Can an out of state crime conviction be counted as a strike in California?
- December 26, 2013
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It is not easy to determine if a conviction from another state counts as a strike under California’s Three Strikes law. In California, a crime is a strike if it is a “serious felony” under California Penal Code 1192.7(c) and 1192.8(a) or a violent felony under California Penal Code Section 667.5(c).
The test to figure out is whether or not an out of state crime is a strike is to look at the “least adjudicated elements” of the out of state offense. To conduct the least adjudicated elements test, a lawyer needs to assess what the lowest offense punishable under statute is. After that, the lawyer must compare those elements to the same or closest California offense.
As a California criminal defense attorney, the action in out of state priors usually happens in robbery and burglary cases. In California all robberies are strikes (whether first or second degree) and first degree burglary (residential burglaries) are strikes. However, the elements of both of these offenses may be different in other states.
In California, to be convicted of robbery, one must intend to permanently deprive another person of property. This means take it forever, not intend to give it back at some point. California’s robbery statute (California Penal Code Section 211) also requires that the property be taken from the “person of another” or the person’s “immediate presence.” This means that to be convicted of robbery in California, one must actually take the property from someone personally or their immediate vicinity. In many other states, these two elements are not elements are not elements of a robbery.
As for burglary, in California first degree burglary requires the entering of an “inhabiting dwelling house” for the purpose of committing a felony (See California Penal Code Section 459-460. If a house has been abandoned or no one is currently living there, it’s not a burglary. But this is not true in other states. In other states, someone can be convicted of first degree burglary for entering any building, whether it’s inhabited or not. Another element that is unique to California’s burglary statute is the timing of the intent to commit to the felony. In California, one must form the intent to commit a felony at the time of or before entering the dwelling. In many other states the intent to commit the felony can be formed after entering the dwelling. Also in California, the burglary statute requires that the intended crime at or before entering be a felony. In other many other states, intent to commit any crime, even a misdemeanor, is sufficient for a burglary conviction.
Bottom line: If the prosecution is alleging a strike prior against you or a loved one because of an on out of state conviction, contact an experienced California criminal defense attorney to research the issue for you. You can contact The Law Offices of Jerod Gunsberg at (323) 633-3423 or by using this confidential contact form.