California Criminal Trial Manual

Overview // Violent Felonies // Serious Felonies // Calculating 2K Sentences (PC 1170.12(c)(1)) // Calculating 3K Sentences (PC 1170.12(c)(2)) // Juvenile Strikes // Super Strikes // Consecutive Sentencing // Striking Strikes (Romero) // Credits // Prop 57 Non-Violent Parole

Overview

• The Three Strikes law is a separate sentencing scheme. (People v. Henderson (2022) 14 Cal.5th 34, 43.)
  • “The Three Strikes law, when applicable, takes the place of whatever law would otherwise determine defendant’s sentence for the current offense.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524.)
• Comes into play when D is charged with new felony offenses but has previously been convicted of designated serious or violent felonies.
• Prior convictions constituting “strikes” are those that are “serious” or “violent” felonies
  • Serious felonies are defined in PC 1192.7(c)
  • Violent felonies are defined in PC 667.5(c)
• No Separateness Requirement for multiple prior “strike” convictions. (People v. Fuhrman (1997) 16 Cal.4th 930.)
• 2 Prior Ks arising out of a single act against same victim. Court must dismiss one K. (People v. Vargas (2004) 117 Cal.App.4th 1209.)
• How to Count Number of Strikes, When single criminal act results in multiple prior felony convictions:
  • Two prior convictions arising out of a single act against a single victim -> may NOT be treated as two strikes for purposes of Three Strikes sentencing. (People v. Vargas (2014) 59 Cal.4th 635.)
  • Two prior convictions arising out of a single act harming two victims -> may NOT be treated as two strikes for purposes of Three Strikes Sentencing. (People v. Shaw (Dec. 15, 2025) S286453.)
• Proving Strike Offense
  • A qualifying prior conviction must be pleaded and proved BRD in the current case. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 833.)
  • Where the mere fact of conviction under a particular statute does not establish a serious felony allegation, the sentencing court may examine a record of conviction to determine the nature or basis of the crime for which the defendant was convicted. (People v. Leonard (2016) 4 Cal.App.5th 1117, 1122.)
  • If the record of conviction does not disclose how the offense was committed, the court must presume the conviction was for the least serious form of the offense. (Ibid.)
    • If the statute can be violated in a way that does not qualify for the enhancement, the evidence is insufficient to support the enhancement.
• Consequence of Strike Conviction
  • D always sentenced to CDC (in present case and future cases). (PC 1170(h)(3).)
    • Need not be formally pled and proven. (People v. Griffis (2013) 212 Cal.App.4th 956.)
  • No Probation
    • If sentenced under Three Strikes law, then mandatory probation denial. (PC 667(c)(2); PC 1170.12(a)(2).)
    • No realignment, no ISS or ESS
    • If priors are stricken under PC 1385 (Romero), then maybe probation eligible
• Prior Strike – Date of Conviction.
  • A conviction for a serious or violent felony can be alleged as a strike prior only if the conviction for the prior predates the present offense. (PC 1170.12(b)(1); PC 667(d)(1).)
• Indicated Sentences (Practice Tip)
  • Where current offense is serious/violent, and D has prior serious/violent offense, Court’s offer at PTC is an indicated sentence
  • An indicated sentence is a top and refer, where the Court can exceed the “top” based on the information in the probation report.
  • Must cross out line on plea form that permits a D to withdraw their plea should the Court decide to exceed the indicated top

Calculating 2K Sentences PC 1170.12(c)(1) (Prior K)

• Elements
  • (1) Current offense is felony
  • (2) Prior offense is serious or violent
• Sentence
  • Triad doubles
  • Consecutive subordinate term – 1/3 MT doubled
  • ENHANCEMENTS NOT DOUBLED
  • For ISL Offenses: minimum eligible parole date (MEPD) doubled

Calculating 3K Sentences PC 1170.12(c)(2) (3rd Strike)

