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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

Posted by Dmitry Gorin | Aug 16, 2023

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.

California Penal Code 1385 PC allows courts to dismiss criminal charges that are unfair or frivolous.

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.

Under PC 1385, the judge can also dismiss any criminal enhancements in the interest of justice.

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.

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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.

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