A prior conviction can add years to your sentence, however, California law provides a powerful remedy. A 1385 PC motion allows defendants to request the court strike previous convictions from consideration during sentencing, potentially reducing lengthy prison terms under the Three Strikes law.
Filing this motion requires precise legal knowledge and strategic timing. This guide walks you through the complete process, from gathering essential documents to presenting your case in court, helping you understand when and how to file effectively for the best possible outcome.
California Penal Code Section 1385 grants judges discretion to dismiss criminal actions and sentencing enhancements "in furtherance of justice". This authority forms the foundation for what defense attorneys call a Romero motion, a request asking the court to remove prior strike convictions from consideration during sentencing.
A Romero motion asks the sentencing judge to dismiss a prior serious or violent felony allegation that would otherwise trigger California's Three Strikes sentencing scheme. The legal mechanism stems from Penal Code Section 1385(a), which states that judges may dismiss actions in furtherance of justice, with reasons stated orally on the record.
The California Supreme Court confirmed this power in People v. Superior Court (Romero), decided in 1996. The case involved Jesus Romero, who faced felony cocaine possession charges after having prior strikes for burglary and attempted burglary. The presiding judge determined that imposing a third strike for simple possession constituted unjust punishment. He offered to remove one of the strikes as a plea deal, citing his authority under Penal Code 1385.
Following dismissal of the strike allegations, Romero avoided a life sentence but received six years due to prior prison terms. When the district attorney appealed, the California Supreme Court unanimously backed the trial judge's authority to remove a strike under Penal Code 1385. This ruling established that judges may strike a prior conviction even over prosecutorial objection.
Defendants can file a Romero motion at any point in a criminal case up to and including the sentencing hearing. When a trial judge decides to dismiss a strike allegation, the judge must enter the reason for dismissal in the minutes of the court proceeding by stating reasons in open court so the court reporter can record them in the transcript.
Granting a Romero motion can significantly reduce prison sentences by preventing application of California's Three Strikes Law. Without the motion, defendants with two prior strikes face a mandatory sentence of 25 years-to-life upon conviction of a third strike offense.
For instance, a defendant convicted of felony grand theft with two past strikes would face life in prison under the Three Strikes Law. If the trial judge dismisses one past strike allegation in response to a Romero motion, the court sentences the defendant as a second strike case instead. Second-strike exposure doubles the base term for the new felony with mandatory 80% time calculation. Third-strike exposure, by contrast, imposes an indeterminate term of 25 years-to-life with no probation and mandatory state prison.
When a judge dismisses one of your strikes, it does not disappear from your record. The court removes the strike only for purposes of sentencing you for the current conviction. The conviction remains visible in background checks and can be used against you if you commit another crime in the future.
Without the strike designation on prior offenses, however, judges maintain latitude to impose more lenient sentencing on subsequent convictions. The dismissed strike stays on your criminal record and background checks, meaning even thorough screening will still reveal the prior conviction.
Timing rules for filing a 1385 PC motion differ based on whether you seek dismissal of criminal charges or sentencing enhancements. The distinction affects your strategic options throughout the criminal proceeding.
Motions to dismiss criminal charges under Penal Code 1385 must be submitted before you enter a plea. This pre-plea requirement creates a narrow window for defendants seeking complete dismissal of charges. Prosecutors typically file these motions as part of plea negotiations or to make defendants eligible for diversion programs.
In contrast, motions to dismiss sentencing enhancements operate under different timing rules. Courts may dismiss enhancements at any stage of proceedings. The law explicitly states that judicial discretion extends to actions taken before, during, or after trial or entry of plea.
Strategic considerations influence when defense attorneys file Romero motions to strike prior convictions. Courts typically decline to entertain these motions before the preliminary hearing. Most defense teams wait until later prosecution stages, presenting the motion after preliminary examination or during sentencing.
While trials proceed, judges retain authority to dismiss enhancements in furtherance of justice. This discretion continues through the verdict phase, allowing courts to act on motions filed after juries return guilty findings.
