“One-Strike” Rules

Aaron Spolin

Former prosecutor Aaron Spolin leads Spolin Law P.C., which handles California state and federal cases. Mr. Spolin has been on the winning side of hundreds of criminal cases.

Enhanced sentencing in endemic in California’s penal code. For instance, the sentence for a first offense may be enhanced if the perpetrator used a firearm during the commission of the offense. A sentence for a sexual offense may be enhanced when the perpetrator kidnapped or tortured the victim. These are “one strike” enhancements, meaning that the first time an offender is convicted of the specified crime and the enhancing factors are proven, the sentence may be enhanced. These sentence enhancements result because of the existence of aggravating factors related to the crime itself, and the resulting enhanced sentence is similar to that of other states that upgrade the degree of a crime based on aggravating factors.

The focus of this article is not on the aggravating factors of the offense itself (the “one-strike” sentence enhancements), but on the effect that a defendant’s prior felony conviction or convictions will have on sentencing. California’s sentencing provisions were designed to provide for enhanced sentences for repeat offenders, and these mandatory sentence enhancements have serious and far-reaching consequences for an offender. Understanding the rules is critical in any criminal defense or appeal.

Serious and Violent Offenses

First, California law generally provides enhanced sentencing for multiple “violent” or “serious” offenses. These offenses are defined by statute. The “violent felony” list has twenty-three offenses, including murder, attempted murder, rape, robbery, arson, kidnapping, carjacking, and using weapons of mass destruction. It also includes certain sexual offenses, felony offenses that result in great bodily injury or in which a firearm is used, and first-degree burglary.

“Serious felonies” include forty-two offenses. Generally, serious felonies include all violent felonies as well as assault to commit rape or robbery, exploding a destructive device, assault with a deadly weapon on a peace officer or firefighter, and any conspiracy to commit a serious felony. Gang-related felonies also constitute serious felonies.

Convictions in states other than California that meet California’s definitions of serious or violent offenses and are considered “strikes” for the purposes of sentencing

  1. Strike One
  2. Strike Two
  3. Strike Three

Strike Two

When a person commits a felony and already has a prior felony conviction, the enhanced sentencing provisions are potentially in play. If the prior felony was a serious or violent felony, the sentencing terms for the current felony are affected. This is part of the “two-strike” rule.

If a person commits any felony and has a prior conviction for even one serious or violent felony, the following sentencing provisions apply:

  • The determinate term or minimum term for an indeterminate term of imprisonment is twice the term provided as punishment for the current felony conviction.
  • If the current conviction is for more than one felony not committed on the same occasion and not arising from the same set of operative facts, the defendant must be sentenced consecutively on each count.
  • If the current conviction is for more than one serious or violent felony not committed on the same occasion and not arising from the same set of operative facts, the court is required to impose the sentence for each conviction consecutive to the sentence for any other conviction for which the California law permits consecutive sentences.
  • The defendant may not be given probation for the current felony, and the sentence for any prior offense may not be suspended.

California law prohibits a judge to consider length of time between the prior serious or violent felony conviction and the current felony conviction when sentencing the offender. Additionally, the defendant will not be eligible for commitment to the California Rehabilitation Center, and the calculation of good time credits is limited to one-fifth of the total term of imprisonment.

If a person is convicted of a serious felony and has even one prior serious felony conviction, sentencing is affected in this manner:

  • All of the sentencing mandates listed above apply.
  • In addition to the sentence imposed by the court for the current offense, the offender receives a five-year enhancement for each prior conviction. The current sentence and each enhancement run consecutively. Coupled with the provisions detailed above, the current sentence will be consecutive to the five-year enhancement and consecutive to the sentence for the prior conviction.
  1. Strike One
  2. Strike Two
  3. Strike Three

Strike Three

When a defendant has two prior serious or violent felonies and is convicted of a subsequent felony, the “three-strike” rules of California sentencing come into play. This is where the sentencing enhancements become onerous.

Under California law, if a defendant is convicted of a non-serious and non-violent felony and has two prior serious or violent felony convictions, the court must impose a determinate term or minimum term for an indeterminate term that is twice the term provided as punishment for the current felony conviction. The statutory language indicates that such a defendant is also subject to the terms previously listed under the “two-strike” rule; e.g., the person may not be given probation for the current term; the person is not eligible for transfer to the Rehabilitation Center; and the calculation of good time credits is limited.

This sentencing scheme does not apply when the current felony conviction is for:

  • a large-quantity controlled-substance offense, or
  • a felony sex offense or any felony offense that results in mandatory registration as a sex offender, or
  • an offense during which the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person

In those cases, the defendant is treated as though the current conviction were for a serious or violent felony.

Such a sentence is also inapplicable when the defendant’s prior felony or felonies involved:

  • a sexually violent offense
  • oral copulation, sodomy, or sexual penetration with a child under fourteen who is also more than ten years younger than the defendant
  • a lewd or lascivious act involving a child under fourteen
  • any homicide offense, including attempted homicide
  • solicitation to commit murder
  • assault with a machine gun on a peace officer or firefighter
  • possession of a weapon of mass destruction
  • any serious or violent felony punishable by life imprisonment or death

When the prior felonies involve the offenses listed above, the offender is treated the same as a defendant whose current conviction is for a serious or violent offense.

If a defendant has two or more prior serious or violent felony convictions and is convicted of another serious or violent felony, the following provisions apply:

The sentence for the current conviction is the greatest of:

  1. three times the term provided as punishment for the current felony;
  2. imprisonment for twenty-five years; or
  3. the term imposed by the court pursuant to §1170 of the California Penal Code (specifying how a judge is to impose sentence when more than one sentence is possible); §190 (sentence for first-degree murder); or §3046 (term that must be served for a prisoner sentenced to life in prison).
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  • The sentence will run consecutively to any other term of imprisonment for which a consecutive term can be imposed
  • All the sentencing mandates specified for “two-strike” cases apply (no probation for current term; no transfer to Rehabilitation Center; limits on good-time credits).

California intended for defendants with prior serious or violent convictions to be sentenced to the longest period of incarceration possible, and its laws proscribe the method for achieving this goal. However, limited bases for appeal exist. A defendant may argue that the prior offenses were incorrectly counted as violent or serious offenses or that the prosecutor failed to plead and prove that the prior convictions count as strikes. The sentencing structure is complicated, and, if a judge incorrectly calculated the sentence imposed, such a sentence would be appealable.

Although intimidating, California’s three-strike rule is governed by statute, and all of the statutory requirements must be met for an enhanced sentence to be imposed. Having experienced and knowledgeable appellate counsel is imperative when appealing any enhanced sentence.

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