PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
2020 California Code Penal Code – PEN
PART 2 – OF CRIMINAL PROCEDURE
TITLE 10 – MISCELLANEOUS PROCEEDINGS
CHAPTER 8 – Dismissal of the Action for Want of Prosecution or Otherwise
Section 1385.
1385.
- (a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The 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. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.
- (b)
- (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
- (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).
(Amended by Stats. 2018, Ch. 1013, Sec. 2. (SB 1393) Effective January 1, 2019.)
PC 1385 “Dismissal in the Interest of Justice” Explained: Criminal Defense Lawyers
Under California Penal Code section 1385, a judge has the discretion to dismiss a criminal charge in the interest of justice. Additionally, new 2022 additions to PC 1385 law allows greater discretion for a criminal court judge to dismiss penalty enhancements that are related to an underlying criminal offense (New PC 1385 Law, specifically subsection C).
For example, if a judge finds that it is in the interest of justice to dismiss a drunk in public allegation as part of a plea that includes other criminal charges, then the judge has discretion to dismiss that drunk in public charge. Similarly, if a prior DUI is being used to enhance the penalty of a present DUI charge, the judge has authority under PC 1385 to dismiss that penalty enhancement related to the prior DUI.
Judge Discretion: A judge’s discretion to dismiss a criminal allegation, or a penalty enhancement, is not absolute per new PC 1385 law. To dismiss an allegation, the judge must first find that dismissal of the allegation would be in the furtherance of justice. With respect to penalty enhancements, new PC 1385 requires a judge to dismiss certain penalty enhancements under certain circumstances (See PC text of PC 1385 Law below).
Interest of Justice Finding
As stated, under PC 1385, a judge has authority to dismiss a criminal allegation if the judge finds that dismissal would be in the interest of justice and there are reasonable grounds upon which to base that decision. What is considered to be in the interest of justice includes, but is not limited to, the following common circumstances:
Dismissal of an allegation as part of a plea bargain
- Dismissal of a penalty enhancement as part of a plea bargain to allow defendant to serve a probation sentence or simply reduce the defendant’s penalty exposure (jail or prison time).
- Dismissal of an allegation due to lack of sufficient evidence to support the allegation
- Dismissal of an allegation due to a lack of witness availability
- Dismissal of an allegation because the DA cannot reasonably proceed, and more.
For example, as part of a plea bargain, the district attorney can motion the court to dismiss a willful child endangerment charge in exchange for the defendant’s plea to the lesser charge of child neglect. But the court has the authority to actually dismiss the charge, not the district attorney. In fact, it is not that uncommon that a judge does not use its PC 1385 dismissal authority after a district attorney’s motion for the same when the allegations are particularly egregious, and the judge believes the proposed plea bargain results in too light a punishment for the defendant (i.e. judge rejects the plea).
Important: A criminal court judge may use its PC 1385 dismissal discretion even without a motion from the district attorney or an invitation from the criminal defense lawyer; however, in practice, the is a rare event. Also, a district attorney has prosecutorial discretion as to whether or not she will charge a suspect with a criminal offense, but once the district attorney has charged the criminal defendant, the authority to dismiss the charges rest solely with the criminal court judge.
Timing of a PC 1385 Motion
Important Changes to PC 1385 Law
Penalty Enhancement for Use of Firearms: New California PC 1385 Law, specially the newly added section of subsection C, allows a judge to dismiss penalty enhancements, such as penalty enhancements for the use of a firearm during a felony (PC 12022.5), and use of a firearm during the commission of a violent offense (PC 12022.53), if the firearm was not loaded at the time of the offense. Prior to 2022, these penalty enhancements could not be dismissed by a judge pursuant to her Penal Code Section 1385 authority.
New PC 1385 Law
- PC 1385(a): 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. The 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. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.
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PC 1385(b)(1): If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
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PC 1385(b)(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).
- PC 1385(c)(1): Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
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PC 1385(c)(2): In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. “Endanger public safety” means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
- (A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
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(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
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(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
- (D) The current offense is connected to mental illness.
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(E) The current offense is connected to prior victimization or childhood trauma.
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(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
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(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
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(H) The enhancement is based on a prior conviction that is over five years old.
