How to Strike a Strike

The three-strikes law has been around since the early 1990s.  It came into effect in 1993.  I was a practicing attorney at the time.  I had just passed the bar, so I learned all about it and have been dealing with strike cases for the past 26 years of practicing criminal defense, so I have a pretty good feel for how they've evolved; how they're dealt with.

The bottom line is, to strike a strike if you have a prior strike and then you have a new felony, and they're trying to either make it a second strike case or a third strike case, you're going to have to take it up the chain to the head prosecutor. They usually have the power to strike a strike or strike two strikes, depending on the circumstances of the case.  So, you need to bear in mind that you're going to need somebody who's got a relationship and knows how to deal with the head prosecutors.

Especially if you've got a striking case that you're trying to fight, and either you're trying to fight the open case and say that you're not guilty, or if you're guilty of the open case, your attorney is trying to convince the head prosecutor to strike your strike, so you don't get your sentence doubled up, so you're not looking at 25 to life, for example, for those people who are three strikers.

Romero Motion

One big weapon used in the defense of strike cases is what's called a Romero Motion.  That's a motion filed by the criminal defense attorney on the defendant's behalf.  It's filed with the judge who has control of the case at the time, and you're asking that judge to strike one or more strikes.

Three Strikes Law in Los Angeles Criminal Courts

That doesn't end the inquiry, though.  The next thing is, if the judge is willing to strike the strike, you still have the open case to deal with.  So, you'd have to plead guilty or no contest to that, and then you'd have to have an idea of what the judge would be sentencing you to, even if the judge strikes a strike.

I've seen cases where the judge strikes a strike in a second strike case, but the person still goes to prison for some time.  That doesn't just solve everything because the strike gets struck; you still have to deal with the case. Another confusing thing is, if you have a strike prior, let's say you have a robbery, and your attorney can convince the judge to strike that robbery for purposes of sentencing in a new case, that doesn't get rid of the robbery.  The robbery is still there.  It's just not used against you in your current case for purposes of sentencing you.

So, there's many different angles that can be taken when it comes to first, second and third strike cases.  To me, a first strike case is when somebody doesn't have any prior strikes on their record and they're charged with a crime, but if they plead guilty or no contest to it, they're going to get a strike on their record. So, that's one big thing that we try to do in the San Fernando Valley courts is trying to avoid even getting a first strike in the first place.  So, you have to come up with other crimes that might foot the bill.

Examples of “Strike” Cases

For example, in our robbery example, if somebody takes somebody's property by force or fear, they can be charged with robbery.  They could also be charged with Penal Code Section 487c which is basically taking property from somebody's person, but it's not a robbery.  It's also not a strike.  So, that's one example of how we can avoid a first strike in the first place.

The next example has to do with a second strike case.  That's where you have a prior strike and now you've picked up a new felony and they're trying to make it a second strike case. Obviously, in that scenario, if you're going to have to plead guilty to something, you obviously want to see if the prosecutors first will strike the strike and if they won't then you can file a Romero Motion with the judge and see if the judge will strike the strike.

Then of course, there's the scenario where you have two prior strikes and you pick up a new felony and you're looking at a third strike case and you're looking to either get one or both of those strikes stricken for purposes of resolving the case.

Seeking Best Result in Strike Cases

So, you can see, this can start to get pretty complicated.  But if you've got a case in LA County, I've been doing this for 26 years and I know what it takes to get the best result if you face a potential strike or second strike case — even a first strike case — you've got to come up with a strategy right from the beginning.  That's what I do.

We sit down and go over everything.  The type of stuff we're looking at is, what were the underlying facts of your strike or strikes?  Because that's one o the things that the prosecutors are going to consider when deciding whether to strike them.

Also, ow long ago were they.  They usually have to be ten years old for the prosecutors to really consider striking them although I have been successful in striking cases that have not been ten years old, but that's kind of the protocol for prosecutors in Los Angeles county and throughout the San Fernando Valley courthouses, looking at the age of those strikes.

Also, they're going to look at hat those strike were.  What happened in them, and then finally, they're going to look at your current case.  Is your current case a weak case?  Is it a strong case?  Is it a violent case?  Are there victims in the case? So, you start to see that there's a whole formula that goes into assessing strike cases. If you've got one, pick up the phone.  Make the call.  Take the first step to getting your matter resolved in the best way possible.