping). The reasons for citing abuse of discretion stated were that these were “serious” prior felony convictions, the defendant had been in prison multiple times yet had not learned from his mistakes, and violated his parole.
Post-2012 “Three Strikes Law” Amendment
In the aftermath of cases like Ewing and Andrade with disproportionate sentences being imposed for even minor crimes, what had seemed to be a justifiable motivation behind enacting the enhanced sentencing structure of Three Strikes no longer made sense to the majority of California voters. In November 2012, voters successfully amended the law under Proposition 36, adding the following two provisions that are currently in effect:
- An offender can only be charged as a “third strike offender” if the new conviction is based on a “serious felony” or a “violent felony”, and the offender already has two or more prior strikes. In other words, the 3rd offense must be a “strike” – not a petty theft or shoplifting offense. The sentence imposed in such a case has now been changed to 25 years to life in prison – not an automatic life prison sentence.
- An offender that is presently serving a 3rd strike sentence for a minor crime may ask the court to reduce the imprisonment term to a 2nd strike sentence. This petition can be filed where the court finds that an offender would have been eligible for a 2nd strike sentence. That is, the court must establish that the offender seeking such a petition no longer poses an unreasonable threat to society.