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Romero Motion

Review of a Romero Motion to Remove Prior Strike Convictions

The "Romero motion" is an important tool for defendants facing lengthy prison sentences under California's "Three Strikes" law. If successful, a Romero motion can lead to the removal of one or more prior strike convictions, resulting in a reduced sentence.

If you face a felony charge qualifying as a "strike" and already have two other strikes on your record, California law now affords an option for your defense attorney that may help you avoid getting the mandatory "25-to-life" sentence for a third strike.

Romero Motion to Remove Prior Strike Convictions
A Romeo motion is filed by the defense asking the court to remove a prior "strike" conviction.

A Romero motion is where a defendant asks the court to remove or “strike” a prior strike conviction so it won't be used as a sentencing enhancement. The three-strikes law is a harsh sentencing statute that could result in life prison sentences for anyone convicted of a felony crime when they have prior felony “strike” offenses.

The defense attorney could submit this motion during any part of a California criminal case, including the sentencing hearing. If the judge grants the motion, it could substantially reduce the length of a prison sentence.

This means that if you or a family member were charged with a second or third strike offense and facing a lengthy prison sentence due to the California three strikes law, we might be able to help you. 

The Romero motion applies in only certain situations, but when used skillfully, it can help avoid unusually harsh punishments or miscarriage of justice. Our Los Angeles criminal defense lawyers will review this topic further below.

Overview of the Romero Motion

In 1994, California enacted its "Three Strikes" law, first via Proposition 184, then codified by Penal Code 667 PC.

This law automatically imposes harsher penalties on defendants with three or more qualifying felony convictions, invoking a mandatory sentence of 25 years to life for the third "strike." The law has been criticized for leading to mass incarceration and disproportionately affecting people of color.

California Three Strikes Law

In 1996, the landmark California Supreme Court Case People v. Romero held that a trial court could dismiss a prior strike conviction if it finds that doing so would serve the interests of justice.

The case stemmed from how Jesus Romero was facing felony charges of cocaine possession after prior "strikes" for burglary and attempted burglary.

The presiding judge held that imposing a third strike for simple possession was an unjust punishment. Therefore, he offered to remove one of the strikes as a plea deal, citing his authority under Penal Code 1385 PC.

After the strike allegations were dismissed, Romero could avoid a life sentence but received six years due to prior prison sentences.

When the D.A. appealed the ruling, the California Supreme Court unanimously backed the trial judge's authority to remove a strike under Penal Code 1385, which states:

  • “The judge or magistrate may, either on motion of the court, in furtherance of justice, order an action to be dismissed which shall be stated orally on the record. The court shall list the reasons in an order entered upon the minutes if requested or if the proceedings are not recorded electronically or by a court reporter. A dismissal will not be made for any cause that would be ground of demurrer to the accusatory pleading.”

In related cases since that time, the Romero motion now represents an official request for the judge to remove a strike from the defendant's record in the furtherance of justice.

What Are the Conditions for Granting a Romero Motion?

So what exactly does the court consider when deciding whether to grant a Romero motion? While there is no bright-line rule, the court will typically look at several factors case-by-case. These may include:

  • The nature and seriousness of the current offense;
  • The prior convictions being used as "strikes;"
  • The defendant's criminal history, overall character, and life circumstances;
  • The extent to which a lengthy prison sentence would serve the interests of justice or protect public safety;

A subsequent court case, People v. Williams, further clarified the guidelines by which it is appropriate for the judge to grant a Romeo motion. These include the following conditions:

  • The judge must reasonably believe that enforcing the "three strikes" rule would constitute "cruel and unusual punishment" and would not serve the interest of justice.
  • The judge must not grant the motion if doing so would pose an unreasonable risk to public safety.
  • The judge mustn't grant the motion based on factors such as court convenience or case congestion. (I.e., there must be a reason material to the case at hand).
  • The judge mustn't grant the motion solely based on a guilty plea. This effectively reduces the impact of using the Romeo motion purely as a "bargaining chip" for plea bargains. While the judge in the initial case of State v. Romeo did remove a strike as part of a plea deal, he also used the rationale that three strikes would have been a miscarriage of justice for the defendant.
  • The granting of the motion must not be an "abuse of judicial discretion." In other words, there must be a valid and reasonable legal reason for granting it.

Does Removal of a Strike Also Strike the Conviction from My Record?

No, it doesn't. If the court grants your Romero motion and removes a strike, that does not erase the conviction from your criminal record.

California Romero Motion
If the Romero motion is granted, it does not remove the conviction from your criminal history.

The conviction will still appear in background checks and can still be used against you if you commit another crime in the future. However, without the "strike" designation on one or more prior offenses, the judge has the latitude to impose more lenient sentencing on subsequent convictions.

If a trial judge decides to dismiss a strike allegation, they must list their reason for the dismissal in the minutes of the court proceeding.  Thus, the judge has to state their reasons in open court for the court reporter to create a transcript.

This way, if the case is appealed, the appellate court will understand why the trial judge made the decision it did and assess whether the judge abused its discretion.

If you or a family member has a criminal case involving a Romero motion and needs more information, contact our law firm to review the details.

Eisner Gorin LLP is a top-rated criminal defense law firm in Los Angeles County. You can reach us for an initial ca review by calling (310) 328-3776 or filling out the contact form.

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