How Romero Motions Are Used To Remove Strikes

A Romero motion is brought by a criminal defendant who had been given a “strike” in a prior conviction pursuant to California’s Three-Strikes law to request that the prosecution not use the prior strike in sentencing.

Overview

According to the court in People v. Romero, a judge may remove a strike or both strikes from being used in a defendant’s sentence if circumstances warrant it and it is in the “furtherance of justice.”

The trial court in the Romero case cited Penal Code 1385 that allows a judge to dismiss actions in the interests of justice so long as the dismissal is not an abuse of discretion¹.

A PC 1385 motion can be made by the judge or prosecutor. A defense attorney can, of course, ask that the court consider dismissing a strike.

Serious Violent Felony

Any serious violent felony is usually considered a “strike,”²although minor offenses could be as well. A “strike” has severe consequences for a defendant since if the defendant is convicted of another felony, his or her sentence is doubled. A third strike means a sentence of 25 years to life.

If the court does dismiss the strike³, the defendant is sentenced as if that strike or conviction never occurred for sentencing purposes. The defense attorney can also ask the court for an indicated sentence, or what the court is likely to impose.

However, if the defendant should be convicted of another felony, that prior conviction can be used to enhance the defendant’s sentence if convicted.

When is a Romero Motion Typically Filed?

A defense attorney will typically file a Romero motion if the defendant has been charged with a serious, violent felony or even a minor one if the defendant has prior strikes and faces an enhanced sentence if convicted.

The motion is typically filed after the preliminary hearing in which the court has at least found probable cause to believe a crime has been committed and that the defendant committed it.

However, a Romero motion can also be filed at any time during the criminal proceeding, whether after the preliminary hearing and before the trial or after the trial so long as it is done before or at the sentencing.

What are the Factors a Judge Will Consider When Ruling on the Motion?

The Romero court ruled that in considering a motion to dismiss a strike that it “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony conviction, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [spirit of the three strikes law] scheme…in whole or in part, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies.”

Thus, there are numerous factors that a defense attorney can cite to demonstrate that that the defendant may be deemed outside the spirit of the three strikes law. These include:

• That the current offense is not a violent felony
• The age of the defendant when the prior crimes were convicted
• Number of years since the prior offenses were committed
• Whether the current offense is minor or indicated no criminal sophistication
• That the punishment would be disproportionate to the seriousness of the current charge
• The defendant has no criminal history of violence
• The defendant has a long history of substance abuse that led to his prior convictions
• The defendant’s role in the current offense was minor
• If the prior convictions stemmed from a single incident
• If a violent crime, the severity of the injuries suffered by the victim
• Whether the defendant served one or multiple prison sentences for the prior strikes
• The Defendant has demonstrated remorse and/or has cooperated with law enforcement
• The defendant does not pose a danger to the community
• The defendant has good prospects for the future
• The defendant has shown an ability and willingness to rehabilitate him or herself
• The defendant is suffering from a mental condition that reduces culpability for the crime

Limitations on Judicial Discretion

There are limits imposed on the court when deciding a Romero motion.

It would seem that proper discretion would likely be exercised and survive an appeal from the prosecution or defendant if the court noted any of the factors that would tend to support or not support the motion and described his/her reasoning in open court.

Another case, People v. Williams, described certain rules or guidelines for judges to follow in ruling on a Romero motion⁴.

• Balancing the right of a defendant to be free from cruel and unusual punishment and society’s interest in pursuing criminals
• To make rulings as a reasonable judge would do
• To not consider court convenience as a factor
• To not consider that the defendant agreed to plead guilty
• To not consider the effect of the law on a defendant or the harshness of the result and ignore or minimize the defendant’s background, the circumstances of the offense and other individual considerations
• In considering if the defendant is outside the scheme or spirit of the three strikes law, the judge should examine the defendant’s character,

For a defendant who has a number of violent felonies and also misdemeanors that reveal a continuing indifference to public safety or lack of judgment over time, a judge would likely be abusing his/her discretion in granting a Romero motion.

Frequently Asked Questions

1. People v. Romero, 13 Cal.4th 497, 504 (1996). [↩]
2. California Penal Codee 1192.7 [↩]
3. California Penal Code Section 1385 [↩]
4. People v. Williams (1998) 17 Cal.4th 148 , 69 Cal.Rptr.2d 917; 948 P.2d 429 [↩]
5. People v. Fuhrman (1997) 16 Cal.4th 930 , 67 Cal.Rptr.2d 1; 941 P.2d 1189 [↩]
6. People v. Garcia (1999) 20 Cal.4th 490 , 85 Cal.Rptr.2d 280; 976 P.2d 831 [↩]