For a defendant with two prior strike convictions, a third felony charge in California carries a mandatory minimum of 25 years to life. The math of that sentence is not subject to plea negotiation in the traditional sense — the strikes are the strikes, and the statute is the statute. But there is a procedural tool that allows a defense attorney to ask the court for a different result, and in the right case it can mean the difference between a 25-to-life sentence and one that lets a defendant come home. It is called a Romero motion.

Three Strikes in California

California’s Three Strikes Law, codified in Penal Code 667 and 1170.12, requires courts to impose enhanced sentences on defendants with prior serious or violent felony convictions — known as “strike” priors. A defendant convicted of any new felony with one prior strike faces double the otherwise-applicable sentence. A defendant with two prior strikes faces 25 years to life on any new felony conviction, subject to limited exceptions added by Proposition 36 in 2012.

For decades, this sentencing structure has been one of the most consequential features of California criminal law. It has also been one of the most criticized, because it can apply to defendants whose third felony is far less serious than the strike priors that triggered the enhancement. The Romero motion is the principal judicial tool for addressing that mismatch.

Where the Romero Motion Comes From

The motion takes its name from People v. Superior Court (Romero), a 1996 California Supreme Court decision that established that trial courts retain discretion to strike prior strike allegations “in the interest of justice” under Penal Code 1385. Before Romero, there was active legal debate about whether trial courts had any discretion to strike priors at all. The decision settled that question: the discretion exists, but it is bounded by specific factors the court must weigh.

In the years since Romero, follow-on cases — particularly People v. Williams in 1998 — have refined the analysis trial courts must perform when ruling on these motions. Today, every Romero motion in a California courtroom is built around those refinements.

The Williams Factors

In People v. Williams, the California Supreme Court held that when ruling on a Romero motion, the trial court must consider whether the defendant — in light of the nature and circumstances of their present felonies and prior serious or violent felony convictions, and the particulars of their background, character, and prospects — falls outside the spirit of the Three Strikes scheme. Courts and appellate decisions have since refined this into a set of practical considerations that defense counsel address in every Romero motion.

The nature of the current offense. Is the present felony a serious or violent felony, or something less? A non-violent third strike, especially one that did not involve a victim or that arose from substance use, looks different to the court than a violent offense.

The nature and timing of the prior strikes. How old are the strike priors? Are they violent? Are they connected to a single course of conduct (often making them a single strike in practice), or are they truly separate? Did they occur when the defendant was young?

The defendant’s background and character. What does the defendant’s life look like outside the criminal history? Employment, family responsibilities, community ties, mental health, treatment history, military service, age, and the trajectory of their life over time all become relevant.

The defendant’s prospects. What does rehabilitation look like for this defendant? Is there a plan? Is there documented progress in treatment, education, or employment? Is there a network of support?

How a Romero Motion Gets Built

An effective Romero motion is not a single document filed in the weeks before sentencing. It is a months-long mitigation effort that culminates in a written motion to the court. The work behind the motion typically includes a thorough investigation of the strike priors — the police reports, the plea transcripts, the underlying conduct, any reasons the strikes might be unconstitutionally obtained or factually distinguishable. It includes character references from people who have known the defendant over time. It includes documentation of treatment, employment, family circumstances, and rehabilitation efforts. And it includes a written argument tying all of this to the Williams factors and to the spirit of the Three Strikes scheme.

The motion itself is heard either before trial or at sentencing, depending on the strategy and the court. Some defendants and their attorneys prefer to argue Romero before trial, when a successful motion can shift plea negotiations dramatically. Others prefer to argue it at sentencing after a conviction. Both approaches have strategic merit, and the right choice depends on the specifics of the case.

Realistic Outcomes

Trial courts are not required to grant Romero motions. The discretion is real, and so is the discretion to deny. But for the right defendant — particularly one whose current offense is non-violent, whose strikes are old or arose from a single course of conduct, and whose post-strike life shows meaningful rehabilitation — a Romero motion can have one of several effects: it can result in a strike being stricken for all purposes, eliminating the 25-to-life exposure; it can result in a strike being stricken only for some counts; or it can lead to a negotiated plea that takes the Romero analysis into account.

Even when a Romero motion is denied, the work that went into preparing it is rarely wasted. The same mitigation material can be repurposed for sentencing, for parole considerations later, or for post-conviction relief proceedings down the line.

Common Questions

Can Romero apply to a single strike?

Yes. A Romero motion can be filed in any case with a strike prior — not only in two-strike (third-strike) cases. In a one-strike case, a successful motion eliminates the doubling enhancement, which can substantially reduce the sentence.

What is the difference between a Romero motion and Proposition 36 resentencing?

A Romero motion is a request to the trial court to strike a prior strike in a pending case. Proposition 36, passed in 2012, allows certain defendants who are already serving 25-to-life sentences for non-violent third strikes to petition for resentencing. They are different procedures, available at different stages, and they are not mutually exclusive — a defendant who unsuccessfully sought Romero relief in the trial court may later be eligible for Proposition 36 resentencing.

Will the prosecutor oppose the motion?

Almost always, yes. The prosecutor’s office in nearly every California county opposes Romero motions as a matter of practice. This is part of what makes the work of building the motion so important — the defense has to make a case strong enough for the trial court to grant relief over the objection of the District Attorney’s office.

Can a strike from another state be challenged?

Sometimes. California law has specific rules about when a conviction from another state qualifies as a strike. If the out-of-state offense does not contain all of the elements California requires for a strike, the prior may be challenged on that basis, separately from a Romero motion.

Romero motions are some of the most demanding work in criminal defense, because the gap between success and denial can be measured in decades of life. Joseph W. Galasso has built and argued Romero motions in Riverside County for more than 20 years. To discuss whether a Romero motion may be appropriate in a specific case, schedule a free case evaluation or call (951) 225-4130. For more on this practice area, see the Romero Motions page.