Remand, Not Reinstatement: California Supreme Court Clarifies Appellate Remedies for Erroneous Romero Dismissals

Commentary on People v. Dain, Supreme Court of California (Aug. 4, 2025)

Introduction

In People v. Dain, the California Supreme Court resolved a recurring remedial question in Three Strikes sentencing litigation: when a Court of Appeal concludes that a trial court abused its discretion by granting a defendant’s motion to dismiss a prior strike under Penal Code section 1385 (a “Romero motion”), what should the appellate court do on remand? The Court held that the ordinary remedy is to remand for resentencing to allow the trial court to exercise its discretion anew under a correct understanding of the law, rather than to direct automatic reinstatement of the strike and resentence accordingly.

The case arises from a 2019 set of serious and violent offenses—including home invasion robbery, burglary, assault with a firearm, kidnapping, and false imprisonment—committed by defendant Yacob Dawit Dain. After an intervening appeal narrowed his strike history, the trial court in 2023 dismissed the remaining strike based on perceived broad changes in the “spirit” of sentencing law and the age (“remoteness”) of the prior. The Court of Appeal reversed and went further, ordering reinstatement of the strike. The Supreme Court reversed that remedial directive, clarifying the scope of appellate remedial authority and the deference owed to trial courts in the exercise of Romero discretion.

Summary of the Opinion

Writing for the Court, Justice Kruger held:

• The ordinary remedy when an appellate court finds a trial court abused its discretion in granting a Romero motion is remand for resentencing, permitting the trial court to again exercise its section 1385 discretion on a correct view of the law.
• Appellate courts should not substitute their own judgment for that of the trial court about whether to dismiss a strike; they should intervene only when no reasonable judge could have reached the decision (the familiar abuse-of-discretion standard).
• Even when the record on appeal appears to contain nothing supporting the dismissal, remand is typically appropriate because the record may be incomplete or truncated, the trial court must state complete reasons, and additional relevant “material and information” may be considered on remand.
• There are exceptions: appellate courts retain authority to issue more directive orders (e.g., reinstating a strike) where an open-ended remand would truly be an idle act—such as after repeated legal errors—under Penal Code section 1260. But this case did not present such circumstances.
• To the extent decisions like People v. Strong and People v. Gaston might be read to endorse automatic reinstatement based solely on the defendant’s extensive criminal history, the Court disagreed and disapproved that suggestion.

The Supreme Court therefore reversed the Court of Appeal’s directive to reinstate the strike and remanded with instructions to return the matter to the trial court for resentencing consistent with the opinion.

Case Background

In 2019, a jury convicted Dain of multiple serious and violent felonies. The trial court originally found two prior “strike” convictions based on 2006 and 2007 gang participation convictions (Pen. Code, § 186.22, subd. (a)), denied Dain’s Romero motion, and imposed 30 years plus 27 years to life. On appeal, the Court of Appeal held that neither gang participation conviction qualified as a strike “on its face” under updated authority, and by the time of a 2023 resentencing the prosecution pursued only the 2006 conviction as a strike and conceded the 2007 conviction did not qualify.

At the new Romero hearing, the trial court stated it intended to dismiss the remaining strike, citing (1) perceived broad legislative changes to sentencing in recent years; (2) the remoteness of the 2006 strike; and (3) unspecified “other factors.” Over the prosecutor’s objection that these reasons were legally irrelevant or inapplicable to Three Strikes, the court dismissed the strike and imposed 8 years 8 months rather than 16 years 8 months on the affected counts.

The Court of Appeal reversed, finding the stated reasons legally insufficient: remoteness without demonstrated reform is not enough, and the “spirit” of other sentencing laws is irrelevant to a Romero analysis under Three Strikes. It then ordered reinstatement of the strike and resentencing accordingly.