- (I) Though a firearm was used in the current offense, it was inoperable or unloaded.
- PC 1385(c)(3) While the court may exercise its discretion at sentencing, this subdivision does not prevent a court from exercising its discretion before, during, or after trial or entry of plea.
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PC 1385(c)(4): The circumstances listed in paragraph (2) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (a).
- PC 1385(c)(5): For the purposes of subparagraph (D) of paragraph (2), a mental illness is a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia,
schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. A court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed
symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense. - PC 1385(c)(6): For the purposes of this subdivision, the following terms have the following meanings:
- (A) “Childhood trauma” means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendant’s childhood trauma was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s childhood trauma substantially contributed to the defendant’s involvement in the commission of the offense.
- (B) “Prior victimization” means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendant’s prior victimization was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s prior victimization substantially contributed to the defendant’s involvement in the commission of the offense.
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PC 1385(c)(7): This subdivision shall apply to all sentencings occurring after January 1, 2022.
UNDER CALIFORNIA PENAL CODE 1385 COURT ALWAYS HAS AUTHORITY TO DISMISS CASES
( PEOPLE v. AGUERREMARIANO (SAN BERNARDINO CO))
California Penal Code Section 1385(A) – Interpretation
In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court instructed that “in 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 of justice’ pursuant to Penal Code section 1385(a) . . . 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.” (People v. Williams, supra, 17 Cal.4th at p. 161)
Penal Code section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice,” to order an action dismissed. (Pen. Code, 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held a trial court may rely on Penal Code section 1385 to strike or vacate a prior strike for purposes of sentencing under the Three Strikes law, “subject, however, to strict compliance with the provisions of Penal Code section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Likewise, a trial court’s “failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.)
In ruling on a Romero motion, the 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, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Dismissal of a strike is a departure from the sentencing norm. Therefore, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified when the trial court was unaware of its discretion to strike a prior strike, or refused to do so at least in part for impermissible reasons. (Id. at p. 378.) But where the trial court, aware of its discretion, “‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ citation.” (Ibid.)
Similarly, the denial of the motion to reduce the criminal threat crime to a misdemeanor is reviewed for abuse of discretion. “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’Concomitantly, ‘a decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”” (Alvarez, supra, 14 Cal.4th at pp. 977-978.) source
The application guidelines of this statute are as follows. “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney and in furtherance of justice, order an action to be dismissed.” (Penal Code section 1385(a).) Specifically, the California Supreme Court in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, held that trial courts may dismiss “strike” priors in furtherance of justice under Penal Code § 1385. Dismissal in the furtherance of justice is a matter within the court’s exclusive and broad discretion. (People v. Johnson (1966) 247 Cal.App.2d 331, 333; People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502-503.) Therefore, the court may order dismissal over the prosecutor’s objection. (People v. Superior Court (Romero), supra, 13 Cal.4th 497; People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501.) The reasons for the dismissal must be set forth in an order entered upon the minutes. (Penal Code section 1385(a).)
In People v. Williams (1998) 17 Ca.4th 148, the California Supreme Court held that in properly exercising its discretion under Penal Code section 1385, “[T]he court in question must consider whether, in light of the nature 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 [Three Strikes law’s] spirit . . . .” (Id. at p. 161. Emphasis Added.) source
Newly Enacted California Penal Code section 1385 allows a judge to dismiss all enhancements including prior DUIs.
Under California Bill SB 81, passed in 2022, the judges have a lot more power over the outcome of a criminal case. If you are arrested for a crime in Los Angeles, the prosecutor has complete discretion in filing a criminal case. Yet, once the case is filed, the prosecutor has no discretion to “unilaterally” dismiss the case.
Because nolle prosequi is abolished in California, the prosecutor may not unilaterally abandon a prosecution (Pen. Code, § 1386); only the court may dismiss a criminal charge (id., § 1385, subd. (a)).”
