Strike priors (felonies counted as strikes one and two) are more limited. Because only certain convictions count against a person in the three strikes context, it is all the more important to have excellent legal counsel when first facing felony charges. A skilled and competent attorney may be able to get the charges against you reduced substantially. Convictions listed as serious or violent convictions count as “priorable.” Those categories are very broad, for example:
Yes, robbery, rape, child molestation and murder count as priorable stikes, as you would likely expect.
Yes, burglary of a residence counts as a priorable strike, even if no one was home.
It doesn’t matter—it counts.
Even if no one was hurt, “making terrorist threats” counts as a priorable strike. This offense did not count when Prop. 184 passed, but Prop. 21 added “making terrorist threats” as a priorable.
Assault with a deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Penal Code section 245.” Note: assaults with hands or feet where no weapon is used and where no great bodily injury is actually inflicted do not count as strikes.
Juvenile convictions for offenses listed in Welfare and Institutions Code section 707(b) do count as priorable strikes. The juvenile record is not sealed when it comes to future sentencing.
Only if the case was reduced to a misdemeanor under Penal Code section 17(b) will it not count as a priorable strike. Getting a record expunged—getting old charges reduced or dismissed—does not affect the three strikes context. Although expungement may be worthwhile regarding housing, employment, benefits, and dignity, the original felony charge still may count as a priorable strike.
If a felony conviction from another state has the elements of a California serious or violent felony, it counts as a priorable strike.
Even if the prior felony did not include a prison sentence, it still counts as a strike if it was a priorable offense.
The California Supreme Court has held that strike priors do not need to have brought and tried separately, and therefore a defendant could, indeed, get “two strikes from one swing.”
No, the outlook is not hopeless. The California Supreme Court has held that a judge has the power to sentence a defendant to less than the maximum sentence under the three strikes law. A judge can strike or dismiss strike priors in furtherance of justice. This could make a substantial difference, such as the judge sentencing the defendant to a double sentence instead of to 25 years to life. A judge can even dismiss all of a defendant’s strike priors and sentence the defendant to probation.
In sum, it is in your interest to retain a skilled criminal defense attorney, especially when facing felony charges. Attorney Thomas Greenberg can help you. Call (650)242-0021 for a free consultation.