Strike 2/Credit Limits
Category > Strike 2/Credit Limits
The juvenile court erred by concluding the minor’s weapon possession offenses were mandatory felonies. The minor was found to be in possession of a concealed and loaded handgun in violation of Penal Code sections 25400(a)(2) and 25850(a). The juvenile court erred by finding the offenses were automatically felonies by virtue of the defendant’s status as a minor. id: 24010
Reduction of a prisoner's sentence for a heroic act is not subject to the three strikes law's 20 percent limit on postsentence credits.The Director of Corrections' discretion to reduce a prisoner's sentence up to 12 months for performing a heroic act in a life threatening situation (Penal Code section 2935) is not subject to the three strikes law's limitation on postsentence credits to 20 percent of the prisoner's sentence.id: 17832
The section 12022.53, subd.(b) enhancement for the two strike defendant was subject to the one-third limitation of section 1170.1.Defendant was convicted of attempted second degree robbery. His sentence was doubled under the three strikes law. The trial court thereafter erred in imposing the full 10 year term for the Penal Code section 12022.53, subd.(b) enhancement. The court should have imposed one-third of the 10 year term under section 1170.1 since the three strikes law's basic sentencing provisions for two strikes defendants incorporates the methodology of section 1170.1, and section 1170.11 command that the section 12022.53 enhancement is subject to the one-third limitation of section 1170.1.id: 16725
Three strikes law does not eliminate presentence conduct credit.Since there was no reference to presentence conduct credit in the three strikes law - Penal Code section 667, subdivision (c)(5), there was no change in existing law and defendant was entitled to such credit for the period he spent in jail.id: 9428
The terms to be doubled for a second strike defendant do not include offense-related enhancements such as for the personal use of a weapon.The terms for the offenses themselves must be doubled for a second stike defendant, but no term enhancement is doubled. The trial court thus properly imposed doubled terms as punishment for the carjacking and robbery offenses.id: 9426
The conduct credit limitation in section 667, subdivision (c)(5), does not apply to terms imposed for offenses committed before the three strikes law was enacted.The conduct credit limitation in Penal Code section 667, subdivision (c)(5), does not apply to terms imposed for offenses committed before the three strikes legislation became effective.id: 9425
Three strikes defendant is entitled to presentence conduct credit calculated under section 4019.A defendant sentenced under the three strikes law is entitled to presentence conduct credits. Those credits are properly calculated under Penal Code section 4019, rather the lesser maximum amount under section 2933.1.id: 15223
The three strikes law precludes LWOP sentence from being doubled.The prosecution argued that because of defendant's prior conviction, the trial court was required to double his life without parole term under the three strikes law. However, because an LWOP sentence is not a determinate term and does not contain a minimum term, it is not subject to the doubling requirement of Penal Code section 667, subd.(e)(1).id: 15186
The five year serious felony enhancement may be added only once to multiple determinate terms imposed as part of a second-strike sentence. Defendant with a single strike prior was convicted of several current offenses. The trial court erred by adding a Penal Code section 667, subd.(a), to each of the defendant’s determinate terms. The enhancement may be added just once to second strike sentence.id: 24064
A prior serious felony enhancement must be applied to each term imposed under the three strikes law, whether for a second strike offense or a third strike offense. Defendant argued the trial court erred by imposing a prior serious felony enhancement (Penal Code section 667, subd.(a)) to multiple determinate terms imposed under the three strikes law, as part of his stayed sentence under the one strike law. However, a prior serious felony enhancement must be applied to each term imposed under the three strikes law, whether for a second offense or a third strike offense.id: 23488
Enhancements for a defendant with one strike are not doubled.While the term of a defendant with one strike prior is doubled under the three strikes law, enhancements are added after the determination of the base term and are not doubled. The trial court erred in doubling both the criminal street gang and firearm use enhancements imposed on count three.id: 21359
For two strike defendants convicted of multiple offenses, the consecutive determinate term to be doubled ordinarily is one-third of the middle term.The three strikes law provides that, for defendants with one prior qualifying conviction, the determinate term shall be twice the term otherwise provided as punishment for the current felony conviction. For two strike defendants convicted of multiple offenses the determinate term to be doubled is one-third of the middle term.id: 15217