(Steen v. Appellate Division of Superior Court (2014)
This means that the court can refuse to dismiss a case even if the prosecutor asks. A “‘district attorney can only recommend dismissal to the court. Dismissal is within the latter’s exclusive discretion.’” (People v. Roman (2001) 92 Cal.App.4th 141, 145; see People v. Levins (1978) 22 Cal.3d 620, 623-624 [section 1385 “does not require that a court dismiss a criminal action upon application of the district attorney; rather, the statutory language clearly indicates the creation of a discretionary power in the court”]; People v. Ward (1890) 85 Cal. 585, 590 [“we find no authority for the proposition that ‘it is the duty of a justice . . . to enter a dismissal upon the motion of the district attorney”].)
However, a criminal case in Los Angeles can be rejected from prosecution. This happens when the prosecutor (such as Los Angeles County District Attorney or Los Angeles City Attorney) decides that the evidence that they have is not “beyond the reasonable doubt”, which is the standard of proof required at trial in a criminal case. If your criminal case in Los Angeles is not rejected from filing by the prosecutor, but instead is filed by the prosecutor, you have to talk to Los Angeles criminal defense attorney about defending your criminal case in Los Angeles. Los Angles criminal defense attorney will defend your criminal case in Los Angeles through trial, fight it through motions, settle it with the Los Angeles Prosecutor or work out a deal with the judge (commonly known as, pleading open to the court).
PC 1385 Prior to 2022
California Penal Code section 1385 is a very old code section that in the past was used to dismiss criminal cases in Los Angeles in “the interest of justice”. Using this code section, the court can dismiss a case when justice requires it. In the past, California Penal Code 1385 was mostly used when prosecutors agreed to dismiss and or for a “Romero” motion, which is a motion to “strike” a prior “strike” so that defendant does not have to be sentenced under the three-strike-rules (usually due to older strikes being too old).
Originally Penal Code section 1385 was adopted in California in the 19th century and went through a number of revisions over the years. For example, until 1986, the entire Penal Code section 1385 was what is now only a subsection “(a)” of the statute. In the 1990s, California passed a number of reforms to enhance punishments and limit judges’ ability to dismiss counts or strikes by disallowing striking prior convictions. For example, before 2018, Penal Code sections 12022.5 and 12022.53 prohibited a trial court from striking a firearm enhancement in the interest of justice under section 1385 because at that time, the Legislature’s goal” was “to protect Californians and deter violent crime by imposing . . . the harshest applicable punishment” in each case. But eventually “the enhancement scheme ‘caus[ed] several problems,’” including a significant increase in the prison population and its corresponding impact on the state’s budget. So, in 2018 the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) to amend sections 12022.5 and 12022.53, and to give a trial court discretion to dismiss a firearm enhancement in the interest of justice under section 1385.
Similarly, recently, California reformed Section 1385 once again, giving the judges the power to reduce punishment even when the prosecutor objects. source
MOTION TO DISMISS “IN THE INTEREST OF JUSTICE” – PENAL CODE 1385 PC
In California, judges are given broad discretion to dismiss certain charges or criminal enhancements if they determine that the charges are unfair, unnecessary, or frivolous. In other words, they can dismiss charges and enhancements “in the interest of justice.” This authority is granted to judges in Penal Code 1385 PC.
The judge alone has the authority to dismiss, according to PC 1385. A motion to dismiss on the grounds of justice can only be filed by prosecutors, not by a defense attorney.
The defense may only invite the court to consider dismissal under PC 1385, but they cannot file a formal motion arguing why they must do so.
The term “in the interest of justice” is often subject to varied interpretations. In the context of Penal Code 1385, it refers to the premise that the dismissal serves the cause of fairness and integrity in the legal process.
This provision can be used to avoid prosecution or punishment when it is unfair or unnecessary. Further, it allows judicial discretion and safeguards against unjust or frivolous prosecutions.
California Penal Code 1385 permits courts to dismiss a criminal charge in the furtherance of justice, but a motion to dismiss a criminal charge has to be submitted before the entry of the plea.
Also, courts must dismiss sentencing enhancements if it would be in the furtherance of justice. Motions to dismiss a penalty enhancement could occur post-sentencing. Some legal grounds for the motion are that the defendant was a juvenile or had a mental illness. Let’s review this law in more detail below.
WHAT DOES THE LAW SAY?
Penal Code 1385 PC says, “(a) 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.
