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.
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.
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.
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.
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
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.
- 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.
Can you appeal a Romero motion that was denied?
Yes, you may appeal a denied Romero motion. The appellate court will only decide if the record “affirmatively discloses that the trial court misunderstood the scope of its discretion.”1. If the trial court failed to express that it had considered but rejected the factors brought up by the defendant and merely ruled there was no “good cause” to grant the motion, then you may be able to get the appeals court to remand the case back to the trial court.
Another basis of appeal is that the sentence is so disproportionate to the offense that it constitutes cruel and unusual punishment.
Are juvenile strikes counted as priors?
Yes, prior juvenile convictions can affect you as an adult. Juvenile records are sealed when you reach adulthood and are not accessible to the general public. However, law enforcement and the courts do have access and they can be used to enhance an adult sentence. To count as a strike, the prosecution needs to demonstrate:
- You were at least 16 years of age when the offense was committed
- The offense is considered a serious or violent felony under PC 1192.7 or 667.5
- You were deemed a fit and proper subject to be dealt with under juvenile law
- You were deemed a ward of the court because your offense was under section 707 of the Welfare and Institutions Code (murder, arson, rape, robbery, forced oral copulation, aggravated kidnapping, sodomy by force, assault with a firearm, aggravated mayhem and others)
Are out of state offenses counted as priors?
Yes, an out of state offense may be counted as a prior if it would have been under California law. For example, if a felony involving great bodily harm in another state is the same or synonymous with the definition found under California law, then it may be counted.
What happens if you win the Romero Motion?
If the motion is granted, then one or more of the prior convictions are no longer designated as strikes1. This may also remove the strike designation from the current charge. This can open the door for the possibility of probation if you enter a guilty plea to the current charge or even if found guilty by a jury.
If you still have a strike, your sentence will be twice the term for the new conviction. If you have no priors, then your sentence is as stated in the code section, though you have a good chance for probation in some cases unless probation is not an option for that particular offense.
Can you file multiple Romero Motions for different counts?
A Romero Motion is a request to have a prior conviction that was designated as a strike to be treated as a non-strike so that any sentence imposed for your current offense is not enhanced. If you have multiple counts in a criminal complaint or indictment, your attorney could file a separate motion for each count if a particular count did not arise out of the same set of circumstances or operative facts as the others. This would remove the strike designation for that count.
Can you expunge a strike in California?
You can expunge a felony conviction in California provided you did not serve any time in state prison. An expungement, means that your conviction record is not accessible to the public such as employers or landlords. However, it can still be used to enhance your sentence if you commit another felony offense. In most cases, a conviction that was deemed a “strike” will have included state prison time so that it could not be expunged. If not, then it could be expunged if other criteria is met.