Penal Code 1385 | Dismissing Charges and Enhancements

Penal Code 1385: Dismissing Charges and Enhancements in California

In California, judges have the authority under Penal Code 1385 to dismiss criminal charges or enhancements in the interest of justice. This law gives judges a lot of discretion to ensure fair outcomes in criminal cases. Let’s break down how it works.

What is Penal Code 1385?

Penal Code 1385 allows a judge to dismiss charges or enhancements either on their own motion or upon request from the prosecutor. The judge must state their reasons for the dismissal on the record. Some key points about PC 1385:

  • Judges have broad discretion to dismiss charges before a defendant enters a plea if they believe it serves justice.
  • Judges can dismiss enhancements at any time, even after sentencing, if certain mitigating factors apply.
  • Prosecutors can request dismissal of charges or enhancements, but the judge makes the final call.
  • Defendants cannot directly request dismissal under PC 1385, but their attorney can invite the judge to consider it.

Dismissing Criminal Charges

Judges can dismiss charges under PC 1385 if they believe dropping the case would serve justice better than continuing prosecution. This is a subjective judgment call. Some factors judges might consider include:

  • Defendant’s age, health, criminal history
  • Seriousness of the alleged offense
  • Sufficiency of evidence
  • Availability of witnesses
  • Likelihood defendant would re-offend

Prosecutors often request dismissal of charges in exchange for a plea deal. For example, dropping a felony theft charge in exchange for a misdemeanor plea. But the judge can still refuse dismissal even if both parties agree.

Dismissing Enhancements

In addition to charges, judges can dismiss enhancements under PC 1385. Enhancements add additional penalties for factors like using a gun, gang involvement, or prior convictions.

As of January 2022, judges are required to dismiss enhancements if:

  • Defendant was a minor for current or prior offenses
  • Defendant has mental illness connected to the offense
  • Defendant experienced childhood trauma or victimization connected to the offense
  • Multiple enhancements applied to one case (must dismiss all but one)
  • Enhancements would lead to over 20 years imprisonment

Prosecutors may request dismissal of enhancements to reach a plea deal. But judges can dismiss enhancements even after sentencing if they believe it serves justice.

Role of Defense Attorneys

Defense attorneys cannot directly file for dismissal under PC 1385. But they can invite the judge to use their authority to dismiss charges or enhancements. For example, arguing dismissal is appropriate due to weak evidence or the defendant’s mental health issues. The judge then decides whether to grant dismissal.

Examples of PC 1385 in Action

Here are some examples of how PC 1385 works in practice:

  • Judge dismisses felony assault charges against a defendant with schizophrenia due to their mental illness.
  • Judge dismisses a prior DUI conviction enhancement for a defendant facing a new DUI charge because it would lead to excessive punishment.
  • Prosecutor requests dismissing a robbery charge in exchange for a plea to petty theft. Judge agrees dismissal serves justice.
  • Defense attorney argues dismissal of gun enhancement is appropriate because the gun was unloaded. Judge agrees.

Criticisms of PC 1385

While PC 1385 provides an important safeguard, it has drawbacks. Critics argue:

  • Too much discretion allows inconsistent application between courts.
  • Judges may dismiss charges for questionable reasons, like sympathy for the defendant.
  • Crime victims feel dismissed charges undermine justice.
  • Mandatory dismissal of some enhancements reduces prosecutorial leverage in plea deals.

The Future of PC 1385

Recent changes require dismissing more enhancements, signaling a shift toward more judicial discretion and leniency. But some argue this pendulum has swung too far. California courts will continue shaping how PC 1385 is applied.

The law remains an important tool for judges to serve justice. But it requires careful, reasoned judgment in its application. Both sides can debate the merits of dismissal in each case.

In the end, PC 1385 empowers judges to weigh all factors and make the best decision. Despite flaws, this judicial discretion helps produce fairer outcomes.


[1] Dismissal of enhancements, Cal. Pen. Code § 1385

[2] Motion to Dismiss “In the Interest of Justice” – Penal Code 1385 PC

[3] PC 1385 “Dismissal in the Interest of Justice” Explained: Criminal Defense Lawyers

[4] Dismissal in the Interests of Justice (Penal Code § 1385)

[5] California Penal Code 1385 – Dismissal of Enhancements

[6] California Code, Penal Code – PEN § 1385