People v. Dain

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Appellant,

v.

YACOB DAWIT DAIN,

Defendant and Respondent.

S283924

First Appellate District, Division Two

A168286

Sonoma County Superior Court

SCR-709053-1

August 4, 2025

Justice Kruger authored the opinion of the Court, in which

Justices Corrigan, Liu, Groban, Jenkins, and Evans concurred.

Chief Justice Guerrero filed a dissenting opinion.

PEOPLE v. DAIN

S283924

Opinion of the Court by Kruger, J.

Penal Code section 1385, subdivision (a) gives trial courts

the power to dismiss a criminal action “in furtherance of justice.”

We have held that a trial court may exercise this power to

dismiss allegations or findings that a defendant has previously

been convicted of a serious and/or violent felony that would

otherwise count as a “strike” under the “Three Strikes” law.

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–

531 (Romero).)

In People v. Williams (1998) 17 Cal.4th 148 (Williams), we

undertook to provide comprehensive guidance for adjudicating

so-called Romero motions to dismiss a defendant’s strike or

strikes. We instructed that a trial court must consider whether,

“in light of the nature and circumstances of his present felonies

and prior serious and/or violent felony convictions, and the

particulars of his background, character, and prospects, the

defendant may be deemed outside the scheme’s spirit, in whole

or in part . . . .” (Id. at p. 161.) If the trial court determines the

motion should be granted, it must state its reasons on the

record. (Ibid.) The Court of Appeal then reviews those reasons

to determine whether the trial court has acted within its

discretion. (Id. at p. 162.)

In this case we address a further question that Williams

touched on but did not discuss in depth: If the Court of Appeal

finds that a trial court has abused its discretion in granting a

1

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

Romero motion, what is the proper remedy? Here, a trial court

initially denied the defendant’s Romero motion but later

reversed course and dismissed the defendant’s strike. The

Court of Appeal held that the trial court had abused its

discretion because the trial court’s stated reasons for dismissing

the strike were legally insufficient. The appellate court

remanded the case with directions for the trial court to reinstate

the strike and resentence the defendant accordingly under the

Three Strikes law.

We conclude that rather than dictating the sentence to be

imposed on remand, the Court of Appeal should have afforded

the trial court its usual discretion to rule on the Romero motion,

this time based on a correct understanding of the law. We

reverse the judgment of the Court of Appeal and remand with

instructions to return the case for resentencing in accordance

with this opinion.

I.

The Three Strikes law prescribes an increased term of

incarceration for criminal defendants who have sustained one or

more prior “strike” convictions — that is, convictions for felonies

categorized as “serious” or “violent.” (Pen. Code, §§ 667, subd.

(e), 1170.12, subd. (c); see id., § 1192.7, subd. (c) [defining

“serious felony”]; id., § 667.5, subd. (c) [defining “violent felony”];

see generally In re Milton (2022) 13 Cal.5th 893, 900.) If the

defendant’s current offense is serious or violent, and if the

defendant has one pleaded and proved prior strike, “the

determinate term or minimum term for an indeterminate term

shall be twice the term otherwise provided as punishment for

the current felony conviction.” (Pen. Code, §§ 667, subd. (e)(1),

1170.12, subd. (c)(1).) If the defendant’s current offense is

2

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

serious or violent, and if the defendant has two or more pleaded

and proved prior strikes, “the term for the current felony

conviction shall be an indeterminate term of life imprisonment

with a minimum term of the indeterminate sentence” of at least

25 years. (Id., §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).)

In 2019, a jury convicted defendant Yacob Dawit Dain of

home invasion robbery and burglary, as well as of various

offenses directed against the home’s occupants, including

assault with a firearm, kidnapping, and false imprisonment.

(Pen. Code, §§ 211, 213, subd. (a)(1)(A) [home invasion robbery],

459 [first degree burglary], 245, subd. (a)(2) [assault with a

firearm], 207, subd. (a) [kidnapping], 236 [false imprisonment].)

As to two of the false imprisonment counts, the jury also found

true the enhancement allegation that a principal in the offense

was armed with a firearm. (Id., § 12022, subd. (a)(1); see People

v. Dain (2024) 99 Cal.App.5th 399, 404–405 (Dain).) The trial

court found true allegations that Dain had two prior strikes

under the Three Strikes law, based on 2006 and 2007

convictions for felony active participation in a criminal street

gang. (Pen. Code, § 186.22, subd. (a); see Dain, at p. 406.)

Dain filed a Romero motion asking the court to dismiss the

two prior strikes.1 (Dain, supra, 99 Cal.App.5th at p. 406.) The

court denied the motion. The court cited Dain’s unabated

criminal history following the 2006 and 2007 convictions and the

“ ‘terrorizing’ ” nature of his current offenses. (Id. at pp. 406–

407.) The court sentenced Dain to a determinate prison term of

1

Although a defendant does not have a statutory right to

file a motion under Penal Code section 1385, the defendant can

“ ‘invite the court to exercise its power’ ” to dismiss prior strikes.

(People v. Carmony (2004) 33 Cal.4th 367, 375.)

3

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

30 years and a consecutive indeterminate term of 27 years to

life. (Id. at p. 407.)

On appeal, the Court of Appeal reversed the trial court’s

findings that Dain’s prior Penal Code section 186.22,

subdivision (a) convictions on their face qualified as strikes,

given recent judicial authority clarifying that the scope of the

offense was narrower than courts had previously assumed.

(Dain, supra, 99 Cal.App.5th at p. 407 & fn. 4.)

At Dain’s 2023 resentencing, the District Attorney

conceded that his 2007 conviction did not qualify as a prior

strike conviction and alleged only his 2006 conviction as a strike.

(Dain, supra, 99 Cal.App.5th at pp. 407–408.) The trial court

found that the 2006 conviction qualified as a strike, and Dain

filed a new Romero motion once again seeking to dismiss the

strike. (Id. at p. 408.)

This time, at the outset of the hearing on Dain’s motion,

the court stated its intention to dismiss the remaining strike.

