Penal Code 667.61 PC | One Strike Law in California

Penal Code 667.61 PC - One Strike Law in California

California Penal Code 667.61 PC is the statute allowing a life-in-prison sentence for a first-time offense for certain crimes, known as the “one strike" law.

This law applies to the most severe crimes, such as Penal Code 209(b) PC kidnapping to commit a sex offense. A conviction for a qualifying offense under PC 667.71 could result in a prison sentence of 15 or 25 years to life, depending on the crime and any aggravating circumstances.

Penal Code 667.61 PC - One Strike Law in California

PC 667.71 allows a life-in-prison sentence for certain sex offenses with aggravating factors.

Notably, a life sentence is possible even if the defendant has no prior criminal “strike” convictions. The one-strike crimes are severe and violent sex crimes that carry enhanced penalties because of the aggravating circumstances in which the crime was committed.

For example, suppose someone is charged with Penal Code 288 PC lewd and lascivious act on a minor under 14. In that case, they face a maximum punishment of up to eight years in state prison if convicted.

In contrast, suppose this defendant is convicted of kidnapping the minor to commit the PC 288 offense. In that case, they are now facing up to life in prison because the lewd acts on the minor under 14 combined with the aggravating circumstances of kidnapping qualify as a one-strike crime defined under Penal Code 667.61 PC.

In addition to the life prison sentence after being convicted of a PC 667.61 crime, other punishments could include fines, restitution, sex offender registration, protective order, parole, civil lawsuit, loss of gun rights, and negative immigration consequences.

For a defendant to face a life sentence under the California one-strike law, they must have done the following:

Committed a sex crime listed under PC 667.61(c).
Committed one or more of the circumstances under PC 667.61(d) or
Committed two or more circumstances in PC 661.61(e).

Most people are familiar with California's Three Strikes law for certain crimes. Under Penal Code 667 PC, the third conviction of a qualifying crime triggers an automatic sentencing enhancement of 25 years to life in prison.

What are the One Strike Crimes?

The sex crimes that carry life sentences for a first-time conviction under Penal Code 667.61(c) PC include the following:

Rape - Penal Code 261 PC. Sexual intercourse is accomplished against a person's will using force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the person or another.
Rape accomplished by threats – Penal Code 261(a)(6). Sexual intercourse against a victim's will by threatening to retaliate in the future against them or another person, and there is a reasonable possibility that the perpetrator will execute the threat.
Gang rape in concert – Penal Code 264.1 PC. Sexual intercourse against a victim's will in concert with another person, such as when two or more people work together to engage in non-consensual intercourse with a victim.
Forcible sodomy - Penal Code 286 PC. Anal intercourse, while voluntarily acting in concert with another, against a victim's will using force or fear of immediate and unlawful bodily injury to the victim or another person.
Lewd or lascivious acts with a child under 14 - Penal Code 288 PC. Unlawful touching of a minor on intimate parts for a sexual purpose using force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person.
Continuous sexual abuse of a child - Penal Code 288.5 PC. Requires three or more lewd acts or unlawful sexual touching for three months or more by a person who has regular access to a minor under 14 years old.
Forcible oral copulation - Penal Code 287 PC. Non-consensual contact between a person's mouth and another person's genitals or anus using force, violence, duress, menace, fear of immediate and unlawful bodily injury to someone, or a threat to retaliate against someone.
Forcible sexual penetration with a foreign object - Penal Code 289 PC. Penetrating the vagina or anus of a victim using a foreign object by use of force or fear without their consent.
Mayhem in sexual crime – Penal Code 205 and 206 PC. This means the injuries sustained by the victim were disabling or disfiguring.
Sex crime while committing burglary – Penal Code 460(a). This is committing a sex crime during a first-degree residential burglary of an inhabited dwelling house.
Great bodily injury during sex crime – Penal Code 12022.53 PC. Inflicting a great bodily injury on the victim or another person in the commission of the sexual offense.

Related California laws include Penal Code 12022.53 PC 10-20-life, the use a gun and you're done law, and Penal Code 186.22 PC, the gang sentencing enhancement law.

What are Aggravating Circumstances?

Penal Code 667.61 PC lists numerous aggravating factors that could trigger the enhanced sentence of life imprisonment for a sex crime.