The 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. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.”
(b) (1) If the court has the authority, pursuant to subdivision (a), to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)….”
HOW DOES THE LAW WORK?
PC 1385 addresses two situations in which the judge may dismiss in the interest of justice; both operate by slightly different rules: dismissal of criminal charges and dismissal of criminal enhancements.
Dismissal of Criminal Charges
At the judge’s discretion or the motion of the prosecuting attorney, the judge may dismiss the criminal charges completely if they deem justice better served.
Any motion to dismiss in the interest of justice must be made before the defendant enters a plea.When issuing the dismissal, the judge must clearly state the reasons for dismissal orally for the record and must provide a written copy to either prosecutors or the defense upon request.
Judges have broad discretion when dismissing your charges under PC 1385. Some factors they might consider include:
- Your age;
- Your health;
- Your prior criminal history;
- The severity of the offense;
- Your likelihood of reoffending;
Dismissal of Criminal Enhancements
In criminal cases, enhancements refer to additional punishments tacked onto a sentence for certain crimes.
These enhancements typically apply in cases where aggravating circumstances are present, or the alleged offense was particularly violent.
The judge can also dismiss these enhancements in the interest of justice on their own or at the prosecuting attorney’s motion. Dismissing an enhancement does not result in the original charges being dropped—only the additional penalties.
Under PC 1385, a motion to dismiss criminal enhancements in the interest of justice can be made at any time, even after sentencing has been passed.
Unlike the broad discretion offered to judges in dismissing criminal charges, as of January 2022, judges are required to dismiss criminal enhancements if one or more of the following mitigating circumstances apply to the case:
- The implementation of criminal enhancement would result in unjust racial discrimination.
- The enhancement could lead to your sentence exceeding 20 years.
- Mental illness was a factor in the underlying crime.
- Childhood trauma or prior victimization (e.g., abuse, human trafficking) was a factor in the underlying crime.
- The underlying crime is not a violent felony.
- You were under 18 years old when committing the underlying offense.
- Your original conviction for the alleged crime is older than five years.
- You used a firearm that was not loaded or inoperable during the crime’s commission.
- The underlying crime qualifies for multiple enhancements (in which case all additional enhancements would be dropped, leaving only one).
WHAT IS THE ROLE OF THE DEFENSE ATTORNEY?
The authority to execute a motion under this code rests solely with the judge. While a defense attorney cannot file a formal motion under PC 1385, they may “invite” the court to use its authority.
This is usually achieved by presenting strong reasons why dismissing the case would be in the interest of justice. The defense attorney’s role is to advocate for the defendant, and invoking PC 1385 provides a tool to help achieve a more favorable outcome.
THE PROSECUTOR’S ROLE AND PLEA BARGAINS
On the other side of the courtroom, prosecutors can file a motion to dismiss in relation to PC 1385.
For example, the prosecutor may ask the judge to dismiss certain charges or enhancements as part of a plea bargain or as part of a pretrial diversionary program.
However, it is essential to emphasize that the judge is not obliged to grant a PC 1385 motion, even if both parties agree. The judge must independently assess whether the dismissal aligns with the cause of justice, ensuring that the court’s decision is impartial and fair.
Dismissal in the Interests of Justice (Penal Code § 1385)?
In a Nutshell: A “dismissal in the interests of justice,” under Penal Code § 1385, is needed to thereafter seek sealing and destruction of a police report and court filed under Penal Code §§ 851.87 – 851.92, which then deletes the arrest and case filing from one’s DOJ record visible on a Livescan report. However, a 1385 dismissal is not the only way one can be eligible for sealing and destruction of a police report and court file.
25 Termination of Prosecution Without Judgment
VI. DISMISSAL IN THE INTERESTS OF JUSTICE (PEN C §1385)
§25.20 F. Improper Grounds for §1385 Dismissal
The trial court may not dismiss charges, proceedings, or enhancements under Pen C §1385 in the following situations:
- The court may not strike an enhancement or other sentencing allegation when the legislature has eliminated the trial court’s discretion. See, e.g., Pen C §1385.1 (court may not dismiss special circumstance finding that has been admitted or found true by jury).