The court cited as reasons the recent passage of several pieces

of ameliorative sentencing legislation, as well as the age (or

“remoteness”) of the 2006 strike, and “other factors” the court

did not specify:

I think the spirit of the law changes to apply to this case

in several instances and it is my intent as a tentative

ruling to strike the strike, grant the Romero, I think the

date of that [strike sentencing] being in 2007, plus some

other factors would be . . . appropriate in this case. [¶] . . .

[¶] . . . [S]ince June of 2019, in these four years our

California legislature has made it very clear things are

changing, the law is changing. . . . [¶] . . . [¶] . . . [I]n my

reflection of what the spirit of the law is, . . . I think the

4

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

legislature has been very clear that things are different,

remoteness does count and I think under the current case

law it’s appropriate to strike.

The District Attorney expressed surprise at the court’s

change of heart since the previous Romero hearing. She argued

that the legislative changes that the trial court perceived as

having altered the “spirit of the law” were irrelevant because

none had changed the Three Strikes law; further, many of the

changes did not apply to serious or violent felonies like Dain’s.

Defense counsel, by contrast, immediately concurred with the

trial court’s assessment of the effects of recent legislative

changes to sentencing laws and asked the court to follow its

inclination to grant the Romero motion. The trial court

dismissed the 2006 strike and imposed a sentence of eight years

and eight months, rather than the 16 years and eight months

Dain would have received with the strike. (Dain, supra, 99

Cal.App.5th at p. 408.)

The Court of Appeal reversed. The court began by

reviewing the two reasons the trial court had given for its ruling

on the Romero motion. Citing appellate precedent, the Court of

Appeal found insufficient the trial court’s reliance on the

remoteness of the 2006 strike, absent evidence that Dain had

“reformed his ways” since that conviction. (Dain, supra, 99

Cal.App.5th at p. 416; see ibid. [citing cases].) The court also

found improper the trial court’s reliance on what it perceived as

a change in the “spirit” of other laws, or in the “ ‘spirit’ of

sentencing laws in general,” rather than any change in the

Three Strikes law. (Id. at p. 416.)

After addressing the trial court’s reasons, the Court of

Appeal conducted its own review of the record and determined

5

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

that it contained “nothing favorable to defendant about his

current or prior convictions or his background, character, or

prospects,” such that Dain “[could not] be deemed outside the

spirit of the Three Strikes law.” (Dain, supra, 99 Cal.App.5th at

p. 415; see id. at p. 416.) The Court of Appeal “remanded with

directions to reinstate the strike finding and to resentence

[Dain] as a person who has suffered a prior strike conviction

under the Three Strikes law.” (Dain, at p. 418.)

Dain petitioned for review. We granted the petition,

limited to the following question: “Did the Court of Appeal err

in remanding the case with directions to reinstate the strike

finding and to resentence defendant as a person who has

suffered a prior strike conviction under the Three Strikes law?”

II.

A.

The narrow issue on review does not concern the merits of

the Court of Appeal’s determination that the trial court erred

when it dismissed Dain’s prior strike, but instead concerns the

remedy for that error. To understand this narrow remedial

issue, however, we begin by reviewing the broader legal

framework governing the adjudication of motions to dismiss

strikes under Romero, supra, 13 Cal.4th 497.

Penal Code section 1385 provides, in pertinent part: “The

judge or magistrate may, either on motion of the court or upon

the application of the prosecuting attorney, and in furtherance

of justice, order an action to be dismissed.” (Pen. Code, § 1385,

subd. (a) (section 1385(a)).) This provision, whose origins trace

to the earliest days of statehood, reflects “California’s rejection

of the English rule of nolle prosequi, under which the prosecutor

alone had authority to discontinue a prosecution” in favor of a

6

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

rule “granting sole authority to the courts to dismiss actions in

furtherance of justice.” (People v. Bonnetta (2009) 46 Cal.4th

143, 148–149 (Bonnetta); accord, e.g., People v. More (1887) 71

Cal. 546; see Stats. 1850, ch. 119, § 629, p. 323.)

California case law has long held that the statutory power

to dismiss an action encompasses “the lesser power to strike

factual allegations relevant to sentencing, such as the allegation

that a defendant has prior felony convictions.” (Romero, supra,

13 Cal.4th at p. 504; see id. at p. 508 [discussing cases].) In

Romero, we considered whether this power extends to the

dismissal of allegations or findings that a defendant had

previously been convicted of one or more strikes for purposes of

sentencing under the then-recently enacted Three Strikes law.

We answered yes, explaining that the Three Strikes law does

not displace section 1385, but in fact explicitly refers to and

incorporates it. (Romero, at pp. 529–530; People v. Garcia (1999)

20 Cal.4th 490, 499 (Garcia) [“[B]y referencing section 1385, the

Three Strikes law incorporated that section without

limitation”].)

Romero cautioned that a trial court’s discretion to dismiss

strikes is not unbounded; it is, rather, constrained by general

legal principles governing dismissals “ ‘ “in furtherance of

justice” ’ ” and is subject to review for abuse of discretion.

(Romero, supra, 13 Cal.4th at p. 530; see Williams, supra, 17

Cal.4th at pp. 158–161; People v. Carmony (2004) 33 Cal.4th

367, 374 (Carmony).) We elaborated on these constraints in

Williams, in which we undertook to provide comprehensive

guidance for the adjudication of Romero motions. We

instructed: “[I]n ruling whether to strike or vacate a prior

serious and/or violent felony conviction allegation or finding

under the Three Strikes law, on its own motion, ‘in furtherance

7

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

of justice’ pursuant to Penal Code section 1385(a), or in

reviewing such a ruling, the court in question must consider

whether, in light of the nature and circumstances of his present

felonies and prior serious and/or violent felony convictions, and

the particulars of his background, character, and prospects, the

defendant may be deemed outside the scheme’s spirit, in whole

or in part, and hence should be treated as though he had not

previously been convicted of one or more serious and/or violent

felonies.” (Williams, at p. 161.) We contrasted factors “intrinsic”

to the Three Strikes law with “extrinsic” factors, such as

“ ‘ “judicial convenience” ’ ” or “bare antipathy to the

consequences for any given defendant,” that cannot be

considered in deciding whether to strike a prior strike.

