California Three Strikes Law – Still Unfair for Some!

Three strikes
Three Strikes Law, California - Orange County Criminal Defense

As an experienced Orange County criminal defense attorney, I have handled numerous “three strikes” cases.  Those cases were considered “life cases” under the prior three strikes law, and included cases where the third strike was any non-serious and non-violent felony, including a simple drug possession charge.  Thankfully, the law has changed.  However, there are still some unfair aspects of the revised law.

Traditional Three Strikes Law

In 1994, California voters passed the three strikes law.  This law applied to prior convictions that qualified as “strikes” and was an enhancement alleged against a defendant who had at least 2 strikes (convictions for “serious and violent” felonies), no matter how old the convictions were.   For example, if a person had been convicted of a robbery offense (Penal  Code section 211) in 1980, and  then was convicted of  felony criminal threats (Penal Code section 422) in 2001, he would’ve faced a potential life sentence if he picked up ANY new felony conviction, no matter how minor the offense. Obviously, this was absurd and significantly contributed to the overcrowded prison population of recent years.   What made this outcome even more ridiculous was the reality of considering different scenarios.  For instance, if a two-striker was arrested with drugs in his possession, he would be charged as a three-striker and face a potential life sentence.   If the person had used all the drugs in his possession and then was contacted by the police and arrested, he would only be facing a misdemeanor under the influence charge, facing a maximum sentence of 1 year in local jail instead of life in prison.   The obvious unfair reality of a two striker facing a life sentence for any new felony , fueled the change in the three strikes law.  This change has made sentencing more fair in most respects.

Revised Three Strikes Law (2012 revision)

Proposition 36 was passed in California in 2012.  Under the revised law, a person who has at least 2 prior strike convictions will no longer face a life sentence if the new offense is not a “serious or violent felony” (with a few exceptions).  This was great news for all the three strikers who were sentenced to life in prison for cases as minor as stealing less than $10 worth of items from a store, or a simple drug possession charge.  Unfortunately, exceptions exist in the revised law, and certain individuals are treated as traditional three strikers, no matter how old their prior strike convictions are.

Possible Life Sentence for Some Drug Offenders

A client was recently charged with a simple felony drug possession (Health and Safety Code section 11377) and a misdemeanor under the influence of a controlled substance (Health and Safety Code section 11550).  He was released on his own recognizance by the court after initially appearing.  When his next court date came around, the District Attorney amended his charges and added 2 prior strike convictions he obtained in the 1990’s.  One of his prior strikes was an attempted murder for which he served a determinate sentence due to mitigating circumstances.  As soon as the Amended Complaint was filed alleging the three strikes allegation, the DA requested bail to be set at 1 million dollars, which the court granted. The client is now being treated as a traditional three striker for a simple felony drug possession case, and unable to post bail which is now set unreasonably high.   Under the revised three strikes law, “if a defendant has two or more prior serious and/or violent felony convictions..that have been pled and proved”,  the term for current non-strike felony conviction “shall be an indeterminate term of life imprisonment” if “the defendant suffered a prior conviction of  any homicide offense, including any attempted homicide…” (Penal Code section 1170.12)  Realistically, people convicted of any type of murder charge rarely get out of prison.  However, in the small minority of situations where the person serves his time, gets out, and years later picks up a simple felony drug possession charge, life in prison should never be an option for the punishment. For more information on how to fight a three-strikes case, contact the Kenney Legal Defense Corporation at (855) 505-5588 or visit the firm’s website.


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