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Motion to Dismiss "In the Interest of Justice" - Penal Code 1385 PC

Posted by Dmitry Gorin | Aug 16, 2023

In California, judges are given broad discretion to dismiss certain charges or criminal enhancements if they determine that the charges are unfair, unnecessary, or frivolous. In other words, they can dismiss charges and enhancements "in the interest of justice." This authority is granted to judges in Penal Code 1385 PC.

The judge alone has the authority to dismiss, according to PC 1385. A motion to dismiss on the grounds of justice can only be filed by prosecutors, not by a defense attorney.

The defense may only invite the court to consider dismissal under PC 1385, but they cannot file a formal motion arguing why they must do so.

Motion to Dismiss "In the Interest of Justice" - Penal Code 1385 PC
California Penal Code 1385 PC allows courts to dismiss criminal charges that are unfair or frivolous.

The term "in the interest of justice" is often subject to varied interpretations. In the context of Penal Code 1385, it refers to the premise that the dismissal serves the cause of fairness and integrity in the legal process.

This provision can be used to avoid prosecution or punishment when it is unfair or unnecessary. Further, it allows judicial discretion and safeguards against unjust or frivolous prosecutions.

California Penal Code 1385 permits courts to dismiss a criminal charge in the furtherance of justice, but a motion to dismiss a criminal charge has to be submitted before the entry of the plea.

Also, courts must dismiss sentencing enhancements if it would be in the furtherance of justice. Motions to dismiss a penalty enhancement could occur post-sentencing. Some legal grounds for the motion are that the defendant was a juvenile or had a mental illness. Let's review this law in more detail below.

What Does the Law Say?

Penal Code 1385 PC says, “(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)….”

How Does the Law Work?

PC 1385 addresses two situations in which the judge may dismiss in the interest of justice; both operate by slightly different rules: dismissal of criminal charges and dismissal of criminal enhancements.

Dismissal of Criminal Charges 

At the judge's discretion or the motion of the prosecuting attorney, the judge may dismiss the criminal charges completely if they deem justice better served.

Any motion to dismiss in the interest of justice must be made before the defendant enters a plea.When issuing the dismissal, the judge must clearly state the reasons for dismissal orally for the record and must provide a written copy to either prosecutors or the defense upon request.

Judges have broad discretion when dismissing your charges under PC 1385. Some factors they might consider include:

  • Your age;
  • Your health;
  • Your prior criminal history;
  • The severity of the offense;
  • Your likelihood of reoffending;

Dismissal of Criminal Enhancements

In criminal cases, enhancements refer to additional punishments tacked onto a sentence for certain crimes.

Dismissal of Criminal Enhancements in California
Under PC 1385, the judge can also dismiss any criminal enhancements in the interest of justice.

These enhancements typically apply in cases where aggravating circumstances are present, or the alleged offense was particularly violent.

The judge can also dismiss these enhancements in the interest of justice on their own or at the prosecuting attorney's motion. Dismissing an enhancement does not result in the original charges being dropped—only the additional penalties.

Under PC 1385, a motion to dismiss criminal enhancements in the interest of justice can be made at any time, even after sentencing has been passed.

Unlike the broad discretion offered to judges in dismissing criminal charges, as of January 2022, judges are required to dismiss criminal enhancements if one or more of the following mitigating circumstances apply to the case:

  • The implementation of criminal enhancement would result in unjust racial discrimination.
  • The enhancement could lead to your sentence exceeding 20 years.
  • Mental illness was a factor in the underlying crime.
  • Childhood trauma or prior victimization (e.g., abuse, human trafficking) was a factor in the underlying crime.
  • The underlying crime is not a violent felony.
  • You were under 18 years old when committing the underlying offense.
  • Your original conviction for the alleged crime is older than five years.
  • You used a firearm that was not loaded or inoperable during the crime's commission.
  • The underlying crime qualifies for multiple enhancements (in which case all additional enhancements would be dropped, leaving only one).

What Is the Role of the Defense Attorney?

The authority to execute a motion under this code rests solely with the judge. While a defense attorney cannot file a formal motion under PC 1385, they may "invite" the court to use its authority.

This is usually achieved by presenting strong reasons why dismissing the case would be in the interest of justice. The defense attorney's role is to advocate for the defendant, and invoking PC 1385 provides a tool to help achieve a more favorable outcome.

The Prosecutor's Role and Plea Bargains

On the other side of the courtroom, prosecutors can file a motion to dismiss in relation to PC 1385.

For example, the prosecutor may ask the judge to dismiss certain charges or enhancements as part of a plea bargain or as part of a pretrial diversionary program.

However, it is essential to emphasize that the judge is not obliged to grant a PC 1385 motion, even if both parties agree. The judge must independently assess whether the dismissal aligns with the cause of justice, ensuring that the court's decision is impartial and fair.

You can contact our law firm for a case review by phone or through the contact form. Eisner Gorin LLP has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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