Gang enhancement's 15-year minimum term was subject to doubling under the three strikes law.Defendant, who had one strike prior, was convicted of attempted premeditated murder. The punishment for attempted premeditated murder is life imprisonment with the possibility of parole, which is an indeterminate term. The trial court erred when it attempted to comply with the sentence - doubling requirement of Penal Code section 667, subdivision (e)(1), by sentencing defendant to two life terms instead of one. Instead, it should have doubled the minimum term established by section 3046, which in this case was the 15 year minimum set by the criminal street gang provision of section 186.22, subdivision (b)(4).id: 15218
LWOP sentence must be doubled for defendant with a strike prior.Defendant was convicted of murder along with a special circumstance finding. It was also determined that she had a prior strike conviction. She argued the court erred in doubling her sentence of life without possibility of parole under the three strikes law. However, when the current offense is one for which the sentence would otherwise be life without possibility of parole, and the defendant has a strike prior, the term must be doubled.id: 15219
The three strikes law does not allow a defendant with three strikes to be awarded article 2.5 prison conduct credits for use against his mandatory indeterminate term of life imprisonment.A criminal defendant given an indeterminate sentence pursuant to the three strikes law is not statutorily authorized to earn any credit to reduce his or her term while serving that sentence. When the three strikes law addresses credits it refers to "credits award pursuant to article 2.5 of Chapter 7 of Title 1 of Part 3" which in turn, refers to Penal Code sections that affect determinate sentences only. Because defendant received an indeterminate sentence, no credit is authorized.id: 14815
Court did not err in doubling the subordinate terms of the second strike defendant since the doubled term under section 667, subdivision (e)(l) is not an enhancement.Defendant who had a prior conviction amounting to a strike pled guilty to four counts of forgery. He argued it was error to double the subordinate terms from one-third of the middle two-year term. He claimed that Penal Code section 667, subdivision (e)(l) sets forth an enhancement based on his prior conviction and that an enhancement for a prior can be used only once. However, the doubled term pursuant to section 667, subdivision (e)(l) is not an enhancement.id: 9420
Court did not err in failing to explain conduct credit limitations with three strikes defendant.A trial judge is not required to advise a defendant, upon his guilty plea, that the three strikes law limits his ability to earn conduct and work credits.id: 9421
Court did not err in using the first strike prior both to impose consecutive subordinate terms and to double those terms.Defendant who had a prior conviction amounting to a strike pled guilty to four counts of forgery. He argued the trial court could not use his prior conviction both to impose consecutive terms and to double those terms. However, once the determination was made that the offenses did not arise from the same set of operative facts, the court was required to use the first strike conviction as a predicate to double the subordinate terms and to impose them consecutively.id: 9422
Second strike defendant's subordinate term for the second count of robbery was correctly doubled to two years.Defendant pled guilty to two robberies and admitted two prior convictions, the second of which constituted a qualifying prior conviction under the three strikes law. He argued the sentencing court erred when it doubled his subordinate term for the second robbery from one to two years claiming that under Penal Code section 667, subdivision (e)(1) only the base term may be doubled. However, the statute clearly mandates that each count of a multiple count conviction will be sentenced independently under subdivision (e). For defendants with one qualifying conviction, the term otherwise provided for each count shall be doubled. Therefore, defendant's subordinate term for the second count of robbery, formerly one year (one-third the midterm), was correctly doubled to two years.id: 9423
Sentence of second strike defendant must be doubled and then enhanced by five years.Defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a), and subdivisions (b) through (i). The sentence of such a defendant must be doubled pursuant to the provisions of section 667, subdivision (3)(i), and also enhanced by five years pursuant to the provisions of section 667, subdivision (a).id: 9424
Three strikes initiative does not preempt 15 percent conduct or work time credit limit of section 2933.1.Defendant argued the trial court erred in limiting his precommitment conduct credit to 15 percent of his actual confinement time in county jail because the three strikes initiative preempted the 15 percent conduct credit limitation of Penal Code section 2933.1. However, the 20 percent post commitment limit on the accrual of credits under the three strikes law is inapposite to precommitment credits, i.e., credits awarded prior to commitment to prison. Moreover, the 20 percent credit limit of the three strikes initiative does not preempt the 15 percent work time credit limit of section 2933.1.id: 9427
