How Does California's Three Strikes Law Work? Penal Code 667 Explained
What Is California's Three Strikes Law?
The short answer: California's Three Strikes law, found in Penal Code section 667, subdivisions (b) through (i), and the nearly identical Penal Code section 1170.12, increases the sentence for any new felony when the defendant has a prior conviction for a "serious" or "violent" felony. One prior strike doubles the sentence on the new felony. Two or more prior strikes can mean 25 years to life, but since Proposition 36 passed in 2012, that third-strike sentence generally applies only when the new felony is itself serious or violent, with a short list of exceptions. A judge also has the power to dismiss a prior strike in the interests of justice, which is what a Romero motion asks for.
Why this matters in the Inland Empire. Strike allegations show up constantly on felony complaints filed at the Riverside Hall of Justice, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, and the Victorville courthouse in the High Desert. Prosecutors in Riverside County, San Bernardino County, and Los Angeles County plead priors aggressively because a strike changes everything: the exposure, the credits, the availability of probation, and the leverage in plea negotiations. This guide explains how the law works, what counts as a strike, and the defense tools that can take a strike off the table.
What Counts as a Strike in California?
A strike is a prior serious or violent felony. The law does not count every felony. A prior conviction is a strike only if it appears on the list of serious felonies in Penal Code section 1192.7, subdivision (c), or the list of violent felonies in Penal Code section 667.5, subdivision (c). The lists overlap heavily. Common strikes in Southern California cases include robbery, first degree residential burglary, assault with a deadly weapon, criminal threats, carjacking, kidnapping, arson, most sex offenses, and any felony in which the defendant personally used a firearm or personally inflicted great bodily injury.
Some strikes depend on the facts, not just the charge. Several entries on the serious felony list turn on conduct rather than the code section. Under Penal Code section 1192.7, subdivision (c), any felony becomes a strike if the defendant personally used a dangerous or deadly weapon, personally inflicted great bodily injury on someone other than an accomplice, or personally used a firearm. That is why a plea to a felony that is not on the list by name can still produce a strike if the plea includes an admission to a weapon or injury allegation, and why careful drafting of the plea matters so much.
Juvenile adjudications can count. Under Penal Code section 667, subdivision (d)(3), a juvenile adjudication counts as a strike if the person was 16 or older at the time, the offense is listed in Welfare and Institutions Code section 707, subdivision (b), the minor was found a fit and proper subject for juvenile court, and the minor was adjudged a ward because of that offense. Many people are surprised to learn that a sustained juvenile petition from years ago is being pleaded as a strike on a new adult felony.
Out-of-state and federal convictions can count too. A prior conviction from another state or from federal court is a strike if the conduct would have qualified as a serious or violent felony had it been committed in California. The prosecutor has to prove the elements of the foreign offense match the California definition, which is often a weak spot, because many other states define burglary, assault, and robbery more broadly than California does.
What Happens If You Have One Prior Strike?
The new sentence is doubled. Under Penal Code section 667, subdivision (e)(1), a person with one prior strike who is convicted of any new felony receives twice the term otherwise provided for that felony. The new felony does not need to be serious or violent for the doubling to apply. A felony grand theft, a felony drug sales charge, or a felony evading count that would normally carry a 16-month, two-year, or three-year triad becomes 32 months, four years, or six years with one strike.
Probation is generally off the table. Under Penal Code section 667, subdivision (c)(2), probation is not available for the new felony when a prior strike is found true, and the court cannot suspend execution or imposition of sentence. In practice, this means a case that would have been a probation case for a first-time defendant becomes a prison case for a second-strike defendant, unless the strike is dismissed or the charge is reduced to a misdemeanor under Penal Code section 17, subdivision (b).