(Williams, at pp. 161, 159.)

Williams further instructed that if a court exercises its

discretion to dismiss the strike, it must document its reasons on

the record. (§ 1385(a).)2 This statutory documentation

requirement “ ‘anticipates, and facilitates, appellate review.’ ”

(Williams, supra, 17 Cal.4th at p. 159.) If the court fails to

document its reasons, “the record does not contain all of the

2

Section 1385 currently requires that “[t]he reasons for the

dismissal shall be stated orally on the record. The court shall

also set forth the reasons in an order entered upon the minutes

if requested by either party or in any case in which the

proceedings are not being recorded electronically or reported by

a court reporter.” (§ 1385(a).) An earlier version of this

provision required that in all cases trial courts specifically set

forth their reasons in an order entered upon the minutes.

(Romero, supra, 13 Cal.4th at p. 531; Williams, supra, 17

Cal.4th at p. 159; Stats. 2014, ch. 137, § 1 (Sen. Bill No. 1222)

[amendment to no longer require the reasons to be set forth in

an order entered upon the minutes in all cases].)

8

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

material a reviewing court should consider in deciding whether

the trial court properly exercised its discretion.” (Romero,

supra, 13 Cal.4th at pp. 529–532.) A dismissal order

unaccompanied by a statement of reasons is thus “ineffective on

procedural grounds.” (Williams, at p. 161; Wheeler v. Appellate

Division of Superior Court (2024) 15 Cal.5th 1193, 1205.)

Within these general bounds, trial courts exercise

substantial discretion in adjudicating Romero motions, as they

do in other matters concerning criminal sentencing. (In re Large

(2007) 41 Cal.4th 538, 550 (Large); People v. Rodriguez (1998)

17 Cal.4th 253, 257 (Rodriguez); People v. Fuhrman (1997) 16

Cal.4th 930, 942 (Fuhrman); Romero, supra, 13 Cal.4th at

p. 530, fn. 13.) An appellate court’s role in reviewing a trial

court’s dismissal decision is necessarily more constrained.

Williams instructs that, on appeal from a decision to

strike, the appellate court reviews the trial court’s stated

reasons and the record for improper exercises of discretion.

(Williams, supra, 17 Cal.4th at pp. 161–162; Bonnetta, supra, 46

Cal.4th at p. 151.) This review is deferential. As we have

explained in other cases since Williams, an appellate court may

not substitute its judgment about appropriate sentencing for

that of the trial court, but instead must give due regard to the

discretion vested in that court. (Carmony, supra, 33 Cal.4th at

p. 378; Bonnetta, supra, 46 Cal.4th at pp. 151–152; 9 Witkin,

Cal. Procedure (6th ed. 2021) Appeal, § 382, pp. 416–417.) The

appellate court can find a reversible abuse of discretion only if

it concludes that no reasonable judge would have agreed with

the trial court’s decision. (See Carmony, at p. 378; Romero,

supra, 13 Cal.4th at pp. 530–531.) Unless that standard is met,

the appellate court must affirm the decision, even if it “might

9

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

have ruled differently” on the Romero motion “in the first

instance.” (Carmony, at p. 378.)

B.

Neither Williams nor Romero before it provided express

instructions about what to do once the Court of Appeal finds that

the trial court abused its discretion in dismissing a prior strike.

But both opinions nonetheless touched on this remedial

question in the course of resolving the particular cases before

them. In Romero, although we affirmed the trial court’s power

to dismiss strikes, we held that the particular dismissal order at

issue in the case was ineffective because the court had failed to

state its reasons. (Romero, supra, 13 Cal.4th at pp. 529–532.)

Because the defendant had pleaded guilty in reliance on the trial

court’s indication that it would dismiss the strike, we concluded

that the appropriate remedy under the circumstances was “to

vacate the judgment, to permit defendant to withdraw his plea,

and otherwise to proceed in conformity with this opinion.” (Id.

at p. 532.)

Williams, much like Romero, involved an unexplained

dismissal order that apparently influenced the defendant to

enter a guilty plea. In Williams, much as in Romero, we held

that the trial court’s dismissal order was ineffective for failure

to give reasons. We went on to opine that, based on the record

before us, “Williams [could not] be deemed outside the spirit of

the Three Strikes law in any part, and hence may not be treated

as though he had not previously been convicted of t[wo] serious

and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 163.)

But despite this pronouncement, we concluded that the Court of

Appeal had been “altogether wrong” when it directed the trial

court to resentence the defendant as a person who had suffered

10

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

two prior strike convictions. (Id. at p. 164; see id. at pp. 157–

158.) We concluded that the appropriate remedy under the

circumstances was the same remedy we had ordered in Romero:

to vacate the defendant’s sentence and remand the case to

permit Williams to withdraw his guilty plea and let the trial

court exercise its sentencing discretion in conformity with the

law. (Williams, at p. 165.) We then provided additional

instructions for the proceedings on remand: “On remand here,

if the material and information set out again prove to be the

same as that set out before, the superior court cannot rule as it

did originally, inasmuch as its order was erroneous. But if such

material and information turn out to be different, it is not

bound.” (Id. at p. 164, fn. 7.)

Few courts have discussed the question of appellate

remedies in any depth. Some Courts of Appeal, following

Williams, have ordered open-ended remands to permit the trial

court the full scope of its discretion on remand, based on the law

as clarified by the appellate court. (People v. McGlothin (1998)

67 Cal.App.4th 468, 478 (McGlothin) [“We decline the Attorney

General’s invitation to dictate what sentence the trial court

should impose”]; People v. Humphrey (1997) 58 Cal.App.4th 809,

813 (Humphrey) [rejecting the District Attorney’s argument

that “remand is inappropriate because, given defendant’s

record, it would be unreasonable as a matter of law for any

sentencing court to strike a serious prior felony conviction”]; see

also People v. Mayfield (2020) 50 Cal.App.5th 1096, 1109–1110

(Mayfield).) Others, however, have issued orders much like the

order the Court of Appeal issued in this case, directing the trial

court to reinstate the relevant strike or strikes and sentence the

defendant accordingly. (People v. Strong (2001) 87 Cal.App.4th

328, 347 (Strong) [letting the trial court “ ‘reconsider its ruling’ ”

11

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

on remand would be “an idle exercise based on [the defendant’s

criminal] record” because “it would be a manifest abuse of

discretion to find him outside the law’s spirit”]; People v. Gaston

(1999) 74 Cal.App.4th 310, 323 (Gaston) [remanding with

directions to reinstate the defendant’s second prior strike

finding and resentence him as a person who has suffered two

prior strike convictions].)