Detailed Analysis

Precedents and Authorities Cited

• Penal Code section 1385: Authorizes courts to dismiss actions “in furtherance of justice.” California’s jurisprudence has long construed this to include dismissing sentencing allegations (e.g., priors). The section requires that the court’s reasons be stated on the record.
• People v. Superior Court (Romero) (1996) 13 Cal.4th 497: Recognized that trial courts may dismiss strikes under section 1385 in Three Strikes cases, but constrained by “in furtherance of justice” and subject to abuse-of-discretion review. If reasons are not stated, the dismissal is procedurally ineffective.
• People v. Williams (1998) 17 Cal.4th 148: Established the controlling Romero framework: courts must consider (1) the nature/circumstances of the current and prior serious/violent felonies; and (2) the defendant’s background, character, and prospects. The aim is to determine whether the defendant falls outside the spirit of Three Strikes. It also distinguished impermissible “extrinsic” considerations (e.g., general antipathy to a sentence). Williams also addressed remedy in its posture: even while declaring the dismissal unjustified on the record, the Court remanded to allow withdrawal of a plea and a new, properly informed exercise of discretion, noting the trial court could consider different material or information on remand.
• People v. Carmony (2004) 33 Cal.4th 367: Appellate review is deferential: reversal is proper only when no reasonable judge could agree with the trial court’s exercise of discretion.
• People v. Bonnetta (2009) 46 Cal.4th 143: A section 1385 dismissal without a statement of reasons is ineffective; the usual remedy is remand to allow the court to articulate or reconsider its reasons.
• People v. Salazar (2023) 15 Cal.5th 416 and People v. Gutierrez (2014) 58 Cal.4th 1354: Articulate the general remand rule for sentencing errors premised on a misunderstanding of the scope of discretion. Remand is appropriate unless the record clearly indicates the court would have reached the same result even if it understood its discretion correctly.
• People v. Large (2007) 41 Cal.4th 538; People v. Rodriguez (1998) 17 Cal.4th 253; People v. Fuhrman (1997) 16 Cal.4th 930: Emphasize the breadth of trial court discretion in sentencing and the propriety of changing views across proceedings, subject to abuse-of-discretion review.
• People v. McGlothin (1998) 67 Cal.App.4th 468; People v. Humphrey (1997) 58 Cal.App.4th 809; People v. Mayfield (2020) 50 Cal.App.5th 1096: Courts of Appeal remanded for a new discretionary determination rather than dictating the sentence.
• People v. Strong (2001) 87 Cal.App.4th 328; People v. Gaston (1999) 74 Cal.App.4th 310: Courts directed reinstatement based on the record. Dain limits these cases; the Supreme Court disapproves any reading that equates an extensive criminal history, by itself, with a mandate to reinstate without remand.
• Additional authorities reinforce the need for an explained, evidence-grounded exercise of discretion, and the trial court’s ability to consider new information at resentencing: People v. Cluff (2001) 87 Cal.App.4th 991; Wheeler v. Appellate Division of Superior Court (2024) 15 Cal.5th 1193; People v. Warner (1978) 20 Cal.3d 678; People v. Dix (1991) 53 Cal.3d 442; People v. Benn (1972) 7 Cal.3d 530; People v. Williams (1981) 30 Cal.3d 470 (Dermon Williams); People v. Superior Court (Howard) (1968) 69 Cal.2d 491.

Legal Reasoning

The Court’s reasoning proceeds in three steps:

