A Romero motion asks the judge to dismiss, or "strike," one of your prior "strike" convictions so it does not count against you under the Three Strikes law at sentencing. Courts call it a Romero motion after a 1996 California Supreme Court case, and the judge decides it under the law's general power to dismiss "in furtherance of justice."
What does a Romero motion ask the judge to do?
A Romero motion asks the court to use its power under Penal Code 1385(a) to strike a prior strike allegation, so Three Strikes sentencing does not apply it.
Penal Code 1385(a) gives a trial judge a general power to dismiss a case, or part of one, when doing so serves justice:
"The judge or magistrate may, either on motion of the court 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." (Penal Code section 1385(a))
The statute names two ways this can start: the court can act on its own motion, or the prosecutor can apply for it. In practice, defense lawyers also ask the court to use this same power for a client, which is how the request became known as a Romero motion, even though the text does not list the defendant as a third party who can separately "apply." Either way, if the judge strikes the allegation, Penal Code 1385(a) requires the reasons for that dismissal to be stated orally on the record.
Striking a strike does not erase the prior conviction. It only means the court will not use that prior conviction to apply Three Strikes sentencing (a doubled term for one prior strike; with two or more, a life term with a minimum of at least 25 years when the current felony is serious or violent or the prosecution pleads and proves a listed exception, and otherwise a doubled term) to the case being sentenced now.
Why is this called a "Romero" motion, and does the Three Strikes law block it?
It is named for a 1996 California Supreme Court case holding that the Three Strikes law did not take away a court's power to strike a prior strike allegation.
The case is People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The Three Strikes statute itself confirms this. Penal Code 667(f)(2) says:
"The prosecuting attorney may move to dismiss or strike a prior serious or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious or violent felony conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious or violent felony conviction, the court may dismiss or strike the allegation. This section shall not be read to alter a court's authority under Section 1385." (Penal Code section 667(f)(2))
The firm's overview of California's Three Strikes law covers what counts as a strike, how a second or third strike changes a sentence, and how Penal Code 1170.126 resentencing works for an older third-strike case already being served. This page goes deeper into one piece of that picture: the motion used to ask the court not to count a strike at all when a new case is being sentenced.
What does the judge actually weigh before striking a strike?
Unlike a sentence enhancement, Penal Code 1385(a) does not give the judge a list of factors to weigh for a strike allegation; the standard is whether striking it serves justice.
That matters because the law treats enhancements differently. Since January 1, 2022, Penal Code 1385(c) requires a judge to dismiss an enhancement if doing so is in furtherance of justice (unless an initiative statute prohibits dismissing it), and to give "great weight" to nine listed mitigating circumstances (among them a current offense connected to mental illness or childhood trauma, a firearm that was inoperable or unloaded, an enhancement that could result in a sentence of over 20 years, or an enhancement based on a prior conviction over five years old) unless dismissing it would endanger public safety. The California Supreme Court addressed that standard in People v. Walker (Cal. Supreme Ct., Aug. 15, 2024, S278309): a court keeps discretion, but "if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors."
Walker also flagged, without deciding, whether that same mitigating-circumstances list reaches a prior-strike allegation rather than only an enhancement. Its footnote records that other Courts of Appeal have rejected that idea: "This assumption has since been rejected by other Courts of Appeal, which have concluded that section 1385, subdivision (c), by its terms, only applies to enhancements and not the Three Strikes law, which is an alternative sentencing scheme." Walker adds, "We do not address this distinct question of statutory interpretation, which is not before us." So for a strike, unlike an enhancement, there is no statutory checklist and no "great weight" rule built into the text; the judge's discretion under subdivision (a) alone controls, and granting the motion is never automatic.
Caption: how striking a prior strike compares with striking a sentence enhancement
| Strike allegation (Romero motion) | Sentence enhancement | |
|---|---|---|
| Legal basis | Penal Code 1385(a) | Penal Code 1385(c) |
| Standard | Discretionary; "in furtherance of justice," no listed factors | Dismiss when in furtherance of justice, unless an initiative statute bars it; proof of a listed circumstance weighs greatly toward dismissal unless it would endanger public safety |
| Who can start it | The court on its own motion, including when the defense asks, or the prosecutor's application | The court on its own or when either side asks, at sentencing or earlier in the case |
| Does the 2022 mitigating list apply? | Courts of Appeal say no; the Supreme Court has not decided it | Yes, by the statute's own terms |
Two more of the firm's pages discuss Three Strikes sentencing from other angles. The Three Strikes Law page is a broader overview of the statute, and the Los Angeles three strikes defense strategies page discusses how a strike allegation gets proved before a Romero request is even reached.
