Under California’s “three strikes” law in California Penal Code § 667, defendants may receive a prison sentence of 25 years to life if convicted of three violent or serious felonies. The three-strikes law also doubles the prison sentence for anyone convicted of any California felony with two violent felony or serious felony prior convictions, as well. As a third strike carries serious consequences for a criminal defendant, is it possible for a three-strikes defendant to receive parole?
Penal Code § 667(e) states as follows:
“(e) . . . (1) If a defendant has one prior serious or violent felony conviction . . . the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2 (A) . . . [I]f a defendant has two or more prior serious or violent felony convictions . . . , the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions. (ii) Imprisonment in the state prison for 25 years . . .”
Some three-strikes defendants may be eligible for parole under California law. In California, Prop 57, passed in 2016, states that everyone convicted of a nonviolent felony is eligible for parole. These defendants must have served their “primary sentence” – the maximum sentence for a given offense – to be considered for parole. This “maximum sentence” under Prop 57 does not include sentence enhancements such as three strikes. Thus, individuals with three strikes who are convicted of nonviolent offenses may apply for parole in California after completing the normal maximum sentence for their third strike.
While Prop 57 added language to the California Constitution regarding defendants serving primary sentences, it was silent as to which felony offenses are considered “nonviolent.” While Penal Code § 667.5(c) defines “serious offenses” in California, no California Penal Code section defines “nonviolent” offenses. The inference is that any offense not listed under Penal Code § 667.5(c) is “nonviolent” and therefore qualifies for relief under Prop 57 guidelines.
Surprisingly, the following crimes are not considered violent crimes in California. Any crime not listed in PC 667.5(c) qualifies.
- Assault by Means of Force Likely to Produce Great Bodily Injury (Pen. Code 245(a)(4))
- Assault with a Deadly Weapon (Pen. Code 245(a)(1))
- Taking a Hostage (Pen. Code 210.5)
- Any Felony in Which a Defendant Personally Uses a Dangerous or Deadly Weapon, or Personally Uses a Firearm, or Personally Inflicts Great Bodily Injury (Pen. Code 667/1192.7)
- Hit & Run Resulting in Death or Permanent, Serious Injury (Pen. Code 20001(b)(2))
- Domestic Violence Resulting in a Traumatic Condition (Pen. Code 273.5)
- False Imprisonment by Violence, Menace, Fraud, or Deceit (Pen. Code § 236-237)
- Using Force or Violence Upon a Witness or Victim Because of Assistance Provided to a Law Enforcement Officer or Prosecutor (Pen. Code 140)
- Soliciting Another Person to Commit Murder (Pen. Code 653f(b))
- Resisting a Peace Officer and Proximately Causing Death or Serious Bodily Injury to the Officer (Pen. Code 148.10)
- Peace Officer Beating or Assaulting a Person Without Lawful Necessity (Pen. Code 149)
- Supplying, Selling, or Giving a Firearm to a Person to Commit a Gang Crime, and the Person Commits the Gang Crime and is Convicted of It (Pen. Code 186.28)
- Assault with a Stun Gun or Less Lethal Weapon (Pen. Code 244.5)
- Corporal Punishment or Injury on a Child Resulting in a Traumatic Condition (Pen. Code 273d)
- False Imprisonment of an Elder or Dependent Adult by Violence, Menace, Fraud, or Deceit (Pen. Code 368(f))
- Hate Crime Causing Physical Injury, Property Damage Over $950, or Where the Defendant Has a Prior Conviction for a Hate Crime (Pen. Code 422.7)
- Soliciting Another Person to Commit a Specified Crime Such as Carjacking, Robbery, Burglary, Kidnapping, Arson, Grand Theft, Perjury, Extortion, or Assault With a Deadly Weapon (Pen. Code 653f(a))
- Inflicting Physical Pain or Mental Suffering on an Elder or Dependent Adult; Or, a Caretaker Endangering the Health of an Elder or Dependent Adult (Pen. Code 368(b)(1))
- Unlawfully Causing a Fire that Causes Great Bodily Injury (Pen. Code 452(a))
- Driving Under the Influence of Alcohol and/or Drugs and Causing Bodily Injury (Veh. Code 23153)
- Conspiracy to Commit Any Serious or Violent Felony (Pen. Code 182)
- Involuntary Manslaughter with Personal Use of a Weapon, or Personal Infliction of Great Bodily Injury (i.e., death) (Pen. Code 192(c))
- Vehicular Manslaughter with Personal Infliction of Great Bodily Injury (i.e., death) (Pen. Code 192(c))
- Vehicular Manslaughter While Intoxicated with Personal Infliction of Great Bodily Injury (i.e., death) (Pen. Code 191.5(b))
Example: Lily is convicted of felony grand larceny with two strikes on her record. She is sentenced to 25 years to life as a third striker. Before Prop 57 was passed by California voters, Lily was not eligible for parole. Prop 57 applies to defendants such as Lily who are serving time for nonviolent felonies. The maximum state prison sentence for felony grand larceny is three years. Thus, Lily is eligible to apply for parole after serving three years.
The attorney that any defendant hires may be crucial to achieving the best possible result. John Patrick Dolan has forty years of criminal defense experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.