Romero Motion to Dismiss a Prior Strike Conviction (PC 1385). Criminal Defense Lawyers Explain Romero Motion to “Strike a Strike” in the Interest of Justice.
- Criminal Defense Lawyers
- Apr 6
- 4 min read
A Romero motion is a request by a criminal defendant to a California criminal court judge to dismiss the use of a prior criminal strike in a district attorney’s present criminal case, so that the defendant’s prior criminal strike cannot be used to enhance the defendant’s current penalty exposure.
Example: In 2010, Sarah is convicted of first-degree burglary (PC 459/460), a ‘strike’ conviction. In 2025, Sarah is again charged with first-degree burglary. Due to Sarah’s 2010 conviction, Sarah is now facing a possible second ‘strike’ conviction on the new first-degree burglary charge. This means that Sarah’s prior strike conviction will expose her to twice as much prison time related to the new criminal charge. Therefore, Sarah motions the court to dismiss her prior 2010 strike conviction so that she is not facing as much prison time on her new 2025 first-degree burglary charge.
Strike Conviction: A “Strike” Conviction is a conviction for any felony listed in PC 667.5(c) [Violent Offenses], or PC 1192.7(c) [Serious Offenses]. The list of “strike” crimes is lengthy and includes the most serious and violent of felony offenses in the criminal law, such as murder, rape, torture, kidnapping, mayhem, lewd acts on children, arson, residential burglary, and more.
PC 1385: A Romero motion to strike a prior strike is based on the judge’s authority to dismiss a criminal defendant’s prior criminal conviction in the interest of justice, as authorized by California penal code section 1385. The court’s authority to strike a prior strike was announced in the now famous case of People v. Romero (1996).
Essentially, the purpose of the Romero motion is to avoid the harsh penalties related to a current felony offense, where the penalties of the current felony offense are enhanced because of the defendant’s prior strike conviction.
No Guarantee: The criminal court judge has authority under penal code 1385 to dismiss a defendant’s prior strike in the interest of justice, but there is no guarantee that the court will grant the defendant’s Romero motion to strike a prior strike in any criminal case. The court will determine the circumstances of the defendant’s case during the Romero motion presentation before the court decides as to whether to grant the defendant’s Romero motion.
Factors to Consider: The court will consider many factors before it decides whether to grant the defendant’s Romero motion to dismiss a prior strike. The factors include, but are not limited to, the following:
The seriousness of the current crime
The similarity of current & past crime
The harm caused to any victim
The sophistication level used in crime
The punishment faced by defendant
The length of time between crimes
The remorse shown by defendant
The defendant’s circumstances, etc.
Benefits of Romero Motion: The benefits of a successful Romero motion are that the defendant will face significantly less penalties related to the current felony offense.
Example: In 2012, David is convicted of felony assault with a deadly weapon (PC 245), a strike offense. In 2025, David is charged with felony criminal threats (PC 422), another strike offense. If David successfully motions the court to dismiss his 2012 strike offense through a Romero motion, then David’s prison exposure is reduced from six years to three on the current PC 422 allegation.
Dismissal Not Permanent: If the court grants the defendant’s Romero motion to dismiss the defendant’s prior strike, then the prior strike is dismissed for the current case only. In other words, the defendant’s prior strike is not erased from his or her criminal history. Rather, the strike is dismissed for the current case only.
Example: In 2005, Susan was convicted of arson with injury (PC 452), a felony strike conviction. In 2025, Susan is charged with lewd and lascivious act on a child under 14 (PC 288(a)), a strike offense. As part of Susan’s new criminal case, she successfully motions the court to dismiss her 2005 conviction so that her possible prison sentence on the new allegation is not severely enhanced. Ultimately, Susan’s PC 288(a) criminal charge is dismissed. However, this does not mean that Susan’s 2005 arson conviction is erased from her criminal history. Rather, the arson conviction was only erased for purposes of Susan’s new 2025 criminal prosecution.
Timing of Motion: The Romero motion to dismiss a prior strike may be brought at any time in a criminal prosecution, including during the sentencing phase of the prosecution.
However, in most criminal cases, the defendant’s Romero motion to dismiss a prior strike is brought during the later stages of the prosecution (i.e., after preliminary hearing or at the time of sentencing). There are strategic reasons for this, and in most cases, the criminal court judge will not even entertain a Romero motion prior to a preliminary hearing.
Limitations: The court must express “good cause” for granting a Romero motion. “Good cause” does not include granting a Romero motion to dismiss a prior strike in exchange for the defendant’s plea of guilt or no contest or to alleviate court congestion or prison congestion.
In fact, a district attorney is also forbidden from negotiating a strike of a prior strike for purposes of plea bargaining (PC 1192.7). There are exceptions to this rule that go beyond the scope of this article.
Note: A PC 1385 motion to dismiss a prior strike pursuant to a Romero motion is not a proper vehicle for dismissal of a criminal case based on demurrer grounds (i.e., violation of statute of limitations, lack of jurisdiction, double jeopardy violation, misjoinder or defendant, etc.). For more information, see Demurrer in Criminal Court.
Finally, a criminal court judge cannot strike a prior conviction to avoid enhancement of a current criminal penalty if the court finds that striking the prior conviction, or enhancement, increases danger to the community (PC 1385(c)(2) Abbrev.).
To learn more about Romero Motions, or motions to strike a prior conviction in the interest of justice (PC 1385), contact our California criminal defense lawyers today for a free consultation.
Our team of highly successful criminal defense lawyers have handled thousands of felony and misdemeanor cases in the Inland Empire (San Bernardino & Riverside Counties), Orange and Los Angeles Counties, and we can help you too. Call today.
909-913-3138
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