Frequently Asked Questions

A GENERAL SUMMARY OF THE THREE STRIKES LAW

HOW DOES THE 3-STRIKES LAW WORK?

California's 3-Strikes and You're Out Law went into effect on March 7, 1994. Its purpose is to dramatically increase punishment for persons convicted of a felony who have previously been convicted of one or more "serious" or "violent" felonies. A "serious" or "violent" felony prior is commonly knows as a "strike" prior.

WHAT IS A FELONY?

A felony is a crime punishable by a state prison (as opposed to county jail) sentence. Felonies run the range from petty theft with a prior and possession of small quantities of drugs through kidnapping, rape, robbery, and murder. Any new felony, regardless of how minor, may be punished under the 3-Strikes law if the defendant has one or more "serious" or "violent" felony priors.

WHAT ARE "SERIOUS" OR "VIOLENT" FELONIES (Strike Priors)?

Defined in Penal Code sections 667.5(c) and 1192.7(c). They include: residential burglary, robbery, kidnapping, murder, most sex offenses like rape and child molestation, any offense in which a weapon was personally used whether or not anyone was injured, any offense in which great bodily injury was inflicted, arson, crimes involving explosive devices, or attempts to commit any of those offenses.

WHAT HAPPENS WITH ONE "STRIKE" PRIOR?

A defendant who is convicted of any new felony who has one "strike" prior (known as a second striker) must go to prison (i.e., cannot be sent to a rehab facility or placed on probation) for twice the sentence otherwise prescribed for the new offense. Additionally, he must serve 80% of the sentence imposed whereas non-strike prisoners generally get between on-third and one-half off of the sentence imposed for good behavior and working while in prison.

WHAT HAPPENS WITH TWO OR MORE "STRIKE" PRIORS?

Defendant with two or more "strike" priors (a third striker) faces a minimum of 25-years-to-life in prison. He earns no time off for good behavior or working. After serving the determinant minimum amount of time (25-years on a 25-to-life sentence) he is then eligible for, but not guaranteed, parole. Whether and when an eligible life prisoner (prisoners serving life-without-parole sentences for murder are never eligible for parole) is paroled is up to the Board of Prison Terms (BPT). The BPT is made up of members appointed by the Governor and tend to be very conservative about paroling eligible life inmates. Since no 3-Strike life prisoner has become eligible for parole and none will until 2019, no one knows how the BPT will deal with 3-Strike inmates.

IS 3-STRIKES PUNISHMENT MANDATORY IN ALL CASES?

In certain circumstance where the sentencing court finds that a second or third strike defendant falls outside the "spirit" of the 3-Strikes Law, the court may, either on motion of the prosecutor or on the court's own motion, strike or dismiss one or more "strike" priors. This is done pursuant to the power vested in the courts since 1860 to dismiss all or part of an action for good cause and in furtherance of justice. The court must state on the record and include in the court minutes the facts which the court finds justify dismissing the prior. A decision to strike or dismiss a "strike" prior is appealable by the prosecution and reviewable by the Court of Appeal and the Supreme Court. The San Diego Public Defender's Office is proud to have been the law firm which established this rule of law in the California Supreme Court in the first 3-Strikes case to be decided by the Supreme Court. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

DO JUDGES DISMISS "STRIKE" PRIORS OFTEN?

Generally, sentencing judges will strike or dismiss a prior only when it is old and the new offense is minor and the defendant has a non-violent history. It is extremely rare if not unheard of for a court to strike or dismiss a prior when the new offense is also serious or violent. Even though the court can strike priors, California's prisons still receive more drug offenders sentenced as second or third strikers than any other class of crime.

WHAT CAN BE DONE TO MAKE THE 3-STRIKES LAW MORE FAIR?

