What Is a Romero Motion? How to Strike a Prior Strike in California Under Penal Code 1385
The short answer: a Romero motion asks the sentencing judge to dismiss, or "strike," a prior serious or violent felony conviction so that it does not count under California's Three Strikes law. The motion takes its name from People v. Superior Court (Romero) (1996) 13 Cal.4th 497, in which the California Supreme Court held that trial courts keep their power under Penal Code section 1385 to dismiss a strike allegation in the furtherance of justice. If the motion is granted, a sentence that would have been doubled, or that would have been 25 years to life, is calculated as if the strike did not exist. This guide from the criminal defense practice at Gramling Law Group explains what judges weigh, when the motion is made, and how it is built in the Inland Empire, the High Desert, and Los Angeles County courts.
Why it matters so much. For a defendant with one prior strike, the Three Strikes law under Penal Code section 667, subdivisions (b) through (i), and Penal Code section 1170.12 doubles the sentence on any new felony, makes probation far harder to obtain, limits custody credits, and requires the sentence to be served in state prison rather than county jail. For a defendant with two prior strikes, a new serious or violent felony carries 25 years to life. A granted Romero motion can be the difference between probation and prison, or between a few years and decades. Our guide on California's Three Strikes law explains the framework.
What Counts as a Strike in California
Serious and violent felonies. A strike is a prior conviction for a felony listed as "serious" in Penal Code section 1192.7, subdivision (c), or "violent" in Penal Code section 667.5, subdivision (c). Common strikes in Inland Empire cases include robbery under Penal Code section 211, first degree residential burglary under Penal Code section 459, criminal threats under Penal Code section 422, assault with a deadly weapon under Penal Code section 245, and any felony in which the defendant personally used a firearm or personally inflicted great bodily injury.
Strikes do not wash out. Unlike some prior conviction enhancements, a strike never ages out; a residential burglary from 1998 is still a strike in 2026. Juvenile adjudications can count as strikes in limited circumstances under Penal Code section 667, subdivision (d)(3), and out-of-state convictions count if the foreign offense includes all the elements of a California serious or violent felony. The age of the strike is not a bar, but it is a central argument in the Romero motion itself.
Proposition 36 changed the third strike. Since Proposition 36 in 2012, a defendant with two prior strikes receives 25 years to life only if the new felony is itself serious or violent, or falls within listed exceptions such as certain firearm, sex, and drug trafficking offenses. Otherwise the new felony is sentenced as a second strike, doubled. Even so, the doubled term and prison commitment for a non-serious felony like felon in possession of a firearm or possession for sale is severe, and the Romero motion is the main tool to avoid it.
The Legal Standard: Romero and Williams
The power to strike. Penal Code section 1385, subdivision (a), lets a judge dismiss an action, or part of one, "in furtherance of justice," with the reasons stated on the record. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the Supreme Court held that the Three Strikes law did not take that power away, so a judge can strike a prior strike allegation on the court's own motion or at the defendant's request. The prosecutor's agreement is not required.
The Williams factors. Two years later, People v. Williams (1998) 17 Cal.4th 148 set the standard judges still apply. The court must decide whether, in light of (1) the nature and circumstances of the present felony, (2) the nature and circumstances of the prior strike or strikes, and (3) the particulars of the defendant's background, character, and prospects, the defendant may be deemed outside the spirit of the Three Strikes scheme, in whole or in part, and should therefore be treated as though he or she had not previously been convicted of one or more serious or violent felonies. Every Romero motion is organized around those three factors.
Dismissal is the exception. In People v. Carmony (2004) 33 Cal.4th 367, the Supreme Court explained that the Three Strikes law creates a strong presumption that a strike defendant will be sentenced under it, that a ruling is reviewed only for abuse of discretion, and that a decision to strike should be reserved for extraordinary cases where the defendant falls outside the scheme's spirit. In practice this means a Romero motion must show more than a sympathetic story; it must show a combination of a remote or minor strike, a non-serious current offense, and a credible path forward.
Partial relief. Under People v. Garcia (1999) 20 Cal.4th 490, a judge may strike a prior as to some counts and not others, which allows a tailored sentence when a defendant faces multiple counts. And under People v. Vargas (2014) 59 Cal.4th 635, when two prior strikes arose from a single act against a single victim, the trial court must treat them as one strike for Three Strikes purposes.
