A sample Romero motion in California is a written brief asking the sentencing judge to dismiss one or more prior strike allegations under Penal Code 1385, and the content that decides whether it succeeds falls into two buckets: the three Williams factors (your prior strike, your current offense, and your background and prospects) and the nine mitigating circumstances listed in Penal Code 1385(c) that courts must give great weight. Everything else in the motion exists to support those arguments with documents a judge can rely on.
What the Motion Is Asking the Judge to Do
Penal Code 1385 lets a judge dismiss a criminal action or sentencing allegation “in furtherance of justice,” and the judge must state the reasons on the record.1California Legislative Information. California Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise The California Supreme Court confirmed in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 that this dismissal power reaches prior strike allegations in Three Strikes cases.2Stanford Law School Supreme Court of California Resources. People v Superior Court Romero 13 Cal 4th 497
Striking a prior affects sentencing only. The conviction stays on your record and remains available in future proceedings. What the motion removes is the strike’s effect on the current sentencing calculation.
Organize the Motion Around the Williams Factors
In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court set out the framework every judge must use. The court considers the nature and circumstances of the current offense, the nature and circumstances of the prior strike convictions, and the particulars of the defendant’s background, character, and prospects, then asks whether the defendant may be deemed outside the Three Strikes scheme’s spirit and treated as though they had no prior strikes.3Justia Law. People v Williams 1998
Build your legal argument section around those three factors in that order. Every exhibit you attach should map back to one of them. This is not a sympathy test. The law targets people the legislature viewed as career criminals, and the motion’s job is to show the judge your client does not fit that description.
The Prior Strike Convictions
Lead with remoteness. State how much time has passed since the strike offense itself, not just the conviction date, because plea negotiations and trial delays can push the formal conviction years past the underlying conduct. A strike from twenty years ago reads very differently from one three years old.
Document any clean stretch between the strike and the current offense. A long period of law-abiding behavior directly undercuts the career-criminal narrative. If there were intervening offenses, acknowledge them and explain the context. The judge is going to read the rap sheet either way, and hiding anything destroys credibility.
Describe the strike itself with specifics. A residential burglary of an unoccupied home at nineteen tells a different story than an armed robbery at thirty-five. If the strike came out of a plea bargain where the original charges were different, include that. Attach certified copies of the prior conviction documents so the judge sees the full picture rather than a label.
The Current Offense
Explain the current conviction’s severity against the sentence the strike would trigger. The argument is strongest when the current offense is a non-violent, non-serious felony and doubling or tripling the term would be grossly disproportionate. If there was no violence, no weapon, and no significant victim harm, say so plainly and point to the record.
When the current offense is itself serious or violent, the argument shifts rather than disappearing. Focus on unusual circumstances, a minimal role, or mitigating facts the conviction label doesn’t capture.
Background, Character, and Prospects
Most of the persuasive work happens here, and most of it comes from exhibits rather than argument. Include what you can document:
- Employment history: letters from employers, pay stubs, vocational training records. Steady work over time is more persuasive than a job started after the arrest.
- Family ties: declarations from family members describing the defendant’s role as a parent, caretaker, or provider. Concrete details carry more weight than general praise.
- Rehabilitation: certificates from substance abuse treatment, anger management, or educational programs. Completion dates that predate the current offense count for more than programs started after arrest.
- Mental health and trauma: treatment records and professional assessments showing the defendant has addressed or is addressing underlying issues that contributed to past criminal conduct.
- Age: criminal behavior declines with age, and if the defendant is significantly older now than when the strike occurred, that belongs in the motion.
- Community involvement: volunteer work, church participation, mentorship, anything showing the defendant contributes to the community rather than threatens it.
Supporting documents go in as exhibits: declarations under penalty of perjury from family members, employers, counselors, or community leaders; treatment records; employment verification; educational transcripts. The more verifiable the evidence, the harder it is for the prosecution to brush off as self-serving.
