HREE STRIKES LAW
The Three-Strikes Law prescribes increased punishment for felons with one or more qualifying prior felony convictions, which are referred to as a “strike.” A strike is a violent felony or any offense listed as a serious felony in California. Essentially, the Three-Strikes Law requires a defendant convicted of a new felony (does not have to be a “violent” or “serious” felony), having suffered one prior strike to be sentenced to state prison for twice the term otherwise provided for that crime. Furthermore, if the defendant was convicted of any felony with two or more prior strikes, the law mandates a state prison term of at least 25 years to life.
In addition to specifying the term of imprisonment, providing for consecutive sentences the imposition of enhancements, and limiting sentence credits, the three-strikes law also provides that, notwithstanding any other law, if a defendant has been convicted of a felony and it has been pleaded and proved that the defendant has one or more prior felony convictions as defined in the three-strikes law, the court must adhere to each of the following:
- Probation for the current offense may not be granted, nor may execution or imposition of the sentence be suspended for any prior offense;
- The length of time between the prior felony conviction and the current felony conviction does not affect the imposition of sentence; or
- There may not be a commitment to any other facility other than the state prison. Diversion may not be granted nor the defendant made eligible for commitment to the California Rehabilitation Center.
If you are facing felony prosecution and have a strike prior, it is essential that you contact a criminal attorney that is familiar with the Three-Strikes Law to handle your case. For example, although the application of the Three Strikes Law suggests to be mandatory, the prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice or if there is insufficient evidence to prove the prior conviction.
Additionally, the trial court retains power to dismiss prior strikes in the interest of justice under Penal Code § 1385. This requires the court to consider whether, in light of the nature and circumstances of the current felonies and the prior strikes, and the particulars of the defendant’s background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though one of the previous convictions did not exist.
Moreover, your defense attorney can petition the court to “strike a strike” by filing a Romero motion. The stakes are very high in such circumstances, so it is essential that you have a criminal defense attorney that is familiar with this area of law. The attorney at the Law Office of Brett Parker Davison will exhaust every avenue to fight your case.
NE PRIOR STRIKE
The Three-Strikes Law provides that, in addition to any other enhancement or punishment provisions that may apply, if a defendant has one prior strike that has been pleaded and proved, the minimum term is twice the term otherwise provided as punishment for the current felony conviction. In selecting the term to be doubled, the trial court retains discretion to select the upper, lower, or middle term.
Thus, the “term” to be doubled under this provision includes any subordinate term imposed when the defendant is convicted of more than one current offense. However, the term to be doubled does not include enhancements for prior convictions or offense-related enhancements such as for the personal use of a firearm; rather, such enhancements are to be added to the doubled term.
It is important that you have a criminal defense attorney on your side to fight for your rights. Not only can a criminal defense attorney motion to “strike the strike,” an attorney can also present mitigating factors to the court to support the argument for the lowest possible term to be doubled. Call the Law Office of Brett Parker Davison at (909) 890-3500 today!
WO OR MORE PRIOR STRIKES
When a defendant has two or more prior “strikes,” the term for the current felony is an indeterminate term of life imprisonment. The minimum term of the indeterminate sentence is to be calculated as the greatest of:
(1) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions;
(2) Imprisonment in the state prison for 25 years; or
(3) The term determined by the court under the determinate sentencing law for the underlying conviction, including any enhancement applicable thereunder, or any period set by the Code provisions prescribing either the punishment for murder or the minimum term for a prisoner imprisoned under a life sentence.
While the terms under the first and third options will vary from case to case, the second option essentially acts as a default to ensure that the defendant’s indeterminate term will always be a minimum of 25 years. The first option generally is the greatest when the current crime is particularly serious and, thus, carries a significant sentence. Generally, the third option will be the greatest sentence when the defendant has an extensive criminal recidivist history, and hence, there are numerous applicable enhancements.
There is room for a criminal defense attorney to fight for you within the very strict Three-Strikes Law. Your defense attorney can motion for the court to “strike a strike” by filing a Romero motion. Additionally, an attorney can present mitigating factors so the court can “strike the strike” or apply the lowest possible term to be doubled. Furthermore, a competent attorney can negotiate with the Prosecutor to “strike the strike” allegations. A criminal defense attorney may persuade the Prosecutor to dismiss a strike because it will be too difficult to plead and prove all the strike allegations or if the defendant truly does not deserve to be treated as a striker based on the nature of the past and current offense. Call the Law Office of Brett Parker Davison at (909) 480-8094 today!