- The court may not strike an enhancement in the furtherance of justice if dismissal of that enhancement is prohibited by any initiative statute. Pen C §1385(c)(1).
- The court may not dismiss sanity proceedings under §1385 to preserve judicial resources. People v Hernandez (2000) 22 C4th 512, 523.
- The court may not enter into a plea agreement with the defendant over the prosecutor’s objection. People v Orin (1975) 13 C3d 937, 943. For further discussion of plea bargaining, see §§26.7–26.22.
- The court may not dismiss an action because the prosecutor requests a continuance, even without good cause, if the requested extension would not violate the defendant’s statutory or constitutional right to a speedy preliminary hearing or trial. Pen C §1050. See People v Smith (2016) 245 CA4th 869.
- The trial court may not dismiss an action in the interest of justice to obtain an appellate ruling. People v Ritchie (1971) 17 CA3d 1098, 1105 (trial court dismissed case at Pen C §1538.5 hearing because evidence not physically present in court and judge wanted appellate court to decide whether its presence was required).
- The trial court may not dismiss the case merely because it would be in the defendant’s or victim’s best interest, if the court has no reasonable doubt about the defendant’s guilt. People v Superior Court (Long) (1976) 56 CA3d 374. See also People v McAlonan (1972) 22 CA3d 982, 987 (dismissal provisions of Pen C §1385 cannot be used for rehabilitation purposes); People v Municipal Court (Gelardi) (1978) 84 CA3d 692 (court could not, over prosecution’s objection, use Pen C §1385 to effect its own form of nonstatutory diversion).
- The trial court may not dismiss because of court congestion, or for judicial convenience, when there is no detriment to the defendant. People v Kessel (1976) 61 CA3d 322.
- The illegality of a defendant’s arrest is not a proper basis for dismissal of the action. People v Valenti (1957) 49 C2d 199, 203, cited with approval in People v Charles (1967) 66 C2d 330, 332 n1. See also U.S. v Alvarez-Machain (1992) 504 US 655, 112 S Ct 2188. It may be used, however, as a basis for suppressing evidence or a confession obtained as a result of an illegal arrest. See chaps 16 (suppressing evidence) and 23 (confessions).
- The court may not terminate parole under Pen C §1385 in a prior case when sentencing a defendant in a new case. People v VonWahlde (2016) 3 CA5th 1187, 1196.
in People v. S.M. (1st App. Dist., 2017) 9 Cal.App.5th 210.
The prosecution appealed the ruling to the First Appellate District, which affirmed the trial court (People v. S.M. (2017 DJDAR 1885)). The First Appellate District approached the issue by stating first and foremost that the standard for appellate review of a decision to dismiss charges in the furtherance of justice is whether the trial court abused its discretion. People v. Ortega (2000) 84 Cal.App.4th 659, 666.
The discretion cannot be exercised to accommodate judicial convenience or court congestion. People v. Kessel (1976) 61 Cal.App.3d 322, 326.
In reviewing the case facts, the appellate court found that the loss was actually never paid and that a conviction would have a devastating effect on S.M.’s career choice in high tech security. source
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We also have the Elonis v. United States (2015) – Threats – 1st Amendment
Learn More About What is Obscene…. be careful about education it may enlighten you
We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment
We also have the Obscenity and Pornography – 1st Amendment
Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$
Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney
What is a Fiduciary Duty; Breach of Fiduciary Duty
The Attorney’s Sworn Oath
Malicious Prosecution / Prosecutorial Misconduct – Know What it is!
New Supreme Court Ruling – makes it easier to sue police
Possible courses of action Prosecutorial Misconduct
Misconduct by Judges & Prosecutor – Rules of Professional Conduct
Functions and Duties of the Prosecutor – Prosecution Conduct
Standards on Prosecutorial Investigations – Prosecutorial Investigations
Information On Prosecutorial Discretion
Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves
Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here
Criminal Motions § 1:9 – Motion for Recusal of Prosecutor
Pen. Code, § 1424 – Recusal of Prosecutor
Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case
National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here
The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence
ABA – Functions and Duties of the Prosecutor – Prosecution Conduct
Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF
Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF
Mi$Conduct – Judicial Mi$Conduct Judge$
Prosecution Of Judges For Corrupt Practice$
Code of Conduct for United States Judge$
Disqualification of a Judge for Prejudice
Judicial Immunity from Civil and Criminal Liability
Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge
l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form
How to File a Complaint Against a Judge in California?
