Why does a California sex charge carry 15 or 25 years to life?

A sentence of 15 or 25 years to life in a sex case often comes from Penal Code 667.61, the One Strike law. It applies only to listed offenses, like forcible rape or a lewd act on a child, and only if prosecutors charge and prove a listed circumstance, such as kidnapping, a weapon or more than one victim. The circumstances proved and the victim's age set the term.

Which sex offenses can carry a One Strike sentence?

Only the offenses listed in section 667.61(c) qualify:

• Rape by force, violence, duress, menace or fear of immediate and unlawful bodily injury, or by a threat of future retaliation, under Penal Code section 261(a)(2) or (a)(6), and rape under paragraph (1) or (4) of former section 262(a).
• Rape or sexual penetration in concert under section 264.1.
• A lewd act on a child under 14, in violation of section 288(a), and a lewd act by force, violence, duress, menace or fear under section 288(b), which covers a child under 14 and, when the offender is a caretaker, a dependent person.
• Sexual penetration by force or by a threat of future retaliation under section 289(a).
• Sodomy or oral copulation by force, by a threat of future retaliation, or while acting in concert, under specified subdivisions of section 286 and section 287.
• Continuous sexual abuse of a child under section 288.5.

An offense that is not on the list, such as sexual battery or unlawful sexual intercourse with a minor, cannot be sentenced under the One Strike law, however the facts are described. Without a proven One Strike allegation, a section 288(a) lewd act carries three, six or eight years in state prison, and rape under section 261 carries the same range under section 264(a), with higher ranges under section 264(c) when a forcible rape victim is a minor. When the allegation is proved, the life term replaces that range. A few child offenses carry life terms in their own statutes rather than through section 667.61: aggravated sexual assault of a child under Penal Code 269 carries 15 years to life, and Penal Code 288.7 sets 25 or 15 years to life for listed acts by an adult with a child 10 or younger. The firm's pages on rape charges under section 261 and child molestation under section 288 cover the underlying offenses.

What circumstances trigger 15 or 25 years to life?

The statute sorts the aggravating circumstances into two lists. One circumstance from the more serious list in subdivision (d), or two from the list in subdivision (e), supports the longer terms. A single circumstance from subdivision (e) supports the shorter one.

"Bodily harm" has a specific meaning here. Subdivision (k) defines it as a substantial physical injury resulting from force beyond the force needed to commit the offense itself, so ordinary contact that is part of the charged act does not qualify on its own.

The multiple-victim circumstance needs no weapon, injury or extra force. Under subdivision (e)(4), it applies when the defendant has been "convicted in the present case or cases" of a listed offense against more than one victim. A case with two complaining witnesses can therefore carry life terms even when each act alone would have carried a determinate range.

How the victim's age changes the term

The general rule covers adult victims, and it also covers a minor 14 or older when the offense is not one of the six listed in subdivision (n). Those six are forcible rape under section 261(a)(2), rape under former section 262(a)(1), rape or penetration in concert under section 264.1, forcible penetration under section 289(a)(1), and sodomy or oral copulation by force or in concert.

These terms reflect the current statute. The version in effect when the offense was committed generally controls, so an allegation about older conduct may carry a different term. Read the exact subdivisions cited in the charging document rather than assuming the highest figure applies.

The allegation has to be charged and proved

Under subdivision (o), the One Strike penalties apply only if a circumstance is "alleged in the accusatory pleading" and is either "admitted by the defendant in open court or found to be true by the trier of fact." Check the complaint or information for a section 667.61 allegation, which counts it is attached to, and which subdivisions it names. A circumstance that was never pleaded cannot be used to impose a One Strike term.

Once a circumstance is found true, the judge has very little room. Subdivision (g) says that, notwithstanding section 1385 or any other law, "the court shall not strike any allegation, admission, or finding" of a listed circumstance. Subdivision (h) provides that "probation shall not be granted" and that the sentence cannot be suspended. Because the usual tools for leniency are unavailable after a finding, the decisions that matter most tend to come earlier: which allegations are filed, and whether they are amended before trial or plea.

Multiple counts can mean consecutive life terms

The One Strike term attaches to each qualifying conviction, so a case with several counts can carry several life terms. Subdivision (i) requires a consecutive sentence for each One Strike conviction under paragraphs (1) through (7) of subdivision (c) when the crimes "involve separate victims or involve the same victim on separate occasions," using the definition of separate occasions in section 667.6(d). Paragraphs (8) and (9), the section 288(a) lewd act and section 288.5 continuous abuse, are not on that mandatory list, so subdivision (i) does not decide whether those terms run consecutively.

Cases built on several counts across different dates or different people also raise questions about which act each count describes and what the jury must agree on. See whether jurors must agree on the same act in a child-molestation trial.

What a One Strike sentence means for parole and registration

A term of 15 or 25 years to life is indeterminate. The minimum term is not a release date; it governs when the person becomes eligible for a parole suitability hearing, where the Board of Parole Hearings decides whether the person should be released. See what a parole eligibility date means and what happens at a suitability hearing. Life without the possibility of parole, the term in subdivisions (j)(1) and (l), is a different sentence that is not built around a minimum term.

Two other consequences sit in separate statutes. Penal Code section 3051(h), which governs youth offender parole hearings, says that section "shall not apply to cases in which sentencing occurs pursuant to" several sentencing laws, including section 667.61. And Penal Code section 290(d)(3)(C)(xvi) places any offense for which the person is sentenced to a life term under section 667.61 in tier three, and a tier three offender must register for life. Before any plea, confirm what registration the resulting conviction would carry; see checking registration before a sex-case plea.

Is the One Strike law the same as Three Strikes?

No. The Three Strikes law, in Penal Code section 1170.12 and section 667(b) through (i), increases punishment because of prior serious or violent felony convictions. The One Strike law looks at the current sex offense and how it was committed, so it can apply to a person with no record at all. A prior conviction for a listed sex offense is one of the subdivision (d) circumstances, and a single case can include allegations under both laws. If a prior strike is alleged as well, see how a prior strike allegation is proved.

For the underlying charges these allegations attach to, see the firm's sex crimes defense page.