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PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

The Truth News — Wed, 22 Jan 2025 09:11:30 +0000

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.

Universal Citation: CA Penal Code § 1385 (2020)

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.)

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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, it is not uncommon for a district attorney to recommend that the judge dismiss certain criminal charges against the defendant in exchange for the defendant’s guilty plea to any remaining criminal allegations (i.e. five counts of welfare fraud reduced to one in exchange for the defendant plea to the remaining one count of welfare fraud, etc.). Another example would be where the judge dismisses a penalty enhancement in order to allow the defendant to serve a probation sentence.

PC 1385 Authority Belongs to the Court

A district attorney may recommend and request that the court use its PC 1385 authority, but a district attorney does not actually have PC 1385 authority. The criminal defense attorney does not even have the ability to make a PC 1385 motion (similar to a DA’s authority); however, a criminal defense attorney can invite the judge to use its PC 1385 authority to dismiss a criminal allegation or penalty enhancement. Ultimately however, whether or not the judge uses her PC 1385 authority to dismiss a criminal charge or penalty enhancement is determined by the judge.

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

Per new PC 1385 law, a PC 1385 motion to dismiss a criminal allegation may be made at any time before entry of plea; however, it appears that new subsection (C) to PC 1385 allows a criminal court judge to dismiss a penalty enhancement even after sentence has been pronounced (so long as the sentence for a penalty enhancement is pronounced after January of 2022).

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.

Multiple Penalty Enhancements: Per new PC 1385 law, if there is more than one enhancement added to a criminal complaint, then the judge will dismiss all enhancements beyond a single enhancement. The same is true for any enhancement that allows for a sentence beyond 20 years.

Note: Other major changes also apply to new PC 1385 law (see new PC 1385 law below).

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.
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).
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.
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.
- (B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
- (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.
- (E) The current offense is connected to prior victimization or childhood trauma.
- (F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
- (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.
- (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.
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.
PC 1385(c)(7): This subdivision shall apply to all sentencings occurring after January 1, 2022.

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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)?

With the new CARE (Consumer Arrest Equity) Act, also known by some as SB (Senate Bill) 393, permitting adults to seek sealing of arrest records and court files when an arrest and/or criminal filing did not lead to a conviction (i.e. there was an arrest, but no case was filed, or a case was filed, but it was later dismissed or defendant was acquitted), there is a renewed interest in knowing more about a case dismissal under 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.

The CARE Act is codified at Penal Code §§ 851.87 to 851.92. It is meant to function similar to a Petition for Factual Innocence, which has a very high standard to meet, but with a lower standard to meet to clean up one’s record.

After all, if the record of one’s arrest and / or a case dismissal is removed, deleted or erased from one’s record, that person will no longer be stigmatized by a suggestion that he or she must have done something wrong because police otherwise would not have made the arrest. Deleting such an entry from one’s criminal history can help that person with employment and housing applications.

The CARE Act, passed into law on October 11, 2017, permits a judge to order the sealing and destruction of an arrest record and / or court filings that were later dismissed under certain conditions, the most common being a dismissal under Penal Code § 1385, a “dismissal in the interests of justice.”

Before discussing what is a motion for dismissal in the interests of justice, the reader should note that the CARE Act also permits a petition for sealing and destruction of an arrest record and/or court file if a case was dismissed under certain drug diversion programs, i.e. a dismissal under PC 1000 or Prop 36 drug diversion programs, and other less-well known diversion programs such as bad-check diversion (Penal Code § 1001.60), cognitive development diversion (Penal Code § 1001.20), parental diversion (Penal Code § 1001.70), military diversion (Penal Code § 1001.80), mental health diversion (Penal Code § 1001.36) or any one of the more locally-oriented diversion programs such as NJP (Neighborhood Justice Program), an office hearing, ARC (the Anti-Recidivism Course) or PATH (Promising Adults, Tomorrow’s Heroes).

A motion for dismissal in the interests of justice is a motion that defense counsel cannot make. Only the prosecutor or the judge can make such a motion, but defense counsel may “invite” the judge to make such a motion. People v. Carmony (2004) 33 Cal.4th 367, 375; People v. Kim (2012) 212 Cal.App.4th 117, 121, n4.

