What is a Romero motion?

A Romero motion is a motion to have the judge dismiss an alleged strike prior. In California, even having one prior strike doubles the maximum confinement time for a charge. A Romero motion gets its name from the California Supreme Court case People v. Super. Ct. (Romero) (1996) 13 Cal.4th 497.

  1. Standard of Review

“Penal Code section 1385, subdivision (a), authorizes a trial court to dismiss a criminal action ‘in furtherance of justice’ on its own motion. (All further statutory citations are to the Penal Code except as noted.) We have held that the power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions. ( People v. Thomas (1992) 4 Cal. 4th 206, 209-210 [14 Cal. Rptr. 2d 174, 841 P.2d 159]; People v. Burke (1956) 47 Cal. 2d 45, 50-51 [301 P.2d 241].) 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.’ (§ 667, subds. (b)-(i), added by Stats. 1994, ch. 12, § 1, eff. Mar. 7, 1994; see also § 1170.12, added by initiative, Gen. Elec. (Nov. 8, 1994) [Proposition 184].) 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. 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.

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [53 Cal.Rptr.2d 789, 917 P.2d 628] [emphasis added].)

2. Since Romero The Legislature Has Expanded The Court’s Power Under Section 1385

Senate Bill 1393 which became effective January 1, 2019, expanded the Court’s discretion to strike enhancements and allegations by broadening Penal Code section 1385, which now reads:

“(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 shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.


(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).”

(Pen. Code, § 1385.)

The Romero decision set forth applicable principles to guide lower courts in exercising their discretion to strike a strike under Section 1385:

“To guide the lower courts in the exercise of their discretion under section 1385(a), whether acting on their own motion or on motion of the prosecuting attorney, we emphasize the following: A court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse. We reviewed the applicable principles in People v. Orinsupra, 13 Cal. 3d 937.

‘The trial court’s power to dismiss an action under section 1385, while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be ‘in furtherance of justice.’ As the Legislature has provided no statutory definition of this expression, appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have arisen challenging its exercise. Thus, in measuring the propriety of the court’s action in the instant case, we are guided by a large body of useful precedent which gives form to the above concept.

‘From the case law, several general principles emerge. Paramount among them is the rule ‘that the language of [section 1385], ‘in furtherance of justice,” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]’ [Citations.] At the very least, the reason for dismissal must be ‘that which would motivate a reasonable judge.’ [Citations.]’ ( People v. Orinsupra, 13 Cal. 3d at p. 945.) ‘Courts have recognized that society, represented by the People, has a legitimate interest in ‘the fair prosecution of crimes properly alleged.’ [Citation.] ‘ ‘[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ [Citations.]’ ‘ ( Id. at p. 947.)

From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely ‘to accommodate judicial convenience or because of court congestion.’ ( People v. Kessel (1976) 61 Cal. App. 3d 322, 326 [132 Cal. Rptr. 126].) A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. ( People v. Orinsupra, 13 Cal. 3d at p. 949.) Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ ( People v. Dent (1995) 38 Cal. App. 4th 1726, 1731 [45 Cal. Rptr. 2d 746].)

A court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is also reviewable. ‘[W]here the court’s action lacks reason it may be invalidated upon timely challenge.’ ( People v. Orinsupra, 13 Cal. 3d at p. 949.) Section 1385 anticipates, and facilitates, appellate review with the requirement that ‘[t]he reasons for the dismissal must be set forth in an order entered upon the minutes.’ (§ 1385(a).) ‘The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter’s transcript may show the trial court’s motivation; the minutes must reflect the reason ‘so that all may know why this great power was exercised.’ ‘ ( People v. Beasley(1970) 5 Cal. App. 3d 617, 637 [85 Cal. Rptr. 501]; see also People v. Orinsupra, 13 Cal. 3d at p. 944 [‘It is settled law that this provision is mandatory and not merely directory.’].)

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531 [53 Cal.Rptr.2d 789, 917 P.2d 628].)