III.

Although Williams did not purport to provide

comprehensive guidance on the subject of appellate remedies,

what Williams said about the appropriate remedy in that case

suggests an answer to the remedial question we confront here:

When a trial court has abused its discretion in granting a

Romero motion, the ordinary remedy is to remand for

resentencing, at which time the trial court may again exercise

its sentencing discretion, this time based on a proper

understanding of the governing law.

It is true, as the District Attorney and our dissenting

colleague emphasize, that Williams dealt with a situation in

which the trial court’s error in adjudicating the Romero motion

required unwinding a guilty plea entered in reliance on the trial

court’s willingness to strike his prior. (Williams, supra, 17

Cal.4th at pp. 164 & fn. 7, 165; see dis. opn. of Guerrero, C. J.,

post, at p. 2; see also Mayfield, supra, 50 Cal.App.5th at pp.

1109–1110 [remanding for the case to be “returned to [the]

status quo” before the defendant pleaded guilty in response to

the court’s offer to strike a prior strike].) But Williams is

instructive even for cases, like this one, that arise in a different

posture. After all, in Williams we concluded that the trial

court’s dismissal order was not justified based on what we could

12

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

glean from the record before us; based on that record, we opined

that the defendant “cannot be deemed outside the spirit of the

Three Strikes law in any part.” (Williams, at p. 163.) Had we

thought this reason enough to foreclose further consideration of

the issue on remand, we could have issued instructions to allow

the defendant to withdraw his plea while making clear that the

trial court could not dismiss the strike on resentencing. We

instead allowed for the possibility that the trial court could

again dismiss the strike on resentencing, provided that the

relevant “material and information turn[ed] out to be different”

this time. (Id. at p. 164, fn. 7.)3

The approach we took in Williams accords with

established principles governing the review of discretionary

sentencing decisions. As a rule, “ ‘ “[d]efendants are entitled to

sentencing decisions made in the exercise of the ‘informed

discretion’ of the sentencing court.” ’ ” (People v. Salazar (2023)

15 Cal.5th 416, 424 (Salazar); see also People v. Surplice (1962)

203 Cal.App.2d 784, 791 [“It is well established in the law that

3

Although the dissent agrees that an open-ended remand

is the usual remedy (dis. opn. of Guerrero, C. J., post, at pp. 4–

5), the dissent takes issue with our reliance on Williams for that

proposition. The dissent argues that Williams instead makes

clear that it is proper for an appellate court to direct the trial

court to reinstate a prior strike should the appellate court

conclude that, “as a matter of law, the . . . defendant ‘cannot be

deemed outside the spirit of the Three Strikes law in any part,

and hence may not be treated as though he had not previously

been convicted of those serious and/or violent felonies.’ ” (Id. at

p. 1, quoting Williams, supra, 17 Cal.4th at p. 163.) It is unclear

how the dissent would draw this conclusion from Williams,

given that we did not order the strike reinstated in that case but

instead explicitly allowed for further development of the issue

on remand.

13

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

the severity of the sentence . . . rest[s] in the sound discretion of

the trial court”].) Whether to dismiss all or part of a criminal

action under Penal Code section 1385 is such a decision. We

have previously observed in other matters arising under section

1385 that “ ‘the standard of furtherance of justice will best be

served if we recognize discretion in the trial judge, who viewed

the witnesses and heard the conflicting testimony’ ” (People v.

Williams (1981) 30 Cal.3d 470, 481 (Dermon Williams), quoting

People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505

(Howard)), and who “ ‘has the knowledge, ability and tools at

hand to properly individualize the treatment of the offender’ ”

(Dermon Williams, at p. 482, quoting People v. Dorsey (1972) 28

Cal.App.3d 15, 19). Thus, as a rule, whether to dismiss a prior

strike “in furtherance of justice” under section 1385 is a matter

committed to the sound discretion of the trial court. (Large,

supra, 41 Cal.4th at p. 550; Rodriguez, supra, 17 Cal.4th at p.

257; Fuhrman, supra, 16 Cal.4th at p. 942; Romero, supra, 13

Cal.4th at p. 530, fn. 13.)

In other contexts, we have made clear that the ordinary

remedy after finding an error in the exercise of sentencing

discretion is to reverse and remand to the trial court for

resentencing, during which the trial court will have a new

opportunity to exercise its discretion. We have underscored the

point in a series of cases dealing with the review of a trial court’s

failure to appreciate the scope of its discretion in sentencing. We

have instructed that when the trial court mistakenly believes it

has no discretion regarding a particular component of the

defendant’s sentence, or mistakenly believes its discretion to be

narrower than the law provides, the appropriate remedy is

generally to remand for resentencing, this time with a correct

understanding of the scope of the court’s discretion. We remand

14

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

for a new determination unless the record “ ‘clearly indicate[s]’ ”

that the correction would make no difference — that is, that “the

trial court would have reached the same conclusion ‘even if it

had been aware’ ” of the scope of its discretion. (People v.

Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez), quoting

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; see Salazar,

supra, 15 Cal.5th at p. 425.) In this way, the law respects the

substantial discretion vested in the trial court to determine the

appropriate sentence in light of the facts and circumstances of

the individual case.

