Penal Code § 1385 PC – Dismissing Charges and Enhancements

California Penal Code § 1385 PC permits courts to dismiss a criminal charge if it would be in the furtherance of justice. In addition, PC 1385 requires courts to dismiss sentencing enhancements if it would be in the furtherance of justice.

The full text of the statute reads:

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.

(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).

(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.
(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.
(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.
(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).
(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.
(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.
(7) This subdivision shall apply to all sentencings occurring after January 1, 2022.

Legal Analysis

California Penal Code 1385 PC gives judges the authority to dismiss

• criminal charges and
• criminal enhancements.

Judges are required to dismiss criminal enhancements if it would be in furtherance of justice to do so. If one or more of the following nine mitigating circumstances are present, the judge probably will dismiss the enhancement unless doing so would result in physical injury or serious danger to others:

1. Applying the criminal enhancement would have discriminatory racial impact.
2. Multiple enhancements are alleged in a single case (in this instance, all enhancements beyond a single one would be dismissed).
3. The enhancement could result in the defendant serving more than 20 years.
4. The underlying offense is connected to mental illness.
5. The underlying offense is connected to childhood trauma or prior victimization (such as abuse, exploitation, human trafficking, or sexual violence)
6. The underlying offense is not a violent felony.
7. The defendant was under 18 years old when they committed the underlying offense.
8. The enhancement is based on a prior conviction that is more than five years old.
9. The firearm the defendant used was unloaded or inoperable.

Example: Jonah is facing California criminal charges of robbery with two sentencing enhancements: 1) being armed during the commission of a felony and 2) shooting a firearm from a vehicle. Since there are multiple enhancements, the judge decides to dismiss one of them in accordance with PC 1385(c)(2)(B).

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Legal References