Strikes versus enhancements. The Legislature amended Penal Code section 1385 in 2022 to add subdivision (c), which lists mitigating circumstances that weigh in favor of dismissing sentencing enhancements, such as a prior that is more than five years old or an offense connected to mental illness or childhood trauma. California appellate courts have generally held that a prior strike under the Three Strikes law is an alternative sentencing scheme rather than an "enhancement," so subdivision (c) does not directly control a Romero motion, but the same mitigating facts are argued under the Williams factors and the motion often asks the court to dismiss related enhancements, such as a five-year serious felony prior under Penal Code section 667, subdivision (a), at the same time.
What Judges Actually Weigh
The current offense. A Romero motion is strongest when the new felony is non-violent, involved no weapon or injury, and sits at the low end of the felony range: a drug possession for sale case in Victorville, a driving on a suspended license felony that became a felony only because of priors, a felon in possession case where the firearm was never used, or a theft that was a wobbler. Judges in Riverside, San Bernardino, and Los Angeles routinely deny Romero motions where the new offense involves violence, a vulnerable victim, or a weapon.
The prior strike. The age of the strike, the defendant's age at the time, whether it involved actual violence, and whether it was a single aberration all matter. A residential burglary committed at nineteen with no one home, followed by fifteen years without a felony, reads very differently from a robbery committed three years ago. Courts also look at whether the strike was sentenced as a misdemeanor, whether probation was granted, and whether the defendant completed it.
Background, character, and prospects. This is where the defense does the most work. Judges want to see verified employment, family responsibilities, treatment history, military service, education, letters from employers and community members, and a concrete plan. Mental health history and substance abuse history are presented as context and as a treatment plan, not as excuses. Our guide on mental health diversion explains how documented conditions are presented to the court.
The record as a whole. A long string of misdemeanors, probation violations, and parole returns between the strike and the current offense is the most common reason a Romero motion is denied. A clean or nearly clean record in the intervening years is the most common reason one is granted. Our guide on how probation works in California explains why violations weigh so heavily.
When and How a Romero Motion Is Made
Timing. A Romero motion is typically filed in writing before sentencing and heard at the sentencing hearing, although the court can consider it at any time before the judgment is pronounced and can raise the issue on its own. In Inland Empire courts, including the Riverside Hall of Justice, the San Bernardino Justice Center, and the Victorville courthouse, defense lawyers often file the motion before the plea so the judge can give an "indicated sentence" that assumes the strike is stricken, which drives the plea negotiations. Our guide on how sentencing works explains indicated sentences.
The written motion. A persuasive motion contains the certified record of the prior strike, the facts of the current offense drawn from the preliminary hearing transcript and discovery, a declaration or statement in mitigation, supporting letters, proof of employment and treatment, and a legal section organized around Williams. Circumstances in mitigation under rule 4.423 of the California Rules of Court and the absence of aggravating factors under rule 4.421 of the California Rules of Court are addressed directly. The prosecutor files an opposition, and the judge rules at the hearing with reasons stated on the record.
Romero in plea negotiations. Prosecutors in Riverside County and San Bernardino County can agree to dismiss a strike as part of a plea bargain, and that agreement is often the real goal of the motion. Filing a strong Romero motion early shows the deputy district attorney and the judge that the defense is prepared for a contested sentencing. Our guides on whether to take a plea deal and pretrial conferences explain how offers move.
Challenging the strike itself. Before arguing that a strike should be dismissed, the defense examines whether it is a strike at all. The prosecution must prove the prior conviction, and for out-of-state priors and older California convictions the record of conviction sometimes does not establish that the offense qualified as serious or violent. A prior that was not a strike needs no Romero motion; it is simply not alleged or is dismissed. Our guide on withdrawing a guilty plea explains a related avenue when the prior plea itself was defective.
If the motion is denied. A denial is reviewed on appeal for abuse of discretion, which is a difficult standard under People v. Carmony (2004) 33 Cal.4th 367. The motion still preserves the issue, and a well-documented record sometimes supports later relief. Our guide on how a criminal appeal works explains the process.
How a Strike Case Moves Through Court in Southern California
Arraignment and preliminary hearing. A strike case is a felony, so it moves through a felony arraignment and a preliminary hearing. The strike prior is alleged in the complaint, and the defendant must appear personally under Penal Code section 977, subdivision (b). At the prelim the magistrate can reduce a wobbler to a misdemeanor under Penal Code section 17, subdivision (b)(5), which removes the Three Strikes exposure entirely because the law applies only to new felonies. Our guides on felony arraignment and the preliminary hearing at the Victorville courthouse and reducing a felony to a misdemeanor explain those stages.
