One Strike Law
Category > One Strike Law
Updated 3/7/202430 years-to-life for a defendant who briefly touched two young girls over their clothes was cruel or unusual punishment under the California Constitution.Defendant was convicted of committing six lewd acts - three counts each as to two children. The conduct involved brief touching over-the-clothes by a defendant who was remorseful and had no criminal history. His sentence of 30 years-to-life under the one strike law was cruel or unusual punishment under the California Constitution.id: 26379
Updated 3/4/2024The trial court violated defendant’s due process right to fair notice where it imposed 25 years-to-life terms under the One Strike Law but the prosecution had pled and proven the 15 years-to-life allegations.The information pled One Strike Law allegations that carried 15 years-to-life terms, but the trial court thereafter imposed 25 years-to-life sentences for those counts. Having pled and proven sentences of 15 years-to-life allegations, that was the only sentence available to the court under Penal Code section 667.61, and the imposition of the greater term violated defendant’s due process right to fair notice.id: 28128
Updated 2/29/2024Charging the 15 years-to-life One Strike provision and later seeking the 25 years-to-life sentence, which the court imposed, violated appellant’s right to due process.The prosecution charged defendant with sex offenses and alleged a circumstance under the One Strike Law that carried a term of 15 years-to-life. However, before sentencing the prosecutor filed a brief saying that under the One Strike Law issue in question the proper sentence was 25 years-to-life. The trial court ultimately imposed the term of 25 years-to-life. However, that sentence violated defendant’s right to due process because the information didn’t provide him with fair notice of the prosecutor’s election to seek that sentence, and that may have impacted the way he prepared his defense.id: 28204
Updated 2/22/2024The multiple victim circumstance described in the One Strike Law did not apply when the crimes against separate victims were prosecuted in separate trials.The multiple victim circumstance described in the One Strike Law (Penal Code section 667.6 (e)(4)) applies only when charges against multiple victims are tried in a single proceeding. It did not apply in a case where defendant was convicted of the offense involving a second victim in a prior separate case.id: 27066
Updated 2/4/2024The trial court erred by imposing a 25 years-to-life term under the One Strike Law where the prosection only proved one applicable circumstance.Defendant was convicted of multiple sex offenses and sentenced to serve multiple terms of life without parole as well as multiple life with parole terms. The trial court erred in imposing one of the life with parole terms (25 years-to-life) because the prosecution only proved one circumstance under section 667.61(e). On remand the court may impose sentence under section 667.61(a).id: 27629
Updated 2/3/202415 years-to-life one strike law sentence was upheld even though the prosecution discovered during the appeal that the case called for the mandatory application of a 25 years-to-life term.Defendant was charged with sex acts involving two children and so the prosecution alleged the one-strike law allegation. The charging documents alleged a 15 years-to-life term for the allegation, which was found true by the jury. The sentence imposed was later reversed and the case remanded for a resentencing. Defendant challenged the new sentence on appeal. During that appeal, the prosecution argued the applicable one strike law actually required 25 years-to-life rather than the 15 years-to-life term that was imposed. However, despite the mandatory language in the statute, application of the higher sentence at this time would have been unfair given the lack of motive.id: 27618
Updated 2/2/2024The evidence didn’t support the aggravated kidnap One Strike Law sentence which carried a 25 years-to-life term, but did support the simple kidnapping circumstance and the appellate court could reduce the term to 15 years-to-life.Where there is insufficient evidence of a circumstance supporting a 25-years-to-life term under the One Strike Law but sufficient evidence of a lesser included circumstance supporting a 15 years-to-life term, an appellate court may reduce the sentence to the lesser term.id: 27890
The trial court erred by sentencing defendant to 25 years-to-life terms under the One Strike Law provision that the prosecution failed to plead. The trial court erred by sentencing defendant under Penal Code section 667.61, subd. (j)(2) to 25 years-to-life terms where the prosecution had pled subdivisions (b) and (e) (mandating 15 years-to-life terms) and the jury found the allegations true under those specific subdivisions.id: 26193
The trial court erred by failing to instruct the jurors that the kidnapping qualifying circumstance for the one strike law requires an increased risk of harm.The trial court failed to properly instruct the jurors regarding the increased risk of harm element for the kidnapping qualifying circumstance under Penal Code section 667.61, subd(d)(2). The instruction given (CALCRIM No. 1215) did not require that the jury find that asportation substantially increased the risk of harm over that level of risk inherent in sex offenses. However, the error was harmless where the jurors otherwise impliedly found the movement of the victim increase the risk of harm to her.id: 25924
Defendant could not be punished for both kidnapping to commit rape and the kidnap provision of the one strike law based on the same act.Defendant was convicted of kidnapping the victim with the intent to commit a sex offenses under Penal Code section 209. The same act was also used to invoke the sentence under section 667.61. Because there was a common act with a single victim on the same day, the court was required to stay punishment on the kidnapping to commit rape count.id: 25925