Similar principles apply to the adjudication of Romero

motions, and they counsel a similar approach when appellate

courts find errors in the manner in which a trial court has

exercised its discretion to dismiss prior strikes. Appellate case

law illustrates the point. If, for instance, a trial court has

abused its discretion by disregarding mandatory Williams

factors, the error does not generally divest the court of its role

in determining the appropriate sentence in its discretion; the

appellate court should remand with instructions to make a new

determination based on consideration of all the mandatory

factors. (See Humphrey, supra, 58 Cal.App.4th at p. 813

[remanding for a new exercise of discretion after concluding the

trial court erroneously evaluated the age of prior strike

convictions “with blinders on,” without regard for the

defendant’s intervening criminal history].) An appellate court

should likewise remand for a new determination if the court

mistakenly considered extrinsic factors such as personal

antipathy for a sentencing outcome (see McGlothin, supra, 67

Cal.App.4th at p. 477 [remanding for a new exercise of discretion

after finding that the trial court “simply concluded that life in

prison was too harsh a penalty for attempted and completed

15

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

strong-arm robberies”]), or based its decision on a misreading of

the record (see People v. Cluff (2001) 87 Cal.App.4th 991, 1002

[Romero analysis “disconnected from the evidence” requires

vacating the sentence and remanding to the trial court to

conduct a new Romero hearing]; see id. at pp. 1001–1004). And

if a trial court has failed to adequately state any reasons, the

usual remedy is to allow the trial court to articulate or

reconsider its reasons on remand. (See Bonnetta, supra, 46

Cal.4th at p. 153 [if the trial court failed to state its reasons in

compliance with section 1385(a), the matter must be remanded

to allow the court to adequately state its reasons in a new order,

in which the court “may, but need not, revisit its earlier

decision”].)

As Williams itself illustrates, even in a case in which the

appellate court may find nothing in the existing record to

support the trial court’s decision to grant dismissal, an open-

ended remand is still often the appropriate course. This is true

for several reasons. The record may have been truncated

because the manner in which the sentencing proceedings were

conducted may have led the parties to focus on a particular issue

or issues to the exclusion of other possible bases for decision.

And although a trial court is required to state its reasons under

section 1385(a), in some cases the court’s stated list of reasons

may not constitute a complete catalog of the reasons on which

the trial court actually relied. Letting the trial court state

previously omitted reasons on remand ensures that the record

“contain[s] all of the material a reviewing court should consider”

in reviewing the new exercise of discretion. (Romero, supra, 13

Cal.4th at pp. 531–532.) What is more, as Williams suggests,

the trial court on remand is permitted to take into consideration

any relevant “material and information” that may not have been

16

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

fully developed or available at the previous hearing. (Williams,

supra, 17 Cal.4th at p. 164, fn. 7.) The trial court may entertain

such arguments and evidence as will assist it in deciding

whether to dismiss the strike, including, as appropriate, newly

arising circumstances that shed light on the defendant’s

“character” and “prospects” of rehabilitation. (Cf., e.g., People v.

Warner (1978) 20 Cal.3d 678, 689; People v. Dix (1991) 53 Cal.3d

442, 460; cf. also, e.g., People v. Benn (1972) 7 Cal.3d 530, 535

[trial court may order an updated probation report as

appropriate for this purpose].) This flexibility is consistent with

the trial court’s primary role in reaching “ ‘an informed,

intelligent and just decision’ ” on the question of sentence.

(People v. Ruiz (1975) 14 Cal.3d 163, 168; see also Rodriguez,

supra, 17 Cal.4th at p. 258.)

In short, whether a case was resolved by guilty plea or not,

Williams suggests — and we now confirm — that when the trial

court is found to have abused its discretion in granting a Romero

motion, the proper remedy is ordinarily a remand that allows

for further consideration of the issue. Any resulting ruling will,

of course, be likewise subject to appellate review for abuse of

discretion. (Romero, supra, 13 Cal.4th at p. 532; Williams,

supra, 17 Cal.4th at p. 164 & fn. 7.) But the question of how to

exercise discretion, based on the full range of relevant facts and

a proper understanding of the governing law, generally remains

for the trial court to decide in the first instance.4

4

We do not suggest that a Court of Appeal may never issue

a more directive order. (Contra dis. opn. of Guerrero, C. J., post,

at p. 5.) To take one example, if a trial court makes repeated

mistakes in applying the law, the Court of Appeal is not bound

17

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

IV.

Neither the District Attorney nor our dissenting colleague

disputes that the usual remedy after finding a trial court abused

its discretion in dismissing a prior strike is to remand to allow

the trial court to reconsider how to exercise its discretion. They

argue, however, that we should nonetheless affirm the Court of

Appeal’s unexplained decision to direct reinstating the strike

because, given the particular circumstances of this case, it

would clearly have been pointless to do anything else. They

reason that the reinstatement order was appropriate because it

is clear that the trial court could not lawfully decide to dismiss

the strike on remand. In the District Attorney’s view, it is also

clear that the trial court would not strike Dain’s prior strike on

remand, given the trial court’s decision not to strike at Dain’s

initial sentencing in 2019. We are not persuaded that the

circumstances of this case justify the Court of Appeal’s

reinstatement order.

The District Attorney’s primary argument is that the

Court of Appeal’s reinstatement order was proper because the

court had concluded, correctly, that any decision to dismiss

Dain’s prior strike conviction would constitute an abuse of

discretion as a matter of law. The District Attorney points to

the portion of the opinion in which the Court of Appeal

conducted an independent review of the record on appeal and

to give the court endless opportunities to try again. Appellate

courts have the authority to enter remand orders “as may be just

under the circumstances,” and may use this authority as

appropriate when the circumstances demonstrate that an open-

ended remand would truly be an idle act. (Pen. Code, § 1260.)

For the reasons explained below, however, we are not convinced

that this case involves such a scenario.

18

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

found that, “as in Williams, there is nothing favorable to [Dain]

about his current or prior convictions or his background,

character, or prospects” that would suggest that he was outside

the spirit of the Three Strikes law. (Dain, supra, 99 Cal.App.5th

at p. 415; cf. Williams, supra, 17 Cal.4th at p. 163 [reaching

similar conclusion based on the record in that case].) The

District Attorney suggests that, given this assessment, the

Court of Appeal was justified in putting a stop to any further

litigation on the merits of the Romero motion.

