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Three-Strikes Law In California

Posted by Ronald D. Hedding, ESQ. | May 02, 2018

When I was a relatively young attorney, the three-strikes law came out in California. It was a very new concept that was basically designed to put career criminal offenders away for a long period of time. The legislature basically touted it as going after individuals who simply will not stop committing crimes and who are the most worst violent offenders in our system. However, over the years since the early 1990's when that law was passed, there's been changes to it, it's been used inappropriately, and many people have gone away based on the three-strikes law in Los Angeles and across California.

If you're facing a three-strikes case, obviously you want to get someone who knows the history of the three strikes law, who knows how to effectively utilize it in order to show the prosecutor and the judge that you should not go away for twenty-five to life. For example, if you have two prior strikes and a new felony or go away for a long period of time-based on a strike prior and new felony. There are many effective ways to do this. At first, when the three-strikes law came out, only the prosecutors had the discretion on when to strike a strike. This created all kinds of problems because the prosecutors had so much power, they basically filed the case and depending on how they filed it, the person could be basically taken out without any recourse to try to go to the judge who usually should have the power and authority when it comes to sentencing. Then the Moreno case came out, which basically also gave the judge authority to strike a strike depending on the circumstances surrounding the case. This was of course, the right result and has saved a lot of criminal defendants from the wrath of prosecuting agencies across Los Angeles County when it comes to the three-strikes law.

So, basically, the three-strikes law can be utilized to stamp-out crime has to do with people committing serious and violent felonies. There's a whole list of serious and violent felonies in the law that basically define what strikes are, what percentage of the time. So, really the ways you can get a strike stricken in Los Angeles County have to do with first making an argument that the current case is not a strike. If you can prove that it's not a serious or violent felony, then obviously it cannot be litigated as a strike. Now you might ask yourself, well why would they file it if it wasn't a strike? Because the prosecutors themselves sometimes make mistakes, assuming that they've filed it properly and it is a strike. The person does have a strike prior, then you can go to the prosecutor or the prosecutor's boss usually in LA county because they let the bosses make decisions on strikes for consistency and then you can show mitigating circumstances related to the offense, to your client's criminal history, how they're doing in their life with their job and their family, and then you can try to convince them to strike the strike. When the prosecutors are looking at it, they are going to look at the current offense that you're charged with. They're going to look at the prior strike that you had – how long ago it was. Prosecutors usually have a ten-year rule – it has to be at least ten years before they'll consider striking a strike. I've seen this rule broken over and over again. Sometimes they will do it when it's earlier, but again it is going to have to be the right circumstances. It's going to have to be argued the right way.

Also, judges can strike a strike pursuant to the People v. Romero case which gave them the authority to do that, and it's the same process with the judges. They are going to want to see the prior strike, how old it was, what happened in the strike, what the person's behavior was. They are also going to look at the new case. How close is the new case to the strike? How serious was it? Was there any violence? Then they're going to look at the person's overall criminal record because remember, the three-strikes law was meant for career criminals. If the person is a career criminal, you can probably guess they are not going to strike a strike and they're going to want to put the person away for as long as humanly possible. So, once they weigh all of those facts, they look at how the person is doing in their life – do they have a job, do they have a family0 we get character letter, then the judge will make the decision as to whether to strike the strike.

So Once A Strike Is Stricken, How Do They Figure Out What The Resolution Is?

This is an interesting, tricky question because a lot of people don't totally understand how criminal defense works. A lot of times the prosecutors when they strike the strike – they're going to have a deal right behind it. In other words, they'll say – yeah, we'll strike the strike and your client won't get the thirty-two months at 85% for example, but instead, we'll over than two years at half-time or a year at half-time. So, they're usually going to come right in behind it with an offer. So, when you go to talking about striking a strike, obviously you're going to want to have a plan in mind – okay, when they strike it, what happens next? What's the client going to plead to? What type of time are they going to be looking at?

And when the judge strikes a strike, it's a little more tricky, because a judge can ask the prosecutor once they strike the strike, what they think the sentence should be. The judge themselves can come up with a potential sentence for the defendant, but obviously, the prosecutor is going to have to be there when they talk about what sentence they are willing to give the defendant if he pleads guilty after the strike is stricken. Usually, when the prosecutors agree to strike the strike, it's for the limited purpose of taking their deal. If you don't take their deal or whatever deal your attorney and the prosecutors work out, then they're going to put the strike back on you. They don't strike it and then you don't work out a deal, you go to trial and you don't have the strike there anymore. They're going to put the strike back unless you take the deal. On the other hand, it's up to the judges – they can say, yeah, I'll strike the strike if your client takes this, or they can say, well yeah, I think I'm going to strike the strike regardless, and then you make the decision whether you want to go to trial or not. So, it's a little bit of a tricky thing. It's going to take a criminal defense attorney who has experience, who knows how to approach a judge and a prosecutor in a particular courthouse, knows what to say and knows what type of things to argue in order to get you the best possible resolution when it comes to the three-strikes law.

The bottom line is that the three-strikes law has been around for over twenty-five years. It's not going away any time soon. A lot of clients that have on or two strikes, just simply move out of California because they don't want to be in the position where they are looking at these huge sentencing served at a high percentage of the time. Of course, if you don't commit any more crimes, then you don't have that problem, but some people just don't want to take that risk. So, if you're dealing with a third-strike case or second-strike case, when it comes to the three-strikes law in Los Angeles, California, get in front of an attorney who has handled these types of cases before, can advise you on what your best course of action is based on your overall picture. I have clients come to the office, we sit down and talk. We go over their whole package so to speak, and then can kind of give them What I think is an effective plan in order to take care of their three-strikes case, but that plan is going to have to be fluid, and sometimes changing, depending on what type of evidence the prosecutors have, what type of attitude the judge or prosecutors have towards the particular defendant, and what things are available to argue in order to get the best possible result in your three-strikes case.

About the Author

Ronald D. Hedding, ESQ.

Ronald D. Hedding, Esq., is the founding member of the Hedding Law Firm. Mr. Hedding has an extensive well-rounded legal background in the area of Criminal Law. He has worked for the District Attorney's Office, a Superior Court Judge, and as the guiding force behind the Hedding Law Firm. His multi-faceted experience sets Mr. Hedding apart and puts him in an elite group of the best Criminal Defense Attorneys in Southern California.