A Three (3) Strike Case is one where the Defendant has at least two (2) prior felony convictions which qualify as serious or violent felonies under Penal Code Sections 1192.7, 1192.8, and/or 677.5. Serious felonies refer to the conduct involved in the prior felony and are listed in Penal Code Section 1192.7 (c ). Violent felonies are enumerated in Penal Code Section 667.5 (c ).
When a Defendant has been convicted previously of at least two of these types of crimes he becomes eligible to be sentenced to a term in prison of 25 to life. A 25 to life term is not mandatory however. The judge has the discretion to “strike” (dismiss) one or more of the Defendant’s prior serious or violent felonies.
You might ask why does a judge “strike” or eliminate a prior serious or violent felony? What does the judge look for in deciding whether to essentially save a Defendant from spending the rest of his life in prison? The courts have decided numerous cases in this area and basically have set forth the rule that the court in striking the prior(s) must not act contrary to the spirit of the 3 Strikes Law.
Some of the factors the judge will look at are:
1. Defendant’s current offense is not a violent felony.
2. The punishment under the Three Strikes law is disproportionate to the severity of the current offense.
3. The current offense is relatively minor.
4. The priors stricken are not violent.
5. Defendant’s criminal history displays a lack of violence.
6. Defendant’s criminal history is not long.
7. Defendant’s criminal history is a result of the Defendant’s addiction to controlled substances.
8. Defendant’s prior convictions all arose from a single period of aberrant behavior.
9. Defendant was a minor participant in the present offense.
10. Defendant displays remorse for his criminal conduct.
11. Defendant has made restitution to the victim.
12. Defendant is not deemed to be a danger to persons.
13. Defendant demonstrates a willingness and ability to rehabilitate himself.
14. Defendant was suffering from a mental condition that significantly reduces culpability for the crime.
The above factors are not all of the things the court will look at but if your case falls into one or more of these areas then the chance that the court will “strike” one or more of your prior felony convictions becomes more likely. Because this is a somewhat gray area of the law, It’s a perfect example of the defense lawyer’s skill making all the difference.