The trial court erred when it imposed consecutive 10-year gang enhancements on the 10 counts carrying indeterminate life terms under the One Strike law.Defendant was given 100 years of gang enhancements to be served consecutively to two indeterminate terms of 15 years-to-life under Penal Code section 667.61, subd.(b), and eight indeterminate 25 years-to-life terms under section 667.61, subd.(a). However, the court erred by imposing separate 10-year gang enhancements on each of the 10 counts carrying indeterminate life terms. As to each such count, the court should have imposed a minimum parole eligibility term of 15 years.id: 25246
Defendant could not be punished under both sections 209, subd.(d) and 667.61 for the same act of kidnapping.Defendant’s act of kidnapping the victim to commit a sex offense constituted a violation of both Penal Code section 209, subd.(d), and section 667.61. However, section 209, subd.(d) prohibits punishment under both provisions for the same act. The court was required to stay punishment for the kidnapping to commit rape or oral copulation conviction.id: 24579
The one strike law instruction regarding the qualifying offense of kidnapping failed to properly explain the increased risk of harm element, but the jurors found there was an increased risk so the error was harmless. The trial court instructed on the kidnapping qualifying circumstance for the one strike law, Penal Code section 667.61, subd.(d)(2). However, the instruction given did not adequately explain the requirement regarding the substantial increase in the risk of harm element. The error was harmless where the jurors found the movement of the victim increased the risk of harm and the issue was uncontested.id: 24580
The one strike sentence was improper as to the forced oral copulation count where the prosecutor failed to plead any circumstance triggering application of the law on that count. The trial court erred by imposing a sentence of 25 years-to-life on the forcible oral copulation count, under the One Strike Law, because the prosecution did not as to that count plead any circumstance triggering application of Penal Code section 667.61 and never moved to amend the information to allege any such circumstance.id: 24342
The one strike law did not apply where defendant committed an offense after the charged offense.A defendant has been “previously convicted” for purposes of the one strike law (Penal Code section 667.61, subd.(d)(1)) if he had a prior conviction that preceded the currently charged offense. The law did not apply where defendant committed an offense after the currently charged offense.id: 23650
Attemped sex crimes are not listed in the one strike law and the court should have sentenced defendant on the attempted sodomy count using section 1170.1.Attempted sodomy is not an offense enumerated in the one strike law. The trial court therefore erred by imposing a full consecutive middle term for the offense, as it was obligated to determine the sentence in accordance with the sentencing scheme found in Penal Code section 1170.1.id: 22760
The trial court erred by using weapon use to enhance as well as invoke the one strike law.The trial court erred in imposing a three year enhancement for use of a deadly weapon where the court had already used that fact to invoke the one strike law. The trial court also erred by imposing a life term under count one for kidnaping during a carjacking as defendant’s one strike law sentence effectively relied on that offense. id: 22759
One strike law findings were reversed where the time period listed for the lewd acts included several months before the law’s effective date and the jurors were not asked to decide when the offenses occurred.Defendant was convicted of several counts of lewd acts on a child in violation of Penal Code section 288, subd.(a) which occurred between January 1994 and May 1996. The information also included a one strike law allegation as to each count because multiple victims were involved. The one strike law because effective in November of 1994. However, because the jurors were not asked to find when the offense took place, and part of the time alleged predated the effective date of the law, the one strike law findings were reversed. id: 22385
Application of one strike law to a conviction for continuous abuse of a child violated ex post facto provisions where section 288.5 was only recently determined to qualify for the law.Defendant was convicted of continuous sexual abuse against a child in violation of section 288.5, for conduct that occurred between June of 1991 and June 1995. A one strike law allegation was also found true. However, section 288.5 was only added as a qualifying offense under the one strike law in 2006. It’s application, therefore violated the state and federal ex post facto prohibitions. id: 22386
Double jeopardy prohibited the true finding on the multiple victim allegation after the second trial where the court refused to take the not true finding after the first trial.Defendant was charged with sex crimes against two victims along with the multiple victim one strike law allegation. The jury convicted defendant of the offenses regarding one of the victims but could not reach a verdict on the counts involving the second victim. The jury also found the multiple victim allegation to be true but this was due to a legal mistake and the court thereafter refused to accept the not true funding. He was then retried on the remaining counts and convicted and the jury found the multiple victim allegation to be true. Even though there was only one victim in the second trial, the jury could address the multiple victim allegation. However, double jeopardy prevented the true finding where the court refused to accept the not true finding at the first trial.id: 22261
Three rapes committed against the same victim in her apartment within an hour occurred during "a single occasion" for purposes of the one strike law.Three rapes all committed against the same victim within an hour and within her apartment occurred "during a single occasion" under the one strike law punishing forcible sex crimes, and thus only one one strike sentence could be imposed.id: 18892
The trial court erred by finding it had no discretion to consider concurrent sentences under the One Strike law.Defendant was convicted of four counts of lewd acts with children under Penal Code section 288, subd.(a), along with true findings on the One Strike law allegations. The acts involved more than one victim and were committed in the same course of conduct. The trial court erred when it stated it had no discretion to consider concurrent sentences under section 667.61. The case was remanded to allow the trial court to exercise its discretion to impose concurrent or consecutive sentences.id: 18587