• Elements
  • Scenario #1 (Two Prior Serious/Violent Felonies)
    • (1) D has two prior serious or violent felonies; AND
    • (2) Current offense is:
      • (a) A serious or violent felony; OR
      • (b) Public Safety Valve Exception Applies
  • Scenario #2 (Prior Super Strike)
    • (1) D has prior conviction for “super strike”; AND
    • (2) Current offense is a felony
• Public Safety Valve Exception. D still subject to indeterminate term as “three-striker” if current offense is not serious/violent and one of the following exceptions apply:
  • Current Offense Exceptions
    • Controlled Substance: Weight. The current offense is a controlled substance charge with a weight allegation pursuant to Health & Safety Code §§ 11370.4 or 11379.8
    • Rape. Statutory rape of victim under 16 when defendant is 21 or over in violation of Penal Code § 261.5(d), or spousal rape in violation of Penal Code § 262
    • PC 290. Any felony offense that results in mandatory sex offender registration per Penal Code § 290(c), except for violations of Penal Code §§ 266, 285, 286(b)(1), 286(e), 288a(b)(1), 288a(e), 311.11 and 314.
  • During Commission of Current Offense Exceptions
    • Used a firearm
    • Was armed with a firearm or deadly weapon
      • D convicted of PC 29800 may be considered “armed with a firearm.” (People v. Frutoz (2017) 8 Cal.App.5 171.)
      • Vicarious liability. Prop 36 arming allegation includes vicarious liability. (i.e. personal use not required). (People v. Caraballo (2016) 246 Cal.App.4th 936.)
    • Intended to cause GBI to another person
      • (People v. Guilford (2014) 228 Cal.App.4th 651.)
      • (People v. Thomas (2019) 39 Cal.App.5th 930.)
• “Super strike” Prior Conviction. Includes:
  • “Sexually Violent Offense” as defined in Wel. & Inst. Code §6600(b). This is most sex crimes committed by force, violence, duress, menace, fear and/or threats. PC 220 is considered sexually violent offense only if committed with force, violence, etc. (People v. Cook (2017) 8 Cal.App.5th 309.)
  • Most child molests of a victim under 14 years of age, specifically violations of Penal Code §§ 288a(c)(1), 286(c)(1), 289(j), 288(a) and 288(b). Note that violations of Penal Code § 288.5 are now considered violent. (PC 667.5(c)(17).)
  • Any homicide offense, including any attempted homicide offense, as defined in Penal Code §§ 187 to 191.5, inclusive. Note that manslaughter (other than some vehicular manslaughters) are not included
  • Solicitation to commit murder in violation of Penal Code § 653f, assault with a machine gun on a peace officer or firefighter in violation of Penal Code § 245(d)(3), or possession of a weapon of mass destruction in violation of Penal Code § 11418(a)(1).
  • Any offenses punishable by life imprisonment or death
• Sentence
  • Step 1: select appropriate option for ISL (below)
  • Step 2: add enhancements (full strength) to the selected option
• Indeterminate (life) term whose MEPD is greatest of 3 options:
  • Option (i): Triple the term (to life)
    • Only works when term is 9 years or more
    • Do not consider enhancements
    • Include both determinate and indeterminate counts
    • Example
      • 16-2-3 Triad
        • Term is 3, tripled is 9. 9 < 25, therefore option (i) inapplicable
      • 3-5-9 Triad
        • Term is 9, tripled is 27. 27 < 25, therefore option (i) applies.
        • 3K punishment here = 27 to life
  • Option (ii): 25 to life (default)
  • Option (iii): Calculated under general statutes (to life)
    • Term as calculated under general DSL sentencing statutes
    • Add enhancements & priors
    • Everything at full term (no 1/3 MT)
    • Example
      • Carjacking w/ gun discharge + 2 strike priors
      • PC 215 w/ PC 12022.53(c) + two PC 667(a) priors
      • 9 + 20 + 5 + 5 = 39
      • Carjacking count is punishable by 39y vs. 25 vs. 27 under other options
      • So, 39 is the greatest MEPD
      • Now, add the enhancements & priors again
        • 20+5+5=30 years
      • Total is 30 years (DSL) + 39 to life

