Three Strikes and Romero Motions in the San Francisco Bay Area

Pelta Law defends felony cases with strike allegations across the nine Bay Area counties: San Francisco, Alameda, Santa Clara, San Mateo, Contra Costa, Marin, Solano, Napa and Sonoma. Marc Pelta is a former Del Norte County deputy district attorney and has practiced criminal defense since 2008.

This page is general information about California law, not legal advice. Every strike case turns on the record of the prior conviction and the facts of the new charge.

What counts as a strike

A strike is a prior conviction for a serious felony listed in Penal Code 1192.7(c) or a violent felony listed in Penal Code 667.5(c). The two lists overlap heavily. The new felony does not have to be serious or violent for a strike allegation to apply.

Violent felonies under PC 667.5(c) include murder, voluntary manslaughter, robbery, kidnapping, carjacking, many sex offenses, first degree burglary where it was charged and proved that someone other than an accomplice was present, and any felony in which a great bodily injury or firearm-use enhancement was charged and proved.

Serious felonies under PC 1192.7(c) form a longer list: assault with a deadly weapon, first degree burglary of an inhabited dwelling, criminal threats under PC 422, any felony in which the defendant personally used a firearm or dangerous weapon, and furnishing certain controlled substances to a minor.

Two other categories often surprise people. A conviction from another jurisdiction counts if it would be punishable by a state prison term in California and includes all the elements of a California serious or violent felony. A juvenile adjudication can count under the conditions in PC 667(d)(3).

There is also no washout period. The age of the prior does not remove it from the case, though age matters later in the Romero analysis.

Second strike consequences

When a person with one prior strike is convicted of any new felony, the sentence for the new felony is doubled. Probation is not available.

Where there are multiple new felony counts not committed on the same occasion and not arising from the same set of operative facts, the terms run consecutively.

Penal Code 667(c)(5) limits statutory conduct credit on a strike sentence to one fifth of the term, and credit rules adopted by the Department of Corrections under Proposition 57 also affect how much time is served.

A separate enhancement can apply in addition to the doubled term. When the new offense is itself a serious felony and the prior is a serious felony, PC 667(a)(1) adds five years for each qualifying prior brought and tried separately.

Since 2019, courts may strike that enhancement under Penal Code 1385, which now lists mitigating circumstances the court must weigh. Whether to ask is a separate question from the Romero motion, and the two requests are often made together.

Third strike consequences

Since Proposition 36 in 2012, a sentence of 25 years to life for a third strike generally requires that the new felony itself be serious or violent. When it is not, the person is usually sentenced as a second striker, with the doubled term described above.

There are exceptions. The 25 years to life term can still apply to a non-serious, non-violent new felony in several situations.

One is where, during the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury. Another is where the current offense is a felony sex offense requiring registration or a controlled substance charge with a quantity allegation.

The same is true where the prior record includes a sexually violent offense, specified sex offenses against children, any homicide or attempted homicide offense, solicitation to commit murder, any serious or violent felony punishable by life imprisonment or death, or another prior listed in the statute.

The difference between a doubled determinate term and an indeterminate life term is the reason strike cases are analyzed so carefully at the charging and plea stages, long before any sentencing hearing.

The Romero motion

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held that a trial court keeps its power under Penal Code 1385 to dismiss a prior strike in the furtherance of justice, even over the prosecution's objection.

A Romero motion asks the court to exercise that power. It is the central defense motion in most strike cases where the prior clearly qualifies.

The governing standard comes from People v. Williams (1998) 17 Cal.4th 148. The court asks whether the defendant may be deemed outside the spirit of the Three Strikes scheme, in whole or in part.

A court may strike one prior and leave another in place, or strike a prior as to some counts but not others. The judge must state the reasons on the record. The decision is discretionary, and an appellate court reviews a denial only for abuse of that discretion.

Facts that commonly matter include how long ago the prior occurred, whether the priors arose from a single period in a person's life, the conduct in the new case, the record since, treatment, work history, family responsibilities and health. The motion is built from documents, not argument alone.

Why prior-record analysis matters

Strike allegations must be pleaded and proved by the prosecution. Whether a prior qualifies is decided from the record of conviction: the abstract of judgment, the charging document, the plea transcript and the PC 969b prison packet.

That record is the first thing a defense lawyer examines. A prior that looks like a strike on a rap sheet is not always one.

Some priors are ambiguous by design. Before 2012, PC 245(a)(1) covered both assault with a deadly weapon, which is a serious felony, and assault by force likely to produce great bodily injury, which is not unless injury was inflicted or a weapon was used.

Under People v. Gallardo (2017) 4 Cal.5th 120, a sentencing court may not go beyond the facts the defendant admitted or a jury found to decide which version applies.

Similar questions arise with out-of-state priors whose elements differ from California's, juvenile adjudications where age or the WIC 707(b) list is in doubt, and wobblers that may have been reduced to misdemeanors. Each is a legal question that can remove a strike allegation before any Romero motion is needed.

That background shapes how Pelta Law approaches a strike allegation: first, whether the prior qualifies at all; second, whether the prosecution can prove it; third, whether the court should strike it.

A note for attorneys

Read about referrals and how to contact Marc on the For Attorneys page.

Contact Pelta Law

Call 415-963-1152 or email marc@peltalaw.com. Do not send facts of a case by email or text. Office: 1390 Market Street, Suite 200, San Francisco. Appointments by arrangement.

Pelta Law takes felony cases in the superior courts of all nine Bay Area counties, including the Hall of Justice at 850 Bryant Street in San Francisco.

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