If you are facing a criminal charge in California, you may be wondering if a strike can be removed from your record through a Romero motion. This legal tool is often the only thing standing between a defendant and a life sentence. At Grace Legal Group, we believe everyone deserves a second chance, and understanding how to navigate the “Three Strikes” law is the first step toward reclaiming your future.
What is a Romero Motion?
In California, a “Romero motion” is a request made by a defense attorney asking the judge to “strike a strike.” This means the judge is being asked to ignore a past serious or violent felony conviction for the purpose of sentencing in a current case.
The Legal Basis: People v. Superior Court (Romero) (1996)
Before 1996, many believed that only prosecutors had the power to decide whether a prior strike should be used against a defendant. However, the landmark case People v. Superior Court (Romero) changed everything. The California Supreme Court ruled that judges have the inherent power to dismiss prior strike allegations on their own.
Penal Code 1385: The Power of “In Furtherance of Justice”
The legal authority for this motion comes from California Penal Code Section 1385. This law allows a judge to dismiss an action—or in this case, a prior conviction—if it is “in furtherance of justice.” This means the judge believes that treating you as a “three-strikes” offender would be unfairly harsh based on who you are today.
“Removing” vs. “Striking”: Why your record doesn’t actually change
It is a common misconception that a successful Romero motion deletes the strike from your criminal record forever. In reality, the strike remains on your RAP sheet. “Striking” the conviction only means the judge agrees not to count it for your current sentencing. If you are arrested again in the future, that strike could potentially be used against you once more.
How the Three Strikes Law Impacts Your Sentence
California’s Three Strikes law was designed to keep repeat offenders in prison for longer periods. If you have “strikes” on your record, the penalties for even minor new felonies can be devastating.
The Purpose of the Romero Motion: A Sentencing Lifeline
The primary goal of the motion is to move you out of the “Three Strikes” sentencing scheme. Without it, the law forces the judge to give you a much longer sentence than the crime might otherwise deserve.
Second Strike: Doubling the Base Term
If you have one prior strike and are convicted of a new felony, you are considered a “two-strikes” offender. Under the law, your prison sentence for the new crime must be doubled.
Third Strike: The Mandatory 25-to-Life Sentence
If you have two or more prior strikes and are convicted of any new serious or violent felony, you face a mandatory minimum of 25 years to life in state prison. A Romero motion is often the only way to avoid spending the rest of your life behind bars.
Criteria: What Factors Do Judges Consider?
Judges do not grant Romero motions lightly. They must follow specific guidelines to ensure their decision is fair to both the defendant and the public.
The “Spirit” of the Three Strikes Law: The Williams Factors
The judge must determine if you fall “outside the spirit” of the Three Strikes law. Essentially, they ask: Are you the kind of “career criminal” the law was meant to punish, or was your past mistake an outlier in an otherwise law-abiding life?
Nature and Seriousness of the Current Offense
If your new charge is non-violent or involves low-level drug possession, a judge is much more likely to grant the motion. However, if the new crime involved a weapon or physical injury, the uphill battle becomes much steeper.
Your Prior Criminal History and Character
The judge will look at how long ago your prior strike occurred. A strike from 20 years ago carries less weight than one from two years ago. They also look at your overall character—are you a provider for your family? Do you have a history of steady employment?
Evidence of Rehabilitation: Sobriety, Employment, and Education
To win a Romero motion, you must prove you have changed. At Grace Legal Group, we help clients build “mitigation packets” to show the judge. This includes:
- Certificates from drug or alcohol rehabilitation programs.
- Proof of consistent employment or vocational training.
- Diplomas or transcripts showing educational progress.
- Evidence of community service or religious involvement.
The Role of Public Safety: Will the Judge View You as a Risk?
The judge’s biggest concern is public safety. If the motion is granted and you are released sooner, will you commit another crime? We work to demonstrate that you have a stable housing plan and a support system in place, which reduces the perceived “risk” to the community.
The Romero Motion Process: Step-by-Step
Timing: When Can Your Attorney File the Motion?
A Romero motion is typically filed after a person has been convicted of a new crime but before they are sentenced. It can be part of a plea deal or argued at the final sentencing hearing.
Gathering Evidence: Letters of Recommendation and Expert Evaluations
Your attorney will collect letters from family, employers, and community members who can vouch for your character. In some cases, we hire psychologists or social workers to explain the circumstances of your past, such as childhood trauma or mental health struggles.
