Penal Code § 1385: Limits on Judge’s Discretion?
If you have been in a criminal court and listened to the judge, the prosecutor and the defense attorney for some period of time, you may have heard a discussion of the judge acting in the interest of justice under Penal Code § 1385 to strike or dismiss a charge or sentencing enhancement. What is section 1385? Are there limits on this significant judicial power?
The answer is yes, there are limits to the judge’s power under Penal Code § 1385 to dismiss a whole case, a charge or a sentencing enhancement on its own motion or on one from the prosecution. Defendant has no right to make a motion to dismiss under § 1385, but he or she may invite the trial court to dismiss in the interests of justice. People v. Carmony (2004) 33 Cal.4th 367, 14 Cal. Rptr. 3d 880. Such an application may be made by an oral or written application. Id.; Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441, 134 Cal. Rptr. 650.
Brief Synopsis: If defense counsel seeks to have a judge dismiss a charge or a sentence enhancement in the interest of justice under Penal Code § 1385, it is prudent to know when and how one must request this, as the following article explains.
A 1385 request can be made at the preliminary hearing. People v. Konow (2004) 32 Cal.4th 995, 12 Cal. Rptr. 3d 301. Besides at trial, the preliminary hearing is perhaps the best time to make such a motion, following the testimony of witnesses because the judge has just seen and heard the evidence, or lack thereof. The judge’s erroneous failure to consider such a request can deny the defendant a substantial right. Id., at 1022. An appellate claim of error premised on the trial court’s failure to dismiss under § 1385 is reviewed for abuse of discretion. Carmony, supra, at 33 Cal. 4th 376.
If defendant fails to invite the trial court to dismiss a charge or enhancement in furtherance of justice, the defendant forfeits the right or opportunity for appellate review of any error under People v. Scott (1994) 9 Cal. 4th 331, 352, 36 Cal. Rptr. 2d 627; Carmony 33 Cal. 4th at 375.
Long Beach CourthouseThe authority to dismiss includes the power to strike or dismiss sentencing enhancements. See, e.g., People v. Meloney (2003) 30 Cal. 4th 1145, 1155, 135 Cal. Rptr. 2d 602 (trial court may strike or dismiss 12022.1 (on bail) allegation); People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 504, 53 Cal. Rptr. 2d 789 (trial court has discretion to dismiss strike under § 1385). See also People v. Harvey (1991) 233 Cal. App. 3d 1206, 1231, 285 Cal. Rptr. 158; People v. Cattaneo (1990) 217 Cal. App. 3d 1577, 1589, 266 Cal. Rptr. 710.
In exercising its discretion to strike an enhancement, the judge may consider various factors, including defendant’s youth, the number of adult priors, the lack of prior prison terms, the crime on bail or OR if nonviolent, the length of the prison sentence the trial court is imposing, and the “nature and circumstances” of the defendant’s past and present convictions which suggest that the prior offenses were mitigated by either being committed in a less serious or violent manner than normal or by the low-level of defendant’s participation as, for example, a subordinate. See People v. Wallace (2004) 33 Cal.4th 738, 753, 16 Cal. Rptr. 3d 96.
However, a judge’s discretion is not unlimited under § 1385. Section 1385(b), by its own terms, states that it may not be used to strike a sentence enhancement for a prior serious felony under Penal Code § 667(a). Other sentencing provisions wherein 1385 cannot apply are:
- Penal Code § 1203.06 (barring probation for someone who personally used a firearm in the commission of specified offenses and prohibiting the court from striking the personal-use findings under § 1385); see People v. Tanner (1979) 24 Cal.3d 514, 519, 156 Cal. Rptr. 450. It should be noted that Senate Bill 620 has certainly modified this to some degree for offenses with a gun-related enhancement under Penal Code § 12022.53);
- Penal Code § 1203.066 (prohibiting court from striking findings barring probation for someone convicted of specified sex offenses); see People v. Lathrop (1986) 181 Cal.App.3d 1217, 1222, 227 Cal. Rptr. 34; and
- Penal Code § 1203.07 (barring probation for someone convicted of specified serious drug-related offenses); see People v. McGuire (1993) 14 Cal. App. 4th 687, 695, 18 Cal. Rptr. 2d 12;
We present this article because there seems to be a general misunderstanding of what 1385 actually applies to and to clarify that the judge’s power under this section is not unlimited.
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