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Dismissals under Penal Code Section 1385
By Hon. Hank Goldberg

The power to dismiss under Penal Code Section 1385 is one of the most potent tools at a judge's disposal. But given how broad the power is, care must be taken that it is used only in appropriate situations.

The objective of this article and self-study test is to educate bench officers and attorneys regarding the basic aspects of judges' power under Penal Code Section 1385. Readers will learn about the scope of the power and how judges can abuse their power, with a special emphasis on what can and cannot be considered when using the authority to dismiss under Section 1385.

Scope of Power

Penal Code Section 1385 provides that a judge or magistrate either on the People's motion or on the judge's own motion may, "in the furtherance of justice, order an action to be dismissed." The power to dismiss "in the furtherance of justice" is strictly based on the statute. There is no inherent power to dismiss. See People v. Tanner, 24 Cal.3d 514 (1979).

Thus, although the legislature cannot subject the power to a prosecutorial veto, it can completely eliminate the power. For example, conditioning a court's power to dismiss priors under the three-strikes law (Pen. Code Section 667(b)-(i)) on prosecutorial approval, unconstitutionally violates the separation of powers. People v. Superior Court (Romero), 13 Cal.4th 497 (1996). Deleting the court's power to dismiss five-year priors (Pen. Code Section 667(a)) in its entirety, however, has been held to be valid. People v. Valencia, 207 Cal.App.3d 1042 (1989), interpreting Pen. Code Section 1385(b).


Precisely what is an "action" that can be dismissed under Section 1385? An "action" can include an entire criminal case filed against a defendant. For example, the California Supreme Court, in dicta, upheld a trial court's authority to dismiss a case after it was submitted to the jury based on the court's finding of insufficient evidence. See People v. Hatch, 22 Cal.4th 260 (2000).

An action has also been interpreted to mean individual charges and allegations in a criminal action. See People v. Hernandez, 22 Cal.4th 512 (2000). This includes enhancements for prior convictions and conduct enhancements such as for using a deadly weapon. See People v. Jones, 157 Cal.App.4th 1373 (2007). But an action does not include a sentencing factor that could render a defendant ineligible for Proposition 36 probation. In re Varnell, 30 Cal.4th 1132 (2003).

Prohibitions against dismissal.

Under People v. Hatch, a court has power to dismiss in any situation where the legislature or electorate through an initiative has not clearly prohibited it. Use of this power does not have many specific prohibitions. Some situations that include a specific prohibition include: five-year priors (Pen. Code Section 1385(b)), and special circumstances in certain situations (Pen. Code Section 1385.1), both of which were appealed effective January 1. Other specific prohibitions include: excessive fraud or embezzlement loss enhancements (Pen. Code Section 186.11(b)(2)); specified circumstances in the One-Strike law for sex crimes (Pen. Code Section 667.61(g)); hit-and-run after manslaughter (Veh. Code Section 20001(c)); and driving under the influence priors (Veh. Code Section 23622(a)).

Motions to dismiss.

A dismissal under Section 1385 can technically only be done upon the motion of the prosecutor or on the court's own motion. Pen. Code Section 1385(a). A defendant, however, may invite the court to dismiss, either orally or in writing. People v. Carmony, 33 Cal.4th 367 (2004).

Abuse of Power

Broad, but not unlimited.

The power to dismiss under Section 1385 has often been characterized as broad but not unlimited. See People v. Orin, 13 Cal.3d 937 (1975).) Under People v. Orin, the power can be abused and is subject to being reversed on appeal for abuse of discretion. "[T]he language of that Section, 'furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. ... At the very least, the reason for dismissal must be "that which would motivate a reasonable judge."

"A determination whether to dismiss in the interests of justice after a verdict involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burdens imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial." People v. Superior Court (Howard), 69 Cal.2d 491 (1968).) Some of these factors apply as well to a dismissal that occurs before trial. People v. Richie, 17 Cal.App.3d 1098 (1971).

As a check against abuse of power, a full record must be made regarding the reasons for the dismissal. Moreover, a transcript of the reasons is insufficient; the reasons must actually be written in the court's minutes. Pen. Code Section 1385(a).

What Can and Cannot Be Considered

The best way to determine whether dismissal would be an abuse of discretion is to examine what can and cannot be properly considered in dismissing an action. A considerable number of appellate cases have outlined the proper bounds of Section 1385 in this manner.

Evidentiary weakness.

Several cases have held that a court can dismiss a case under Section 1385 over the People's objection based on evidentiary insufficiency or weaknesses. In People v. Hatch, the California Supreme Court found that a trial court properly dismissed a case after the jury deadlocked, and the trial court made a finding that no reasonable jury would convict the defendant. Such a dismissal may be because the evidence is insufficient as a matter of law - that the evidence viewed in the light most favorable to the People is insufficient. A dismissal under Section 1385 may be proper even if the evidence is legally sufficient. The court can weigh and balance the evidence, as did the trial judge in the Hatch case, and conclude that the evidence is weak. But the consequence of the second basis for dismissal is that charges may be refiled.