Bail with a strike. A strike allegation raises scheduled bail and makes release harder, but under In re Humphrey (2021) 11 Cal.5th 135 the court must still consider ability to pay and nonfinancial conditions. Our guide on how bail works in San Bernardino County explains the hearing.
Where the case is heard. Strike cases from Riverside, Moreno Valley, and Corona are generally heard at the Riverside Hall of Justice; from Temecula and Murrieta at the Southwest Justice Center; from San Bernardino, Redlands, and Fontana at the San Bernardino Justice Center or the Fontana courthouse; from Victorville, Hesperia, Apple Valley, and Barstow at the Victorville or Barstow courthouses; from Ontario and Rancho Cucamonga at the Rancho Cucamonga courthouse; from Los Angeles at the Clara Shortridge Foltz Criminal Justice Center or a district courthouse such as Pomona, Van Nuys, or Long Beach; and from Santa Ana and Anaheim at the Central Justice Center. Confirm the assigned courthouse on the court's current website.
Trial. A defendant can also elect to go to trial on the new charge and, if convicted, have the strike tried to the jury or the court. Our guide on criminal jury trials explains that process, and our guide on how long a criminal case takes sets expectations for a strike case, which typically takes longer than an ordinary felony.
Common Mistakes in Strike Cases
Pleading before the Romero motion is decided. A plea to a felony with a strike admitted, without an indicated sentence or a negotiated dismissal of the strike, leaves the sentence entirely to the judge. The motion should be filed and argued, or the strike negotiated away, before the plea.
Talking to police or probation without counsel. Statements to the arresting deputy and to the probation officer preparing the sentencing report become part of the record the judge reads before ruling on Romero. Our guide on what not to say to police applies throughout the case.
Arriving at sentencing with nothing. A Romero motion without letters, proof of employment, treatment records, and a plan is a request for mercy, not a showing under Williams. The documentation takes weeks to assemble, which is why the work starts at arraignment.
Ignoring collateral consequences. A felony conviction with a strike carries immigration consequences, lifetime firearm prohibitions under Penal Code section 29800, and limits on later relief; a felony sentenced to state prison cannot later be reduced under Penal Code section 17, subdivision (b), if sentenced to prison. Our guides on immigration consequences and expunging a criminal record explain what relief remains.
Frequently Asked Questions
What is a Romero motion in California?
A request that the judge strike a prior strike under Penal Code 1385. Named after People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the motion asks the sentencing court to dismiss a prior serious or violent felony allegation in the furtherance of justice so that the Three Strikes law does not double the sentence or impose 25 years to life. The judge applies the factors from People v. Williams (1998) 17 Cal.4th 148.
How often are Romero motions granted?
Less often than denied, and only for strong showings. Under People v. Carmony (2004) 33 Cal.4th 367, the Three Strikes law carries a strong presumption that the strike applies, and judges reserve dismissal for cases where the current offense is minor, the strike is remote or aberrational, and the defendant's record and prospects place him or her outside the spirit of the law. No lawyer can promise a result, but a documented motion dramatically improves the odds.
Can the prosecutor agree to strike a strike?
Yes. The District Attorney can move to dismiss a strike allegation as part of a plea bargain, and in Riverside County, San Bernardino County, and Los Angeles County this is a common resolution in non-violent cases. A well-prepared Romero motion often produces that agreement before the hearing.
Does a strike ever expire?
No. A strike conviction does not wash out with time. The age of the strike is instead one of the most important arguments in the Romero motion, because a remote strike followed by years without serious offenses is the classic case for dismissal under the Williams factors.
Can I file a Romero motion if I already took a plea?
Only in limited circumstances. The motion is normally decided at or before sentencing. After sentencing, relief depends on whether the plea agreement left the strike open, whether the judgment is final, and whether a resentencing statute applies. Our guide on withdrawing a guilty plea explains one avenue under Penal Code section 1018.
Do I need a lawyer for a strike case?
Yes. A strike case is where preparation changes outcomes by years. Daniel Gramling, Esq. handles strike cases at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and Los Angeles County courts, and offers flat-fee and limited-scope options so you know the cost before the case starts.
Gramling Law Group defends strike cases and felony charges at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Victorville courthouse, the Rancho Cucamonga courthouse, the Clara Shortridge Foltz Criminal Justice Center, the Central Justice Center in Santa Ana, and courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options and prepares Romero motions as part of a complete felony defense. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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