Credits are limited and terms run consecutively. Under Penal Code section 667, subdivision (c)(5), the total credits a second-striker can earn in prison may not exceed one-fifth of the total term, so the person serves at least 80 percent. For violent felonies, Penal Code section 2933.1 limits credits to 15 percent. Subdivisions (c)(6) and (c)(7) also require consecutive sentences for multiple felonies not committed on the same occasion and not arising from the same set of operative facts. The sentence must be served in state prison rather than county jail under Penal Code section 1170, subdivision (h).
What Happens If You Have Two or More Prior Strikes?
The original law: 25 to life for any felony. When voters and the Legislature adopted Three Strikes in 1994, a person with two or more prior strikes who committed any new felony faced an indeterminate term of 25 years to life. That version of the law produced life sentences for nonviolent third felonies, and the United States Supreme Court upheld it against an Eighth Amendment challenge in Ewing v. California (2003) 538 U.S. 11, where the third strike was the theft of golf clubs.
Proposition 36 (2012) narrowed the third strike. Under Penal Code section 667, subdivision (e)(2)(C), a person with two or more prior strikes whose new felony is not serious or violent is sentenced as a second-striker, meaning the term is doubled rather than 25 to life. The 25-to-life sentence under subdivision (e)(2)(A) still applies when the new felony is itself serious or violent.
The exceptions that bring back 25 to life. Subdivision (e)(2)(C) lists four situations in which a nonserious, nonviolent new felony still triggers a third-strike sentence: (1) the new offense is a controlled substance charge with a weight enhancement under Health and Safety Code section 11370.4 or Health and Safety Code section 11379.8; (2) the new offense is a listed sex offense; (3) during the new offense the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury; or (4) the defendant has a prior conviction for one of the so-called super strikes, such as murder, certain sex offenses against children, or any offense punishable by life. The armed-with-a-firearm exception is the one prosecutors in Riverside and San Bernardino Counties use most often, and it is frequently the central fight in a third-strike case.
Resentencing for people sentenced under the old law. Proposition 36 also created Penal Code section 1170.126, which allows a person serving a third-strike life sentence for a nonserious, nonviolent felony to petition for resentencing unless the court finds that resentencing would pose an unreasonable risk of danger to public safety. Many of those petitions have been resolved, but the statute still matters for family members of people serving older sentences.
How Does a Romero Motion Work?
The judge can dismiss a strike in the interests of justice. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held that trial courts retain the power under Penal Code section 1385 to dismiss a prior strike allegation on their own motion in furtherance of justice. The defense cannot file a formal motion under section 1385 in its own name, but it can invite the court to exercise that power, and everyone in the courthouse calls that request a Romero motion.
The Williams standard. In People v. Williams (1998) 17 Cal.4th 148, the Court explained what the judge must consider: the nature and circumstances of the present felony, the nature and circumstances of the prior strike, and the defendant's background, character, and prospects, to decide whether the defendant falls outside the spirit of the Three Strikes scheme in whole or in part. A strike that is decades old, a present offense that is nonviolent, a documented record of employment and sobriety, and a prior that arose from a single incident when the defendant was very young are the kinds of facts that move judges. In People v. Carmony (2004) 33 Cal.4th 367, the Court made clear that a denial is reviewed only for abuse of discretion, so the motion has to be won in the trial court with a thorough record.
What a strong Romero motion looks like. A persuasive motion is built on documents, not adjectives: certified records showing the age and facts of the prior, proof of employment and family support, treatment records, letters from employers and community members, and an honest account of the present offense. It helps to show the court what sentence the defendant would face without the strike and why that sentence still protects the public. Judges at the Riverside Hall of Justice and the San Bernardino Justice Center see these motions every week, and the ones that succeed are specific. Daniel Gramling handles these motions as part of the firm's felony defense practice.
Striking a strike "in part." Williams also recognized that a court can dismiss a strike as to some counts and not others, which lets a judge tailor the sentence. Under the 2022 amendments to Penal Code section 1385, subdivision (c), the court must also give great weight to listed mitigating circumstances when deciding whether to dismiss sentencing enhancements, such as multiple enhancements in one case, an enhancement that would push the sentence over 20 years, or an offense connected to mental illness or childhood trauma. Whether and how those provisions apply to prior strike allegations has been litigated, so the motion should raise both the Williams factors and the section 1385 factors.