Defense counsel can raise dismissal requests throughout trial proceedings. However, prosecutors must complete any motion to dismiss criminal charges before defendants enter pleas, whereas enhancement dismissals face no such restriction.
Sentencing hearings present the most common opportunity for filing Romero motions to strike prior convictions. Judges evaluate the motion alongside other sentencing factors, weighing whether prior strikes warrant the severe penalties triggered by California's Three Strikes Law.
Resentencing creates additional opportunities to seek strike dismissals. When invalid enhancements appear in current judgments, courts must recall sentences and conduct full resentencing proceedings. Defense attorneys may present written or oral evidence and arguments during these hearings.
The resentencing court applies current sentencing rules and incorporates legal changes that reduce sentences or provide judicial discretion. This process aims to eliminate sentencing disparities and promote uniformity.
On condition that enhancements were charged on or after January 2022, prosecutors can file dismissal motions even after sentencing concludes. This provision extends relief opportunities beyond traditional sentencing timelines, allowing courts to revisit enhancement-based penalties imposed under older legal frameworks.
Defendants seeking resentencing under newer statutes face practical documentation challenges. Courts require extensive records, including prison files and complete court documents, to evaluate whether resentencing serves public safety. Gathering these materials can prove difficult when older files exist in microfiche format or suffer from missing contents.
Don't face
the prosecutor alone
Building a strong 1385 PC motion requires assembling documentation that proves your case deserves judicial leniency. Courts demand specific certified records, character evidence, and rehabilitation proof before considering whether to strike prior convictions from your sentencing calculation.
The California Department of Justice provides certification of state summary criminal history records and fingerprints maintained by the Bureau of Criminal Information and Analysis for the purpose of court cases. Defense attorneys representing clients in criminal matters must obtain these certified records through a formal request process.
To secure certified records, you must submit a subpoena (CR-125) or court order containing specific information. Required elements include the subject's name and identifying details such as date of birth, driver's license number, CII number, or FBI number. The request must specify the type of records requiring certification, which may include RAP sheets, arrest fingerprints, or disposition source documents.
Public defenders and defense attorneys must complete form BCIA 8700, the Certification of Attorney of Record form, in addition to the subpoena or court order. Send requests via fax, email, or mail to the California Department of Justice, Bureau of Criminal Information and Analysis. The Records Custodian requires a minimum of three weeks for processing certified record requests once the subpoena and BCIA 8700 form have been received.
Responses to certified copy requests include the requested information with a stamp certifying authenticity of the records, a cover letter, and an affidavit signed by the Custodian of Records authorizing release. Without delay, attorneys should initiate this process well before filing deadlines, accounting for the mandatory processing period.
Character evidence serves as substantive proof when requesting strike dismissals. Courts permit reputation or opinion testimony on direct examination where character traits prove admissible. Cross-examination of witnesses providing reputation or opinion evidence can address relevant specific instances of conduct related to the character trait at issue.
Expert opinion as to character traits remains inadmissible in California courts. Opinions that a defendant maintains good character or that victims possess certain dispositions fall outside permissible expert testimony. Character evidence must come from lay witnesses familiar with the defendant's reputation in the community or who can offer personal opinions based on direct knowledge.
Documentation demonstrating rehabilitation efforts strengthens motions to strike prior convictions. Treatment program completion certificates, counseling records, and substance abuse recovery documentation establish personal growth since the prior offense. These materials show the court that past criminal conduct does not reflect current character.
Filing motions requires detailed preparation of supporting evidence, including declarations that demonstrate changed circumstances. Personal statements explaining life circumstances during the prior offense, subsequent rehabilitation efforts, and current stability provide context judges need when exercising discretion. Support letters from employers, family members, community leaders, and treatment providers corroborate claims of rehabilitation and character improvement.
Filing a 1385 PC motion follows specific procedural requirements established by California courts. Technical precision matters because absent a proper memorandum, courts may construe the filing as meritless and deny the motion without substantive review.
Start by drafting written notice to both the court and prosecution. California Rule of Court 3.1113 requires a supporting memorandum for all motions. Your memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of statutes, cases, and textbooks cited in support of your position.