For the district attorney to prove that the defendant committed a PC 667.61 crime, they must prove that at least one of the crimes listed above was committed and that an aggravating circumstance existed when the defendant committed it, including the following:

Prior conviction for one or more of the qualifying offenses. The defendant was previously convicted of an offense listed above, including in another jurisdiction that includes all elements of an offense (PC 667.61(d)(1)).
Kidnapping the victim when committing the crime. The defendant kidnapped the victim in violation of Penal Code 207, 209, 209.5 PC and moved them a substantial distance, which significantly increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense (PC 667.61(d)(2)).
Mayhem or torture of the victim during the commission of the crime. The defendant inflicted aggravated mayhem or torture in violation of Penal Code 205 or 206 PC on the victim or another person in the commission of the offense (PC 667.61(d)(3)).
Sex crime during a first-degree burglary. The defendant committed the offense during the commission of a first-degree residential burglary defined under Penal Code 460 PC with intent to commit an offense (PC 667.61(d)(4)).
Dangerous Weapon. The defendant used a dangerous or deadly weapon or a firearm in violation of Penal Code 12022 PC in the commission of the sex offense (PC 667.61(e)(3)).
Tying up the victim in the commission of the crime. The defendant engaged in the tying or binding of the victim or another person in the commission of the sex offense (PC 667.61(e)(5)).
Multiple victims. The defendant was convicted in the current case of committing a sex offense listed above against more than one victim (PC 667.61(e)(4)).
Administering a controlled substance to the victim (date rape drug). The defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75. (PC 667.61(e)(6)).
Causing serious bodily harm to the victim. The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53. (PC 667.61(d)(6)).
The victim was a minor under age 14 and suffered bodily harm. The defendant personally inflicted bodily harm on the victim, who was under 14 years of age (PC 667.61(d)(7)).

What is the Sentencing?

Under California's one-strike law, Penal Code 667.61 PC, you could face a sentence enhancement if any aggravating circumstances listed above occur. Depending on the specific circumstances of your case, your sentence could be extended by 15 or 25 years or life in state prison.

A sentence enhancement will be added to the original sentence you received for your underlying crime, depending on your actual conduct. For example, you could face 25 years to life in prison if you used force or fear to commit a sex crime. If you did not commit the act using force or fear, you face 15 years to life in prison. Other examples include the following:

Kidnapping a victim before sodomizing them will generate an automatic enhancement of 15 years to life in prison.
Raping a victim during a home burglary generates an automatic enhancement of 25 years to life in prison.
Committing sexual abuse of a child under 14 while tying them up and drugging them (2 factors) generates an automatic sentence of life in prison without parole.

Notably, PC 667.61 crimes have special limitations against concurrent, suspended, and probation sentencing and a judge's dismissal authority under Penal Code 1385 PC.

What are the Defenses Against Enhanced Penalties?

Since the penalties are severe for crimes that qualify for the one-strike law, your California sex crime lawyer must defend against the current crime question and against aggravating factors to avoid the automatic sentencing enhancement. Some of the common legal defenses include the following:

Insufficient evidence,
False allegation,
Mistake of law,
Coerced confession,
Illegal search and seizure,
Unqualifying crime.

Perhaps we can argue there is insufficient evidence to prove the underlying sex charges or the aggravating circumstances. The prosecution is required to prove several elements in your case for you to be found guilty of PC 667.61. We might be able to argue that the evidence presented by the prosecution is not sufficient for you to be found guilty.

Perhaps we can argue that you are the victim of false accusations by someone with a motive to lie. If you did not violate Penal Code 667.61 and were charged due to false accusations, we could show the court that the alleged victim falsely accused you by exposing weaknesses or inconsistencies in their testimony.

Perhaps we can argue that the alleged crime is not a one-strike offense. For example, not all sex crimes are covered by the one-strike rule, such as PC 261.5 statutory rape or PC 314 indecent exposure.

Perhaps we can argue that the aggravating factors are not supported by evidence. For example, suppose the defendant is accused of kidnapping the victim in the commission of a sex crime. Perhaps we can argue that the alleged victim voluntarily consented to be moved.

Perhaps we can mitigate an aggravating factor, such as alleged injuries to the victim were not serious. Maybe we can argue that you had a reasonable belief the alleged victim was an adult over 18, which could eliminate the enhancement.

Perhaps we can negotiate with the prosecution for lesser underlying charges or a case dismissal. We might convince the district attorney not to file formal criminal charges through prefiling negotiations. Contact us for a free case review. The Hedding Law Firm is based in Los Angeles, CA.

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