A Romero motion is a request asking a California judge to dismiss, or “strike,” a prior serious or violent felony conviction so it no longer counts under the state’s Three Strikes law. The name comes from the 1996 California Supreme Court case People v. Superior Court (Romero), which established that judges have the independent authority to do this. For defendants facing dramatically longer prison sentences because of prior convictions, a successful Romero motion can mean the difference between a few years behind bars and 25 years to life.
How the Three Strikes Law Creates the Problem
California’s Three Strikes law, enacted in 1994, imposes increasingly severe sentences on people with prior serious or violent felony convictions. A second “strike” doubles the normal sentence. A third strike triggers a mandatory sentence of 25 years to life in prison, regardless of how minor the new offense is.
The consequences can be extreme. Consider a person with two prior convictions for assault on a police officer and residential burglary. If they’re later convicted of receiving stolen property, a nonviolent, nonserious felony, they’d normally face about two years in prison. Under Three Strikes, that same offense carries a life sentence. The Romero motion exists to give judges a way to prevent outcomes like this when the mandatory sentence would be grossly disproportionate.
What the 1996 Romero Decision Established
Before the Romero ruling, prosecutors argued that Three Strikes cases were off-limits to judicial discretion. If a defendant had the prior convictions, the enhanced sentence was automatic, and only the district attorney could move to dismiss a strike. The California Supreme Court rejected that position.
The court held that California Penal Code section 1385(a), which allows a judge to dismiss criminal allegations “in furtherance of justice,” applies to Three Strikes cases. The ruling drew on an earlier precedent establishing that “the ultimate decision whether to dismiss is a judicial, rather than a prosecutorial or executive, function” and that requiring a prosecutor’s consent to dispose of a charge “unacceptably compromises judicial independence.” In other words, judges don’t need the district attorney’s permission. They can strike a prior conviction on their own initiative or in response to a defense motion.
What Judges Consider
A Romero motion isn’t a guaranteed path to a lighter sentence. The court’s discretion is limited and subject to review. The central question is whether the defendant falls outside the spirit of the Three Strikes law, meaning whether they should be treated as though they don’t have the prior convictions, given the full picture of who they are and what they’ve done.
Judges typically weigh several factors:
- Nature of the prior strikes. How serious were the earlier offenses? Were they violent? How long ago did they occur?
- The current charge. Is the new offense nonviolent or nonserious? A minor property crime weighs differently than an armed robbery.
- The defendant’s background and character. This includes rehabilitation efforts, employment history, family ties, age, and overall trajectory since the prior convictions.
- Proportionality. Would the Three Strikes sentence be disproportionately harsh relative to the person’s actual criminal history and level of culpability?
The judge must state the reasons for the decision on the record. If the motion is granted and a strike is dismissed, the court enters a written order explaining why. This transparency requirement protects against arbitrary decisions in either direction.
When a Romero Motion Is Filed
A Romero motion is generally filed after the preliminary hearing, once the court has determined there’s enough evidence that a crime was committed and the defendant was involved. However, it can technically be submitted at any stage of the case: before sentencing, after trial, or during the sentencing hearing itself. Defense attorneys often time the motion strategically, gathering evidence of rehabilitation or changed circumstances to present the strongest possible case for the judge’s consideration.
How It Changes a Sentence
The practical impact of a successful Romero motion can be enormous. If a judge strikes one prior conviction in a third-strike case, the defendant is sentenced as a second-striker instead, which means a doubled sentence rather than 25 years to life. If both prior strikes are dismissed, the defendant is sentenced under normal guidelines for the current offense alone.
Surveys of California district attorneys suggest that prior strikes are dismissed in roughly 25 to 45 percent of third-strike cases, resulting in significantly shorter sentences for those defendants. That range varies widely by county and by the specifics of each case, but it indicates that Romero motions are a meaningful part of how Three Strikes actually operates in practice.
The Prosecution’s Role
District attorneys almost always oppose Romero motions, and they have standing to argue against dismissal in court. Prosecutors typically emphasize the seriousness of the prior convictions, any pattern of escalating criminal behavior, the defendant’s failure to reform despite prior sentences, and the public safety rationale behind the Three Strikes law. A prosecutor might point to a defendant’s full criminal record, including arrests and convictions that don’t qualify as strikes, to argue that the person represents an ongoing risk.
The judge isn’t required to agree with the prosecution, but the prosecutor’s arguments carry weight. A strong opposition brief can make it difficult for the defense to demonstrate that the defendant truly falls outside the spirit of the law.
What Happens if the Motion Is Denied
If a judge denies the Romero motion, the defendant is sentenced under the full Three Strikes framework. The denial can be appealed, but appellate courts apply a deferential standard of review. They won’t substitute their own judgment for the trial judge’s. Instead, they look at whether the judge abused their discretion, meaning whether the decision was so unreasonable that no rational judge could have reached it. This is a high bar to clear, and most denials are upheld on appeal.
If a judge grants the motion over the prosecutor’s objection, the prosecution can also appeal. The same standard applies: the appellate court reviews whether the trial judge’s reasoning was sound and supported by the record.
Recent Changes to Section 1385
California has amended Penal Code section 1385 in recent years to expand judicial discretion further. Current law states that a court “shall dismiss an enhancement if it is in the furtherance of justice to do so,” using stronger language than the original statute. This shift reflects an ongoing legislative effort to give judges more room to tailor sentences to individual circumstances, particularly in cases where mandatory enhancements would produce outcomes that serve neither the defendant nor public safety. These changes apply alongside the Romero framework and give defense attorneys additional tools when arguing for reduced sentences in Three Strikes cases.