California’s Three Strikes law requires mandatory sentencing for repeat criminal offenders. In case the defendant is accused of any felony with two or more prior strikes, the law prescribes that extended sentences be applied for any conviction of additional strike charges. However, Three Strikes laws sentences may seem to be disproportionate to the crimes committed, e.g. a defendant may be sentenced to a state prison term of at least 25 years to life for a non-violent and nonserious felony. In such cases, Romero Motion is regarded as a pleading by the criminal defense and gives judges the ability to dismiss a defendant’s prior strike offenses. Thereby, a trial court may dismiss allegations of prior felonies and the defendant may avoid a 25-to-life minimum sentence.
A serious felony conviction usually turn into a strike. Under California Penal Code Section 667, any person convicted of a serious felony who previously has been convicted of a serious crime shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The prosecutor may allege a second or third strike, even if the crime is unrelated or occurred a long time ago. Even a minor offense can be regarded as a strike and cause extended jail time when a violent crime is involved. However, a court's discretion to strike prior felony conviction allegations is limited. For example, if there is insufficient evidence to prove the prior serious and/or violent felony conviction, the court may dismiss or strike the allegation. Still, when dismissing a strike allegation, the felony conviction does not disappear altogether. For example, if a judge decides to dismiss one of the past allegations, the defendant might be sentenced as if his case was a second strike case.
As the Three Strikes statute does not contain a clear legislative direction to the contrary, the trial court retains a certain discretion under Penal Code section 1385 to dismiss prior felony conviction allegations. However, the trial court's power to dismiss an action is limited and requires that the dismissal be “in furtherance of justice.” The Legislature provides no rules and instructions concerning certain parameters of dismissal and courts have to establish the boundaries of the judicial power as cases arise. Although case law provides several general principles, the courts should always take into consideration both of the constitutional rights of the defendant, and the interests of society represented by the People when they determine whether there should be a dismissal.
Murder, aggravated assault and/or battery, manslaughter, arson, burglary, tax evasion, the manufacture, sale, distribution, or possession with intent to distribute illegal drugs, obstruction of justice, fraud, etc.
When considering whether to strike one or more strike allegations, the judge must take into consideration the following parameters:
• The right of the defendant to be free from cruel and unusual punishment;
• The reason for dismissal must be “that which would motivate a reasonable judge”;
• The judge shouldn't dismiss a strike allegation because a defendant pleads guilty.
If you have a case involving Romero motions, it is crucial to acquire the services of a California criminal defense attorney with appropriate experience. The aim of criminal defense attorney is to find the strategy to reduce the number of prior strikes or to eliminate them as factors in the prosecution.
If case of successful defense, a Romero motion demonstrates one or more prior strike offenses as non-strikes. This may remove the strike designation from current charge, reduce the state prison term or, even, replace a prison or jail sentence by probation.
In 2012, defendant Rahsaun Lamont Horn entered a plea of guilty to possession of marijuana for sale and driving with a suspended or revoked license. He was convicted previously of four violent or serious felonies and of one felony for which he served a prison term. He filed a request that the court exercise its discretion to dismiss the prior strike allegations in the furtherance of justice in accordance with People v. Superior Court (Romero) (1996). The court denied the Romero motion and sentenced defendant to a term of 25 years to life in prison. The court considered that the current felony offense, possession of marijuana for sale, was a nonviolent, nonserious felony. However, the court, given its consideration of other factors, concluded that the lack of seriousness of the current offense was not sufficient to justify granting the Romero motion.