What Is the Five-Year Serious Felony Prior Under Penal Code 667(a)?
A separate enhancement that stacks on top of the strike. Under Penal Code section 667, subdivision (a)(1), a person convicted of a new serious felony who has a prior serious felony conviction receives an additional five-year term for each such prior, served consecutively. This is different from the strike doubling under subdivision (e), and the same prior conviction is routinely used for both. A new robbery with a prior residential burglary, for example, can produce a doubled base term plus five years.
Judges can now strike the five-year prior. Before 2019, the five-year enhancement was mandatory. Senate Bill 1393 amended section 1385 so that trial courts may dismiss the five-year serious felony prior in the interests of justice, using the same analysis as a Romero request. A defense motion in a strike case should ask for both forms of relief and explain separately why each is warranted.
Common Defense Strategies in Strike Cases
Challenge whether the prior actually qualifies as a strike. The prosecution must prove the prior strike beyond a reasonable doubt using the record of conviction. Older pleas were often taken to statutes that cover both serious and nonserious conduct, and if the record does not establish the conduct that makes the offense serious, the strike fails. Foreign convictions, juvenile adjudications that do not satisfy every requirement of subdivision (d)(3), and priors that were reduced to misdemeanors before the new offense are all worth examining. In People v. Park (2013) 56 Cal.4th 782, the Supreme Court held that a wobbler reduced to a misdemeanor under section 17(b) before the new offense cannot be used as a prior serious felony enhancement, and our guide on reducing a felony to a misdemeanor explains how that reduction is obtained.
Challenge multiple strikes from a single act. In People v. Vargas (2014) 59 Cal.4th 635, the Court held that when two prior strike convictions arose from the same act against the same victim, the trial court must dismiss one of them, because treating a single act as two strikes is inconsistent with the intent of the law. Two convictions from the same case that involved separate acts or separate victims, however, can both count, and in People v. Benson (1998) 18 Cal.4th 24 the Court held that a prior conviction can be a strike even if its sentence was stayed under Penal Code section 654.
Win or reduce the new case. The strike only matters if the new charge is a felony. Suppression motions under Penal Code section 1538.5, challenges at the preliminary hearing, and attacks on the weak points in the prosecution's case matter more, not less, when a strike is pleaded. A reduction of a wobbler to a misdemeanor removes the strike consequences entirely, and a plea to a nonstrike felony avoids adding a new strike for the future.
Negotiate the strike out of the plea. Prosecutors have discretion under Penal Code section 667, subdivision (f)(2), to move to dismiss a strike allegation when there is insufficient evidence to prove it or in the furtherance of justice. In many Inland Empire cases, the realistic plea negotiation is about whether the strike is dismissed in exchange for a plea to the new charge, whether the new charge is amended to a nonstrike, or whether the defendant pleads to a strike with a stipulated term that avoids the doubled exposure. Knowing what prosecutors look at when they evaluate the strike allegation is the starting point.
Collateral Consequences of a Strike Conviction
A strike follows you for life. Unlike many enhancements, a strike does not wash out with time. A residential burglary at age 19 can double a sentence at age 50. An expungement under Penal Code section 1203.4 does not remove a strike, because the statute expressly preserves the use of the conviction in any later prosecution. Only a reduction to a misdemeanor before the new offense, a successful Romero motion in the new case, or a finding that the prior was not actually a serious or violent felony takes a strike off the table.
Immigration, firearms, and licensing. Most strike offenses are also crimes of violence or crimes involving moral turpitude for immigration purposes, so Penal Code section 1016.3 requires defense counsel to advise about those consequences before a plea. Any felony conviction triggers the lifetime firearm ban under Penal Code section 29800. Professional licensing boards treat serious felonies as substantially related to most licensed occupations, and a parent facing a strike case should also understand how a conviction can affect custody and visitation.
