Romero Motions & California Three
Strikes Law

How to Remove Strikes & Avoid Life
in Prison...

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:

1. What is a "Romero motion"?

1.1. The case of People v. Romero

2. Are there limitations on
judicial discretion?

2.1. Romero and Williams factors

2.2. Dismissed strike allegations do not disappear

2.3. Minute order and abuse of discretion review

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.

1. What is a "Romero motion"?

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."

1.1 The case of People v. Romero

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.

2. Are there limitations on judicial 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.

2.1. Romero and Williams factors

In considering whether to strike one or more strike allegations:

• the judge must consider both the right of the defendant to be free from cruel and unusual punishment and the interest of society to have prosecutors pursue cases against alleged criminals under the law



• the judge should make a decision in the manner of a "reasonable judge"



• the judge shouldn't dismiss a strike allegation because of judicial convenience or court congestion



• the judge shouldn't dismiss a strike allegation because a defendant pleads guilty



• the judge shouldn't dismiss a strike allegation just because the judge doesn't like the effect of the law on a defendant while ignoring that defendant's background, the nature of the offense and other "individualized considerations"



• the judge should consider whether the defendant may be "deemed outside the scheme's spirit" given the defendant's present felonies and past convictions, as well as the defendant's background, character and prospects

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

2.2. Dismissed strike allegations do not disappear

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.

2.3. Minute order and abuse of discretion review

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.

Our California Three Strikes Defense Lawyers
Can Help.

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

Helpful links:

Families to Amend California's Three Strikes

Families Against Mandatory Minimums

Stanford Three Strikes Project

RAND Research on Three Strikes Law

Drug Policy Alliance

Innocence Project

The Real Cost of Prisons Project

Three Strikes & You're Out

References

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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.")

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