But just as our assessment of the record did not foreclose

further Romero proceedings in Williams, the Court of Appeal’s

assessment does not foreclose further proceedings here. The

court’s assessment was necessarily based on the existing record

on appeal, and found an abuse of discretion only in the trial

court’s original order based on that record. The Court of Appeal

did not, at least in explicit terms, purport to find that any

possible future decision to grant dismissal — regardless of any

differences in the supporting arguments, evidence, or

reasoning — would necessarily constitute an abuse of discretion

too. Its evaluation of the present record is not, in other words,

tantamount to a judgment that no future proceedings could

possibly affect the result.

Nor would it be easy to reach such a conclusion here, given

the limitations evident in the existing record. At the outset of

the second Romero hearing, the trial court stated: “I think

before we get started with actual argument, what I thought I

would do is give the parties an indication of what I’m thinking

for this sentence, that way you can focus on more detail and

know where I’m going.” The court then announced that it would

strike the prior strike because of a change it perceived in the

“spirit” of sentencing laws, the remoteness of the 2007 strike,

19

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

“plus some other factors.” Unsurprisingly, the trial court’s

invitation to “focus” on the stated factors led the parties to do

just that. Had the trial court not directed the parties’ attention

to these invalid factors, it is at least possible that the parties

would have developed a record elaborating on other relevant

circumstances, which would have then been available to inform

appellate review. The trial court also cited “other factors” that

made it “appropriate” to dismiss the strike, without specifying

what those factors were. It is impossible to know with certainty,

but the District Attorney concedes that it is at least possible that

the trial court was referring to favorable circumstances related

to Dain’s history and prospects that supported dismissing his

prior strike. The record does indeed reveal some favorable

circumstances that the trial court could conceivably have been

referring to. But the elliptical nature of the reference makes it

difficult, if not impossible, to evaluate whether these reasons fall

within the range of reasons that “ ‘would motivate a reasonable

judge’ ” to dismiss the strike. (Romero, supra, 13 Cal.4th at p.

530–531.)

The District Attorney and the dissent both suggest that

we should ignore the limitations in the existing record because

no further elaboration of any favorable circumstances, or

citation of additional reasons, could possibly overcome the

weight of Dain’s extensive criminal history. (See dis. opn. of

Guerrero, C. J., post, at p. 4.) We reject the suggestion. It is, of

course, true that a defendant’s criminal history is highly

relevant to the Romero inquiry. But the number of prior

offenses is not necessarily dispositive on its own; Williams also

trains the court’s attention on the nature and circumstances of

the prior offenses and the defendant’s background, character,

and prospects. (Williams, supra, 17 Cal.4th at p. 161.) Where

20

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

the record is limited as the record is in this case, it is speculative

to predict that no possible further elaboration of arguments,

evidence, or reasons could possibly matter to the trial court’s

sentencing judgment. (Carmony, supra, 33 Cal.4th at p. 378.)

An appellate court that ventured such a prediction in the face of

an incomplete record would run the risk of substituting its own,

incompletely informed judgment for the informed discretion of

the trial court. (See Salazar, supra, 15 Cal.5th at p. 427 [“[T]he

Court of Appeal may not substitute its own view of the offenses

for the sentencing court’s in determining whether remand is

appropriate”]; Howard, supra, 69 Cal.2d at p. 505; Dermon

Williams, supra, 30 Cal.3d at p. 482.)5 And notably, the Court

of Appeal itself ventured no such prediction here.

5

The District Attorney relies on People v. Mooc (2001) 26

Cal.4th 1216 to argue that the record here is sufficient to

preempt a new exercise of discretion by the trial court, but Mooc

is inapposite. In that case, we disagreed with the Court of

Appeal’s decision to remand to the trial court for a new Pitchess

hearing, at which a criminal defendant may compel the

discovery of certain evidence in the arresting law enforcement

officer’s personnel file. (Mooc, at pp. 1219–1220, 1232.) There,

unlike here, we had before us the exact same information that

the trial court would evaluate on remand — the officer’s

complete personnel file. (Ibid.) We determined that none of the

items in the file could be disclosed to the defendant — and

remand would thus serve no use — because disclosing any of

them would constitute an abuse of discretion. (Ibid.) We face

no comparable circumstances here.

The District Attorney also relies on two Court of Appeal

cases, Strong, supra, 87 Cal.App.4th 328, and Gaston, supra, 74

Cal.App.4th 310. In both Strong and Gaston, the courts directed

the trial court to reinstate prior strike findings. (Strong, at pp.

340, 346–347; Gaston, at pp. 320, 323.) Like the Court of Appeal

21

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

The District Attorney also argues that we should affirm

the Court of Appeal’s judgment not because the trial court could

not strike the prior strike on remand, but because it clearly

would not. The District Attorney bases this conclusion on the

fact that the trial court refused to strike Dain’s prior strikes at

his first sentencing in 2019.

Although the trial court may have denied the motion in

2019, the fact remains that when the issue returned to the trial

court years later, the trial court changed course and granted the

motion — and the record does not make clear that the court

would not do the same again if the matter were to return on

here, the Gaston court gave no reason for its disposition.

(Gaston, at p. 323.)

For its part, the Strong court concluded that it would be

an “idle exercise” to send the case back for reconsideration of the

defendant’s Romero motion, in view of the defendant’s extensive

criminal history and the trial court’s comprehensive (though

inadequate) explanation of its reasons for dismissing the strike

at issue. (Strong, supra, 87 Cal.App.4th at p. 347.) In so doing,

the court cited with approval the Court of Appeal’s decision in

McGlothin, supra, 67 Cal.App.4th at p. 475. (Strong, at p. 339.)

But it did not expressly address why it parted company with

McGlothin on the question of appropriate remedies. (See

McGlothin, supra, 67 Cal.App.4th at pp. 476, 478 [although the

“defendant’s criminal history [wa]s one of the worst” the court

ever witnessed, the court “decline[d] the Attorney General’s

invitation to dictate what sentence the trial court should

impose” on remand].)

