When California's highest court issued the much-anticipated People v. Romero decision in 1996, it did more than add just another opinion to the books. It returned to defendants a measure of hope taken away two years earlier when voters passed the excessively punitive "three strikes and you're out" law.
The Romero decision confirmed that in an appropriate case - in furtherance of justice - the judge can "strike" past strike allegations and sentence the defendant to less time in prison.
If your loved one has been charged with a second or third strike offense and faces an undeservedly long prison sentence, our California Three Strikes Defense Lawyers might be able to help. We're former prosecutors and cops who now represent people accused of crimes. We use our inside knowledge to get justice for our clients.1
In this article we discuss the Romero case and how "Romero motions" can help defendants avoid the most severe application of the three strikes law. We cover:
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
As we discuss in our related article explaining California's Three Strikes Law, the three strikes law is a harsh sentencing statute that can result in life prison sentences for people convicted of felony offenses who have suffered past felony "strike" offenses.
Thanks to the holding of the California Supreme Court in People v. Romero, however, defendants caught in the snare of three strikes have hope for relief.
"Whenever we get a strike case," explains California Three Strikes Defense Lawyer John Murray, "we always consider whether we should file a Romero motion under the Romero case asking the trial judge to consider striking one or more of our client's past strike allegations."
Jesus Romero, the defendant in People v. Romero was convicted of violating California Health and Safety Code 11350 HS for possessing 0.13 grams of cocaine base. Under ordinary circumstances, that offense would result in a sentence of up to three years in California state prison.
But California's voters and legislature had passed the three strikes law two years earlier, and in light of that law Romero faced a much stiffer penalty. Because his criminal record included the two serious felonies of burglary and attempted Penal Code 459 burglary, Romero faced life in prison for his narcotics conviction.
The trial judge in the case took a look at the whole situation and decided that Romero did not deserve to go to prison for life. Yet the judge could not simply ignore the mandatory sentencing provisions of the three strikes law.
So, over the prosecutor's objection, the judge solved the problem by exercising the court's discretion under California Penal Code Section 1385 - which empowers judges to dismiss actions "in furtherance of justice." The judge "struck" Romero's serious felony convictions.2
Once the strike allegations were dismissed, Romero was able to avoid a life sentence. Instead he got six years (his sentence was still enhanced three years over the upper term for possession because of three prior prison sentences).3
The prosecution appealed the case, but the California Supreme Court agreed that the trial judge acted within its power in striking the strike allegations. As we discuss below, however, the high court emphasized that this power is limited and must be exercised within certain parameters so as not to constitute an improper abuse of discretion.
The Romero case, together with the later case of People v. Williams, set forth the parameters within which trial court judges must exercise their Section 1385 power in a strike case.
In considering whether to strike one or more strike allegations:
The defendant in the Williams case didn't have as much luck as Jesus Romero. Although the trial judge in Williams' case dismissed one of his strike allegations, the California Supreme Court reviewed the case on appeal and reversed the judge's decision as an abuse of discretion.
The high court noted that Williams was the kind of defendant who did, in fact, fall within the spirit of the three strikes law given his lengthy criminal history that included rape, attempted Penal Code 211 robbery, possession of a firearm by a felon and numerous convictions for DUI.4
It's important to understand that when a judge dismisses a strike allegation the felony conviction does not disappear altogether. The applicable "strike" felony is simply dismissed for purpose of sentencing of the current conviction.5
Let's look at an example:
Example: Denny is a forty-year-old man convicted of felony Penal Code 487 grand theft. He has two strikes from an earlier period of his life when he fell in with the wrong crowd. One of the strikes was for a nonviolent burglary of a home and another for assault with a deadly weapon. He also has various narcotics convictions on his record, mostly falling around the same time in his life.
The trial judge decides to give Denny a break. He looks at the current offense and Denny's history. The judge considers grand theft a serious crime, but the judge also understands that the theft was committed without violence. The theft appeared to come out of a job loss and family illness as opposed to a wholesale relapse into criminal behavior.
The judge dismisses the past burglary allegation (but not the assault with a deadly weapon allegation), and sentences Denny as if his case was a second strike case. Denny ends up with four years in California state prison - the middle term for grand theft of two years, doubled.
However, the burglary conviction remains on Denny's record. It can come back to haunt him if he gets into trouble again.
When a trial judge decides to dismiss a strike allegation, the judge must enter the reason for the dismissal in the "minutes" of the court proceeding. This means that the judge must state his or her reasons in open court so that the court reporter can record those reasons into the transcript.
This way, if the case is appealed, the appellate court will be able to understand why the trial judge made the decision it did and assess whether the judge abused its discretion.
If you or a loved one has a case involving a Romero Motion or the three strikes law, we invite you to call us at Shouse Law Group for a consultation. You also might be interested in reading our related articles Appeals of California Three Strikes Cases, California's Three Strikes Law, Serious Felonies, Violent Felonies and Juvenile Adjudications Counting As Strikes.
We also invite you to review our articles on Common California Crimes A to Z, including Penal Code 211 Robbery, Possession of a Firearm by a Felon, Penal Code 487 Grand Theft, Penal Code 459 Burglary, DUI and California Health and Safety Code 11350 HS.6
1 Our California Three Strikes Defense Lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 California Penal Code Section 1385 provides: "(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667. (c) (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a)."