Juvenile Strikes

• Requirements for Juvenile Strikes:
  • (1) D must have been age 16 or older at time of committing the crime. (PC 667(d)(3)(A); 1170.12(b)(3)(A).)
  • (2) WI 707(b) offense AND serious or violent offense
  • (3) Finding of fitness by the juvenile court (express or implied)
  • (4) Wardship: made ward of juvenile court WI 602 for a 707(b) offense
• Commonly Arising Juvenile Offenses That Are NOT strikes (not listed in W&I § 707(b))
  • Rape committed by means other than force, violence or threat of great bodily harm
  • Simple kidnapping committed other than in the course of a carjacking and without infliction of bodily harm
  • A felony in which D was alleged and found to have inflicted GBI
  • Residential burglary
• Juvenile Strike Disqualifiers
  • Juvie Strike IMPOSED
    • State prison required (by 3K law)
    • (People v. Delgado (2013) 214 Cal.App.4th 914.)
  • Juvie Strike STRICKEN
    • Local prison still possible (must do complete 1170(h) analysis
    • Once stricken, it is a juvenile “adjudication”
    • Not a “conviction” thus not a SF/VF disqualifier
• Juvenile Strike Priors under WI 707(b) by person described in WI 602:
  • Murder
  • Arson under PC 451(a)(b)
  • Robbery
  • Rape with force, violence, or threat of GBI
  • Sodomy by force, violence, duress, menace, or threat of GBI
  • Lewd or lascivious act under PC 288(b)
  • Oral copulation by force, violence, duress, menace, or threat of GBI
  • Any offense listed in PC 289(a)
  • Kidnapping for ransom
  • Kidnapping for purpose of robbery
  • Kidnapping w/ bodily harm
  • Attempted murder
  • Assault with a firearm or destructive device
  • Assault by any means of force likely to produce GBI
  • Discharge of a firearm into an inhabited or occupied building
  • Any offense listed in PC 1203.09
  • Any offense listed in PC 12022.5 or PC 12022.53
  • Any felony offense in which minor personally used a weapon described in any provision listed in PC 16590
  • Any felony offense listed in PC 136.1 or PC 137
  • Manufacturing, compounding, or selling 1/2 ounce or more of a salt or solution of a controlled substance specified in HS 11055(e)
  • Any violent felony, as defined in PC 667.5, which would also constitute a felony violation of PC 186.22(b)
  • Escape, by the use of force or violence, from a county juvenile hall, home, ranch, camp, or forestry camp in violation of PC 871(b) where GBI is intentionally inflicted upon an employee of the juvenile facility during the commission of the escape
  • Torture as described in PC 206 and PC 206.1
  • Aggravated mayhem, as described in PC 205
  • Carjacking, as described in PC 215, while armed with a dangerous or deadly weapon
  • Kidnapping for purposes of sexual assault, as punishable under PC 209
  • Kidnapping as punishable under PC 209.5
  • A violation of PC 26100(c)
  • A violation of PC 18745
  • Voluntary manslaughter, as described in PC 192(a)

Super Strikes

• Function: treats current offense as a third strike for sentencing purposes, even if D current offense is not serious/violent felony
• PC 1170.12(c)(2)(C)(i)-(iv). EITHER:
  • Current offense is:
    • Drug Exception. Controlled substance charge AND special allegation under HS 11370.4 or HS 11379.8
    • Sex Exception. Felony sex offense as defined in PC 261.5(d) or any felony offense with mandatory PC 290 reg
      •  EXCLUDES: PC 266; PC 285; PC 286(e)(b)(1); PC 287(b)(1); PC 287(e); PC 314; PC 311.11
    • Firearm/Deadly Weapon/GBI Exception. During the commission of the current offense, D used a firearm, was armed with a firearm or deadly weapon, or intended to cause GBI to another person
  • D has a prior conviction for any of the following serious/violent felonies:
    • “Sexually violent offense” as defined by W&I section 6600
    • Oral cop with a child < 14 years of age, and more than 10 years younger than the D as defined by PC 287 or former PC 288a
    • Sodomy with another person < 14 years of age and more than 10 years younger than the D as defined by PC 286
    • Sexual penetration with another person < 14 years of age and more than 10 years younger than the D as defined by PC 289
    • Lewd or lascivious act involving a child < 14 years of age, in violation of PC 288
    • Any homicide offense, including any attempted homicide offense, defined in PC 187 to PC 191.5, inclusive
    • Solicitation to commit murder as defined in PC 653f
    • Assault w/ a machinegun on a peace officer or firefighter, as defined in PC 245(d)(3)
    • Possession of a weapon of mass destruction, as defined in PC 11418(a)(1)
    • Any serious/violent felony punishable in California by life imprisonment or death