How is a Romero motion raised, and when does the judge decide it?
A Romero request is usually put in writing and decided at the sentencing hearing, after the defense lays out the record the judge should weigh.
- The defense raises it, typically in a written motion or sentencing memorandum filed ahead of the sentencing date, laying out the current charge, the age and nature of the prior strike, and the defendant's record since then.
- The prosecutor responds, either opposing the request or joining it; Penal Code 1385(a) also lets the prosecutor bring the request directly.
- The court can also raise it on its own, without either side asking, because the power under subdivision (a) belongs to the judge.
- The judge rules, usually at sentencing, and if the judge strikes the strike, the reasons must be stated orally on the record. Penal Code 1385 sets no filing deadline for this request.
What happens after the judge rules?
If the motion is granted, the strike is not counted for Three Strikes purposes in this case; if it is denied, sentencing goes forward with the strike counted.
A grant does not remove the prior conviction from the defendant's record, and it does not strike the strike for any other, separate case. A denial does not necessarily end the matter either: it can be raised in an appeal from the judgment, and Penal Code 1237(a) treats a sentence as a final judgment for that purpose. Because the outcome depends entirely on the specific record in front of the judge, no page can tell you in advance how a particular court will rule.
What should you ask your lawyer about a Romero motion?
Ask what in your record could support the request, what your sentence looks like with and without the strike, and whether the prior conviction can be challenged on separate grounds.
- What does my sentence look like with the strike counted, and without it?
- What about my background, the current charge, or the age of the prior conviction is worth putting in front of the judge?
- Is the prior conviction itself open to a separate challenge, apart from a Romero motion? See how a prior strike allegation gets proved or disputed and whether two convictions from one act can count as two strikes.
- How does this motion fit with the other requests a defense lawyer might file in the same case? The firm's Motions We Commonly File page lists several others, from a motion to suppress evidence to a motion for bail reduction.
- Has the firm handled a case like this before? In one firm-reported result, a Romero motion was part of resolving a methamphetamine possession charge that faced 25 years down to a misdemeanor; see that case result for the specific facts. Results depend on the facts of each case, and no outcome is guaranteed.
Frequently asked questions
Does filing a Romero motion mean the strike will be struck?
No. The judge has discretion to deny the request. Granting it is never automatic, and, unlike an enhancement, the law does not give the judge a list of factors it must weigh for a strike.
Who can ask the court to strike a strike?
Penal Code 1385(a) lets the court act on its own motion or on the prosecutor's application. Defense lawyers also ask the court to use that same power for a client, which is the common practice called a Romero motion.
Does granting a Romero motion erase the prior conviction from my record?
No. The conviction stays on the record. Striking it only means the court will not apply Three Strikes sentencing based on that prior conviction in the case being sentenced now.
Is striking a strike the same as asking the judge to dismiss my whole case?
No. Penal Code 1385(a) can be used either way, but a Romero motion specifically asks the court to strike the prior-strike allegation, not to dismiss the current charge.
Is a Romero motion the same as arguing that a conviction never counted as a strike?
No. A Romero motion assumes the strike is valid and asks the court not to use it. Arguing that a conviction never legally qualified as a strike is an earlier, separate question; see how a prior strike allegation gets proved or disputed.
When does the court decide a Romero request?
Most often at the sentencing hearing, after the defense raises it in writing. Penal Code 1385 does not set a specific deadline for filing this particular request.
Do the 2022 mitigating factors for enhancements also apply to striking a strike?
Several Courts of Appeal have said no, because Penal Code 1385(c)'s list applies only to enhancements, not to the Three Strikes law. The California Supreme Court noted that disagreement in 2024 but has not yet decided the question.
Talk to a lawyer
The Law Offices of David S. Chesley offers a free consultation and is available 24/7 to talk through a Three Strikes case, with payment plans and Se habla español. Call (800) 755-5174 or request a free consultation online.