3 People v. Romero, 13 Cal.4th 497, 504 (1996). ("This case raises the question whether a court may, on its own motion, strike prior felony conviction allegations in cases arising under the law known as Three Strikes and You're Out. Although the Legislature may withdraw the statutory power to dismiss in furtherance of justice, we conclude it has not done so in the Three Strikes law. Accordingly, in cases charged under that law, a court may exercise the power to dismiss granted in section 1385, either on the court's own motion or on that of the prosecuting attorney, subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." Internal citations and quotation marks deleted)
4 People v. Williams, 17 Cal.4th 148, 162 (1998 ("The Court of Appeal majority also properly determined that the superior court's order amounted to an abuse of discretion. In light of the nature and circumstances of his present felony of driving under the influence, which he committed in 1995, and his prior conviction for the serious felony of attempted robbery and his prior conviction for the serious and violent felony of rape, both of which he suffered in 1982, and also in light of the particulars of his background, character, and prospects, which were not positive, Williams cannot be deemed outside the spirit of the Three Strikes law in any part, and hence may not be treated as though he had not previously been convicted of those serious and/or violent felonies. There is little about Williams's present felony, or his prior serious and/or violent felony convictions, that is favorable to his position. Indeed, there is nothing. As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence. As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation. Similarly, there is little favorable about Williams's background, character, or prospects. We do not ignore the fact that he apparently had had a stable living arrangement with a woman, had expressed a desire to help care for their disabled child, and was still loved, and supported, by his family. But neither can we ignore the fact that he was unemployed and did not follow through in efforts to bring his substance abuse problem under control. Certainly, that he happened to pass about 13 years between his prior serious and/or violent felony convictions and his present felony, and proceeded from about 20 years of age to 32, is not significant. He did not refrain from criminal activity during that span of time, and he did not add maturity to age. Quite the contrary. In those years, he was often in prison or jail; when he was not, he violated parole and, apparently, probation, and committed the offenses that resulted in his convictions for the following: the felony of possession of a firearm by a convicted felon; another felony of possession of a firearm by a convicted felon; the misdemeanor of driving under the influence; another misdemeanor of driving under the influence; the misdemeanor of driving with driver's license suspended; yet another misdemeanor of driving under the influence; the misdemeanor of driving without a driver's license; the misdemeanor of possession of a controlled substance; and, lastly and notably, the misdemeanor of spousal battery.")
5 People v. Garcia, 20 Cal.4th 490, 499 (1999) [trial court can exercise Section 1385 discretion in respect to one count but not another] ("Accordingly, in a Three Strikes case, as in other cases, when a court has struck a prior conviction allegation, it has not `wipe[d] out that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant's personal history, and a court may consider it when sentencing the defendant for other convictions, including others in the same proceeding. With respect to the latter point, we can discern no reason for applying Burke differently simply because two convictions are part of a single proceeding rather than two different proceedings. Such a distinction finds no support in logic, the language of section 1385, or any decision interpreting that section.")
If you or a loved one faces misdemeanor or felony charges, contact our California criminal defense attorneys for help. We'd be glad to meet with you for a free consultation at one of our local criminal law offices in Los Angeles, San Francisco, Van Nuys, Pasadena, Long Beach, Orange County, Rancho Cucamonga, San Bernardino or Riverside.
Excerpt from a discussion on PBS Online Newshour in the aftermath of the Romero decision. Judge William Pounders is a recently retired Los Angeles Superior Court judge who presided over numerous "long cause" three strikes and serious felony trials during his tenure at the Clara Shortridge Foltz Criminal Justice Center.
JEFFREY KAYE: Why should--Mr. Pounders, why do you believe judges should have discretion, if that's not what the public intended?
JUDGE WILLIAM POUNDERS: As I indicated, I think it's for fine tuning of the process, and I do think it is what the public wants. What we have seen is in several cases, in our courthouse alone, the defense team has simply offered everything to the jury, i.e., the current case and the priors, and let the jury decide. And it does not take a lot of intelligence to add two and one to get three. They know it's a third strike case, and what we've had as a result is acquittals on very strong cases. The third time around they're not going to convict this person because they think the sentence of 25 years is too harsh. The judges can modify that.
JEFFREY KAYE: Why shouldn't the judges have discretion, Mr. Pringle?
STATE REP. CURT PRINGLE: Well, the judges do have discretion under the way the law was originally written. They don't have exclusive discretion, and that's what the Supreme Court said, that the judge should be the only entity that provides that discretion. The initiative, the law that was put in place, has said the prosecutor has that discretion to initially ask to strike a prior, and the judge has to agree to that. And that was what the public wanted�.
JEFFREY KAYE: Mm-hmm. Would you respond to that. If that's what the people wanted, why, why should the judges get back into this?
JUDGE WILLIAM POUNDERS: That's exactly what I'm saying. They didn't understand that in some of these minor cases, that people would be facing 25 years to life. Let me give you a very vivid example. Sale of a rock to an individual on the street representing it to be rock cocaine but it's in actuality a macadamia nut, that's a felony. Does that person deserve 25 years to life, regardless of their prior offenses? That's almost one criminal ripping off another criminal.
JEFFREY KAYE: Mm-hmm.
JUDGE WILLIAM POUNDERS: That's the most minor felony, but this law does not take any distinction between that and first degree murder. I think those adjustments have to be made, and I don't believe the law can set it in place. And that's why judges have discretion.
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