One strike law does not apply to a violation of continuous sexual abuse under Penal Code section 288.5.California's "One Strike" law requires a sentence of 15 years to life for a person convicted of certain enumerated sex offenses under particular aggravating circumstances. The trial court erred in finding the law applied to defendant who was convicted of continuous sexual abuse under Penal Code section 288.5. That provision is not one of the enumerated offenses. Lewd conduct against a person under age 14 pursuant to section 288 is an enumerated offense and is one way of violating section 288.5. However, section 288.5 can also be violated by three acts of substantial sexual conduct, which is not the same as lewd and lascivious conduct. The one strike law did not apply to defendant's conviction under section 288.5.id: 14847
Gun use could not be used to impose both the One Strike and the section 12022.5, subd.(a) enhancement.he circumstance of gun use was not available to support the Penal Code section 12022.5, subd.(a) enhancement since the gun use had already been properly pled and proved as a basis for invoking the One Strike law. The prosecution argued the error was harmless because the trial court could substitute in the circumstance of multiple victims and thereby free up the gun use as a basis for imposing the additional section 12022.5, subd.(a) enhancement. However, because the multiple victim circumstance had never been pled, it could not be substituted in hindsight as a basis for the One Strike terms.id: 16727
While the court erred under section 667. 61 in using the three strikes law to double the term for the one strike sentence, the prior could be used to double the other determinate terms and to elevate the molest counts to felonies under section 647.6.Under Penal Code section 667.61, subd.(f), the trial court erred in using the same prior conviction to impose a 25 years-to-life term under the one strike law, and then double it under the three strikes law. However, the provision does not preclude the use of that prior to increase punishment for the remaining determinate counts under the three strikes law, to elevate the child molest counts to felonies (under section 647.6, subd.(c)(2)) and to impose a five year serious felony enhancement.id: 16692
The court may not use the three strikes law to double a 25 years-to-life one strike term under section 667.61, but it may double the term under the alternative section 667.71.Based on the limiting language of Penal Code section 667.61, subd.(f), the trial court erred in using defendant's prior conviction of lewd conduct under section 288(a) to both impose a 25 years-to-life term under the one strike law and to double the term under the three strikes law. While section 667.61 prohibits the doubling of the term under the three strikes law, section 667.71 does not. Both were alleged in the case so the matter was remanded leaving the trial court the choice of sentencing schemes. Moreover, the trial court may not stay under section 654 the "alternative sentence" that was not imposed. Rather, the trial court must strike the alternative penalty.id: 16691
Application of the one strike law to incidents which occurred before its effective date violated ex post facto prohibitions.The information charged four counts of sexual abuse against Dolores occurring between 1990 and 1993. Defendant was sentenced on forcible lewd conduct to 15 years-to life pursuant to the one strike law under Penal Code section 667.61, subd.(b). The one strike law became effective on November 30, 1994. Because the one strike law was adopted after the sexual abuse had occurred, applying it to the charges for that conduct violated the state and federal constitutional protection against ex post fact laws. However, application of the one strike law to the offenses committed against a second victim, Elizabeth, after the effective date of the provision, did not violate the ex post facto provisions, even though the earlier offenses against Dolores were used to create the multiple victim status which invoked the one strike law.id: 16955
The trial court erred in imposing determinate terms due to the presence of the One Strike law qualifying circumstance.Defendant was convicted of ten counts of forcible lewd acts on a minor (counts 2-11), along with finding of a prior conviction which subjected him to the provisions of the one strike law. The trial court sentenced him to 25 years-to-life on count 2 under Penal Code section 667.71, but imposed 16 year determinate terms for the remaining nine counts (the eight year upper term doubled under the three strike law). However, because the section 667.61 subd.(f) qualifying offense was present, the trial court was required to impose consecutive 25 years-to-life sentences on counts 3-11.id: 18478
One strike allegations under section 667.61, subds. (e)(1) and (d)(2) are mutually exclusive.The first jury hung on the issue of the one-strike allegation. Defendant was recharged with one-strike allegations under both Penal Code section 667.61, subds. (d)(2) and (e)(1). The former applies if the defendant kidnapped the victim and committed a sex offense but only if the kidnapping substantially increased the risk of harm. The latter applies to other kidnapping situations. The two provisions are mutually exclusive and if the prosecutor charges under both sections, a true finding under subdivision (e)(1) is precluded.id: 19540
The trial court had a sua sponte duty to instruct on the elements of the one strike circumstances.Defendant was convicted of multiple counts of robbery and several sex offenses. His sentence included four separate indeterminate terms of 25 years to life imposed under the one strike law - Penal Code section 667.61. The trial court erred in failing to instruct sua sponte on the elements of the one strike circumstances. However, some of the jury's findings on the one strike circumstances necessarily followed from its findings on other issues. To this extent there was either no error as the instructions on those issues were adequate to guide the jury in making its findings on the one strike circumstances, or else the error was harmless beyond a reasonable doubt because the jury necessarily resolved the factual question posed by the omitted instructions adversely to defendant under other, properly given instructions.id: 15390