Add Every Applicable SB 81 Mitigating Factor
Senate Bill 81, effective in 2022, added nine specific mitigating circumstances in Penal Code 1385(c) that the court must give “great weight” when deciding whether to dismiss an enhancement. If one applies and the court does not find that dismissal would endanger public safety, the law favors dismissal.1California Legislative Information. California Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
The nine circumstances:
- Discriminatory racial impact: the enhancement would result in a racially discriminatory effect as described in Penal Code 745.
- Multiple enhancements: more than one enhancement is alleged in the case. When this applies, all enhancements beyond one must be dismissed.
- Sentence over 20 years: the enhancement could push the total sentence past 20 years. When this applies, the enhancement must be dismissed.
- Mental illness: the current offense is connected to mental illness.
- Prior victimization or childhood trauma: the current offense is connected to the defendant’s history of victimization or trauma.
- Non-violent current offense: the current conviction is not a violent felony under Penal Code 667.5.
- Juvenile offenses: the defendant was a juvenile when they committed the current offense or any prior offense triggering the enhancement.
- Old prior conviction: the enhancement is based on a prior conviction more than five years old.
- Inoperable or unloaded firearm: a firearm was involved in the current offense but was inoperable or unloaded.
In People v. Walker (2024) 16 Cal.5th 1024, the California Supreme Court held that when an enumerated mitigating circumstance is present and the court does not find dismissal would endanger public safety, the result will “generally” be dismissal, though the court can still deny the motion based on substantial, credible evidence of countervailing factors.4CCAP. Whether PC 1385(c) Creates a Rebuttable Presumption in Favor of Dismissing an Enhancement
Identify every applicable factor and document each one. A prior strike more than five years old combined with a non-violent current offense already puts two enumerated factors in play. The more you establish with evidence, the heavier the prosecution’s burden becomes.
Structure of the Written Motion
The motion is a standard legal brief: caption, statement of facts, legal argument, and conclusion requesting specific relief. The argument section works best when organized under the three Williams factors, with a separate section identifying each applicable SB 81 circumstance and the evidence supporting it. Exhibits attach at the end, labeled and referenced in the body.
The statement of facts should cover the current offense in enough detail for the judge to understand what actually happened, the defendant’s criminal history including the prior strike with dates and circumstances, and the personal background facts that your argument will later rely on. Don’t save facts for the argument section that you haven’t first set out in the statement.
Filing and the Hearing
File the motion with the court clerk and serve the prosecution well before the sentencing date. Early filing gives the prosecution time to prepare a written opposition and gives the judge time to read both sides. Dropping a complex motion on the court at the last minute irritates the judge whose discretion you are asking to invoke.
The prosecution’s opposition will typically emphasize the full criminal history, argue the defendant falls squarely within the law’s intended scope, and highlight any facts about the current offense suggesting ongoing dangerousness. Expect the strike to be framed as exactly what the legislature had in mind.
The hearing is often combined with sentencing. Both sides present oral arguments, and the judge may ask questions. If the motion is granted, Penal Code 1385 requires the judge to state the reasons on the record.1California Legislative Information. California Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise The judge then sentences under whatever scheme applies without the dismissed strike.
If the Motion Is Denied
A denial can be challenged on appeal under an abuse-of-discretion standard. The appellate court does not re-weigh the evidence; it asks whether the trial court’s decision falls outside the bounds of reason given the law and facts.3Justia Law. People v Williams 1998 The most common grounds for reversal are that the trial judge failed to consider a Williams factor, ignored evidence of an SB 81 mitigating circumstance, or applied the wrong legal standard.
This deferential review is why the written motion carries so much weight. The appellate record is what you built in the trial court. A thorough motion with strong exhibits creates the factual foundation for any later challenge, and if the judge fails to address a compelling mitigating factor you raised, that omission sits on the record.
One note on scope: a Romero motion addresses sentencing that has not yet happened. If the defendant is already serving a 25-years-to-life sentence under the pre-Proposition 36 Three Strikes law and the third strike was not a serious or violent felony, the separate petition procedure in Penal Code 1170.126 is the correct tool, not a Romero motion.5California Legislative Information. California Penal Code 1170.126