Legal Blog

California’s Three Strikes Law was originally established in 1994. Under this legislation, harsher punishments are given to defendants with prior felony convictions known as “strikes.”

What happens after your second strike?

As stipulated by the California Three Strikes Law, if a defendant is convicted of a new felony after having already suffered a prior strike conviction, they will be sentenced to twice the standard penalty for that crime. In addition, they will be statutorily ineligible for probation, and may be required to serve up to 80-85% of their sentence, as opposed to the usual 50% percent with good behavior, depending on the severity of the new offense.

What happens after your third strike?

If a defendant is convicted of a serious or violent felony for a third time, the punishments only worsen. For third strike offenders, the state mandates a sentence of 25 years to life. In addition, they are ineligible for probation, and must complete their entire sentence unless they qualify for early nonviolent parole under Prop 57. See In re Edwards (2018) 26 Cal.App.5th 1181.

What crimes fall under the Three Strikes Law?

Since its enactment in the 1990’s, there have been some amendments to the legislation. The passage of Proposition 36 in 2012 has redefined which types of cases apply to the Three Strikes Law. Under Proposition 36, to receive a third strike, the defendant must have committed a “serious or violent felony.”

Prior to the 2012 reforms, any felony, no matter how minor, might have triggered a third strike. Now, however, only major felony crimes like rape are punishable under the Three Strikes Law. Below is a list of other crimes that still qualify as third strikes under the new legislation.

Examples of “violent” felonies:

• Murder or voluntary manslaughter,
• Oral copulation or sodomy by force,
• Arson,
• Kidnapping,
• Carjacking,
• Assault with a deadly weapon, and
• Any felony involving a firearm

Examples of “serious” felonies:

• First-degree burglary,
• Robbery,
• Grand theft involving a firearm, and
• Sale of cocaine, heroin, PCP or methamphetamine to a minor

Can courts remove strikes?

In certain cases, courts may choose to dismiss prior strikes. Once a defendant files what is called a Romero Motion, the judge assesses the circumstances of the case to determine if a dismissal is appropriate. When doing so, they look at the type of crime, how long ago the prior strikes happened, and the defendant’s criminal history.

Can a defendant appeal a Three Strikes sentence?

The recent revisions to the Three Strikes Law under Proposition 36 give those who were convicted of crimes no longer included in the legislation the chance to appeal their sentences. If their appeal is successful, the defendant may have a chance at an early or immediate release.

Spolin Law P.C.’s success rate is based on our strong desire to win each case we handle. Call us or reach out online to learn how we can handle your Writ of Habeas Corpus.

If you’ve been convicted of a crime in California, filing an appeal could be your key to freedom. But the process isn’t as straightforward as you may think. One of the most common questions we get from our clients is: “Will I be released if I win my appeal?”

Unfortunately, the answer is often no. Although it is possible to obtain a provisional release from prison or jail while the appeal is pending, the final appeal order doesn’t usually make release permanent. In most cases, the appeal will order the trial court to give you a new trial or sentencing hearing–and if you’re successful in those proceedings, you can be permanently released from incarceration.

The appeals process moves fast in California. The success of an appeal typically depends on your lawyer’s ability to identify a serious error in your trial, quickly develop a legal argument in your favor, and effectively present it to the appeals court.

At Spolin Law P.C., we are highly experienced criminal appeals lawyers and our team has a proven track record of success in the California appeals process. For a free consultation about your appeal options, call (310) 424-5816 today.

Can I Be Released While My Appeal Is Pending?

California law gives criminal defendants the right to request their release while their appeal is pending. This enables them to avoid the hardships of jail and to spend time with their family while the justice system ultimately decides their fate.

According to California Penal Code section 1272.1, a court must release you on bail if you and your attorney can provide evidence that:

• You are not likely to flee
• You are not a danger to other people or to the community, and
• The appeal raises a substantial legal issue

If the court grants your motion, they may temporarily release you on your own recognizance or set bail. If the bail they set is too high, your attorney can file a separate motion to request a lower amount. Succeeding in this motion is extremely important, because the appeals process can sometimes last up to two years.