To the extent practicable, attach all supporting memorandums and declarations to the notice of motion. Prepare a proposed minute order with specific language ensuring the strike gets dismissed "in furtherance of justice" and that the abstract reflects the dismissal.
Case citations must include the official report volume, page number, and year of decision. Reference Penal Code Section 1385 and controlling case law such as People v. Superior Court (Romero). If citing California cases before publication in the advance sheets of the Official Reports, include the title, case number, date of decision, and Court of Appeal district.
Judges may require that copies of any authority other than California cases, statutes, constitutional provisions, or state or local rules be lodged with your papers. Tab or separate paper authorities, or electronically bookmark digital submissions. All exhibit references must specify the number or letter, specific page, and applicable paragraph or line number.
Submit your supporting evidence including certified priors, RAP sheets, school and work records, treatment records, declarations, and mitigation packet. Attach these materials to your memorandum when filing with the court clerk.
After filing, serve the prosecution with copies of your complete motion package. Following service, prosecutors typically submit written opposition. Review their response carefully to prepare counterarguments for the hearing.
At the hearing, both sides argue the facts and the law. Present your case explaining how dismissing the strike serves justice. If the judge grants your motion, the prior strike gets dismissed for sentencing purposes, and the court sentences under standard rules. If denied, the strike remains active and sentencing proceeds under Three Strikes consequences. Make a clear record of arguments and evidence presented to preserve the issue for appeal.
Judges deciding Romero motions apply standards established in People v. Williams, examining the nature and circumstances of both current and prior felonies alongside the defendant's background, character, and prospects. The court determines whether you fall outside the spirit of the Three Strikes law based on multiple interconnected factors.
Courts evaluate whether your current charge qualifies as a violent felony and assess the severity of harm to victims. Judges scrutinize whether violence occurred during commission of the offense and examine specific circumstances surrounding the crime. Non-violent felonies weigh in your favor, whereas violent offenses trigger heightened scrutiny regarding public safety risks.
Remoteness of your prior strike conviction significantly impacts judicial decision-making. When decades separate the prior strike from your current charge, defense attorneys emphasize this temporal distance and any sustained period of law-abiding behavior between cases. Extended time gaps combined with demonstrated stability strengthen arguments that doubled sentences serve no protective purpose.
Documentation proving rehabilitation carries substantial weight in judicial analysis. Courts review employment history, program completion certificates, treatment records, and counseling progress. Sustained sobriety, educational achievements, military service, and community involvement demonstrate personal transformation since the prior conviction. Mental health or trauma history that contextualizes prior behavior can cast earlier convictions in different light.
Senate Bill 81 requires courts to weigh mitigating circumstances greatly in favor of dismissal unless doing so would endanger public safety. "Endanger public safety" means likelihood that dismissal would result in physical injury or other serious danger to others. Judges assess whether striking the prior conviction creates unreasonable risk to the community. As a result, courts examine whether lengthy sentences actually serve protective interests or merely impose disproportionate punishment.
Beyond current and prior offenses, judges evaluate your age when prior crimes occurred, overall criminal history patterns, and health status. Courts consider whether prior convictions stemmed from single incidents or multiple victims, along with any expressions of remorse and cooperation with law enforcement. Collateral consequences including immigration hardships, family dependency, and licensing loss factor into the assessment. Your future prospects, willingness to rehabilitate, and role in the current offense complete the comprehensive evaluation judges conduct before ruling on your motion.
You now have the complete roadmap to file a 1385 PC motion and potentially avoid devastating Three Strikes consequences. Success hinges on precise timing, thorough documentation, and compelling evidence of rehabilitation.
Start gathering your certified records and mitigation evidence right away. Courts consider multiple factors, from the nature of your current offense to your personal transformation since the prior conviction. Each element strengthens your argument that dismissing the strike serves justice.
The process demands attention to detail and strategic presentation. Equally important, working with experienced defense counsel improves your chances significantly. Your freedom depends on how effectively you present your case, so prepare meticulously and advocate vigorously for the relief you deserve.
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