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.
To learn more about PC 1385 motions to dismiss in the interest of justice, contact our Redlands based criminal defense lawyers. We offer free in-office, first-visit consultations for the accused. We represent clients in all San Bernardino County cities, including Victorville, Hesperia, Ontario, Chino, Redlands, San Bernardino, Yucaipa, and more. We handle all felony and misdemeanor crimes and we are available seven days a week to assist you and your loved ones. Call today!
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