Future cases are sentenced more harshly. Any felony conviction that qualifies as serious or violent becomes a strike for the future, even if the current case ends with probation. That is why a defendant with no record who is offered a plea to a strike offense with probation needs to understand that the real cost may come years later.
Common Mistakes in Strike Cases
Talking to police. Many strike cases turn on whether a weapon was used or whether the defendant intended to cause injury, which are exactly the facts people volunteer during a roadside conversation or a jail interview. Our guides on what not to say to police and whether you can talk your way out of charges explain why silence is the safer course.
Assuming an old or out-of-state prior does not count. Defendants frequently tell their lawyers that a prior "was reduced" or "was dismissed" when the record shows otherwise. Getting the certified docket, minute order, and plea form for every prior felony is the first task in any strike case.
Pleading early without a strike analysis. A quick plea at arraignment or an early pretrial conference can lock in a strike that a Romero motion or a records challenge would have removed. Strike cases reward preparation.
Frequently Asked Questions
Does a strike have to be a violent crime?
No. A strike is any felony on the serious felony list in Penal Code section 1192.7, subdivision (c), or the violent felony list in Penal Code section 667.5, subdivision (c). First degree residential burglary of an unoccupied home and criminal threats are strikes even though no one is physically hurt. Conversely, many felonies that sound serious, such as drug sales or felony DUI without great bodily injury, are not strikes.
If I have one strike, is any new felony automatically doubled?
Yes, if the strike is found true and not dismissed. Under Penal Code section 667, subdivision (e)(1), the term for any new felony is doubled, probation is unavailable, and credits are capped at 20 percent. The ways around that result are a Romero motion, a reduction of the new charge to a misdemeanor under Penal Code section 17, subdivision (b), or a plea agreement in which the prosecutor dismisses the strike.
Can I still get 25 to life for a nonviolent third felony?
Usually not, but there are exceptions. Since Proposition 36 in 2012, Penal Code section 667, subdivision (e)(2)(C), limits the 25-to-life sentence to cases in which the new felony is serious or violent, unless the new offense involved a firearm, a deadly weapon, an intent to cause great bodily injury, a large-quantity drug enhancement, a listed sex offense, or the defendant has a prior super strike conviction. In those cases, 25 to life remains available even for a nonviolent new felony.
What is a Romero motion and how often does it work?
A Romero motion asks the judge to dismiss a prior strike under Penal Code section 1385. The judge applies the factors from People v. Williams (1998) 17 Cal.4th 148: the current offense, the prior strike, and the defendant's background, character, and prospects. Success depends on the facts and the judge, but motions that document an old prior, a nonviolent current offense, and a stable life are granted regularly in Riverside, San Bernardino, and Los Angeles County courts. Our office does not promise outcomes, but we do build these motions on records rather than argument.
Does expunging a conviction remove the strike?
No. Dismissal under Penal Code section 1203.4 does not prevent the conviction from being used as a prior in a later prosecution. A wobbler reduced to a misdemeanor under Penal Code section 17, subdivision (b), before the new offense is a different matter, and under People v. Park (2013) 56 Cal.4th 782 that reduced conviction can no longer serve as a strike.
Do juvenile cases count as strikes?
Sometimes. Under Penal Code section 667, subdivision (d)(3), a juvenile adjudication is a strike only if the person was at least 16, the offense is listed in Welfare and Institutions Code section 707, subdivision (b), and the other statutory requirements are met. The juvenile records should be pulled and reviewed against each requirement before the strike is admitted.
Facing a Strike Allegation in Southern California?
Gramling Law Group defends felony and strike cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga, Fontana, and Victorville courthouses, and the Los Angeles and Orange County criminal courts, serving the Inland Empire, the High Desert, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so that you know the cost before you commit. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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