Authority of Trial Court to “Strike” a Strike Prior under the Romero Decision

Strikes are included in Penal Code section 1192.7(c) (“Serious Felonies”) and Penal Code section 667.5(c) (“Violent Felonies”). [See Cal. Penal Code § 1170.12(c)(2)]. As mentioned on this website, under California’s Three Strikes Law, an offender can face up to 25 Years to Life in the State Prison if he or she is convicted of more than two eligible offenses defined as “strikes” and, even if a defendant has only one “strike” on their prior record – and even if they were granted probation in the case or received the adjudications as a juvenile [see Cal. WIC § 707(b)] – in the event that any other felony is charged against them, they can be facing double the amount of the ordinary punishment, and their ability to earn goodtime credits is severely reduced. [Cal. Penal Code §§ 1170.12(a)(5), (c)(1)].

The good news is that the trial court has discretion under Penal Code section 1385 to dismiss or strike a prior serious under Penal Code sections 1192.7(c), or a prior violent felony conviction under Penal Code section 667.5(c), in the interests of justice. See People v. Superior Court [Romero] (1996) 13 Cal.4th 497. While this discretion is broad, the Court cannot dismiss the prior strikes arbitrarily, to reduce court congestion, or because the judge personally disagrees with the Three Strikes law. People v. Smith (1996) 50 Cal.App.4th 1194; People v. Carter (1996) 49 Cal.App.4th 567; People v. Ramos (1996) 47 Cal.App.4th 432, disapproved on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947n.11.  The Court is required to specifically state the reasons for so exercising its discretion in the Court’s minutes. People v. Superior Court [Romero], supra, 13 Cal.4th at 508; Cal. Penal Code § 1385(a).

As to the Court’s exercise of discretion, the California Supreme Court has ruled that:

[T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.

People v. Williams (1998) 17 Cal.4th 148, 161.

In its review of exercise of discretion by the trial court, under this standard, the sentencing Court will be reviewed by the appellate court to determine if the ruling regarding the prior felony convictions is, “outside the bounds of reason”. Id. at 162.  The sentencing Court thus must consider: The circumstances of his present felony conviction and priors at issue, his background, his character, and his future prospects, in determining whether in the totality of the circumstances he is outside the spirit of the Three Strikes scheme, in its consideration of a so-called “Romero” motion to strike a prior strike conviction. Williams, supra, 17 Cal.4th at 161-162.

A knowledgeable criminal defense attorney would seek to “strike” any strike prior under the Romero decision using the factors described by the Court and applying them to the client’s individual circumstances. At Honeychurch & Boyd, we take pride in fighting for our client’s freedom when the stakes are especially high, such as in cases involving strike prior allegations. If you or a loved one is facing criminal charges involving allegations of prior strikes, or if you or a loved one’s current case involves current strike allegations in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or anywhere in  Napa and Yolo Counties, do not hesitate to contact Honeychurch & Boyd today at 707-429-3111 for a free consultation with our attorneys as to how we can present the most effective defense for your case.