We have no occasion to decide whether the orders in

Strong or Gaston were warranted on the particular

circumstances presented in those cases. But to the extent either

case might be read to suggest that a defendant’s extensive

criminal history alone always supplies sufficient reason for an

appellate court to order the reinstatement of a strike, we

disagree and disapprove the suggestion.

22

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

remand. As noted, in granting Dain’s 2023 Romero motion, the

court cited not only the two factors the Court of Appeal found

insufficient, but also “other factors” that are not explained on

this record. Based on the limited information before us, it is

impossible to know with any certainty whether the trial court

would have dismissed Dain’s strike absent reliance on the

improper factors. Even if there had been no material changes

in the arguments or evidence available at the 2023 resentencing,

the trial court had the prerogative to change its mind about the

appropriateness of dismissing the strike, so long as it did not

abuse its discretion. (See Large, supra, 41 Cal.4th at pp. 547,

553 [the trial court, even if “review[ing] the same information

that had been available” at one Romero hearing, can take “a very

different view” of the defendant at another hearing and reach

the opposite conclusion, subject to review for abuse of

discretion].) As we have noted in another context, “it is almost

always speculative for a reviewing court to say what the

sentencing court would have done” had it properly understood

the scope of its discretion. (Salazar, supra, 15 Cal.5th at p. 431.)

Such is the case here.

In sum, regardless of whether there was anything in the

existing record that would allow a reasonable jurist to dismiss

the strike (see dis. opn. of Guerrero, C. J., post, at p. 2), that

record is inherently limited. Even if no additional evidence or

information is adduced following remand, the trial court could

still elect to dismiss the prior strike by articulating proper

reasons for the dismissal. (See ante, at pp. 16–17; see also

Bonnetta, supra, 46 Cal.4th at p. 153.) We decline to “substitute

[our] own view” for the trial court’s (Salazar, supra, 15 Cal.5th

at p. 427), which should be given the opportunity to determine

if there are valid reasons to dismiss the strike with a proper

23

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

understanding of the law. We likewise reject the District

Attorney’s suggestion that an appellate court can rely on the

2019 Romero denial to predict how the trial court would rule,

years later, based on additional considerations and any new

material and information that may be pertinent to the trial

court’s consideration of Dain’s present Romero motion. To so

conclude does not, as the District Attorney suggests, give Dain

a “windfall opportunity” for another “bite at the proverbial

apple.” It instead gives him nothing more than that which he is

entitled by law: A ruling on his Romero motion that reflects a

properly informed exercise of the trial court’s sentencing

discretion.

V.

We hold that the proper remedy for the errors in the trial

court order granting dismissal of Dain’s strike is a remand that

allows for further proceedings, as appropriate, on the merits of

Dain’s Romero motion. We express no views on the merits of the

motion, which is a matter for the trial court to decide in the first

instance. On remand, the trial court may again exercise its

discretion to determine whether or not the Romero motion

should be granted, this time informed by the appellate court’s

clarification of the governing law and any arguments and

evidence it may find admissible and relevant to the matter

before it.

24

PEOPLE v. DAIN

Opinion of the Court by Kruger, J.

We reverse the judgment of the Court of Appeal and

remand for further proceedings not inconsistent with this

opinion.

KRUGER, J.

We Concur:

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

25

PEOPLE v. DAIN

S283924

Dissenting Opinion by Chief Justice Guerrero

I disagree with the majority that our decision in People v.

Williams (1998) 17 Cal.4th 148 (Williams) “suggests an answer

to the remedial question we confront here.” (Maj. opn., ante, at

p. 12.) Or, more precisely, I disagree that Williams supports the

answer the majority provides. Williams makes clear that it is

proper for a reviewing court to look at an existing record and

determine, as a matter of law, that it would be improper for a

trial court to dismiss a strike based on that record. (Williams,

at pp. 162–163, see id. at p. 164, fn. 7 [“On remand here, if the

material and information set out again prove to be the same as

that set out before, the superior court cannot rule as it did

originally, inasmuch as its order was erroneous”].) Contrary to

the majority’s suggestion that Williams supports the proposition

that it would infringe upon the trial court’s discretionary

sentencing power to make such a determination (see maj. opn.,

ante, at p. 14), our decision in Williams supports the conclusion

that there is no such infringement where, as a matter of law, the

record demonstrates that defendant “cannot be deemed outside

the spirit of the Three Strikes law in any part, and hence may

not be treated as though he had not previously been convicted of

those serious and/or violent felonies.” (Williams, at p. 163.)

As in Williams, there was nothing in the record before the

trial court or the Court of Appeal in this case about “the nature

and circumstances of [defendant’s] present felony” or “the

particulars of his background, character, and prospects” that

1

PEOPLE v. DAIN

Guerrero, C. J., dissenting

would permit any reasonable court to conclude defendant was

“outside the spirit of the Three Strikes law.” (Williams, supra,

17 Cal.4th at pp. 162–163.) Indeed, I do not read the majority

to identify anything in the existing record to suggest it concludes

otherwise. (Cf. maj. opn., ante, at p. 19 [suggesting that

“differences in the supporting arguments, evidence, or

reasoning” might support the dismissal of defendant’s strike on

remand (italics added)].)

Moreover, the majority’s attempt to analogize the

procedural posture with that in Williams to support the

possibility of the development of a different record on remand

that might support the dismissal of a strike is unpersuasive.

While in Williams we did not direct the reinstatement of a

strike, our disposition permitted the defendant to withdraw his

plea. (Williams, supra, 17 Cal.4th at p. 164, fn. 7.) Given that

our disposition had the potential to return the proceedings to a

preconviction posture, it hardly seems surprising that the

Williams court did not specify how an eventual potential

resentencing might be conducted. Thus, while the Williams

court acknowledged that the “material and information”

pertaining to the trial court’s eventual potential decision

whether to dismiss a strike might turn out to be different on

remand in that case (ibid.), that was because our disposition left

open the possibility of a full trial on the merits of the charges

against the defendant. (Id. at p. 165.) The procedural context

in this case is materially different. Defendant was convicted in

a jury trial, and the sole reason that the Court of Appeal

remanded the matter was to allow the trial court to resentence

him. (People v. Dain (2024) 99 Cal.App.5th 399, 403–404.)

