Motion To Strike A Strike In California Three Strike Cases
With the advent of the three-strike law in the early 1990’s, attorneys in Los Angeles County Criminal Courts, when they’re dealing with criminal defense cases, have to figure out how to strike strikes all the time. This concept of striking a strike is a little bit confusing because I’ve had clients and their family say, if they strike my strike, then I won’t have it anymore.
No, that’s not true. In the context of the way we’re talking about it, let’s say for example you have a prior robbery strike from the 1990’s and in the 2000’s you picked up a new felony which the prosecutors are trying to use the second strike to be able to double your sentence.
In that circumstance, in order to avoid a doubled-up sentence in order to avoid a prison sentence, your attorney is going to have to get that strike stricken for purposes of making a deal where you don’t get a doubled-up sentence where you serve a higher percentage of the time.
If the attorney is successful in getting that prior 1990’s robbery strike stricken for purposes of a particular deal in your case, once the case is over and you serve your sentence, etc., when you get out you’re still going to have that robbery strike.
They’re only getting it stricken for purposes of that particular deal. So, that’s where the confusion comes in related to this concept of striking a strike.
Another issue is, let’s say you have that same robbery from the 1990’s and in 2000, you pick up a new robbery. As you know, a robbery is a strike. It’s a violent felony. You serve 85% of the time.
If you plead guilty to that robbery, even if they strike your prior robbery so they can give you a deal on the new robbery that doesn’t involve a doubled-up sentence, when you get out, you’re going to have the robbery from the 90’s and now you’re going to have the robbery from the 2000’s.
So, you’re going to have two strikes on your record and if you pick up a new felony that qualifies, you could be looking at twenty-five to life. This is where the confusion comes in related to the three-strike law in striking strikes.
Most of the time when you’re striking a strike, you’re doing it for purposes of that particular case and when you move forward, you move forward with the strike that you had, and if you plead to a new strike, then you’re going to have two strikes on your record. If whatever you plead to is not a strike, then you’ll only still have the one strike on your record.
Grounds For Striking A Strike
This is what they look at. The prosecutors have their own little formula when it comes to strikes. A lot of times they’ll say that your prior strike has to be at least ten years old. If it’s not ten years old, then we’re not going to entertain striking your strike. Again, that’s from the prosecutor’s standpoint, although I have seen them strike strikes that are less than ten years old.
That’s just their general rule. They’re also going to look at your overall criminal record. The three-strike law was meant for career-offenders. So, if you’re a career-offender and you just keep getting case after case after case and you’re in and out of prison, you don’t stop, you’re affecting people’s lives, you’re the perfect candidate for the three-strike law and they’re not going to strike your strike.
So, the main thing they look at is your record and the current strike. They also look at the current circumstances surrounding you and your criminal record. They’re also going to look at the particular new case that you picked up.
In other words, if the new case is a serious or violent felony, or you hurt somebody or injured a victim, they’re obviously going to want to be less likely to strike that prior strike. If on the other hand, the new case is kind of a weak case or it’s not a very serious case, then they’ll be more likely to strike your strike – I’m talking about the prosecutors for purposes of giving you a better deal where your sentence does not get doubled-up.
So, these are the main factors that they’re going to be looking at, and of course, your lawyer is going to have to argue and a lot of times they’ll have to argue in front of the head prosecutor because the head prosecutors in Los Angeles county across the courthouses – usually keep this power of striking a strike with them because they like to be consistent so they don’t have multiple people striking strikes because people start to complain why did this strike get stricken, but this one didn’t.
This way, they can kind of keep the balance of power as it relates to striking strikes in Los Angeles County.
Case of People v. Romero
At first, when the three-strike law came out in the early 1990’s, the judges did not have the power to strike the strikes – only the prosecutors did.
This gave the prosecutors huge power. And of course, they abused the power and were filing a lot of strike cases, not being willing to strike the strikes. In a case called People v. Romero, where the court said, judges are also going to have the power to strike strikes in Los Angeles County. So, when a criminal defense attorney wants a judge to strike the strike – usually because the prosecutors won’t do it.
The judges like you to go to the prosecutors first and then come and say to them, listen, they won’t strike it, Your Honor, so we’re asking that you strike it. Then the defense attorney will file what’s called a Romero motion and is going all the things I just mentioned.
They’re going to argue what the current case looks like. They’re going to argue what the strike looks like. They’re going to argue what the person’s overall criminal profile looks like and then they can mount the argument for the judge to strike the strike.
You also have to realize in the judge striking the strike for purposes of the disposition, you also want to get the case resolved, because if you’re asking the judge to strike the strike, then you have an eye towards resolving it. You just don’t want to get a doubled-up prison sentence.
So, at the same time that you’re asking the judge to strike the strike, as a good California criminal defense attorney, you’re going to also want to be giving the judge an idea of what you think a fair sentence is.
A lot of times, a judge will say I’ll strike the strike. I’m not going to give your client two times two for four years prison, but I am going to give him two years in prison because he has a prior strike and because he did what he did in this particular case. So, if your client wants to take that, I will strike the strike for purposes of resolving the case, otherwise, you can take your chances at trial.
So, there’s a number of things that judges can do, a number of different angles they can take. This is where having a seasoned criminal defense attorney that knows the three-strike law – is crucial. I’ve been around since the three-strikes law was enacted, so I’ve seen the history of the law, when strikes are going to be stricken, when they’re not going to be stricken, and what arguments are necessary to even have a chance to get a judge or the prosecutors to strike a strike in a criminal case in Los Angeles.
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