California Penal Code § 1385 PC gives California judges wide discretion to dismiss unfair criminal charges and sentencing enhancements “in furtherance of justice.” This judicial power is a safeguard against:
- frivolous cases and
- frivolous punishments.
Can I file a PC 1385 motion with the court?
No. You (and your defense attorneys) are not allowed to formally file PC 1385 motions. The most you can do is “invite” the judge to use the court’s authority to drop your case or sentence enhancement.
Can the D.A. file a PC 1385 motion?
Yes. Prosecutors can file PC 1385 motions asking the judge to dismiss certain charges or enhancements in furtherance of justice. D.A.s often do this:
- for the purpose of a plea bargain or
- to make you eligible for diversion or probation.
In our experience, judges usually grant prosecutors’ PC 1385 motions, though they are not required to.
When do prosecutors bring PC 1385 motions?
Prosecutors who wish to file PC 1385 motions to dismiss a criminal charge must do so prior to you entering a plea.
However, there is no time limit for prosecutors to file PC 1385 motions to dismiss a sentencing enhancement. These motions can be filed even after you have already been sentenced as long as the enhancement was charged on or after January of 2022.
Does a motion need to be filed?
No. California judges have the authority to dismiss charges and enhancements in furtherance of justice whether or not:
- the D.A. files a formal motion, or
- you or your attorney “invites” the judge to exercise their authority.
However, judges are more likely to exercise their PC 1385 authority if the D.A. or you ask them to.
How do judges make their decisions?
California judges consider different factors when deciding whether to dismiss your criminal charges as opposed to your sentencing enhancements, as explained below.
(Sentencing enhancements are additional penalties tacked onto your underlying sentence in extenuating circumstances, such as if the victim was a child or sustained great bodily injury, etc.)
Dismissing Criminal Charges
Judges are never required to dismiss your criminal charges “in furtherance of justice.” They have broad discretion to dismiss them if they feel it would serve the legal process.
From what we have seen, judges consider the following factors when deciding whether to dismiss criminal charges under PC 1385:
- Your criminal history;
- The seriousness of your charge;
- The sufficiency of the evidence underlying your charge (including witness availability);
- The likelihood of you re-offending;
- Your age and health.
When a judge does decide to drop your criminal charge, they have to explain why on the record. They must also give you or the D.A. a written copy of their reasoning upon request.
Dismissing Sentencing Enhancements
Whereas judges may or may not dismiss unfair criminal charges, judges are required to dismiss sentencing enhancements if it would be in furtherance of justice to do so.
Specifically, the judge will probably dismiss your enhancement if one or more of the following nine mitigating circumstances apply to your case:
- Applying the criminal enhancement would have discriminatory racial impact.
- The enhancement could result in you serving more than 20 years.
- Multiple enhancements are alleged in your one case. (In this instance, all enhancements except one would be dismissed.)
- The underlying offense is connected to mental illness.
- The underlying offense is connected to childhood trauma or prior victimization (such as abuse, exploitation, human trafficking, or sexual violence).
- The underlying offense is not a violent felony.
- You were under 18 years old when you committed the underlying offense.
- The enhancement is based on a prior conviction that is more than five years old.
- The firearm you used was unloaded or inoperable. (This is common in cases where using a gun increases your sentence, such as using a gun in the commission of felonies in violation of PC 12022.5 or PC 12022.53.)
Example: Jonah is facing California criminal charges of robbery with one sentencing enhancement: Being armed during the commission of a felony. Since the gun was unloaded, the judge likely has to dismiss the enhancement to comport with PC 1385.
The only reason a judge may not dismiss your enhancement in furtherance of justice is if doing so would result in physical injury or serious danger to others.
If my sentencing enhancement gets dismissed, does my case get dismissed, too?
No. If a judge dismisses your sentencing enhancement, that does not cause your underlying sentence or criminal conviction to get dismissed as well.1
The purpose of PC 1385 motions is to safeguard defendants against bogus charges and disproportionately high sentences.
Related Articles
- California court process
- Motions to continue (PC 1050)
- Motions to dismiss felonies (PC 995)
- Motions to dismiss misdemeanors (PC 991)
- Motions to recuse a judge (CCP 170.1)
- Motions to suppress evidence (PC 1538.5)
- Motions to withdraw a plea (PC 1018)
- Pitchess motions
- Romero motions
- Serna motions
Legal References
- California Penal Code 1385 PC. The text of the statute reads as follows:
(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.See also Nazir v. Superior Court (Cal. App. 2d Dist. 2022) 79 Cal. App. 5th 478. People v. Johnson (Cal. App. 3d Dist. 2022) 83 Cal. App. 5th 107. Another example of an enhancement is shooting a firearm from a vehicle.