Such a motion may be made under Penal Code § 1385 at any time before, during or even after trial. People v. Hatch (2000) 22 Cal.4th 260 (after jury deadlocked and mistrial declared); People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 503 (motion after jury returned verdict of guilty);People v. Silva (1965) 236 Cal.App.2d 453, 455(before trial). However, 1385 does not allow dismissal after imposition of sentence and rendition of judgment. People v. Kim (2012) 212 Cal.App.4th 117, 122.

The motion may be made in the jury’s presence. If the court so dismisses the action, the reasons must be stated “orally on the record.” The statement of reasons must specify the factual basis on which the court ruled; conclusions are insufficient. People v. McAlonan (1972) 22 Cal.App.3d 982, 986.

The judge may dismiss all or just part of a case under 1385. See People v. Fuentes (2016) 1 Cal.5th 218, 224(gang enhancement dismissal proper).

It should be noted that the court’s discretion to dismiss all or part of a prosecution under 1385 is not absolute. The discretion must be exercised with “valid legal discretion, amounting to more than the substitution of the predilections of a judge for the alleged predilections of the peace officers.” People v. Winters (1959) 171 Cal.App.2d Supp 876, 882. The reason for the dismissal must be that which would motivate a “reasonable judge.” People v. Hatch (2000) 22 Cal.4th 260, 268.

Appropriate grounds for 1385 dismissal can be insufficiency of the evidence, a plea agreement to certain charges (allowing dismissal of others under 1385), dismissal of certain charges to make a defendant eligible for Prop 36, dismissal of certain charges to allow the prosecutor to add defendants or dismissal because the prosecutor cannot proceed without an unavailable witness. source

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.

source

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

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

Paglia & Associates Construction v. Hamilton – Public Internet Posts & Public Criticisms – Bad Reviews – 1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties

Learn More About True Threats Here below….

Counterman v. Colorado– Supreme Court sets higher bar for prosecuting threats under First Amendment

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

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

Download Word document | Download PDF

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.)

Ian J. v. Peter M

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.

CACI No. 1501. Wrongful Use of Civil Proceedings

The Truth News — Mon, 20 Jun 2022 08:45:18 +0000

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2022 edition)

MALICIOUS PROSECUTION CACI No. 1501 925 Copyright Judicial Council of California

downland entire Judicial Council of California Civil Jury Instructions CACI Here

1501.Wrongful Use of Civil Proceedings

[Name of plaintiff] claims that [name of defendant] wrongfully brought a lawsuit against [him/her/nonbinary pronoun/it]. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of defendant] was actively involved in bringing [or continuing] the lawsuit;
That the lawsuit ended in [name of plaintiff]’s favor;]
That no reasonable person in [name of defendant]’s circumstances would have believed that there were reasonable grounds to bring the lawsuit against [name of plaintiff];]
That [name of defendant] acted primarily for a purpose other than succeeding on the merits of the claim;
That [name of plaintiff] was harmed; and
That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm. [The law requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 2 above, whether the earlier lawsuit ended in [his/her/nonbinary pronoun/its] favor. But before I can do so, you must decide whether [name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]

The special [verdict/interrogatory] form will ask for your finding on [this/these] issue[s].] [The law [also] requires that the trial judge, rather than the jury, decide if [name of plaintiff] has proven element 3 above, whether [name of defendant] had reasonable grounds for bringing the earlier lawsuit against [him/her/nonbinary pronoun/it]. But before I can do so, you must decide whether [name of plaintiff] has proven the following:

- [List all factual disputes that must be resolved by the jury.] The special [verdict/interrogatory] form will ask for your finding on
- [this/these] issue[s].] New September 2003; Revised April 2008, October 2008

Directions for Use

Malicious prosecution requires that the proceeding have ended in the plaintiff’s favor (element 2) and that the defendant did not reasonably believe that there were any grounds (probable cause) to initiate the proceeding (element 3). Probable cause is to be decided by the court as a matter of law. However, the jury may be required to find some preliminary facts before the court can make its legal determination, including facts regarding what the defendant knew or did not know at the time. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part of the instruction that refers to element of favorable termination is handled in much the same way. If a proceeding is terminated other than on the merits, there may be disputed facts that the jury must find in order to determine whether there has been a favorable termination. (See Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so, include element 2 and also the bracketed part of the instruction that refers to element once these facts are determined, the jury does not then make a second determination as to whether there has been a favorable termination. The matter is determined by the court based on the resolution of the disputed facts. (See Sierra Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [element of favorable termination is for court to decide].) Either or both of the elements of probable cause and favorable termination should be omitted if there are no disputed facts regarding that element for the jury to decide.

