California’s “Romero” Motion

A “Romero” motion asks the sentencing judge to dismiss (“strike”) a prior serious or violent felony allegation that would otherwise trigger California’s Three-Strikes sentencing scheme. The authority comes from Penal Code § 1385, which allows a court, “in furtherance of justice,” to dismiss an enhancement, allegation, or prior conviction before judgment is pronounced.

The California Supreme Court confirmed this power in People v. Superior Court (Romero), 13 Cal. 4th 497 (1996), holding that a judge may strike a prior “strike” even over prosecutorial objection, a crucial aspect of the Los Angeles criminal process that can significantly impact sentencing outcomes.

A single unresolved strike can:

• Double the base term for any new felony (§ 667 (e)(1); § 1170.12 (c)(1))
• Reduce pre-sentence and post-sentence conduct credit to 80 %
• Require consecutive sentencing for certain in-prison or new-strike crimes
• Prevent probation and many sentencing alternatives
• Convert an otherwise low-term offense into an indeterminate 25-years-to-life term if the client already has two strikes (§ 667 (e)(2))

In short, a properly presented Romero motion in California can mean the difference between a life-tail sentence and a proportionate, rehabilitative disposition.

• Subdivision (a): grants the court discretion to dismiss “in furtherance of justice.”
• Subdivision (c) (added in 2022 by SB 81): tells courts to give “great weight” to listed mitigating factors when deciding whether to dismiss most enhancements. Although SB 81 does not compel dismissal of prior strikes, its policy focus on proportionality often informs the Romero analysis.

• People v. Williams(1998) 17 Cal. 4th 148 clarified that the court must look to the defendant’s current offense, prior record, background, character, and prospects to decide whether they fall outside the “spirit” of the Three-Strikes law.
• People v. Carmony(2004) 33 Cal. 4th 367 emphasized that a trial court’s decision will be reversed only if it is “so irrational or arbitrary that no reasonable judge would have agreed.”
• People v. Dryden(2021) 60 Cal.App.5th 1007 reaffirmed that mere disagreement with the Three-Strikes scheme or docket congestion is not a lawful reason to strike.

• Pre-Trial: with a demurrer or motion to strike the information
• During Trial: after the verdict but before sentencing, particularly if the prosecution amends the complaint late
• Post-Trial: anytime up to judgment and, on resentencing, if the matter returns after appeal or Senate Bill resentencing

• Written notice to the court and prosecution
• Memorandum of points and authorities citing § 1385 and controlling case law
• Supporting evidence (certified priors, RAP sheet, school/work records, treatment records, declarations, mitigation packet)
• Proposed minute order language to ensure the strike is dismissed “in furtherance of justice” and that the abstract reflects the dismissal

• Temporal distance between the prior strike and the new offense
• Nature and seriousness of the current offense (violent vs. non-violent, victim impact)
• Facts from the previous conviction (e.g., single act vs. multiple victims, youthful indiscretion, no injuries)
• Defendant’s age and health (youthful offender or geriatric inmate concerns)
• Rehabilitation efforts such as sustained sobriety, education, employment, military or community service
• Mental health or trauma history that casts priors in a different light
• Collateral consequences (immigration hardships, family dependency, licensing loss)
• In public-safety evaluations, courts often ask: Will striking the strike put the community at risk?

If the defense does not admit the prior strike, the People must prove it at trial beyond a reasonable doubt. The CALCRIM 3100 series governs:

• CALCRIM 3100: When the prior is tried with the substantive charges (non-bifurcated)
• CALCRIM 3101: When the court bifurcates the trial, so the jury hears priors only after deciding guilt on the new offense

The instructions remind jurors that:

• They must decide identity, i.e., that the defendant is the person who suffered the conviction.
• Certified court records, prison packets, and fingerprint experts can establish the prior.
• If the jury does not unanimously find the prior true, it is deemed not proven and cannot be used for Three-Strikes sentencing.

• Second-Strike Exposure: Base term for the new felony is doubled—mandatory 80%-time calculation (20 % maximum conduct credit). Any additional enhancements (e.g., firearm, gang) are added consecutively.
• Third-Strike Exposure: Indeterminate term of 25 years-to-life. Every additional serious felony enhancement adds five years (§ 667 (a)(1)). No probation, state prison mandatory. Parole ineligibility until the minimum term (25 years) is fully served, plus 85 % credit limit for violent crimes.
• Collateral Restrictions: Limited access to re-entry programming. Higher restitution obligations. Impact on immigration, housing, and professional licensing.

• Tell the Life Story, Not Just the Rap Sheet—present mitigation in a narrative that shows growth, remorse, and prosocial conduct.
• Tie Every Fact Back to Williams Factors. Explicitly argue how the defendant is now outside the law’s punitive purpose.
• Quantify Rehabilitation. Certificates, transcripts, and treatment completion letters demonstrate tangible progress.
• Explain Proportionality. Compare the likely sentence without the strike and argue why a doubled or 25-to-life term would be grossly disproportionate.
• Address Public-Safety Concerns Head-On. Offer supervision plans, treatment slots, or alternative sentencing to satisfy community safety.
• Anticipate Prosecutorial Opposition. Rebut “violent recidivist” narratives with documented periods of law-abiding behavior, expert evaluations, and comparative case outcomes.

“Romero relief is automatic if the offense is minor.”

Courts continue to analyze the defendant’s entire record and consider the interests of justice.

“A judge can strike a strike for any reason.”

Discretion is broad but not unlimited; decisions that disregard statutory purposes are subject to reversal.

“SB 81 forces dismissal of strikes.”

SB 81 does not apply to prior strike allegations; the Romero framework controls.

Experienced counsel routinely secures:

• Vacating decades-old residential-burglary strikes for non-violent drug or theft cases
• Conversion of 25-to-life exposure to 32-month low-term doubled sentences
• Probation grants with intensive treatment instead of prison for mentally ill clients whose crimes stem from childhood trauma.

Crafting a persuasive Romero motion requires:

• Deep familiarity with the intricate overlap between Penal Code §§ 667, 1170.12, and 1385
• Mastery of evidentiary foundations for certified priors and mitigation exhibits
• Tactical judgment about timing, sometimes waiting until after a verdict, maximizes leverage
• Courtroom credibility that comes only from a track record of litigating strike cases

Judges often note on the record that compelling documentary mitigation and thoughtful briefing influence their discretionary calls.

If you or someone you love faces a new felony with a prior strike, early intervention is critical. At Kraut Law Group Criminal & DUI Lawyers, we understand that the nuances of Romero litigation can safeguard your liberty, career, and family life by convincing the court to exercise its discretion in the interests of justice.

Call (323) 464-6453 or use our secure online contact form for a confidential, 24-hour consultation. Your defense begins the moment you choose experienced counsel committed to protecting your freedom and future.