Three strikes law is cumulative and the court should have doubled the indeterminate term of 15 years to life for the rape committed during the burglaryDefendant was convicted of burglary and rape with a finding the rape was committed during a residential burglary (Penal Code section 667.61, subdivision (b)). He also admitted that he suffered a prior conviction for attempted robbery in 1982. He received a term of 15 years to life for the rape under section 667.61, subdivision (b), plus five consecutive years for the 1982 prior, with a four year concurrent term for the burglary, for a term of 20 years to life. He argued the maximum sentence the court should have imposed was a determinate 16 year sentence under the three strikes law, not an indeterminate term of 15 years to life under section 667.61, subdivision (b). However, the statutes are cumulative , not alternative, and defendant should have been sentenced for the rape under both the three strikes law and section 667.61, subdivision (b), to a term of 30 years to life.id: 9429
Three strike defendant with a limit of one-fifth sentence credits is not similarly situated with a murderer sentenced under section 190.Defendant argued the limit of one-fifth sentence credits pursuant to Penal Code section 667, subdivision (c)(5) denies equal protection in that a recidivist murderer is entitled to more credits. However, the premise underlying his argument that all murderers must be sentenced under section 190 is doubtful in light of recent opinions. Moreover, a defendant sentenced to a four-year determinate sentence is not similarly situated with murderers who receive an indeterminate life sentence. Any credits defendant will receive will reduce his sentence. Any credits a murderer receives will be credited against his minimum parole eligibility date and will not necessarily result in an earlier release date.id: 9395
Three strikes law does not violate equal protection in its reduced award of conduct credits to recidivist offenders.Penal Code section 667, subdivision (c)(5), a provision of the three strikes law, does not violate equal protection in its reduced award of conduct credits to recidivist offenders. Defendant argued he would receive less credits for possession of a small amount of base cocaine (one-fifth of the total term) than a person who committed murder and earn up to one-third of his term pursuant to section 2931, subdivision (b). He also would receive fewer credits than a person who elected to go to trial and spend a longer period in county jail earning credits up to one-half of his term. However, defendant was similarly situated only to those persons who are recidivist felony offenders sentenced under the determinate sentencing law and the three strikes law.id: 9398
Three strikes provision limiting prison credits does not violate equal protection.Defendant was convicted of a drug offense and his sentence was doubled because of his qualification as a second strike offender. He argued the provisions of the three strikes statute limiting his ability to accrue prison credits (Penal Code section 667, subdivision (e)(5)) violated his right to equal protection of the law because, under section 190, recidivist murderers may be able to earn greater credits than he can. However, the court has recently held that recidivist murderers who qualify under section 667.7 must be sentenced under that section. Since all persons who qualify as second or third strike offenders will be sentenced under the statute and receive the same credits, defendant is treated like all persons similarly situated.id: 9405
Term to be doubled for second strike case includes subordinate terms.In sentencing defendant pursuant to the three strikes law the court doubled both the base term for the drug offense and the subordinate term for the theft offense. Defendant argued the court erred and that it should have doubled only the base term for the drug offense. However, pursuant to Penal Code section 667, subdivision (e)(1), the term to be doubled includes subordinate terms.id: 9416
"Total term of imprisonment" for purposes of the 80% rule under Three Strikes law includes the one year imposed for the prior prison term.Under the Three Strikes law (Penal Code section 667, subdivision (c)(5)) a recidivist prisoner cannot earn more than 20% of his total time of imprisonment in conduct credits, requiring him to serve at least 80% of his total sentence. The trial court did not err in stating that the 80% rule of section 667, subdivision (c)(5) would apply to defendant's one year prison prior enhancement since that enhancement was included within his total term, and no ex post facto or due process violation was shown by such application.id: 9417
"Twice the term" in second strike provision was not vague where defendant understood he would receive twice the middle term.Penal Code section 667, subdivision (e)(1) provides that for a defendant charged with a felony who has a prior felony conviction his sentence shall be twice the term otherwise provided. Defendant argued the phrase twice the term was constitutionally vague. However, it was not vague as applied where defense counsel stated at the plea proceeding that it was defendant's understanding that in pleading guilty he would receive twice the middle term in state prison.id: 9418
A second strike serious felon is subject to a five-year enhancement for the first offense in addition to doubling of the base term for the second offense.Defendant was convicted of burglary of an inhabited dwelling house (his second strike) and has a prior conviction for the same offense (his first strike). He argued the court erred in imposing a five-year enhancement for the first strike in addition to imposing twice the base term for the second strike. However, the three strikes law mandates imposition of the five year enhancement plus the doubled base term.id: 9419
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245