[CA] In California, can prior strikes be dismissed before trial?

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I understand you're dealing with strike priors and want to know if they can be dismissed before trial. Could you let me know where you're located? Laws can vary by state, so this will help me give you the best advice.

Thanks for letting me know you're in California. Could you tell me a bit more about the nature of these strike priors? For example, are they related to specific charges or incidents?

I see, that sounds frustrating. Could you share when you filed the motion to dismiss under SB 81? Understanding the timing might help in figuring out the next steps.

Understood! I believe I have all the information I need. Is there anything else you'd like to add before I start working on your answer? If not, I’ll get started right away.

Got it! I just need a few minutes to put together a complete response for you. It shouldn’t take longer than about 4–5 minutes, and I want to make sure it’s clear and comprehensive. Thanks so much for waiting—I really appreciate your patience.

You’re asking a very important question in California criminal law—whether strike priors can be dismissed before trial. The short answer is yes, but it’s up to the judge’s discretion. It sounds like you’re taking the right legal steps to challenge them.

The main way to get a strike prior dismissed is through a Romero motion, based on People v. Superior Court (Romero) from the 1990s, and authorized under Penal Code §1385. This lets a judge strike or dismiss a prior serious or violent felony conviction if doing so serves “the interests of justice.” A Romero motion is usually filed before sentencing but can also be raised before trial or right after conviction. If your judge said the motion was “premature,” they probably want to hear all the evidence first to decide whether you fall outside the “spirit” of the Three Strikes Law.

When deciding a Romero motion, the court looks at factors like how serious your current and prior offenses are, your criminal history, your background, and whether dismissing a strike would risk public safety.

You also correctly mentioned Senate Bill 81 (SB 81) and Assembly Bill 333 (AB 333), which both changed how courts view enhancements and strike priors.

SB 81, effective January 1, 2022, amended Penal Code §1385 to require judges to consider and give “great weight” to mitigating factors when deciding whether to dismiss a sentence enhancement. Although SB 81 technically applies to enhancements, defense attorneys often use its policy to support Romero motions.

Judges must now consider circumstances like whether the prior conviction is more than five years old, or whether the current offense involves mental health issues or past victimization. If your SB 81 motion was denied as “premature,” the judge likely wants to apply the Romero standard later, after reviewing your current case in full.

AB 333, also effective January 1, 2022, made major changes to Penal Code §186.22, narrowing the legal definition of a “criminal street gang” and the proof required for gang enhancements. The California Supreme Court has held that if a prior conviction was considered a serious felony only because of a gang enhancement under §186.22(b)(1), it must now be re-evaluated under AB 333’s stricter standards. If it no longer qualifies, that strike can’t be used for sentencing.

You mentioned you don’t have a pattern of gang charges, which strengthens your argument under AB 333. If your prior conviction doesn’t meet the new gang criteria, it may no longer count as a strike. This isn’t a discretionary issue—it’s a legal one, and the court must follow the current law.

Regarding your 2013 domestic violence with Great Bodily Injury (GBI) under Penal Code §12022.7, that generally qualifies as a “serious felony” and a strike. Any challenge to that one would rely more on Romero factors—showing, for instance, that your current charge is nonviolent, the prior is old, or you’ve demonstrated rehabilitation.

In short, yes—strike priors can be dismissed before trial. A Romero motion under Penal Code §1385 lets the judge do so “in the interests of justice,” while AB 333 provides a separate argument if your prior no longer qualifies as a serious felony under today’s narrower definition. Even if the court calls your current motion “premature,” both laws give you legitimate paths to seek relief.

It is absolutely possible and advisable to challenge your strike priors before trial. Your Public Defender's strategy of waiting for a conviction is conservative, but you have strong arguments for immediate dismissal.

You should insist your attorney file two key pre-trial motions:

1. Challenge the Gang Strike via AB 333:
This is a strong legal argument. The California Supreme Court has ruled that a prior gang-related strike must meet the current, stricter standards of AB 333. If your conviction no longer qualifies under this law, the judge must dismiss it as a matter of law.

2. Challenge the 2013 DV/GBI Strike via a Romero Motion:
This is a discretionary argument, but your facts are powerful. Your attorney must present evidence of the conviction's age (2013) and your exceptional rehabilitation, including full custody of your children, community involvement, job stability, and 95 five-star reviews. The hardship of losing Section 8 housing and your license further argues that applying the strike law would be a gross injustice.

These motions are crucial to eliminating the threat of a life sentence before you ever face the jury.

If your PD continues to refuse, you have the right to request a formal meeting with them or their supervisor to ensure these critical motions are filed.

If your Public Defender still refuses to file the motions, and you genuinely believe their representation is inadequate, you have the right to request a Marsden hearing. At this closed-door hearing with the judge, you can explain why you feel your attorney is not representing your interests by failing to file legally available motions, particularly the AB 333 challenge.

You are right to ask. The SB 81 motion and the Romero motion are distinct tools under Penal Code §1385.

A Romero motion is the discretionary request to strike a prior conviction itself. The judge likely denied it as "premature" because they want to know the outcome of the current trial first.

The SB 81 motion primarily deals with sentencing enhancements, but your attorney used its mitigating factors to support your case.

You must insist on the AB 333 challenge to the gang strike, as this is a legal argument that the prior is no longer a valid strike under current law, which the judge should rule on now.

The federal court outcome you achieved is extremely rare and was indeed lucky. When your Public Defender refused to appeal your bail, you filing pro per (on your own) led to a federal judge granting a constitutional bail hearing via a writ of habeas corpus. This federal judge bypassed the usual requirement to appeal all the way to the California Supreme Court, citing "more harm" if you waited. The Superior Court judge then complied with the federal order, resulting in your release.

You forced a rare and timely intervention by the federal judiciary into a state criminal matter, which is why your PDs were impressed.

That’s really the most I can cover in a single question for now, since we can’t go through your entire case here in chat. But I’m happy to help with any new questions or topics you want to discuss—just start a new page, and I’ll gladly take a look.

I do hope the information I provided was helpful and addressed your question. If there's anything else you need, please don't hesitate to reach out—I’m always happy to assist. Wishing you a fantastic day ahead!

Very welcome, glad I was able to help!