The trial court had discretion under section 1385 to strike a triggering circumstance not utilized under the One Strike law.The One Strike law (Penal Code section 667.61) does not preclude the trial court from exercising its discretion at sentencing pursuant to section 1385 to strike sentencing factors that are alleged and proved under a separate sentencing provision but are additional to those necessary to find the defendant is subject to the One Strike law. One of the triggering circumstances not utilized under the One Strike law, personal infliction of great bodily injury, was used at sentencing to enhance the term by five years under section 12022.8. The court erred in finding it had no discretion to strike the additional punishment.id: 17925
Trial court erred in not instructing the jury as to the facts it must find for purposes of the special sentencing allegation under California's one strike law.Defendant was convicted of forcible rape and first degree burglary and sentenced on the rape conviction to 25 years to life under California's one strike law, Penal Code section 667.61. The trial court erred in not instructing the jury what facts it must find for purposes of the special sentencing allegation under section 667.61. However, the error was harmless. Even if the jurors had been asked to determine the point at which defendant formed the intent to commit forcible rape it is not reasonably probable they would have found the intent was formed after defendant entered the premises.id: 15392
The One Strike law sentence violated ex post facto principles because there was no proof that the molest offenses occurred after the effective date of the statute.The information charged 11 child molest counts based on conduct that occurred between 1992 and 1996. A defendant may be convicted of child molest based on generic testimony. Defendant was thereafter sentenced under the One Strike law which took effect in November of 1994. The prosecution's failure to prove the offenses occurred prior to the effective date of the statute rendered the One Strike sentence a violation of the ex post facto principles. Defendant was entitled to be sentenced under the previously applicable statutes even though no objection was raised in the trial court.id: 18908
Updated 3/6/2024The One Strike Law required five terms of 25 years-to-life for the defendant who was convicted of five molest counts against two girls under the age of 14.Defendant was convicted of molesting his two daughters who were both younger than 14 at the time. He was convicted of one count against one daughter and four counts against the other. He argued the “multiple victim” finding under the One Strike Law can only justify two terms of 15 years-to-life - one for each victim. However, five life terms were required. The court was required to impose five terms of 25 years-to-life (rather than 15 -to-life) although it had discretion to run three of those terms concurrently. The case was remanded for resentencing.id: 26590
Updated 2/26/2024The information gave defendant fair notice that he faced a sentence of 25 years-to-life under the One Strike Law.Defendant argued that his due process rights were violated because the trial court imposed a 25 years-to-life sentence under Penal Code section 667.61, subd. (J)(2), which was not specifically alleged in the information. However, the facts alleged in the information, as well as the 25 years-to-life exception under section 667.61, subd.(j) - which is specifically mentioned within section 667.61, subd.(b) - gave notice that he was subject to a 25 years-to-life sentence.id: 26384
Updated 2/22/2024Lewd acts on a child convictions are not exempt from the sentencing provisions of section 667.61, subd. (j)(2).In 2010, the One Strike Law was amended, by adding subdivision (j)(2) to Penal Code section 667.61, which increased the penalties imposed on codefendants who commit certain sex offenses against minors. Convictions for committing lewd acts on a child are not exempt from subdivision (j)(2).id: 27035
Updated 2/4/2024The pages of writing tablet were authenticated by their content and location in defendant’s house, and were admitted for the nonhearsay purpose of establishing a relationship between the defendants.The trial court did not err by admitting pages of the writing tablet containing drawings and a list of names. The writings were properly authenticated given their location in defendant’s residence, their content (referring to people murdered in the crime), and witness testimony that the drawings depicted the codefendant. The evidence was not hearsay since it was admitted for th nonhearsay purpose of identity -establishing a relationship between the defendants.id: 27286
Updated 2/4/2024Section 654 does not apply to the One Strike law.The trial court imposed consecutive One Strike law sentences for each sex-crime conviction committed against victime one. Defendant argued that because each sentence was based on the same act of kidnapping, Penal Code section 654 prohibited the imposition of multiple sentences. However, section 654 does not apply to one strike sentences.id: 27630
Updated 2/2/2024Apprendi and Alleyne, which prohibited judicial factfinding, do not apply to mandatory consecutive sentences under section 667.6(d).Penal Code section 667.6(d), in requiring that a sentencing court impose full, separate and consecutive terms for some sex offenses if it finds certain facts, complies with the Sixth Amendment. The rule of Apprendi v. New Jersey (2000) 530 U.S. 466, and Alleyne v. United States (2013) 570 U.S. 99, does not apply to section 667.6(d).id: 27878
Updated 2/1/2024The trial court had discretion to impose concurrent life terms under the one strike law for a defendant convicted of continuous sexual abuse of two family members.Defendant was convicted of two counts of continuous sexual abuse of a child—one for each of his step-granddaughters, and the trial court sentenced him to two consecutive life terms under the one strike law. However, the court had discretion under Penal Code section 667.61, subds. (c) and (i) to impose concurrent terms. The matter was remanded to allow the trial court to exercise that discretion.id: 27941