Commission on Judicial Performance – Judge Complaint Online Form
Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves
Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case
DUE PROCESS READS>>>>>>
Due Process vs Substantive Due Process learn more HERE
Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here
Mathews v. Eldridge –Due Process – 5th, & 14th Amendment
Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test
“Unfriending” Evidence – 5th Amendment
At the Intersection of Technology and Law
We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings
Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment
What is Probable Cause? and.. How is Probable Cause Established?
Misuse of the Warrant System – California Penal Code § 170 – Crimes Against Public Justice – 4th, 5th, & 14th Amendment
What Is Traversing a Warrant (a Franks Motion)?
Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail –4th, 5th, & 14th Amendment
Obstruction of Justice and Abuse of Process
What Is Considered Obstruction of Justice in California?
ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!
Penal Code 115 PC – Filing a False Document in California
Penal Code 118 PC – California Penalty of “Perjury” Law
Federal Perjury – Definition by Law
Penal Code 132 PC – Offering False Evidence
Penal Code 134 PC – Preparing False Evidence
Crimes Against Public Justice
Penal Code 118.1 PC – Police Officer$ Filing False Report$
Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment
Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath
Penal Code 132 PC – Offering False Evidence
Penal Code 134 PC – Preparing False Evidence
Penal Code 135 PC – Destroying or Concealing Evidence
Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath
Penal Code 141 PC– Planting or Tampering with Evidence in California
Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense
PC 146 Penal Code – False Arrest
Penal Code 148.5 PC – Making a False Police Report in California
Misuse of the Warrant System – California Penal Code § 170
Penal Code 182 PC– “Criminal Conspiracy” Laws & Penalties
Penal Code § 236 PC – False Imprisonment
Penal Code 664 PC–“Attempted Crimes” in California
Penal Code 31 PC – Aiding and Abetting Laws
Penal Code 32 PC – Accessory After the Fact
What is Abuse of Process?
What is a Due Process Violation? – 4th Amendment& 14th Amendment
What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?
Defeating Extortion and Abuse of Process in All Their Ugly Disguises
The Use and Abuse of Power by Prosecutors (Justice for All)
Misconduct by Government Know Your Rights Click Here
Under 42 U.S.C. $ection 1983 – Recoverable Damage$
42 U.S. Code § 1983 – Civil Action for Deprivation of Right$
18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law
18 U.S. Code § 241 – Conspiracy against Right$
Section 1983 Lawsuit – How to Bring a Civil Rights Claim
Suing for Misconduct – Know More of Your Right$
Police Misconduct in California – How to Bring a Lawsuit
How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)
Deprivation of Rights – Under Color of the Law
What is Sua Sponte and How is it Used in a California Court?
Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case
Anti-SLAPP Law in California
Freedom of Assembly – Peaceful Assembly – 1st Amendment Right
How to Recover “Punitive Damages” in a California Personal Injury Case
Pro Se Forms and Forms Information(Tort Claim Forms here as well)
What is Tort?
Tort Claims Form
File Government Claim for Eligible Compensation
Complete and submit the Government Claim Form, including the required $25 filing fee or FeeWaiverRequest, and supporting documents, to the GCP.
See Information Guides and Resources below for more information.
Tort Claims – Claim for Damage, Injury, or Death (see below)
Federal – Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us
California – California Tort Claims Act – California Tort Claim Form Here or here from us
Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF
Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source
WRITS and WRIT Types in the United States
How do I submit a request for information?
To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.
Templates for Sample Requests
Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF
or from us Download Word document | or from us Download PDF
Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF
or from us Download Word document | or from us Download PDF
The First Amendment Coalition also has some useful information to help explain the PRA process.
