A Romero motion is when a defendant asks a judge not to count a previous conviction as part of their sentence. When used correctly, the Romero motion is helpful under specific circumstances because it can prevent severe punishments that are unfair or mistakes in the legal process. The three-strikes rule could put someone in jail for life if they had prior felony convictions.
California implemented its “Three Strikes” law in 1994 through Proposition 184 and then solidified it in Penal Code Section 667.
Under this legislation, defendants previously found guilty of three or more serious crimes are subject to more severe punishments, requiring a compulsory jail term of at least 25 years for the third violation. This Act has come under fire for driving up the number of incarcerated individuals and disproportionately impacting those not white.
The 1996 case People v. Romero was a significant ruling by the California Supreme Court, stating that dismissal of a previous strike offense may be warranted if it aligns with the principles of justice, as determined by the trial court.
Jesus Romero was charged with a felony for possessing cocaine due to his prior convictions for burglary and attempted burglary.
The judge in charge decided that punishing an individual with a third strike solely for possessing illegal substances was unfair. As such, he proposed to dismiss one of the charges via a plea bargain, invoking his powers specified in Penal Code 1385 PC.
Romero’s escape from lifetime confinement became feasible as soon as the accusation of striking allegations was quashed. However, because of his prior criminal incarcerations, he had to serve six years in prison.
The California Supreme Court unanimously supported the decision made by the trial judge, who exercised the power to cancel a strike according to Penal Code 1385, even after an appeal was filed.
The penal code states that the judge or magistrate can dismiss an action if it is deemed necessary for justice. This decision will be spoken and recorded, with reasons provided if requested or if recording equipment is unavailable. The dismissal, however, will not be granted if the grounds are those that could be raised in a demurrer to the initial accusation.
At What Point is a Romero Motion Commonly Submitted?
The request is generally submitted after the preliminary hearing, where the court has ascertained the likelihood of a crime being committed and the defendant’s involvement.
It is worth noting that a Romero motion can be submitted at any stage of the criminal case, including after the preliminary hearing, before sentencing, and after trial but before or during sentencing.
Certain factors increase a Romero motion’s chances of passing
Despite the attorneys’ request, judges may not always grant Romero’s motion. Based on these requirements, the judge can decide whether or not to approve it.
- Remorse over having acted improperly.
- Cooperation in a legal proceeding.
- The defendant’s history of criminal offenses
- The current level of seriousness of the charges.
- The defendant’s most recent conviction date is.
- The accused person’s age when they were convicted of a crime in the past.
- The accused does not represent a threat to the safety of the community.
Restrictions on the discretion of the judge
- Following that case, People v. Williams clarified the criteria by which the judge should grant a Romeo motion in more detail. Among them are the following circumstances:
- The “three strikes” rule must be applied only when the judge has a good faith belief that doing otherwise would amount to “cruel and unusual punishment” and be against the interests of justice.
- If granting the motion would put the public’s safety at an unreasonable risk, the judge must refuse it.
- The judge cannot grant the motion on the grounds of convenience for the court or an overflowing caseload.
- The court cannot grant the motion simply because the defendant pleaded guilty. Although the judge in the first State v. Romeo did remove a strike as part of a plea agreement, he also cited the argument that the defendant would have suffered a miscarriage of justice if he had received three strikes. As a result, using the Romeo motion only as a “bargaining chip” in plea deals has less of an impact.
- There cannot be an “abuse of judicial discretion” in granting the motion. To put it another way, granting it requires a good-faith legal justification.
- A judge would probably be abusing their discretion by granting a Romero motion for a defendant with a string of violent felonies and misdemeanors demonstrating a persistent disregard for public safety or lack of judgment.
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Seppi Esfandi is an Expert Attorney who has over 21 years of practice defending a variety of cases.