Furthermore, I am not convinced that an open-ended

remand is required on the ground that the record of relevant

2

PEOPLE v. DAIN

Guerrero, C. J., dissenting

circumstances supporting the dismissal of defendant’s prior

strike was truncated by the trial court’s comments at the

Romero1 hearing. (See maj. opn., ante, at p. 20.) Nothing that

defense counsel could have said would have changed either the

“ ‘ “terrorizing” ’ nature of [defendant’s] current offenses,” or his

“unabated criminal history.” (Id. at p. 3.) Additionally, prior to

the hearing, the defense filed a written Romero motion, offering

its unpersuasive reasons for requesting that the trial court

dismiss the strike, a motion that the Court of Appeal and this

court were able to review.2 And, on appeal, defendant has not

pointed to any evidence or argument that he would have

presented, but for the trial court’s comments, that would have

been legally sufficient to support a lawful exercise of the trial

court’s discretion to dismiss a strike. Thus, while the majority

states, “Where the record is limited as the record is in this case,

it is speculative to predict that no possible further elaboration

of arguments, evidence, or reasons could possibly matter to the

trial court’s sentencing judgment,” the record here was fully

1

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

2

It appears to be undisputed that defendant’s 2023 Romero

motion was virtually identical to his 2019 Romero motion.

Furthermore, prior to the 2023 Romero motion hearing, the trial

court offered to have the matter “refer[red] to probation,” but

defense counsel responded, “I’m not sure if it needs to be referred

to probation for a probation officer report.” Thereafter the trial

court stated, “I don’t need to refer to probation” and indicated

that it would permit the parties to submit briefs on the

anticipated Romero motion and set the matter for a hearing.

Defense counsel responded, “That’s fine.” Defense counsel’s

declination to have a new probation report prepared also does

not support the need to issue an open-ended remand,

particularly since the existing probation report in no way

supported the dismissal of a strike.

3

PEOPLE v. DAIN

Guerrero, C. J., dissenting

developed, and no speculation is required to determine that it

would be an abuse of discretion to dismiss defendant’s strike.

(Maj. opn., ante, at pp. 20–21.)

Although the majority correctly points out that, at the

Romero hearing, in addition to offering two legally invalid

reasons for dismissing the 2006 strike, the trial court also

alluded to “ ‘other factors’ ” that made it “ ‘appropriate’ ” to

dismiss the strike, I am not convinced that this reference

warrants a remand under the circumstances of this case. (Maj.

opn., ante, at p. 20.) I agree with the majority that it is not

entirely clear what the trial court meant by this reference. (Id.

at pp. 20–23.) But such lack of clarity does not necessitate a

remand where none of the “other factors” the court might have

been alluding to supports granting the Romero motion. In

particular, the favorable factors that defendant relies on in this

case — including his “youth at the time of the prior strike,” the

allegedly “minor role he played in the prior strike offense and

the current offenses,” and “his personal history with substance

abuse and recovery” — could not alone or in combination

support the striking of a strike here given any reasonable

application of the Williams factors. (See People v. Carmony

(2004) 33 Cal.4th 367, 378 [“the circumstances must be

‘extraordinary . . . by which a career criminal can be deemed to

fall outside the spirit of the very scheme within which he

squarely falls once he commits a strike as part of a long and

continuous criminal record, the continuation of which the law

was meant to attack’ ”].) I do not read the majority to explain

otherwise.

In sum, I agree with the majority that where “the trial

court is found to have abused its discretion in granting a Romero

motion, the proper remedy is ordinarily a remand that allows

4

PEOPLE v. DAIN

Guerrero, C. J., dissenting

for further consideration of the issue.” (Maj. opn., ante, at p. 17,

italics added.) That is true, for example, where a trial court’s

statement of an intent to dismiss a strike induces a guilty plea,

as in Williams. But as the majority — at least nominally —

recognizes, an open-ended remand is not invariably mandated.

(Id. at p. 17, fn. 4.)3 On the contrary, the Legislature has broadly

prescribed that a reviewing court may “remand the cause to the

trial court for such further proceedings as may be just under the

circumstances.” (Pen. Code, § 1260.) In my view, the Court of

Appeal permissibly directed reinstatement of defendant’s strike

“under the circumstances” of this case. (Ibid.) Therefore, I

would affirm the judgment of the Court of Appeal.

GUERRERO, C. J.

3

Although the majority indicates that the standard of

appellate review is deferential (maj. opn., ante, at p. 9), it also

concludes that remand for further Romero proceedings is

warranted whenever it is remotely “possible,” or “conceivably”

the case, that any new evidence or argument can be presented.

(Maj. opn., ante, at pp. 19, 20, 21.) Indeed, the majority

concludes remand is appropriate and the lower court can

dismiss the prior strike here “[e]ven if no additional evidence or

information is adduced following remand.” (Maj. opn., ante, at

p. 23, italics added.) This suggests there is effectively a

categorical rule favoring remand in all cases, and the majority

opinion will likely be interpreted in that manner.

5

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Dain

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 99 Cal.App.5th 399

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S283924

Date Filed: August 4, 2025

__________________________________________________________

Court: Superior

County: Sonoma

Judge: Bradford J. DeMeo

__________________________________________________________

Counsel:

Carla C. Rodriguez, District Attorney, Anne C. Masterson, Chief

Deputy District Attorney, and Sarah A. Brooks, Deputy District

Attorney, for Plaintiff and Appellant.

Mi Kim, under appointment by the Supreme Court, for Defendant and

Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Sarah A. Brooks

Deputy District Attorney

600 Administration Drive, Suite 212J

Santa Rosa, CA 95403

(707) 565-3126

Mi Kim

Attorney at Law

2060-D East Avenida de Los Arboles, #274

Thousand Oaks, CA 91362

(805) 267-9113