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:
What counts as a priorable strike in California?
Does robbery, rape, child molestation or murder count as a priorable strike?
Yes, robbery, rape, child molestation and murder count as priorable stikes, as you would likely expect.
What about burglary of a residence if no one was home and no violence was used?
Yes, burglary of a residence counts as a priorable strike, even if no one was home.
What about burglary of a garage attached to a house?
It doesn’t matter—it counts.
What if no one was hurt, like in the case of a “making terrorist threats” conviction for some stupid comments made while going through airport security when drunk—does this count as a “strike”?
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.
Can juvenile felony convictions count as priorable strikes? The juvenile record is sealed, right?
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.
What if the felony was reduced to a misdemeanor, does it count as a priorable strike?
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.
Do felony convictions from outside of California 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.
If the earlier felony conviction did not include being sentenced to prison, does it count 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.
Can a defendant get “two strikes from one swing”? That is, if there was only one past case but the defendant was convicted on two felony counts, does that count as one strike or two?
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.”
For a defendant with serious or violent priors and facing serious of violent felony charges, is the outlook hopeless?
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.
What else counts as a priorable strike in California?
Committing felonies on behalf of a gang (Pen C §186.22),
Intimidating witnesses (Pen C §136.1),
Conspiring to commit violent or serious felonies,
Committing unarmed robberies that lead to juvenile adjudications. See Pen C §1192.7(c)(28), (37), (38), (39), (41); Welf & I C §707(b)(3).
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.