Defendant was not entitled to conduct credits for violations of the one strike law.Defendants given indeterminate terms under the one strike law are not entitled to any presentence conduct credits.id: 26150
Multiple life terms may be imposed under the One-Strike law based on the multiple victim circumstance. he trial court imposed four life terms under Penal Code section 667.61 for lewd acts committed against three victims. Contrary to defendant’s claim, that provision permits multiple life terms to be imposed based on the multiple-victim circumstance.id: 25952
Defendants given life terms under the one strike law are not entitled to presentence conduct credit. Penal Code section 667.61 was amended in 2006 to eliminate the existing section 667.61, subd. (j) and any reference to presentence conduct credits. Defendants given indeterminate terms under section 667.61 are not entitled to presentence conduct credits.id: 25923
The trial court did not err by imposing sentence under the One Strike law where the related circumstance was mistakenly pled as to count 8 rather than count 1.Defendant argued the trial court erred by sentencing him under the One Strike Law on count 1 because the information did not allege that he inflicted great bodily injury in committing the rape. The information alleged the One Strike circumstance as to count 8, but not as to count 1. He knew the sentence he faced and the reason he faced it. The trial court did not err by sentencing defendant under the One Strike law.id: 24699
Evidence supported the aggravated kidnapping circumstances under the One Strike Law where, after the sexual assault, defendant forced the victim into his car and drove to a liquor store.Defendant was convicted of forcible oral copulation along with an aggravated kidnapping circumstance under the One Strike Law - Penal Code section 667.61, subd.(d)(2). He argued there was insufficient evidence to support the aggravated kidnapping finding because the kidnapping did not occur until after the sex act was completed. However, evidence supported the allegation where, after the sexual assault, defendant forced the victim into his car, against her wishes, and drove her a few miles to a liquor store. Until arriving at the store her only chance to escape was to jump from the moving car.id: 24599
The trial court had no discretion under section 1385 to strike factual findings giving rise to defendant’s LWOP sentence under the One Strike Law.Defendant argued the trial court sentenced him to life without parole under Penal Code section 667.61, subd. (l) under the mistaken belief it had no discretion to impose a lesser sentence. However, the court did not misunderstand its discretion because the One Strike Law does not permit the court to exercise discretion under section 1385 to strike the factual findings giving rise to defendant’s LWOP sentence.id: 24614
Defendants given indeterminate terms under section 667.61 are not entitled to any presentence conduct credit. The 2006 amendment to Penal Code section 667.61, subd.(j) eliminated defendant’s eligibility for conduct credits.id: 24578
The one strike law provides for a life term for each offense regardless of the number of victims.Defendant was convicted of raping several victims. He was sentenced to 13 consecutive 15 years-to-life terms under the one strike law (Penal Code section 667.61) due to the fact that there were multiple victims. He argued he could only be sentenced to one life term per victim. However, the law provides for one consecutive life sentence per offense and the sentence was proper given that defendant committed 13 offenses against the five victims. The imposition of the multiple terms did not violate section 654 because the incidents were not part of a single course of conduct.id: 24217
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
Defendant was not twice placed in jeopardy with respect to the multiple victim “one strike” allegation where the jury indicated it was deadlocked on all charges involving the second victim. Convictions of specified sex offenses against more than one victim are an essential predicate to the jury’s authority to adjudicate the “One Strike” multiple victim allegation. Once the trial court determined that the first jury in this case had hopelessly deadlocked as to all of the charged offenses involving the second victim, it had no legal authority to adjudicate the multiple victim allegation. Therefore, any finding the jury purported to render as to the multiple victim allegation had no double jeopardy consequences, and defendant’s retrial on the allegation was not unconstitutional.id: 23149
Section 667.61, subd.(e)(1) does not require a finding that defendant kidnapped the victim intending to commit a sex offense in order to impose the indeterminate term. Defendant was sentenced to 15 years-to-life under the one strike law. He argued that to impose an indeterminate term under Penal Code section 667.61, subd. (b), the law required the jury to find he kidnapped the victim with the intent to rape her, and the trial court’s instruction erroneously did not require that finding. However, the plain language of section 667.61, subd.(e)(1) requires a finding only that the defendant kidnapped the victim of the sexual offense. id: 22898
Aggravated kidnapping does not require proof that movement substantially increased the risk of harm to the victim. Defendant was convicted of aggravated kidnapping and sexual assault, along with a finding under the one strike law that the victim was kidnapped. He argued the prosecution failed to prove his movement of the victim substantially increased the risk of harm. However, Penal Code section 209, subd.(b)(2) requires the prosecution to prove that the movement of the victim was more than incidental and increased the risk of harm. But it does not require proof the movement substantially increased the risk of harm. Here, evidence showed moving the victim away from the back of the garage to the front near a large tub of water was more than incidental and increased the risk of physical and psychological harm.id: 22867
