The Five Year Prior in Three Strikes Cases: California’s Hidden Sentencing Danger

Jerod Gunsberg, Los Angeles Criminal Defense Lawyer

One of the harshest elements of California criminal law is the use of prior convictions for sentencing enhancement in future cases. The toughest example of this is what’s commonly known as the “nickel prior.” Here how it works.

Under California Penal Code Section 667(a), if a defendant is convicted of a class of felonies known as serious or violent felonies (or both), then any subsequent conviction is automatically enhanced by 5 years in state prison in addition to whatever additional term is imposed. Let’s unpack this.

Suppose that Mr. Defendant was convicted of first degree residential burglary fifteen years ago. 15 years later, he is charged with another residential burglary. The base term for residential burglary is two years. Because he has a prior strike, the base term would be doubled. That means he would have a principal term of 4 years for the offense. However, because he has the strike prior, he would be looking at 9 years in prison.

Even harsher, the judge has no discretion to strike the enhancement. Even if the judge grants a defense Romero motion to strike the strike priors, she still cannot strike the nickel prior. Tough stuff, right? It is.

Here are some important things to know. If a judge grants a Romero motion to strike the strike priors, and the current offense is not a mandatory state prison case, then the judge CAN grant a form of probation. However, this will likely be Execution of Sentence Suspended (commonly known as “joint suspension”). This means that the judge will impose a sentence but not execute the sentence. So using our example, say Mr. Defendant is put on probation for 5 years with 9 years suspended. That means that if he violates probation, the judge can simply send him to prison for 9 years. So it’s not like the nickel prior goes away, it’s still hanging over the defendant’s head for the term of probation.

Look, this can be confusing. I’m happy to explain this in greater detail. If you or a loved one is facing a serious or violent felony charge under California’s Three Strikes law and prior enhancements are being used to impose more prison time, give me a call so we can discuss some options. Know what charges you are up against. I provide a confidential consultation. I can be reached at (323) 633-3423 or via the secure contact form on this page.

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