The Hearing: What to Expect in Open Court
During the hearing, your lawyer will present the written motion and argue it in front of the judge. The prosecutor will likely argue against you, claiming you are a danger to society. The judge will then weigh both sides before making a ruling.
The Judge’s Decision: Why the “Minute Order” Matters for Appeals
If the judge makes a decision, it is recorded in a “minute order.” This document explains the judge’s reasoning. If the judge refuses to strike the strike, this order is the primary document used to appeal the decision to a higher court.
Recent Reforms: SB 81 and the New Presumption of Dismissal
How 2022 Sentencing Laws Influence Romero Decisions
The legal landscape in California is changing. Senate Bill 81 (SB 81), which took effect in 2022, encourages judges to dismiss sentencing “enhancements” (like strikes) if doing so serves the interest of justice.
Mitigating Factors: Childhood Trauma, Youth, and Mental Health
Under the new laws, judges must give “great weight” to certain mitigating factors. If your prior strike happened when you were under age 26, or if it was related to mental health issues or prior victimization (like domestic violence), the law now leans in your favor.
Does SB 81 Make it Easier to Strike a Strike?
Yes. SB 81 created a “presumption” that certain enhancements should be dismissed if they result in a “disproportionate” sentence. While it doesn’t guarantee a win, it provides a stronger legal foundation for your defense team.
What Happens if the Romero Motion is Granted?
Immediate Sentencing Impacts and Reduced Prison Time
If the judge strikes a strike, your sentence is recalculated as if that strike didn’t exist. This can turn a life sentence into a few years, or a prison sentence into probation.
Changes to Conduct Credits (The 80% Rule)
People with strikes usually have to serve 80% of their time. If the strike is removed for sentencing purposes, you may become eligible to earn more “conduct credits,” allowing you to be released much earlier.
Can a Struck Strike Be Used Against You in the Future?
Yes. Because the strike was only “dismissed” for that specific sentencing hearing, it remains on your record. If you are charged with a new felony later, the next prosecutor can try to use that same strike against you again.
What Happens if the Romero Motion is Denied?
Understanding “Abuse of Discretion”
If a judge denies your motion, it isn’t necessarily the end. However, a higher court will only overturn the denial if they find the judge committed an “abuse of discretion.” This means the judge’s decision was so irrational or arbitrary that no reasonable person would agree with it.
The Appeals Process: Can You Challenge a Denied Motion?
You can appeal a denied Romero motion to the California Court of Appeals. This process takes time, but if the appellate court finds the trial judge was too harsh or ignored new laws like SB 81, they can send the case back for a new sentencing hearing.
Alternative Relief: Resentencing and Record Clearing Options
If a Romero motion fails, there may be other options, such as filing for a petition under PC 1172.1 (resentencing in the interest of justice) or seeking an expungement for eligible non-strike offenses.
Frequently Asked Questions (FAQs)
1. Do dismissed strikes disappear from my RAP sheet? No. A Romero motion only prevents the strike from being used to increase your current sentence. The conviction will still appear on your criminal background check.
2. Can I file a Romero motion for a non-violent felony? Absolutely. In fact, judges are much more likely to grant a Romero motion if the current offense is non-violent, such as a drug crime or a theft offense.
3. Can I file a Romero motion if I am already in prison? Generally, Romero motions are filed during a pending case. However, due to recent changes in California law (like SB 483 or SB 81), some individuals currently serving time may be eligible for a resentencing hearing that functions similarly.
4. Does the prosecutor have to agree to the Romero motion? No. The judge has the power to grant the motion even if the District Attorney strongly opposes it.
5. How much does a Romero motion cost? The cost varies depending on the complexity of your case. However, the “cost” of not filing one—decades in prison—is much higher. At Grace Legal Group, we offer flexible payment plans to help families afford the high-quality defense they need.
Contact Grace Legal Group for a Second Chance
At Grace Legal Group, we know that you are more than the worst thing you’ve ever done. The legal system often sees defendants as just a list of prior convictions, but we see the human being behind the case. Our team specializes in creating powerful mitigation packets that show judges why you deserve to return home to your family.
If you or a loved one is facing a sentence under the Three Strikes law, don’t wait. A Romero motion is a complex legal procedure that requires a deep understanding of California’s evolving laws. Contact Grace Legal Group today for a 100% free consultation. We are here to fight for your redemption and your future.