Consecutive Sentencing

• When 3K scheme applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses (1) occur on separate occasions AND (2) do not arise from the same set of operative facts. (PC 667(c)(6); PC 1170.12(a)(6).)
  • Offenses on the same occasion if they were committed within “close temporal and special proximity” of one another. (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
  • Offense arise from the same set of operative facts when they “shar[e] common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.” (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
• When a strike defendant is convicted of any group of new felony offenses, the sentence imposed for each felony count must run consecutively to all others not committed on the same occasion.
• General Rule. Consecutive sentences are mandatory if:
  • (1) Strike Defendant
  • (2) Group of new felony offenses NOT on same occasion
  • (3) Group of new felony offenses NOT same set of operative facts
• Henderson Conundrum (& Concurrent Sentencing Discretion)
  • Court retains discretion to impose consecutive or concurrent sentences where qualifying offenses are committed on the same occasion OR arose from the same set of operative facts. (People v. Henderson (2022) 14 Cal.5th 34, 55.)
  • However, if current convictions are S/V – counts must be c/s to all other non-serious/non-violent felonies and any misdemeanors
• Mandatory C/S Multi-Count in Same Case
  • 1 strike remaining, others stricken
    • Court has discretion to strike a “strike” w/ respect to one count but not another (Garcia)
    • However, c/s sentences are mandatory even when the court has dismissed the strike priors as to all but one count of a multi-count case (People v. Casper (2004) 33 Cal.4th 38, 43.)

Striking Strikes (Romero)

• PC 1385(a) permits a court to “order an action to be dismissed” if it is “in furtherance of justice.”
  • A trial court’s discretion to dismiss an “action” under section 1385(a) encompasses the power to strike or dismiss a sentencing enhancement allegation. (People v. Fuentes (2016) 1 Cal.5th 218, 225.)
  • Action includes charges and allegations. (In re Varnell (2003) 30 Cal.4th 1132, 1137.)
• PC 1385 permits a court acting on its own motion to strike [findings as to] prior felony conviction allegations in cases brought under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.)
• ‘Remote’ prior conviction. In determining whether a prior conviction is remote, the trial court must evaluate whether the defendant has had a “crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
  • If the “defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a [decades]-old prior.” (People v. Nunez (2023) 97 Cal.App.5th 362.)
• Nature of Priors. “Williams and its progeny do not hold that a defendant’s criminal career must consist entirely or principally of violent or serious felonies to bring a defendant within the spirit of the Three Strikes law.” (People v. Strong (2001) 87 Cal.App.4th 328, 340.)
• Effect of Striking a Strike: a D with two or more strike priors and a conviction for a qualifying offense may be removed from the strictures of the Three Strikes scheme altogether if all of his prior strikes are dismissed, or he may be sentenced as a “second striker” if only one strike prior remains in connection with a newly charged qualifying offense. (People v. Henderson (2022) 14 Cal.5th 34, 45.)
• PC 1385(c) does not apply to Three Strikes Allegations. (People v. Olay (2023) 98 Cal.App.5th 60; People v. Burke (2023) 89 Cal.App.5th 237, 244; People v. Dain (2024) 99 Cal.App.5th 399.)

Credits

• Pre-sentence
  • Unless current offense violent, still eligible for regular credits per PC 4019 -> 50% (2-for-2)
  • Violent offenses limited to 15% pre-sentence credits. (People v. Thomas (1999) 21 Cal.4th 1122.)
• Post-Sentence
  • Limited to 20% on determinate (2K) offenses. (PC 1170.12(a)(5).)
    • 20% limit applies to enhancements. (People v. Brady (1995) 34 Cal.App.4th 65.)
    • BUT: Receive 50% b/c Prop 57 (non-violent offenses)
  • Indeterminate (3K) -> no credits
  • Violent offenses limited to 15% post-sentence. (PC 2933.1.)

Prop 57 Non-Violent Parole

• General Rule. If current offense is non-violent, even if 2K or 3K, eligible for Prop 57 non-violent parole after serving full term of primary nonviolent offense. (In re Edwards (2018) 26 Cal.App.5th 1181, 1192.)
  • But: inmate serving sentence for both violent & non-violent felonies is not eligible for Prop 57 early parole consideration. (In re Mohammad (2022) 12 Cal.5th 518, 541.)
• If Prop 57 Eligible: get parole hearing (don’t necessarily get out)