California Three Strikes Law and Romero Motions
California courts grant a judge complete discretion to strike sentencing allegations in the interests of justice under Penal Code 1385. The trial court must consider the interests of society in deciding whether to dismiss. A successful motion to strike will not remove the conviction from the record but simply impacts sentencing in a way that minimizes the punitive effect of the Three Strikes Law.
The court must state its reason for granting a ‘Romero Motion’ to strike. Even when a court exercises its discretion to strike a strike, the prior conviction remains in effect as a five-year prior under Penal Code 667(a), and the court does not have discretion to avoid this enhancement. For example, as part of a plea deal at sentencing, the prosecution forced defendant to admit one prior strike (when he had 11 serious/violent felonies in the past) in conjunction with the current non-serious violent felony crime. The court sentenced this defendant to the upper term, which was doubled per the Three Strikes Law under PC 667 (b)–(i) through 1170.12 (a)(e). Given the amount of prior strikes, this defendant was facing a life sentence if convicted on a non-serious/non-violent felony charge, and even with the court’s ability to strike the strikes in a Romero motion, it would have no authority to strike the five-year enhancement under 667(a).
The court must consider the particulars of the defendant’s background, character, prospects, and that the defendant may be deemed outside the spirit of the Three Strikes Law and should be treated as though he was not previously convicted of one or more felonies and/or had not previously been convicted of one or more serious and violent felonies. Under Penal Code 667(a) a serious and violent felony may include murder, mayhem, rape, arson, robbery, kidnapping and carjacking.
When an individual has at least one prior conviction of a crime defined as a “violent felony” or “serious felony”, and they are charged with any new felony offense, the prior conviction can be alleged as a strike under the Three Strikes Law. The prior serious felony can be used both as a strike prior and a five-year prior under 667(a). Total custody credits for pre- and post-sentence are limited to 15 percent.
The Three Strikes Law was enacted in 1994 and determined a life sentence could be issued to any defendant with two or more prior serious or violent felony convictions if there was a conviction for a third felony. Proposition 36, also known as the Three Strikes Reform Act, has changed this. Individuals with two or more strikes will have their sentences doubled but as though they had just one prior strike, regardless of how many prior strikes are alleged, unless the new felony is also a serious or violent felony.
Judges are given significant latitude to decide whether to grant relief in a Romero motion to strike a strike. However, there have been cases found where a judge’s refusal to strike a strike was deemed improper under Romero. For example, one case involved a conviction for failure to register as a sex offender under Penal Code 290. The defendant’s failure to update his registration on his birthday although he had not moved from his previous address warranted 1385 relief for the conviction in People v. Cluff (2001) 87 CA 4th 991. Penal Code 1385 relief allows a court to order an action dismissed “in the interest of justice”, where the “action” includes allegations relevant to sentencing.
The court must state its reason for granting a ‘Romero Motion’ to strike. Even when a court exercises its discretion to strike a strike, the prior conviction remains in effect as a five-year prior under Penal Code 667(a), and the court does not have discretion to avoid this enhancement. For example, as part of a plea deal at sentencing, the prosecution forced defendant to admit one prior strike (when he had 11 serious/violent felonies in the past) in conjunction with the current non-serious violent felony crime. The court sentenced this defendant to the upper term, which was doubled per the Three Strikes Law under PC 667 (b)–(i) through 1170.12 (a)(e). Given the amount of prior strikes, this defendant was facing a life sentence if convicted on a non-serious/non-violent felony charge, and even with the court’s ability to strike the strikes in a Romero motion, it would have no authority to strike the five-year enhancement under 667(a).
The court must consider the particulars of the defendant’s background, character, prospects, and that the defendant may be deemed outside the spirit of the Three Strikes Law and should be treated as though he was not previously convicted of one or more felonies and/or had not previously been convicted of one or more serious and violent felonies. Under Penal Code 667(a) a serious and violent felony may include murder, mayhem, rape, arson, robbery, kidnapping and carjacking.
When an individual has at least one prior conviction of a crime defined as a “violent felony” or “serious felony”, and they are charged with any new felony offense, the prior conviction can be alleged as a strike under the Three Strikes Law. The prior serious felony can be used both as a strike prior and a five-year prior under 667(a). Total custody credits for pre- and post-sentence are limited to 15 percent.
The Three Strikes Law was enacted in 1994 and determined a life sentence could be issued to any defendant with two or more prior serious or violent felony convictions if there was a conviction for a third felony. Proposition 36, also known as the Three Strikes Reform Act, has changed this. Individuals with two or more strikes will have their sentences doubled but as though they had just one prior strike, regardless of how many prior strikes are alleged, unless the new felony is also a serious or violent felony.
Judges are given significant latitude to decide whether to grant relief in a Romero motion to strike a strike. However, there have been cases found where a judge’s refusal to strike a strike was deemed improper under Romero. For example, one case involved a conviction for failure to register as a sex offender under Penal Code 290. The defendant’s failure to update his registration on his birthday although he had not moved from his previous address warranted 1385 relief for the conviction in People v. Cluff (2001) 87 CA 4th 991. Penal Code 1385 relief allows a court to order an action dismissed “in the interest of justice”, where the “action” includes allegations relevant to sentencing.