The trial court erred in failing to sentence the defendant under an amended version of the one strike law that eliminated the provision that limited the sentence for offenses committed on a single occasion.Defendant was convicted of kidnapping during a carjacking as well as several sex offenses. The trial court erred in sentencing him under a former section of the one strike law (Penal Code section 667.61, subd.(a)) which limited the imposition of one strike terms on multiple sex offenses committed on a single occasion. Because the Legislature amended the one strike law to eliminate this provision before defendant’s offenses, the court was obligated to impose a one strike term on each of the defendant’s offenses eligible for sentencing under the one strike law.id: 22758
12 year-old’s pregnancy and giving birth supported the GBI allegation under the one-strike law, and the 15 years-to-life sentence was not cruel and unusual.Defendant, in his late 20's was living with the family of his 12 year-old cousin. Defendant had forced sex with his 12 year- old cousin, which resulted in pregnancy and her giving birth to a child. Defendant was convicted of lewd acts along with a finding of great bodily injury. Evidence supported the great bodily injury allegation as the forced pregnancy significantly exacerbated the injury even though it was not a particularly difficult pregnancy. Moreover, the 15 years-to-life sentence under the one strike law did not constitute cruel and unusual punishment.id: 22116
Failure to expressly plead defendant’s ineligibility for probation did not preclude his sentencing under the one strike law.Defendant argued the trial court could not sentence him under the one strike law because the prosecution failed to plead that he was not eligible for probation. However, the prosecution was not required to allege the absence of a factor, such as ineligibility for probation, that might lighten the defendant’s punishment. id: 22250
The trial court did not err by imposing multiple one strike sentences as to Jessica where the only aggravating circumstance was the multiple victim factor.Defendant argued it was impermissible to impose multiple one strike sentences for convictions as to Jessica where the only aggravating circumstance was the multiple victim factor under the applicable version of Penal Code section 667.61. However, additional life sentences were proper where the offenses against a single victim were committed on multiple occasions. The decision to impose consecutive or concurrent terms is left to the trial court. id: 22127
Evidence supported the finding that the stun gun qualified as a deadly weapon. Defendant used a stun gun during the rape of three victims and the finding of a deadly or dangerous weapon use led to life terms under the one strike law. Evidence supported the expert’s testimony that the stun gun qualified as a deadly or dangerous weapon.id: 22143
Because defendant’s one strike law sentence was premised on aggravated kidnapping, the trial court did not err by refusing to stay his sentence for simple kidnapping.Defendant was convicted of kidnapping and sodomy with a fixed term enhancement for aggravated kidnapping under the one strike law. The trial court did not err in refusing to stay defendant’s sentence for the simple kidnapping of the first victim because his sentence under the one strike law was premised on aggravated kidnapping for the commission of sex crimes, and not on simple kidnapping.id: 22135
For purposes of the strike allegation, the jury was not required to be unanimous as to which sex offense defendant intended to commit when he entered the victim’s home.Defendant argued the trial court erred by failing to require that the jurors unanimously agree on the elements triggering the life sentences under the One Strike Law, Penal Code section 667.61. The court instructed the jury on the option of finding defendant committed burglary with the intent to commit one or two sex offenses listed in section 667.61, subd.(c). However, the question whether defendant entered the victim’s house intending to commit rape or sodomy involved only the theory of how the burglary was committed and the jury was not required to agree that he entered with the intent to commit one or both of the sex offenses.id: 21319
There was no termination of jeopardy on the one-strike sentencing charge where the jury convicted on the underlying charge but deadlocked on the one-strike allegation. Defendant was convicted of committing a lewd act in count one, but the jury deadlocked on the one-strike allegation under Penal Code section 667.61, subd.(e)(1). A subsequent trial on the charge adding a second one strike allegation was not prohibited by double jeopardy. There was no termination of jeopardy on the one strike charge when the jury deadlocked and the trial court declared a mistrial. Hence retrial of that charge did not violate double jeopardy.id: 19539
The trial court did not err in staying rather than dismissing the sentence under the habitual sex offender law after imposing a term under the one strike law.Defendant was convicted of multiple sex offenses against two minors. He was sentenced to consecutive life terms under the one strike law which were tripled under the three strikes law. The trial court also sentenced him to life term under the habitual sex offender law - Penal Code section 667.71, subd.(b). He argued the trial court erred by staying rather than dismissing sentence under the habitual sex offender law which is an alternative sentencing scheme. However, when the two alternate schemes are implicated, the correct procedure is to impose a sentence under both but stay one of the sentences pursuant to Rule of Court 4.447 rather than dismiss or strike the true findings attendant to the stayed sentence.id: 20091
Blakely did not require a jury finding that defendant was ineligible for probation under the One Strike law.A jury convicted defendant of 30 counts of child molestation. It also sustained the allegation under Penal Code section 667.61, subd.(e)(5) that the offenses involved more than one victim. Defendant argued that Blakely v. Washington also required an explicit jury finding that he was ineligible for probation. However, because a defendant's eligibility for probation results in a reduction rather than an increase in the prescribed sentence, it is not subject to the rule of Blakely.id: 18467