Sample Letter | SB 1421 & SB 16 Records
Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence
First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here
Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation
Cal. Code Civ. Proc. § 1008 Motion to Reconsider
Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case
CACI No. 1501 – Wrongful Use of Civil Proceedings
Penal Code “995 Motions” in California – Motion to Dismiss
WIC § 700.1 – If Court Grants Motion to Suppress as Evidence
Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here
Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here
California Motions in Limine – What is a Motion in Limine?
Petition for a Writ of Mandate or Writ of Mandamus (learn more…)
PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
Retrieving Evidence / Internal Investigation Case
Pitchess Motion & the Public Inspectionof Police Records
Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here
Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here
Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:
SEARCH SB-1421 SB-16 Incidents of LA County, Oakland
California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records
APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here
Learn About Policy 814: Discovery Requests OCDA Office – Click Here
Request for Proof In-Custody Form Click Here
Request for Clearance Letter Form Click Here
Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here
Request Authorization Form Release of Case Information – Click Here
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts
Can I Use Text Messages in My California Divorce?
Two-Steps And Voila: How To Authenticate Text Messages
How Your Texts Can Be Used As Evidence?
California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests
case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees
Public Records Practices After the San Jose Decision
The Decision Briefing Merits After the San Jose Decision
Rules of Admissibility – Evidence Admissibility
Confrontation Clause – Sixth Amendment
Exceptions To The Hearsay Rule – Confronting Evidence
Prosecutor’s Obligation to Disclose Exculpatory Evidence
Successful Brady/Napue Cases – Suppression of Evidence
Cases Remanded or Hearing Granted Based on Brady/Napue Claims
Unsuccessful But Instructive Brady/Napue Cases
ABA – Functions and Duties of the Prosecutor – Prosecution Conduct
Frivolous, Meritless or Malicious Prosecution – fiduciary duty
Section 832.7 – Peace officer or custodial officer personnel records
Senate Bill No. 1421– California Public Records Act
Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records
SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure
The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records
How Access to California Police Records
Los Angeles County Sheriff’s Department SB-1421 Records
SB1421 – Form Access to California Police Records
California Statewide CPRA Requests Submit a CPRA Request
Electronic Audio Recording Request of OC Court Hearings
CPRA Public Records Act Data Request – Click Here
Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here
Police BodyCam Footage Release
Cleaning Up Your Record
Tossing Out an Inferior Judgement – When the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13
Penal Code 851.8 PC – Certificate of Factual Innocence in California
Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here
SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105– CARE ACT
Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC
How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC
Seal & Destroy a Criminal Record
Cleaning Up Your Criminal Record in California (focus OC County)
Governor Pardons –What Does A Governor’s Pardon Do
How to Get a Sentence Commuted (Executive Clemency) in California
How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion
PARENT CASE LAW
RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$
YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK
Family Law Appeal – Learn about appealing a Family Court DecisionHere
9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$
Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$
9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$
California Civil Code Section 52.1 – The Bane ActInterference with exercise or enjoyment of individual rights
Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS
SEARCH of our site for all articles relating for PARENTS RIGHTS Help!
Child’s Best Interest in Custody Cases
Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Learn More:Family Law Appeal
Necessity Defense in Criminal Cases
Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction
Venue in Family Law Proceedings
GRANDPARENT CASE LAW
Do Grandparents Have Visitation Rights?If there is an Established Relationship then Yes
Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required
Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf
Distinguishing Request for Custody from Request for Visitation
Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment
S.F. Human Servs. Agency v. Christine C. (In re Caden C.)
9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship
Child’s Best Interestin Custody Cases
When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder
Joinder In Family Law Cases – CRC Rule 5.24
GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law PacketSB Resource Center
Motion to vacate an adverse judgment
Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder
When is a Joinder in a Family Law Case Appropriate?
Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848
Punsly v. Ho (2001) 87 Cal.App.4th 1099
Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242
S.F. Human Servs. Agency v. Christine C. (In re Caden C.)
Family Treatment Court Best Practice Standards
Download Here this Recommended Citation
Sanctions and Attorney Fee Recovery for Bad Actors
FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here
FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here
Awarding Discovery Based Sanctions in Family Law Cases – Click Here
FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here
Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here
Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed
Epic Criminal / Civil Right$ SCOTUS Help – Click Here
Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here
Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on
Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors
Please take time to learn new UPCOMING
The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site
The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.
The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.
