California's Three Strikes law is one of the most consequential sentencing laws in the country. Originally enacted in 1994, this law dramatically increases prison sentences for individuals convicted of multiple serious or violent felonies. If you or a loved one is facing charges in San Jose, Santa Clara County, or anywhere in the Bay Area that could result in a strike on your record, understanding how this law works is essential to protecting your future.
What Is the Three Strikes Law?
California's Three Strikes law is codified in Penal Code sections 667(b)-(i) and 1170.12. The law was designed to impose longer prison sentences on repeat offenders who commit serious or violent felonies. The basic premise is straightforward: the more strikes on your record, the harsher the sentence for any subsequent felony conviction.
The law was passed in 1994 following several high-profile crimes that generated public outrage. California voters approved Proposition 184, which enshrined the Three Strikes framework into law. Since then, the law has been modified by Proposition 36 in 2012, which introduced important reforms that we will discuss below.
What Counts as a Strike?
Not every felony conviction qualifies as a strike. Under California law, a "strike" is a conviction for a crime classified as a serious felony (as defined in PC 1192.7) or a violent felony (as defined in PC 667.5(c)).
Common Serious Felonies (PC 1192.7)
- Robbery (PC 211) — Taking property from another person by force or fear
- Burglary of a residence (PC 459) — First-degree burglary of an inhabited dwelling
- Assault with a deadly weapon (PC 245(a)(1)) — When charged as a felony
- Grand theft involving a firearm (PC 487(d)(2))
- Carjacking (PC 215)
- Arson (PC 451)
- Certain drug offenses involving minors or large quantities
- Any felony in which the defendant personally used a firearm
Common Violent Felonies (PC 667.5(c))
- Murder (PC 187)
- Voluntary manslaughter (PC 192(a))
- Rape and other serious sex offenses (PC 261, 264.1, 286, 287)
- Kidnapping (PC 207, 209)
- Mayhem (PC 203)
- Assault with intent to commit a specified felony (PC 220)
- Robbery (PC 211) — qualifies as both serious and violent
- Any felony punishable by death or life imprisonment
A single criminal incident can result in a strike being added to your record. The consequences follow you for life unless you successfully petition the court for relief. If you are facing charges for any of the offenses listed above in San Jose or the Bay Area, contact a criminal defense attorney immediately.
How the Strikes Affect Sentencing
The Three Strikes law imposes escalating consequences depending on the number of prior strikes on your record.
| Situation | Sentencing Consequence |
|---|---|
| Second Strike — One prior strike, convicted of any new felony | Sentence for the new felony is doubled. If the base term is 4 years, you face 8 years. |
| Third Strike (pre-Prop 36) — Two or more prior strikes, convicted of any new felony | 25 years to life in state prison, regardless of how minor the new offense was. |
| Third Strike (post-Prop 36) — Two or more prior strikes, new offense is a non-serious, non-violent felony | Sentence is doubled (same as second strike), unless specific exceptions apply. |
| Third Strike (post-Prop 36) — Two or more prior strikes, new offense is serious or violent | 25 years to life in state prison. |
Additional Sentencing Consequences
Beyond the primary sentencing enhancements, individuals with strikes face additional restrictions:
- Limited "good time" credits: Second and third strikers must serve at least 80% of their sentence before becoming eligible for parole, compared to 50% for non-strike inmates.
- No probation: Judges cannot grant probation to second or third strikers in most cases.
- Consecutive sentences: Multiple counts are more likely to be served consecutively rather than concurrently.
- No diversion programs: Strike offenders are generally ineligible for drug diversion, mental health diversion, and other alternative sentencing programs.
Proposition 36: The Three Strikes Reform Act of 2012
In November 2012, California voters passed Proposition 36, the Three Strikes Reform Act, which made significant changes to how the law operates. The reform was motivated by concerns that the original law was resulting in life sentences for relatively minor third offenses, such as shoplifting or simple drug possession.
Key Changes Under Proposition 36
New third-strike requirement: Under Prop 36, a life sentence (25 years to life) is only imposed when the new third felony is itself a serious or violent felony. If the new offense is non-serious and non-violent, the sentence is simply doubled rather than triggering a life term.