1. Affirming the primacy of trial court discretion in Romero decisions. Section 1385 dismissals in Three Strikes cases are classic discretionary sentencing determinations. In light of Romero and Williams, the trial court is best positioned to assess whether a defendant falls outside the “spirit” of the scheme, based on the nature of the offenses and the defendant’s background, character, and prospects. Appellate intervention is limited to ensuring that discretion was exercised within legal bounds and supported by reasons stated on the record.
2. Remedy aligns with the “informed discretion” principle. Drawing on Salazar and Gutierrez, the Court held that when the trial court errs—by misapplying legal standards, considering extrinsic factors, or misunderstanding the scope of discretion—the ordinary remedy is to remand for resentencing, unless the record clearly indicates the same result would follow under a correct view of the law. Williams itself exemplifies this: even after concluding the dismissal could not be justified on the then-existing record, the Court remanded for a properly informed discretionary determination, leaving room for different material or information to be considered.
3. Why reinstatement was improper here. The Court of Appeal’s directive assumed that nothing could change the discretionary analysis. But the record was limited: the trial court telegraphed an intended ruling based on legally invalid factors and referenced unspecified “other factors” that were never explained. That posture likely truncated the parties’ presentation. On remand, the trial court may articulate previously omitted, legally valid reasons and may consider relevant new material bearing on background, character, and prospects. Moreover, even on an unchanged evidentiary record, a trial court can reasonably adopt a different view if properly grounded and explained. In this context, directing reinstatement would improperly substitute the appellate court’s judgment for the trial court’s informed discretion.

The Court added a limiting principle: Appellate courts are not foreclosed from issuing directive remand orders in rare cases where an open-ended remand would be pointless—for example, after repeated legal errors. However, this case did not present such circumstances, and neither the record nor the Court of Appeal’s opinion clearly indicated that no lawful basis could ever support dismissal.

Impact and Practical Consequences

People v. Dain meaningfully reorients appellate practice in Three Strikes Romero cases toward remand and away from automatic reinstatement of strikes after a finding of error. Key consequences include:

• Default remedy. The standard remedy is open-ended remand for resentencing, allowing the trial court to again exercise Romero discretion on a correct legal framework, with a complete statement of reasons.
• Record development matters. Parties should anticipate the need to build a full record at Romero hearings—probation updates, evidence bearing on rehabilitation, character, prospects, and the precise nature/circumstances of priors—as those materials may be crucial on remand.
• Limits on appellate short-cuts. Courts of Appeal should be cautious about directing reinstatement absent extraordinary circumstances. Dain disapproves any rule of thumb that a lengthy criminal history alone authorizes an order to reinstate without remand.
• Trial courts must explain. Section 1385 requires reasons to be stated orally on the record. Where reasons are legally invalid or incomplete, the remedy is ordinarily to give the trial court the opportunity to articulate valid reasons or reconsider in light of controlling factors.
• Not a merits decision. Dain does not decide whether Dain’s strike should ultimately be dismissed. It preserves the trial court’s prerogative to make that determination under Williams, subject to abuse-of-discretion review.
• Clarification of prior case law. To the extent Strong or Gaston suggested that extensive criminal history alone makes remand pointless, Dain rejects that view. Appellate courts retain authority to enter directive orders where justified under Penal Code section 1260, but that is the exception, not the rule.

The Dissent’s View (Chief Justice Guerrero)

The dissent would have affirmed the Court of Appeal’s reinstatement directive. In her view:

• Williams permits an appellate court to conclude, as a matter of law on the existing record, that a defendant cannot be deemed outside the spirit of Three Strikes, thus foreclosing dismissal and authorizing reinstatement.
• The record here was fully developed: the defense filed a written Romero motion; counsel declined a new probation report; and the nature of the offenses and history (“terrorizing” current crimes; “unabated criminal history”) left no lawful basis to dismiss.
• The trial court’s vague reference to “other factors” did not justify remand when those factors, even taken at their strongest, could not satisfy Williams in light of Carmony’s admonition that only extraordinary circumstances remove a career offender from the scheme’s spirit.
• The majority’s approach risks becoming a categorical rule requiring remand even when it is clear no lawful basis for dismissal exists.

The majority responds that Williams did not itself order reinstatement despite a similarly negative assessment of the record, and that the record’s limits and the trial court’s unexplained “other factors” warrant remand to respect informed sentencing discretion.