Element 4 expresses the malice requirement.

Sources and Authority

Public Employee Immunity. Government Code section 821.6.
“Although the tort is usually called ‘malicious prosecution,’ the word ‘prosecution’ is not a particularly apt description of the underlying civil action. The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486, internal citations omitted.)
“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
“The remedy of a malicious prosecution action lies to recompense the defendant who has suffered out of pocket loss in the form of attorney fees and costs, as well as emotional distress and injury to reputation because of groundless allegations made in pleadings which are public records.” (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
“The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.)

“[The litigation privilege of Civil Code section 47] has been interpreted to apply to virtually all torts exceptmalicious prosecution.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
“Liability for malicious prosecution is not limited to one who initiates an action. A person who did not file a complaint may be liable for malicious prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later time.’ ” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d 912].)
“[A] cause of action for malicious prosecution lies when predicated on a claim for affirmative relief asserted in a cross-pleading even though intimately related to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
“A claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
“[F]avorable termination requires favorable resolution of the underlying action in its entirety, not merely a single cause of action. ‘[I]f the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.’ ” (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 128 [277 Cal.Rptr.3d 501], internal citation omitted.)
“[A] lawyer is not immune from liability for malicious prosecution simply because the general area of law at issue is complex and there is no case law with the same facts that establishes that the underlying claim was untenable. Lawyers are charged with the responsibility of acquiring a reasonable understanding of the law governing the claim to be alleged. That achieving such an understanding may be more difficult in a specialized field is no defense to alleging an objectively untenable claim.” (Franklin Mint Co.,supra, 184 Cal.App.4th at p. 346.)
“Our repeated references in Bertero to the types of harm suffered by an ‘individual’ who is forced to defend against a baseline suit do not indicate . . . that a malicious prosecution action can be brought only by an individual. On the contrary, there are valid policies which would be furthered by allowing nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on remand from United States Supreme Court at 33 Cal.3d 727 [but holding that public entity cannot sue for malicious prosecution].)“[T]he courts have refused to permit malicious prosecution claims when they are based on a prior proceeding that is

less formal or unlike the process in the superior court (i.e., a small claims hearing, an investigation or application not resulting in a formal proceeding),
purely defensive in nature, or
(3) a continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p. 60.)