Exceptions: Even if the new felony is non-serious and non-violent, a court can still impose a life sentence if:
- The new offense involved a firearm or deadly weapon
- The new offense involved intent to cause great bodily harm
- The new offense was a sex crime requiring registration
- The defendant has a prior conviction for certain "super strike" offenses (e.g., murder, certain sex crimes, child molestation)
Retroactive resentencing: Prop 36 also created a mechanism for individuals already serving life sentences under the old three-strikes rule to petition for resentencing. If the current offense would not have qualified for a life sentence under the new law, the inmate can petition the court for a reduced sentence.
Since Prop 36 passed, thousands of inmates across California have successfully petitioned for resentencing. In Santa Clara County and throughout the Bay Area, defense attorneys have helped many individuals secure their release or significant sentence reductions through this process.
Common Strike Offenses Seen in Bay Area Courts
In San Jose, San Francisco, and the greater Bay Area, certain strike-eligible offenses appear more frequently than others in the criminal courts. Understanding which charges carry strike consequences is critical for defendants and their families.
- Robbery: One of the most common strike offenses prosecuted in Santa Clara County. Even a first-time robbery conviction results in a strike on your record.
- Residential burglary: First-degree burglary of an inhabited dwelling is a strike. Commercial burglary (second-degree) generally is not.
- Assault with a deadly weapon: When charged as a felony, ADW under PC 245(a)(1) is a serious felony and counts as a strike.
- Certain sex offenses: Many sex offenses qualify as both serious and violent felonies, carrying strike consequences in addition to sex offender registration requirements.
- Carjacking: An increasingly prosecuted offense in Bay Area courts, carjacking under PC 215 is both a serious and violent felony.
- Kidnapping: All forms of kidnapping are violent felonies and count as strikes.
How to Fight Strike Allegations
If you are facing charges that could result in a strike or are being prosecuted as a second or third striker, an experienced criminal defense attorney can employ several strategies to fight the allegations.
Challenge the Current Charges
The most direct approach is to fight the current charges. If the prosecution cannot prove the current offense beyond a reasonable doubt, there is no conviction and no strike. Your attorney will investigate every aspect of the case, challenge the evidence, cross-examine witnesses, and present defenses to create reasonable doubt in the minds of jurors.
Challenge the Prior Strike
Your attorney can challenge whether a prior conviction actually qualifies as a strike. Not all felony convictions are strikes, and the prosecution must prove that your prior convictions meet the legal definition. In some cases, prior convictions from other states may not qualify as strikes under California law, or the records supporting the prior conviction may be incomplete or inaccurate.
Romero Motion (Motion to Dismiss a Strike)
Under People v. Superior Court (Romero) (1996), a judge has the discretion to dismiss or "strike" a prior strike conviction "in the furtherance of justice." This is commonly known as a Romero motion. If granted, the prior strike is removed from consideration for sentencing purposes.
When deciding whether to grant a Romero motion, the judge will consider:
- The nature and circumstances of the current offense
- The nature and circumstances of the prior strike(s)
- The defendant's background, character, and prospects
- How much time has passed since the prior strike
- Whether the defendant falls outside the spirit of the Three Strikes law
Romero motions are commonly filed in Santa Clara County Superior Court and other Bay Area courts. An experienced San Jose criminal defense attorney will know how to present the strongest possible case for dismissing a prior strike.
Negotiate for Non-Strike Charges
In some cases, a skilled attorney can negotiate with the prosecution to reduce the current charges to a non-strike offense. For example, negotiating a robbery charge down to grand theft, or an assault with a deadly weapon charge down to simple assault, can prevent a new strike from being added to your record.
Petition for Resentencing Under Proposition 36
If you are currently serving a life sentence under the Three Strikes law and your third-strike offense was non-serious and non-violent, you may be eligible to petition for resentencing under Proposition 36. An attorney experienced in post-conviction relief can evaluate your eligibility and file a petition on your behalf in the appropriate Bay Area court.
The Stakes Are Too High to Face Alone
A strike conviction in California can follow you for the rest of your life. It doubles future sentences, limits your eligibility for probation and diversion programs, and can ultimately result in a sentence of 25 years to life in prison. These are not consequences that anyone should face without aggressive, experienced legal representation.
At RV Litigation Group PC, our criminal defense attorneys have extensive experience defending clients facing strike allegations in San Jose, Santa Clara County, San Francisco, and throughout the Bay Area. We understand the complexities of California's Three Strikes law and know how to develop defense strategies that protect our clients from the most severe consequences.
Whether you are facing your first strike, a second-strike enhancement, a third-strike life sentence, or seeking resentencing under Proposition 36, our team is prepared to fight for you at every stage of the process.