Complex Concepts Simplified

• Three Strikes law. A sentencing scheme that increases penalties for defendants with prior convictions for “serious” or “violent” felonies. One strike typically doubles the term for a new serious/violent offense; two or more strikes can trigger a 25-to-life minimum term.
• Romero motion. A request that the trial court, under Penal Code section 1385, dismiss a strike “in furtherance of justice.” The court must consider the Williams factors and state reasons on the record.
• Williams factors. The court evaluates: (1) nature and circumstances of the current offense(s) and prior serious/violent felonies; and (2) the defendant’s background, character, and prospects. The question is whether the defendant falls outside the spirit of Three Strikes.
• Intrinsic vs. extrinsic factors. Intrinsic factors relate to the Williams inquiry. Extrinsic factors—such as generalized dislike of a sentence, “judicial convenience,” or perceived broad “spirit” of unrelated legislative changes—are improper.
• Remoteness. The age of a prior strike can matter, but typically only when accompanied by evidence of reform. Remoteness alone rarely supports dismissal.
• Abuse of discretion (appellate review). A highly deferential standard: reversal is warranted only when no reasonable judge could have reached the decision. Appellate courts do not reweigh the sentencing factors de novo.
• “Informed discretion” and remand. When a trial court misunderstands the law or the scope of its discretion, the usual remedy is remand so the court can make the decision anew with a correct legal understanding—unless the record clearly shows the same result would follow regardless.
• Penal Code section 1260. Empowers appellate courts to make “just” orders on remand. Dain recognizes limited circumstances where a directive order (such as reinstatement) may be appropriate—e.g., after repeated mistakes—while reaffirming that the ordinary course is remand for a fresh discretionary determination.

Practical Guidance for Bench and Bar

• For trial judges:
  • Anchor Romero rulings in Williams’s intrinsic factors; avoid reliance on broad policy notions or unrelated legislative “spirits.”
  • State complete, specific reasons on the record. If you reconsider on remand, articulate the new, valid reasons supporting the decision.
  • Consider obtaining updated probation reports or other relevant materials to assess background, character, and prospects.
• For prosecutors:
  • Build a robust record on the nature and circumstances of the current and prior serious/violent offenses, intervening criminal conduct, and public safety considerations.
  • Object to extrinsic or legally irrelevant reasoning; propose a complete set of intrinsic considerations for the court’s analysis.
  • Reserve “reinstatement” requests for extraordinary cases (e.g., repeated legal errors) where an open-ended remand would be demonstrably idle.
• For defense counsel:
  • Present concrete evidence of rehabilitation, stability, education or employment, treatment, and community support to address “background, character, and prospects.”
  • Explain why the nature and circumstances of older prior strikes, in context, place the defendant outside the scheme’s spirit (e.g., youthfulness at time of offense, minimal role, atypical circumstances), while acknowledging limits in Carmony.
  • Ensure the court’s reasons fully capture all favorable considerations; if not, seek clarification to preserve the record.

What the Decision Does Not Do

• It does not change the substantive Williams standard for dismissing strikes under section 1385.
• It does not decide whether Dain’s strike should ultimately be dismissed; the matter is remanded for a new exercise of discretion.
• It does not foreclose directive appellate remedies in the narrow circumstances where remand would be clearly pointless; it simply reaffirms that such orders are exceptional.

Conclusion

People v. Dain cements a remedial principle of broad significance: when a trial court errs in granting a Romero motion, the ordinary appellate response is not to dictate the sentence but to remand for a renewed, properly informed exercise of trial court discretion. The decision harmonizes Romero and Williams with modern “informed discretion” remand doctrine, safeguards the trial court’s sentencing role, requires transparent articulation of reasons, and rejects any categorical shortcut that equates a long record with automatic reinstatement. While preserving room for directive orders in rare, truly idle-acts scenarios, Dain’s principal contribution is to reaffirm deference and process in an area—Three Strikes sentencing—where both are critically important.