Of course, not everyone thinks the 3-Strikes law is unfair. More than 60% of the voters who voted (did you vote?) voted for 3-Strikes. However, a lot of people who voted for 3-Strikes were not aware of what it really means and does. This is not surprising since it is very poorly drafted, very long, and very technical. The campaign literature in support of 3-Strikes talked about putting repeat rapists, robbers, and murderers away for a long time. It didn't talk about putting petty thieves and drug users away for 25-years-to-life. As a result of the realization by some that 3-Strikes is much harsher than they originally thought and that it costs a whole lot of money ($20+ thousand/year) to keep people in prison, certain members of the California Legislature are starting to rethink 3-Strikes to a certain extent. There have been proposals to limit its application to cases where the new offense is a "serious" or "violent" crime. No legislation has yet passed modifying 3-Strikes. It will be very difficult to modify it also, since it take a 2/3 vote of the Legislature to change 3-Strikes or another initiative measure passed by the voters. If you are interested in what is pending in the California Legislature on this or any other issue, you will find the State Senate and State Assembly web sites very interesting, informative, and useful.

APD Dependency

San Diego County receives approximately 80,000 reports of suspected child abuse or neglect each year. When a child is abused by his parents, the Court intervenes to protect the child. This creates what is called a "dependency" case. There are approximately 7,000 children in the county's dependency system. Typically, in each case, there is an "offending" parent and a "non-offending" parent. The "offending" parent is the parent who actually harmed the child. The "non-offending" parent usually allowed the abuse or was absent when it occurred. In an effort to protect the children, the Court removes the children or "heals" the parents through the provisions of services.

Alternate Public Defender (APD) provides legal representation to the parents in a dependency case and to the child where the Public Defender (PD) declares a conflict. The APD has three offices offering representation in dependency, the Primary Parent Office (PPO), the Conflict Parent-Child Office (CPO) and the Independent Counsel Office (ICO).

The PPO is comprised of experienced lawyers, many of whom have been practicing dependency since the beginning of APD's involvement, in December 1990. PPO represents the "offending" parent, namely the parent who is most likely to be charged criminally or who is alleged to have caused harm or risk to the child. Typically, the representation of the primary parent is more time-consuming and difficult and usually involves some kind of criminal or potential criminal allegation against the primary parent. The Adult Criminal Division of APD represents the offending parent in criminal proceedings.

The CPO represents the second parent involved in dependency proceedings and any children not represented by the Public Defender. This office, though falling within the APD budget, is a separate and distinct office. The APD's ICO is administered by a private attorney under contract to the APD. This administering attorney subcontracts with several private attorneys to provide legal representation for the third and lower tier conflicts.

The APD dependency division utilizes volunteers from the community. Borrowing from the Voices for Children concept of assigning volunteers as advocates for children, the APD conducted an extensive drive to recruit community members as volunteers for its Family Advocate Program. After intensive training conducted by the APD, Family Advocates are assigned to APD clients to assist them in achieving their service plans. In addition to acting as role models, these Family Advocates provide emotional support, encouragement, motivation, transportation and many other needed support services to APD dependency clients. They also act as the eyes and ears of the attorneys, assisting in preventing these clients from straying too far from their goal of reunifying with their children.

Additionally, the Dependency Division uses Law Clerks, Volunteer Attorneys, Paralegal Interns and Social Work Interns. All volunteers experience hands-on work with both attorneys and investigators.

PPO is the Primary Parent Office of the Alternate Public Defender, where attorneys generally represent the primary or "offending" parent-the parent from whom custody has been removed. Because each parent has their own interests which sometime conflict with those of the other parent, an attorney is appointed for each parent to ensure proper representation of those interests. CPO is the Conflict Parent/Child Office, which falls under the APD budget but is separated from the rest of the Alternate Public Defender by both physical and "glass" walls of confidentiality. CPO represents non-custodial or "less-offending" parents. Sometimes, the Public Defender's office cannot represent a dependent child because, for instance, the child is a victim of a sibling the PD represents, or the child and sibling otherwise have conflicting interests. In those situations, CPO will represent the child with whom the Public Defender has a conflict.