A Successful Appeal Usually Results in a Retrial

The specific benefit you receive from a successful appeal depends on the legal arguments raised by your lawyers. The process and results will be significantly different depending on whether your lawyer files a standard appeal or a writ of habeas corpus. A habeas corpus petition will focus on obtaining your freedom directly, but an appeal is more complex.

Your appeal can result in the following outcomes:

• Denial — In this case, your initial trial verdict and judgement remain in place and you’ll have to serve the rest of your sentence.
• Remand for retrial — If the appeals court concludes that the trial judge made a mistake in your case that caused an unfair disadvantage, they’ll order a new trial for you. This gives you a new chance to prove your innocence or to negotiate a better plea bargain.
• Remand for resentencing — If the prejudicial error happened at the sentencing stage, then the appeals court will order a new sentencing hearing. You cannot undo your criminal conviction, but you can argue for a more lenient sentence.
• Reversal and acquittal — In some cases, the appeals court may find that the evidence against you was legally insufficient for the judge or jury to find you guilty. In this case, the appeals court may reverse the judgement and vacate your conviction. This is the only scenario where an appeal directly results in your release.

Call a California Appeals Lawyer Today

If you want to learn more about the appeals process, you should act fast and call a California appeals lawyer. If you’ve been convicted of a crime, you only have a limited time to file an appeal. Once the deadline passes, you will typically not be able to file an appeal — although a lawyer may be able to file a writ of habeas corpus on your behalf. Winning the fight for your freedom after a conviction is never easy, but it can be done.

Call Spolin Law P.C. today at (310) 424-5816 for a free consultation about reversing a California criminal conviction.

Early last week Spolin Law won a key stay ruling for a client on a writ of habeas corpus in the Federal District Court for the Central District of California.

The client had contacted the firm just weeks before the deadline for a federal writ of habeas corpus. Federal writs have extremely strict deadlines, and individuals who file writs after the deadline typically get an automatic denial regardless of the merits of their arguments.

Besides the deadline, federal writs also have another requirement: writs of habeas corpus based on state convictions require that the issue at stake be litigated in the county’s Superior Court, the Court of Appeals, and the California Supreme Court. Only after losing in all three courts is a litigant allowed to bring the argument to federal court in a writ of habeas corpus.

This requirement was the client’s essential problem: he had just a few weeks of time before the federal deadline but had not yet raised his key argument (ineffectiveness of counsel) in any of the state courts. Moreover, the process of raising his claim in all the state courts would have taken several months at the very least (and certainly not the mere weeks he had before his federal deadline). While federal courts typically “pause” the deadline period for state court litigation filed and litigated properly, there was no guarantee that the federal court would consider the client’s state filings to be properly filed and litigated.

Spolin Law, a criminal appeals law firm under the direction of Aaron Spolin, attempted to solve this problem by seeking a “stay” from the federal court. Essentially, the firm filed the client’s federal writ of habeas corpus in federal court along with a request that the federal court preemptively affirm that they would count the federal writ as having been filed within the one-year limitations period regardless of the length of the state court proceedings.

United States Magistrate Judge Kenly Kiya Kato issued the written opinion granting Mr. Spolin’s requested stay. She sympathized with the client’s desire to have a “‘protective’ petition in federal court to avoid the ‘predicament’ of ‘litigating in state court for years only to find out in the end’ the state court petition was never ‘properly filed’ and thus that his federal petition is time-barred.”

Spolin Law has also filed a state court writ regarding the same issues that are discussed in the federal writ. As the firm litigates this issue, it hopes to win in state court and thus negate the need to appeal any denial to federal court. Nonetheless, should the client not prevail in any of the three levels of state courts, the doors to federal court will be open as a result of Spolin Law’s diligent efforts to preserve every opportunity for the client to win his writ of habeas corpus and — ideally — secure his freedom.