Legal Question in Criminal Law in California

Re: Removing a felony Strike

Yes and no.

Do you have a pending case? One cannot simply "remove" a prior strike conviction, per se. But if you have no pending case, you may seek to "clear" your record, to whatever extent possible (it varies greatly depending on the conviction) through a motion to expunge a conviction and/or a Court or Direct Pardon. While even a Pardon may arguably not "remove" a prior strike, the fact of the pardon (or any post-conviction reduction) will have a beneficial effect on your chances of winning a Romero motion later, should you be charged with a new crime in the future.

If you ARE currently charged, a motion to the Court requesting that (s)he exercise his/her discretion to "strike" (ignore) the prior strike conviction for purposes of sentencing is commonly referred to as a Romero motion, after the case which held that the 3 strikes law would be unconstitutional if it did not allow the judge some discretion to disregard a prior strike where the interests of justice required it. However, there are specific guidelines a judge is to use in excercising that discretion. Some factors include the number of prior convictions and whether they are increasing in seriousness; the remoteness of the prior strike to the instant offense, and the amount of cases in between, and other mitigating circumstances such as mental illness, drug addiction, etc. In assessing whether the interests of justice require striking the prior strike, it would likely weigh heavily on the court's mind if that prior conviction had been pardoned. It may be argued that a Pardon would preclude the use of the strike. I am unaware of a case exactly on point off the top of my head. However, my inclination is that the pardon would probably not preclude its use completely, but would give the defendant a very good argument in favor of striking it. In my experience, even an expungement of a conviction is something that gives a judge pause.

If you would like more information, feel free to contact me at [email protected] or at (800)515-0233. Good luck.

Kindest regards,

JACQUELINE GOODMAN RUBIO

Attorney at Law