Report on Mandatory Sentences - Law Reform Commission

(ii)
California
5.45 Section 667 75 of the Penal Code provides that in sentencing an offender who has one prior
conviction for a violent felony 76 or a serious felony, 77 for any subsequent felony, a court must impose a
term of imprisonment which is at least twice the term already provided as punishment for the current
felony. 78 Such an offender must complete at least 80% of his or her sentence before being eligible for
release 79 or 85% of his or her sentence where convicted of a violent felony. 80
5.46 In its original form, section 667 also required that an offender with two or more violent and/or
serious felony convictions, who was subsequently convicted of any felony offence, receive an
indeterminate life sentence with a minimum term calculated to be the greater of: (i) three times the term
otherwise provided for the current felony conviction; (ii) 25 years; or (iii) the term provided for the current
charge plus any applicable sentence enhancements. 81 The fact that non-violent and/or non-serious
felony convictions were sufficient to trigger these enhanced penalties, led to controversial sentencing
outcomes 82 and contributed to a widespread perception of the Californian ‘three-strikes’ model as the
most severe in the United States. 83
5.47 On 6 November 2012, California chose to modify this particularly contentious aspect of its
‘three-strikes’ regime. By a margin of 68.6 percent to 31.4 percent, voters approved Proposition 36 which
amended the ‘three-strikes’ law so that, ordinarily, an offender with two or more violent and/or serious
felony convictions will attract a sentence of twice the term provided as punishment for any subsequent
felony of which he or she is convicted. 84 In order to trigger an indeterminate life sentence, an offender
must now be convicted of a serious and/or violent felony and have two prior convictions for serious and/or
violent felonies. Alternatively, any felony conviction may still attract an indeterminate life sentence where
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This sentencing regime is also provided for by section 1170.12 of the Penal Code. The latter contains a nearly
identical version of the ‘strike law’ enacted by the legislature, and was enacted by voters under Proposition
184 on 8 November 1994.
For the purposes of this regime, more than 23 “violent felonies” are listed in section 667.5(c) of the Penal
Code.
For the purposes of this regime, more than 40 “serious felonies” are listed in section 1192.7(c) of the Penal
Code.
Section 667(e)(1) of the Penal Code.
Section 667(c)(5) of the Penal Code.
Section 2933.1 of the Penal Code.
Section 667(e)(2A) of the Penal Code.
See, for example: Lockyer v Andrade 583 US 63 (2003) in which the United States Supreme Court upheld a
sentence of 50 years’ imprisonment , imposed for a third strike offence which consisted of the theft of five
children’s video tapes. For critical commentary, see: Chemerinsky “Cruel and Unusual: The Story of Leandro
Andrade” (2003-2004) 52(1) Drake Law Review 1; Grosskreutz “Strike Three: Even Though California’s Three
Strikes Law Strikes out Andrade, There are no Winners in this Game” (2003-2004) 43 Washburn Law Journal
429; and Trevino “Andrade v Attorney General of California: Gross Disproportionality in Sentencing - A
Standard for Reviewing Eighth Amendment Challenges on Cruel and Unusual Punishments” (2004) 29(1)
Oklahoma City University Law Review 463.
See, for example: Goldin “California Three Strikes Law: A Violation of International Law and a Possible
Impediment to Extradition” (2009) 15(2) Southwestern Journal of International Law 327 at 330; Samaha
Criminal Law (Cengage Learning, 2010) at 67; and Mackey and Levan Crime Prevention (Jones and Bartlett
Publishers, 2011) at 240.
Sankin “California Prop 36, Measure Reforming State’s Three Strikes law Approved by Wide Majority of
Voters” 7 November 2012. Available at: www.huffingtonpost.com/2012/11/07/california-prop-
36_n_2089179.html [Last accessed: 22 May 2013].
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