In People v. Superior Court (Howard), the Supreme Court concluded that the right to dismiss when the evidence is conflicting had been recognized in a number of cases. The Court stated: "[i]f a trial judge is convinced that the only purpose to be served by a trial or retrial is harassment of the defendant, he [or she] should be permitted to dismiss notwithstanding the fact that there is sufficient evidence of guilt, however weak, to sustain a conviction on appeal."

The Supreme Court also discussed dismissal based on evidentiary weaknesses in People v. Wallace, 33 Cal.4th 738 (2004). There, the trial court improperly struck a prior conviction. The sole basis for striking the prior was that the magistrate did not hold the defendant to answer to that charge before the defendant eventually pleaded no contest to that charge. The Supreme Court reasoned that the magistrate's legal ruling in the prior case at the preliminary hearing was not a relevant factor to consider under Section 1385. In his concurring opinion, Justice Carlos Moreno clarified that "nothing forbids a court from considering the insufficiency of the underlying evidence ..., and then dismissing a strike on that basis."

Court congestion.

The Court of Appeal in People v. Mack, 52 Cal.App.3d 680 (1975), held that dismissal founded only on court congestion was an abuse of discretion. In this case, the defendant was charged with committing lewd acts on a child. The defendant admitted he was in violation of probation in an indecent exposure case. On the probation case, the court found the defendant to be a mentally disordered sex offender and committed him to the California Department of Health. Then, over the People's objection, the court dismissed the pending lewd acts charge. The trial court dismissed the case "because of congestion of the calendar" and because the court believed that even if convicted of the new charge, the court would still commit him as a mentally disordered sex offender. The Court of Appeal held that the dismissal based on court congestion was an abuse of discretion and that conviction of the new offense could have resulted in a much longer period of imprisonment than defendant would serve on the probation case. This gave a legitimate prosecutorial interest in pursuing the new charge.

Costs to the public.

In People v. Gaston, 74 Cal.App.4th 310 (1999), the Court of Appeal held that the trial court abused its discretion in striking one of two strike priors. The defendant had an extensive chain of felony convictions over his adult life including the older two strikes. Among the factors considered by the trial court was that the longer defendant was incarcerated the greater the likelihood that there "will be an increasing charge on public funds while he's in state prison, and [the judge] anticipates that his medical costs will be increasing substantially because of his diabetic condition." The Court of Appeal ruled that the cost of incarceration was "not a factor that may be validly considered."

Sentencing law antipathy.

In People v. Superior Court (Romero), the California Supreme Court stated that it is error to dismiss "guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring defendant's background, the nature of his present offenses, and other individualized considerations."

Dismissing solely to rehabilitate.

In People v. McAlonan, 22 Cal.App.3d 982 (1972), the defendant was charged with possession of marijuana. The trial judge said he was convinced beyond a reasonable doubt that the defendant was guilty. However, the judge had heard that defendant wanted to join the navy and ordered probation to investigate the effect of a conviction on the defendant's ability to join. Over the People's objection, the judge dismissed the case stating, in essence, that it was doing so to rehabilitate the defendant.

The Court of Appeal reversed, holding that since the specification of reasons was couched in conclusory language, it was insufficient to justify the dismissal. However, in dicta, the appellate court went on to say that even if the statement of reasons were adequate, the dismissal would have been improper: "Sincere though an individual judge's belief may be that a guilty defendant's rehabilitation would be facilitated by avoiding conviction, we are convinced society's interest that justice be dispensed with an even hand and in accordance with statutory authority precludes use of the dismissal statute to avoid conviction. ... Under the circumstances of this case, we are convinced the dismissal provisions of Penal Code Section 1385 cannot be used for rehabilitative purposes. To hold otherwise would completely stultify the statutory scheme and would exalt the rule of men above the rule of law."

In accord with this dicta is People v. Superior Court (Montano), 26 Cal.App.3d 668 (1972). In Montano, the Court of Appeal reversed a dismissal when defendant's mother called police because defendant had overdosed. The trial court was convinced the defendant was guilty of possession of a controlled substance, but dismissed the case to preserve the family relationship and to rehabilitate the defendant.

Discretion on individualized considerations.

The above cases could be viewed as inconsistent with the rule that judges have discretion to dismiss cases based on individualized considerations if they balance the rights of society against the burdens on the defendant. But the judges in these cases were arguably reversed because they did not clearly identify and discount possible societal interests in arriving at the decision to dismiss. Assuming that a court does take into account society's interests, there may well be appropriate cases where rehabilitating a defendant properly could be considered in a Section 1385 dismissal.

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