One strike law was properly applied despite there being only a single victim in the October offense since the multiple victims from the September crimes could be used to establish multiple victims.Defendant argued the multiple victim provision was the only possible basis for the application of the one strike law under Penal Code section 667.61, and there was only a single victim on October 1. He claimed the court could not bootstrap offenses committed on September 3 against multiple victims onto the charges that arose from his crimes against a single victim on October 1. He argued that despite the use of the phrase "case or cases" in section 667.61, subd.(e)(5) the circumstance should be read as limited to situations where there were multiple victims of the offense or offenses for which the provision was being imposed. However, although there was only one victim on October 1, there were multiple victims of defendant's crimes and the offenses against each were tried together in the present case. The one strike law applied to all of the charged offenses.id: 17908
Defendant was properly sentenced under both the habitual sex offender law and the one strike law.Defendant argued the trial court, after sentencing him under the habitual sexual offender law (Penal Code section 667.71) had to strike the finding under the one strike law (section 667.61). People v. Snow (2003) 105 Cal.App.4th 271, supports this position. However, the court declined to follow Snow and held the one strike law finding must stand because 1) it is not inconsistent with sentencing under the habitual sex offender law, and 2) in the event the habitual sex offender law finding is subsequently invalidated, it facilitates sentencing under the one strike law.id: 17916
A prior conviction of the section 288, subd.(a) charge, as to which defendant qualified for probation, subjected him to sentencing under the One Strike law.Defendant argued that Penal Code section 667.61, subd.(c)(7) and (d)(1) should be construed as disallowing not only a present conviction of Penal Code section 288(a), as to which a defendant "qualifies" for probation under section 1203.066, subd.(c), but also as disallowing a prior conviction of section 288(a) as to which defendant qualified for probation. However, in light of the language of section 667.61, subds. (c)(7) and (d)(1), and the rationale underlying a grant of probation for certain first-time intrafamily sexual offenders, it is most reasonable to conclude that the Legislature intended that a defendant's prior conviction for violating section 288(a) should count as a qualifying prior conviction under the One Strike law, even if, as here, defendant qualified for probation as to that prior offense.id: 17364
Trial court may apply one strike and three strikes laws cumulatively.A court may apply the one strike and three strikes law cumulatively. Moreover, the court in the present case properly imposed a three strike sentence based on defendant's Penal Code section 288, subd.(a) conviction, and also properly used that conviction (along with another) to triple the term under the three strikes law. The court could also have imposed the term based upon the habitual offender law (section 667.71) and the three strikes law. However, the court was precluded from sentencing defendant under the one strike (section 667.61) and the habitual offender laws because those are alternative sentencing schemes.id: 17153
Option one of the three strikes law applies notwithstanding defendant's eligibility for sentencing under the one strike law.Defendant argued the trial court erred in concluding that option one of the three strikes law requires tripling of a minimum period of parole ineligibility where, absent the three strikes law, a defendant would receive an indeterminate term under another statute - here, the one strike law. However, option one of the three strikes law requires tripling of a minimum period of parole ineligibility to calculate the minimum term of the indeterminate life sentence. Moreover, the three strikes law applies notwithstanding the defendant's eligibility for sentencing under the one strike law. Finally, a prior conviction treated as a strike may also serve as the basis for referencing the one strike law in calculating the minimum term and for imposing a sentence enhancement under section 667, subd.(a).id: 16975
Defendant was not a "relative" of the child molest victims for purpose of one strike law (and avoidance of the life term) where he lived with the victims' grandmother.Defendant was convicted of sexually molesting the granddaughters of the woman with whom he lived for many years. Though he claimed a grandfatherly bond with the children, he had no blood, legal or residential connection with them. Defendant does not qualify as a "relative" of the victims for purposes of the one strike law, and thus may not avoid the mandatory 15 years-to-life prison sentence.id: 16962
Trial court had no discretion to strike the first degree burglary allegation for purposes of the one strike law.Following defendant's burglary and forcible rape convictions he was sentenced to 25 years to life under California's one strike law, Penal Code section 667.61. He argued the trial court erred in failing to exercise its discretion whether to strike the first degree burglary allegation for purposes of sentencing him under the one strike law. However, the trial court had no discretion to strike the allegation as the statute specifically provides it shall not be stricken.id: 15393
Under the "one strike" law, the trial court properly imposed two life sentences based on the multiple victim circumstance.Defendant was convicted of multiple sex offenses. The trial court made findings under Penal Code section 667.61, which required defendant be sentenced as a "one striker." As to the spousal rape count, the court determined there was more than one victim in the present case (section 667.61, subdivision (e)(5)), and that defendant tied or bound the victim (section 667.61, subdivision (e)(6)). As to one lewd count conviction, the court made another multiple victim finding. Consecutive terms of 25 years to life and 15 years to life, respectively, were imposed on these counts. Contrary to defendant's claim, the trial court did not err in imposing two life sentences based on the multiple victim circumstance under section 667.61, subdivision (e)(5).id: 15395
