three strikes law

Learning More About the Three Strikes Law in California

If you live in California, you’re most likely aware of the Three Strikes Law and how it has impacted the state’s legal landscape. And, if you’re facing a charge, you might wonder how the law will affect your case and even your future. This isn’t really surprising since, from 1994 to 2012, California’s Three Strikes Law was considered to be one of the harshest in the country.

 

Inception of the Three Strikes Law

Washington was the first U.S. state to pass a Three Strikes Law in 1993, but California quickly followed suit in 1994. The law received overwhelming support from Californians, with 72 percent of voters in favor of the law and only 28 percent against it.

 

The law was initially called “Three Strikes and You’re Out”, in reference to the fact that a repeat offender who has been convicted of three serious or violent felonies will automatically receive a life imprisonment sentence.

 

Why California’s Version Is Unique

The Three Strikes Law is not unique to California. As mentioned above, Washington has its own version of the law, as well as 26 other states like Texas, Kansas, Missouri, and Connecticut. However, California’s version of the Three Strikes Law stands out because of several reasons.

 

For one thing, the Californian law has a longer list of crimes that are considered as “violent” or “serious”, and many of those on the list are actually minor offenses. Most states consider rape, murder, kidnapping, sexual abuse, aggravated assault, and aggravated robbery as violent crimes, which is completely understandable. However, aside from these offenses, California’s Three Strikes Law also considers arson, burglary, drug possession, simple robbery, and firearm violations as “serious” or “violent”. This means that anyone who commits any of the latter will receive a strike, regardless of the fact that they have committed a relatively minor offense in comparison.

 

The Californian version of the Three Strikes Law also doesn’t consider the severity of the third strike, as long as it was the third offense that the person has committed. For example, if a repeat offender was previously charged of two violent or serious crimes, he will still receive a life sentence if he commits a third one — even it was a minor offense.

 

Three Strikes Reform Act of 2012

Studies have shown that California’s Three Strikes Law has led to the dramatic increase of prison population and to the life imprisonment of people who committed petty crimes and non-violent offenses. This paved the way to the modification of the law in 2012, called “A Change in the Three Strikes Law Initiative” but more commonly known as Proposition 36. It gained a lot of support from Californians, with 69.3 percent voting in favor of it and just 30.7 voting against it.

 

With the proposition in place, a repeat offender will only be given a Third Strike and a life imprisonment sentence if his third offense is a “serious or violent felony”. Additionally, those who were given life imprisonment under the old law but did not actually commit serious or violent crime will have their cases reviewed. This is to see if they could be released or at least given a shorter sentence.

 

Think You’ve Got a Strike?

Despite this reform, being charged with a strike — whether it’s your first, second, or third strike — is no laughing matter. If you’re facing a legal case and believe that it will bring a strike, get in touch with a knowledgeable and reliable attorney like Joel Lueck. With years of experience as a Criminal Defense Attorney, he can assist with bargaining for a lesser offense, reducing the severity of a sentence, and preventing a strike from being awarded.

The Benefit of Hiring a Respected, Local Attorney

In communities such as Bakersfield, many people who are faced with the need to hire a criminal defense attorney mistakenly believe that retaining a “Big City” attorney from Los Angeles gives them a better chance at successfully defending themselves.  Unfortunately, often times this could not be further from the truth.  As a case in point, consider the circumstances of Mike R., a resident of Los Angeles who was stopped in Kern County on his way to the Bay Area.  After being pulled over for DUI, Mike was also found to be in possession of Ecstasy.  He was arrested and charged with Transportation of a Controlled Substance (Health & Safety Code section 11379) and DUI (Vehicle Code section 23152) among other charges.  Due to the fact that he had a Strike Prior and had been sentenced to prison within the past five years, he was facing a potential sentence of 9 years in state prison.  Initially, Mike was represented by an attorney from Los Angeles.  That attorney represented him through the preliminary hearing stage, but in an effort to settle the case before trial, was only able to obtain an offer from the Kern County District Attorney’s Office of 4 years in prison.  Realizing that a local attorney may benefit him, Mike retained the Law Office of Joel E. Lueck and today was placed on probation and sentenced to 6 MONTHS in county jail.

The point is that although every county is bound by the laws of the State of California, each county interprets and applies those laws differently.  Having an attorney who practices in the community and has a proven track record of success is what those charged with crimes should look for, rather than falling prey to the mistaken belief that an attorney from Los Angeles is their best option simply based upon the location of their office.

More on “Strikes” in California

The law in California on “Strikes” can be very confusing, mainly because there are different types of “Strikes” and, depending on what type of “Strike” you have been charged with, the difference determines what percentage of your sentence you will actually serve.  In California, “Strikes” are categorized as either “Serious Felonies” or “Violent Felonies”.

“Serious Felonies” are defined by California Penal Code section 1192.7.  Depending on your prior criminal history, if you are convicted of a “Serious Felony,” you will have a “Strike” on your record, but you will serve only half of whatever sentence is imposed (commonly referred to as “half time”).

On the other hand, “Violent Felonies” are defined by California Penal Code section 667.5.  Convictions for “Violent Felonies” will also result in a “Strike” on your record, but also carry the added consequence of having to serve 85% of any sentence imposed.

If you have been charged with an offense that you believe may result in a “Strike” on your record, or if you have questions about prior convictions and whether or not you have a “Strike” prior, call us today for your free initial consultation.

Penal Code Section 245

One of the most common Penal Codes to be charged with is Penal Code section 245. As you can see below, it is extremely complex, depending on the specific subsection that one is charged with based upon the allegations in the police report. In general, section 245 can encompass everything from swinging a fist at someone (without actually striking them) to actually firing at someone (and even striking them) with a firearm. Making section 245 even more complex is the fact that under certain circumstances, convictions for violations of this section amount to "Strikes." Knowing what factors lead to "Strikes" and which ones do not requires the assistance of an experienced criminal defense attorney. All too often, Defendants enter pleas to violations of section 245 under the mistaken belief that they are avoiding a "Strike" when in actuality, because they have relied upon poor legal advice or their own misunderstanding of the law, they have been left with a "Strike" on their record for the rest of their lives.


California Penal Code Section 245

(a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

(2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.

(3) Any person who commits an assault upon the person of another with a machine gun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, shall be punished by imprisonment in the state prison for 4, 8, or 12 years.

(b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.

(c) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.

(d) (1) Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.

(2) Any person who commits an assault upon the person of a peace officer or firefighter with a semiautomatic firearm and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for five, seven, or nine years.

(3) Any person who commits an assault with a machine gun, as defined in Section 12200, or an assault weapon, as defined in Section 12276 or 12276.1, or a .50 BMG rifle, as defined in Section 12278, upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for 6, 9, or 12 years.

(e) When a person is convicted of a violation of this section in a case involving use of a deadly weapon or instrument or firearm, and the weapon or instrument or firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of in the manner provided by Section 12028.

(f) As used in this section, “peace officer” refers to any person designated as a peace officer in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

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