Newly Enacted California Penal Code section 1385 allows a judge to dismiss all enhancements including prior DUIs.

February 15, 2022

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.

Current Version of PC 1385

Recent changes in the law modified subsection “(c)” of Penal Code section 1385 as follows:

  1. (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 the dismissal of that enhancement is prohibited by any initiative statute.
    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.
    3. While the court may exercise its discretion at sentencing, nothing in this subdivision shall prevent a court from exercising its discretion before, during, or after trial or entry of plea.
      • (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 juvenile adjudication that triggers the enhancement or enhancements applied in this 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.
    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).

Particular Interest for Los Angeles Criminal Attorneys and/or DUI Defense Attorneys Los Angeles are subsections B, D, E, and H of paragraph 3 of subsection (c) (highlighted above). In the opinion of Los Angeles DUI and Los Angeles Criminal Defense Attorneys, the judges now have no choice but to reduce punishment for any DUI prior that is older than 5 years. Additionally, the court has to consider any evidence of mental health issues and/or childhood trauma. Lastly, when multiple enhancements are charged, the court must ignore all but one.

For example, often a DUI would be filed as a felony based on a previous felony DUI conviction. If there is an injury alleged, a GBI count would be added to a DUI, making it a violent strike and adding 3 years to the aggregate sentence. With this new law, if the prior DUI was older than 5 years, the court must “give great weight” to that and give probation to the defendant.

Some prosecutors are not aware of this brand new section and it must be pointed out to them that the current law prohibits judges from punishing defendants for older priors, or when evidence of mental health, multiple enhancement, or childhood trauma exists. As a defendant, you must bring it up to the judge’s attention to get less jail time or no jail time at all.

Under the Prior Version of PC 1385 Court Has the Discretion to Dismiss Criminal Cases


Check out this tidbit from the Court of Appeals:

“The People contend the trial court erred in dismissing defendant’s cases under section 1385 because they were not provided with notice or opportunity to be heard, the court failed to state its reasons in dismissing the cases as required by section 1385, the court lacked jurisdiction to dismiss the cases, and dismissal was not in the interest of justice. We disagree.

“Originally codified in 1872, section 1385 states in the relevant part: “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.” (§ 1385, subd. (a); see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 520 [dismissal in furtherance of justice has existed since 1850].) “

“Dismissals under section 1385 may be proper before, during and after trial.” (People v. Orin (1975) 13 Cal.3d 937, 946.) “Because the concept of ‘furtherance of justice’ (§ 1385) is amorphous, [our Supreme Court has] enunciated some general principles to guide trial courts when deciding whether to dismiss under section 1385.” (People v. Hatch (2000) 22 Cal.4th 260, 268.) “Courts must consider ‘the constitutional rights of the defendant, and the interests of society represented by the People,’ and ‘[a]t the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” ” (Ibid., quoting People v. Orin, supra, 13 Cal.3d at p. 945.) A trial court’s decision on whether or not to dismiss an allegation or charge in furtherance of justice is reviewed for abuse of discretion. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 373; Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 536.)

“ ‘There is no statutory authority for a trial court to entertain a post-judgment motion that is unrelated to any proceeding then pending before the court. Indeed, a motion is not an independent remedy. It is ancillary to an ongoing action and “ ‘implies the pendency of a suit between the parties and is confined to incidental matters in the progress of the cause. As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and dependent on, the principal remedy.’ ” [Citation.] In most cases, after the judgment has become final, there is nothing pending to which a motion may attach.’ [Citation.]” (People v. Picklesimer (2010) 48 Cal.4th 330, 337.) However, there are some exceptions to this rule: “These exceptions generally arise in instances where the Legislature has expressly authorized such a motion. (See, e.g., § 17, subd. (b)(3) [motion to reduce a ‘wobbler’ to a misdemeanor]; § 1016.5, subd. (b) [motion to vacate the judgment and withdraw a plea based on the immigration consequences of the plea]; § 1203.4 [motion by probationer to vacate plea and dismiss charges]; § 1473.6 [motion to vacate the judgment based on newly discovered evidence of fraud].)” (People v. Picklesimer, supra, 48 Cal.4th at p. 337, fn. 2.) In this case, the record indicates that the People were provided with notice and an opportunity to be heard prior to the court’s dismissal of the cases. Even if they were not provided with such notice at the October 28, 2020 motion to vacate the hearing, the People were clearly provided with such notice and the opportunity to be heard at the November 30, 2020 motion to reconsider the hearing. In addition, at that November 30 hearing, the trial court succinctly explained its reasons for dismissing the cases under section 1385. Further, under the circumstances of this case, we find the court had jurisdiction to dismiss the defendant’s cases under section 1385 because they arose from the defendant’s motions to vacate his guilty pleas and convictions pursuant to section 1473.7. (See People v. Picklesimer, supra, 48 Cal.4th at p. 337, fn. 2.)

In other words, the Court has the power to dismiss any case under PC 1385.

In the opinion of Los Angeles DUI and Criminal Defense Attorney Los Angeles, this is a trend in California to punish less. For case-specific analysis, or to talk to Criminal Defense Attorney in Los Angeles directly please call (323) 464-6424.

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