Legal Question in Criminal Law in California

In reality Judges have a great deal of discretion when it comes to proposition 36. Most of the Judges and district attorneys who have experience with the program believe in it. The statistics indicate the program works and in my experience I have also found it to work. So I also believe in it.

Now to your question. A Romero motion is a motion to remove strikes from someone's record. It is generally used to avoid a sentence of 25 years to life.

Generally in order to receive proposition 36 a defendant must be eligible. So if a defendant is charged with a non-violent drug possession charge they generally are eligible for prop 36 even if the crime is a felony. There are times when a charge will be reduced in the interests of justice in order to help a defendant become eligible for prop 36.

Therefore, in my opinion, yes the Judge has the discretion to grant a motion to remove a strike from someone's record and then place the defendant into a proposition 36 drug diversion program.

It is impossible to know the facts of each case and this is a general answer. If you have a specific question please feel free to contact my office either through a phone call or through our web site at www.brianmcginitylaw.com and we will answer your specific question.

Good luck