Romero Motion in California: Judge’s Factors and Outcomes

A Romero motion in California asks the sentencing judge to dismiss one or more of your prior strike convictions so you are not sentenced under the Three Strikes law. It takes its name from the 1996 California Supreme Court decision People v. Superior Court (Romero), which confirmed that Penal Code 1385 lets judges set aside strike priors “in furtherance of justice.”¹ Whether the judge grants it can be the difference between a normal prison term and 25 years to life.

Why the Motion Matters: What Three Strikes Does

California’s Three Strikes law, on the books since 1994, escalates prison time for defendants with prior serious or violent felony convictions. One prior strike plus a new felony conviction doubles the normal sentence for the new offense.² Two or more prior strikes plus a new serious or violent felony triggers an indeterminate sentence with a minimum of 25 years to life.³

Since Proposition 36 passed in 2012, the 25-to-life minimum applies only when the current offense is itself a serious or violent felony. If the new charge is nonserious and nonviolent, the sentence is doubled instead, unless the offense involved a firearm, caused great bodily injury, or falls into certain sex- or drug-related categories.⁴⁵⁶

Who Files It and When

Technically, the power to dismiss a strike allegation belongs to the court under Penal Code 1385, and a judge can raise the issue without either side asking. In practice, defense counsel files the motion, and everyone calls it a Romero motion even though it is really a request that the court exercise its own authority. Prosecutors may also request dismissal, though they rarely do. The Romero decision confirmed that a judge may act “on the court’s own motion or on that of the prosecuting attorney.”¹

The motion can be brought at any stage of a criminal case, but it usually surfaces at or just before sentencing, when the impact of the prior strikes becomes real.

What the Judge Weighs

Two years after Romero, the California Supreme Court laid out the framework in People v. Williams (1998). The central question is whether the defendant falls outside the “spirit” of the Three Strikes law, so that they should be treated as if the prior convictions did not exist.⁷

The court identified three areas of inquiry:

The current offense: its nature, severity, and surrounding circumstances
The prior strikes: what they were for, how serious they were, and how long ago they occurred
The defendant as a person: background, character, and future prospects

Judges tend to look at whether the priors are decades old, how young the defendant was when they occurred, what rehabilitation has happened since, and whether mental health or substance abuse fed into the criminal history. A 50-year-old with a 25-year-old robbery conviction who has been largely law-abiding since presents a very different picture than someone with recent violence. Williams emphasized that the factors tied directly to the Three Strikes scheme, especially the nature of the current and prior offenses, carry the most weight.⁷

This is a deeply discretionary call. Two judges on the same facts can reasonably reach opposite conclusions. What the law requires is engagement: the judge has to work through the Williams factors and state the reasoning on the record, not reflexively impose or ignore the Three Strikes sentence.

What Changes If the Motion Is Granted

If the judge grants a Romero motion, the prior strike is set aside for sentencing purposes only. The defendant is then sentenced as if that strike never existed.

For a third-strike defendant, dismissing one prior strike drops the case to second-strike status: instead of 25 to life, the exposure is a doubled sentence for the current offense.³ If both priors are dismissed, the sentence returns to the standard range with no doubling at all. For a second-strike defendant, dismissing the single prior eliminates the doubling.²

The underlying conviction itself does not disappear. It stays on the criminal record and can still matter in future cases. The dismissal removes only the strike’s sentencing impact in the current proceeding.

If the Motion Is Denied

A denial can be appealed, but reversing one is hard. In People v. Carmony (2004), the California Supreme Court set the standard as deferential abuse-of-discretion review. An appellate court will reverse only in extraordinary circumstances, meaning no reasonable judge could have reached the same conclusion on the same facts.⁸

Carmony described three scenarios that qualify as abuse of discretion:

The judge did not realize they had the power to dismiss the strike.
The judge relied on factors the law does not permit.
The resulting sentence is so disproportionate that it becomes “arbitrary, capricious, or patently absurd.”

Outside those narrow situations, the denial stands. A trial judge who walks through the Williams factors and explains the reasoning will almost always survive appellate review, even when the sentence looks harsh next to the current offense.⁸

SB 81 and Enhancements: A Related but Separate Rule

If you have read about the 2022 changes to Penal Code 1385 under SB 81 that require judges to give “great weight” to mitigating factors like mental illness, childhood trauma, priors more than five years old, or long total sentences, those provisions govern the dismissal of sentencing enhancements. They do not replace the Romero framework. Strike priors are handled under Penal Code 1385(a) and the Williams factors; enhancements sit under Penal Code 1385(c) with its own statutory list. In a case that carries both strike priors and separate enhancements, each is analyzed under its own rules.⁹

1
Justia. People v. Superior Court (Romero) (1996)
2
California Legislative Information. California Penal Code 1170.12
3
California Legislative Information. California Penal Code 667
4
Legislative Analyst’s Office. Proposition 36 Three Strikes Law Sentencing for Repeat Felony Offenders
5
California Legislative Information. California Penal Code 667.5
6
California Department of Corrections and Rehabilitation. Definition of Serious Felony Offenses as Specified in Penal Code 1192.7(c)
7
Supreme Court of California. People v. Williams, 17 Cal.4th 148 (1998)
8
Supreme Court of California. People v. Carmony, 33 Cal.4th 367 (2004)
9
California Legislative Information. California Penal Code 1385