California Three Strikes Law Defense: PC 667, PC 1170.12 & Romero Motions

California’s "Three Strikes and You’re Out" law—originally enacted in 1994 and codified under California Penal Code §§ 667(b)-(i) and 1170.12—remains one of the most draconian and punitive sentencing regimes in American jurisprudence. While the law was significantly reformed by California voters through Proposition 36 in 2012 (restricting 25-year-to-life sentences primarily to new serious or violent felonies), the Three Strikes law continues to expose defendants with prior qualifying felony convictions to mandatory sentence doubling, restrictions on custody conduct credits, and life imprisonment. When facing Strike allegations in the Los Angeles Superior Court, the ultimate defense weapon is a formal motion to dismiss prior strike allegations "in furtherance of justice" under Penal Code § 1385, universally known in California trial practice as a Romero Motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497).

1. The Mechanics of Three Strikes Sentencing

The severity of Three Strikes sentencing depends on the number of verified prior strike allegations proven by the prosecution:

2. Romero Motions: Striking Prior Strikes Under Penal Code § 1385

In the watershed decision People v. Superior Court (Romero), the California Supreme Court held that trial judges possess unalienable constitutional discretion under Penal Code Section 1385 to strike or dismiss prior strike allegations "in furtherance of justice." In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court established the definitive legal test: the judge must determine whether, in light of the nature and circumstances of the present offense, the prior strike convictions, and the defendant’s background, character, and prospects, the defendant should be deemed outside the spirit of the Three Strikes law, in whole or in part.

3. Key Factors We Argue in a Winning Romero Motion

To convince a Los Angeles Superior Court judge to strike a prior strike conviction and spare a defendant from mandatory life imprisonment or sentence doubling, defense counsel prepares an exhaustive mitigation dossier addressing every Williams factor:

1. Remoteness of the Prior Strike: If the prior strike occurred 10, 15, or 20 years ago, counsel argues that the prior conviction is legally "remote in time," especially if the defendant maintained an extended period of law-abiding conduct in the community between offenses.
2. Nature and Circumstances of the Present Crime: Demonstrating that the current offense did not involve physical violence, weapons, or injury to any victim (such as commercial theft or non-violent property offenses).
3. Background, Character, and Prospects: Documenting continuous lawful employment, financial support of minor children or elderly parents, community volunteerism, military service, and verifiable enrollment in substance abuse or mental health treatment.
4. Lack of Criminal Escalation: Demonstrating that the defendant’s overall criminal record reflects declining severity rather than escalating violent criminality.

4. Challenging Out-of-State and Juvenile Prior Strikes

Beyond Romero motions, experienced defense trial counsel rigorously scrutinizes the legal validity of the strike priors themselves:

• Challenging Out-of-State Prior Convictions: An out-of-state felony conviction (from Texas, Nevada, federal court, etc.) only qualifies as a California strike if its statutory elements encompass all the elements of a California serious or violent felony under *People v. Gallardo (2017) 4 Cal.5th 120*. Counsel reviews out-of-state records of conviction to prove the foreign statute lacked California elements.
• Challenging Juvenile Strikes: A sustained juvenile petition only counts as a strike under California law if the minor was at least 16 years old at the time of the offense and the crime was listed under W&I Code § 707(b).

5. Proposition 36 Post-Conviction Resentencing Petitions (PC 1170.126)

For individuals already serving 25-years-to-life indeterminate sentences under the legacy Three Strikes law, California law provides a retroactive relief avenue:

• Penal Code § 1170.126 Resentencing: Under Proposition 36, inmates serving third-strike life terms for crimes that were neither serious nor violent felonies (such as petty theft with a prior or simple drug possession) can petition the original sentencing court for resentencing as a second-strike offender, resulting in immediate release or a drastically reduced determinate term.
• Public Safety Defense: The court must grant resentencing unless the prosecution proves that the petitioner poses an unreasonable risk of danger to public safety (super-strike risk). Defense counsel presents positive prison institutional programming, disciplinary clearance, and transitional housing plans to secure release.