Under the one strike law commission of a sex offense during a burglary is within the statute if the business is closed when the sex offense is committed.Defendant argued the court's instruction on the one strike allegation failed to inform the jury that the commercial establishment had to be closed to the public when the burglary was committed. The special circumstance contained in Penal Code section 667.61, subd.(e)(2) requires that the sex offense be committed when the commercial establishment is closed to the public. Contrary to defendant's claim, the provision does not refer to the time of entry. The trial court properly instructed the jury.id: 15396
Failure to plead the multiple victim circumstance under the one strike law as to one count was harmless where defendant had adequate notice of the charges.Defendant argued the court misapplied Penal Code section 667.61, the one strike law, in sentencing him to 25 years to life on three oral copulation counts because one of the statutorily required circumstances, multiple victims, was not alleged and found true as required. He claimed the 25 years to life sentence based on the unpled multiple victim circumstance violated his right to notice and due process. Any error in failing to expressly plead the multiple victim circumstance and include it as a finding on the verdict form was harmless. Defendant had adequate notice of the charges against him and against which he had to defend.id: 15371
One strike aggravated kidnapping circumstance under Penal Code section 667.61 subdivisions (a), (c), (d)(2), does not require proof the defendant kidnapped the victim with the specific intent to commit a specified sex offense.Defendant argued the one strike aggravated kidnapping circumstance applies only if he kidnapped the victim with the intent to commit the sexual offense, and there was insufficient evidence of this specific intent. However, the one strike aggravated kidnapping circumstance does not require proof that the defendant kidnapped the victim with the preexisting specific intent to commit a specified sex offense.id: 15379
The one strike law allows multiple 25 years to life terms for offenses against multiple victims on multiple occasions.Defendant argued the trial court erroneously imposed multiple one strike terms (Penal Code section 667.61) of 25 years to life for offenses against multiple victims on multiple occasions. However, the one strike law allows multiple 25 years to life terms for offenses against multiple victims on multiple occasions.id: 15389
Forcible movement of the victim from the sidewalk to the park and behind a building was more than incidental to the sex offense for purposes of the one strike law.Kidnapping within the meaning of the one strike sex offender statute (Penal Code section 667.61, subd.(d)(a)) requires movement of the victim that is more than incidental to the underlying sex offense. The forcible movement of the victim from the sidewalk to the darkened park and behind a large building was properly found to be more than incidental to the sexual assault.id: 15349
Covering the eyes of the sexual assault victim with tape to prevent sight constitutes "tying or binding" the victim under the one strike law.For purposes of the one strike law, specifically Penal Code section 667.61, subds.(a)(c), and (e)(2)(6), it was alleged that defendant did, in the course of committing sodomy by force in violation of section 286, tie or bind his victim. The act of covering the eyes of the victim with tape so as to prevent sight constituted "tying or binding" the victim for the present purposes.id: 15363
Multiple sex offenses occurred on a "single occasion" for purposes of the one strike law if there was a close temporal and spatial proximity between offenses.Defendant was convicted of several forcible acts against a single victim. It was found that he committed the offenses on more than a "single occasion" for purposes of the one strike law (Penal Code section 667.61, subd.(g)) which provides for a single life sentence for any offense or offenses committed against a single victim during a single occasion. However, for purposes of section 667.61, subd.(g), sex offenses occurred on a "single occasion" if they were committed in close temporal and spatial proximity.id: 14846
The Habitual Offender Law authorizes a separate term of 25 years to life for each of the defendant's new convictions.A defendant with a qualifying prior conviction under the habitual sexual offender statute (Penal Code section 667.71) who sustains two new qualifying convictions in one proceeding may receive a separate 25 years to life term for each of the new convictions.id: 14849
The trial court had no discretion to strike the section 667.61 allegation where the defendant used a deadly weapon in the commission of a rape.A sentence of 15 years to life in prison is mandatory for rape accomplished by force or fear, in the commission of which the defendant uses a deadly or dangerous weapon. The trial court has no authority to strike the allegations under Penal Code section 667.61, which prescribes the enhanced sentence for this type of offense. It is not necessary that there be a specific reference to section 1385 to find a legislative intent to abrogate the statutorily-conferred discretion of the trial court to strike an enhancement allegation.id: 10004
25 years to life under section 667.61 for rape committed during a burglary was not cruel and unusual punishment.Defendant was convicted of burglarizing the victim's apartment and raping the victim in her bed. He was sentenced to 25 years to life under the provisions of California's first strike sentencing law as set forth in Penal Code section 667.61. The provision mandating life sentences for certain forcible rapes did not violate the state or federal prohibitions against cruel and unusual punishment. Moreover, there was no equal protection violation in that a simple rape would not have been subject to this punishment, since rape in the course of a burglary is a more serious crime.id: 9905
About Pat Ford
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