“[I]t is not enough that the present plaintiff (former defendant) prevailed in the action. The termination must ‘ “reflect on the merits,” ’ and be such that it ‘tended to indicate [the former defendant’s] innocence of or lack of responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
“ ‘The entry of summary judgment for the defense on an underlying claim on grounds of insufficient evidence does not establish as a matter of law that the litigant necessarily can “state[] and substantiate[]” . . . a subsequent malicious prosecution claim.’ ” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1120 [248 Cal.Rptr.3d 200].)
“ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
“[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a motion for judgment of nonsuit is granted, ‘unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment of nonsuit should be grounds for a subsequent malicious prosecution action. Some will be purely technical or procedural and will not reflect the merits of the action. In such cases, trial courts should exercise their discretion to specify that the judgment of nonsuit shall not operate as an adjudication upon the merits.” (Nunez, supra, 241 Cal.App.4th at p. 874.)
“ ‘ “[T]hat a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause [citation] does not alter the rule there must first be a favorable termination of the entire action.” ’ Thus, if the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 64 [228 Cal.Rptr.3d 605], internal citation omitted.)
“ ‘ “A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. [Citations.] ‘It is not enough, however, merely to show that the proceeding was dismissed.’ [Citation.] The reasons for the dismissal of the action must be examined to determine whether the termination reflected on the merits.” [Citations.]’ Whether that dismissal is a favorable termination for purposes of a malicious prosecution claim depends on whether the dismissal of the [earlier] Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of the misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
“If a conflict arises as to the circumstances explaining a failure to prosecute an action further, the determination of the reasons underlying the dismissal is a question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)
“[W]hen a dismissal results from negotiation, settlement, or consent, a favorable termination is normally not recognized. Under these latter circumstances, the dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 184-185 [156 Cal.Rptr. 745], internal citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at p. 882.)
“Not every case in which a terminating sanctions motion is granted necessarily results in a ‘favorable termination.’ But where the record from the underlying action is devoid of any attempt during discovery to substantiate allegations in the complaint, and the court’s dismissal is justified by the plaintiff’s lack of evidence to submit the case to a jury at trial, a prima facie showing of facts sufficient to satisfy the ‘favorable termination’ element of a malicious prosecution claim is established . . . .” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 219 [105 Cal.Rptr.3d 683].)
“[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury . . . . [¶] [It] requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel Co., supra, 47 Cal.3d at p. 875.)
“When there is a dispute as to the state of the defendant’s knowledge and the existence of probable cause turns on resolution of that dispute, . . . the jury must resolve the threshold question of the defendant’s factual knowledge or belief. Thus, when . . . there is evidence that the defendant may have known that the factual allegations on which his action depended were untrue, the jury must determine what facts the defendant knew before the trial court can determine the legal question whether such facts constituted probable cause to institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 881, internal citations omitted.)
“Whereas the malice element is directly concerned with the subjective mental state of the defendant in instituting the prior action, the probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878,.)
“ ‘The benchmark for legal tenability is whether any reasonable attorney would have thought the claim was tenable. [Citation.]’ ” (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 114 [151 Cal.Rptr.3d 117], internal citation omitted.)
“ ‘The facts to be analyzed for probable cause are those known to the defendant [in the malicious prosecution action] at the time the underlying action was filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888], internal citations omitted.)
“A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Soukup v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638, 139 P.3d 30].)
“[W]e reject their contention that unpled hidden theories of liability are sufficient to create probable cause.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542 [161 Cal.Rptr.3d 700].)
“California courts have held that victory at trial, though reversed on appeal, conclusively establishes probable cause.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 383 [90 Cal.Rptr.2d 408], original italics.)
“California courts have long embraced the so-called interim adverse judgment rule, under which ‘a trial court judgment or verdict in favor of the plaintiff or prosecutor in the underlying case, unless obtained by means of fraud or perjury, establishes probable cause to bring the underlying action, even though the judgment or verdict is overturned on appeal or by later ruling of the trial court.’ This rule reflects a recognition that ‘[c]laims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.’ That is to say, if a claim succeeds at a hearing on the merits, then, unless that success has been procured by certain improper means, the claim cannot be ‘totally and completely without merit.’ Although the rule arose from cases that had been resolved after trial, the rule has also been applied to the ‘denial of defense summary judgment motions, directed verdict motions, and similar efforts at pretrial termination of the underlying case.’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776-777 [221 Cal.Rptr.3d 432, 400 P.3d 1], internal citations omitted.)
“[T]he fraud exception requires ‘ “knowing use of false and perjured testimony.” ’ ” (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 452 [117 Cal.Rptr.3d 3].)
“Probable cause may be present even where a suit lacks merit. . . . Suits which all reasonable lawyers agree totally lack merit – that is, those which lack probable cause – are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause.” (Roberts, supra, 76 Cal.App.4th at p. 382.)
“[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
“Although attorneys may rely on their clients’ allegations at the outset of a case, they may not continue to do so if the evidence developed through discovery indicates the allegations are unfounded or unreliable.“ (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1121.)
“[W]here several claims are advanced in the underlying action, each must be based on probable cause.” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459 [197 Cal.Rptr.3d 227].)
“As an element of the tort of malicious prosecution, malice at its core refers to an improper motive for bringing the prior action. As an element of liability it reflects the core function of the tort, which is to secure compensation for harm inflicted by misusing the judicial system, i.e., using it for something other than to enforce legitimate rights and secure remedies to which the claimant may tenably claim an entitlement. Thus the cases speak of malice as being present when a suit is actuated by hostility or ill will, or for some purpose other than to secure relief. It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim ‘can only be motivated by an improper purpose.’ A lack of probable cause will therefore support an inference of malice.” (Drummond, supra, 176 Cal.App.4th at pp. 451-452, internal citations omitted.)
A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence.” (Silas v. Arden (2013) 213 Cal.App.4th 75, 90 [152 Cal.Rptr.3d 255].)
“Because malice concerns the former plaintiff’s actual mental state, it necessarily presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at p. 452.)
“ ‘Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.’ ‘[M]alice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.’ ” (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1122,.)
“Negligence does not equate with malice. Nor does the negligent filing of a case necessarily constitute the malicious prosecution of that case.” (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
“The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose.” (Downey Venture v. LMI Insurance Co. (1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations omitted.)

cited https://www.justia.com/trials-litigation/docs/caci/1500/1501/

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