In 1994, the legislature and the Governor of California signed and enacted the California "three-strikes law" under Section 667 of the CA Penal Code (b) - (i). Later that same year, voters, through referendum, voted to amend the CA Constitution to have a similar provision, though the language is somewhat different. Since the passage of the three-strikes law, California criminal law has taken a more aggressive approach toward criminal prosecution and convictions. The California three-strikes law (also known as "three strikes & you are out"), has been used out of context as intended by the legislature. Today, an accused who faces a serious or violent felony must vigorously defend against the over zealous and sometimes abusive prosecution by the District Attorney's office. Even if the alleged crime is a non-violent felony, a conviction may:

• Later becomes one of the three strikes if you were to be convicted of a violent felony at a later time;
• Affect your ability to obtain a job;
• Cause you to face longer jail time, which can be doubled for 2nd strikes and up to 25 years to life, in prison on your third strike;
• Affect your parental rights and custody of your children;
• Affect your immigration and naturalization status.

The three-strikes law was intended to put serious repeat offenders back in prison if they were convicted of a serious violent crime. As stated, the law is being use by prosecutors in ways not intended by the legislators. Using loopholes that were vague in the law, prosecutors apply the three-strikes law to anyone who have had a previous felony conviction, and at a later time, committed a felonious, violent crime. The same is being applied to people that were previously convicted of a violent felony, and at a later time committed a non-violent felony, making the second conviction a second strike. This can be best illustrated in the example below.

EXAMPLE - Mr. "A" had an argument with his wife over certain issues of marital discord. In the course of his frustration and anger, he started breaking household goods. He accidentally threw a glass toward his wife's direction. Although it did not hit her, it shattered close to her and inflicted a cut on her arm. She was fearful and thought that he intended to hurt her, and called the police. Mr. "A" was arrested and later convicted of felony spousal assault. He was sentenced to 3 years in prison, and was released after 2 years for good behavior ("good time"). Three years after his first conviction, Mr. "A" was shopping at Wal-Mart and had a cart-full of items. Mr. "A" proceeded to pay for the items. Because his cart was full, he had inadvertently placed a DVD-Recorder at the bottom of the cart and forgot to pay for the item. The cashier also did not see the item and so Mr. "A" was not charged for it. As Mr. "A" walked through the front door, the anti-theft alarm went off. Consequently, he was detained by the store's security, and later on arrested, alleged, and convicted of felony theft.

In the example above, because Mr. "A"'s first conviction was a felony assault, it triggers the three-strikes law, and would have been considered to be the first strike. When Mr. "A" was convicted of felony theft, it triggers a second strike even though it is not a violent crime. Once the three-strikes law initiated, any later felony conviction would be considered a second or third strike. Thus, in this case, if a normal sentence for the felony theft was a three-year sentence (1 year being the low end and 5 years being the high end), his second strike would make the sentence automatically doubled to 6 years. In addition, because he has committed the second strike within 5 years of his first conviction, an additional 5 years could be added to his sentence at the judge's discretion (usually at the prosecutor's request). So, a crime in which any other person would only have been sentenced to 3 years now became an 11-year sentence.

Now, lets reverse the scenario and in this case, Mr. "B" was convicted the non-violent felony theft crime first. Three years later, he was convicted a felony assault in a bar brawl. Would the felony assault conviction be considered a first strike (i.e. his first violent felony conviction) or would it be a second strike? His second conviction is considered a second strike. Any violent felony conviction subsequent to a non-violent felony conviction (irrespective of how many non-violent convictions in the past), would make the second violent conviction a second strike. Thus, the outcome for Mr. "B" would be similar to Mr. "A".

At Smith & Garg, LLC, the experienced Long Beach Criminal Defense Attorneys and the Los Angeles Criminal Defense Lawyers will aggressively and persuasively fight to defend against the District Attorney's abusive discretion and use of the three-strikes law. The Smith & Garg Long Beach Criminal Defense Lawyers believe that every accused deserves the best representation and will make the district attorneys prove their allegations "beyond reasonable doubt," as required by law. Please call our office if you think that the alleged crime may trigger the three-strikes law.