CA Penal Code 1385: Dismissing Charges, Enhancements, and Appeals

California Penal Code Section 1385 gives a judge the power to dismiss a criminal charge, an entire case, or a sentencing enhancement when doing so serves the interests of justice. Since Senate Bill 81 took effect on January 1, 2022, that authority has become especially strong over sentencing enhancements: when certain mitigating factors are present, the judge is now required to dismiss unless doing so would endanger public safety.¹

Who Can Ask a Judge to Dismiss

The power to dismiss under Section 1385 belongs to the judge. A judge can act on their own or after the prosecutor formally asks. The statute does not list the defense as a party who can file a motion.¹ A defendant or defense attorney can invite the court to use its 1385 authority, but that invitation is not a motion the court has to rule on the way it would rule on a suppression motion.

When a judge grants a dismissal, the reasons must be stated orally on the record. They must also go into the minutes if either side asks or if the proceedings are not being recorded.¹ A dismissal with no stated reasons can be reversed on appeal.

The court can act before, during, or after trial, and after a guilty plea. For enhancements, the statute confirms the authority is not limited to the sentencing hearing.¹

What “Furtherance of Justice” Means

A judge cannot dismiss a case on a whim or to clear the calendar. The dismissal has to be “in furtherance of justice,” which requires weighing the defendant’s individual circumstances against the public’s interest in prosecution and punishment. In People v. Williams, the California Supreme Court described what the judge looks at: the nature and circumstances of the current offense, the defendant’s background, character, and prospects, and whether strict application of the law would produce a result outside the spirit of the sentencing scheme.²

In real terms, that pulls in age, health, criminal history, likelihood of rehabilitation, the seriousness of the offense, and the strength of the evidence. The decision has to be one “that would motivate a reasonable judge.” A court abuses its discretion if it dismisses purely for convenience, because the defendant pleaded guilty, or out of personal disagreement with the sentencing law.²

The Nine Mitigating Factors for Enhancements

Sentencing enhancements can add years or decades to a prison term for things like firearm use, prior convictions, or causing serious injury. SB 81 rewrote subdivision (c) of Section 1385 to say the court “shall dismiss an enhancement if it is in the furtherance of justice to do so.” The word “shall” makes dismissal mandatory when the standard is met.¹

The court must give “great weight” to evidence of nine mitigating circumstances, and proving even one of them “weighs greatly in favor of dismissing the enhancement”:

The enhancement would produce a racially discriminatory effect as described in Penal Code Section 745.
More than one enhancement is alleged in the same case. When this applies, all enhancements beyond a single one must be dismissed.
The enhancement could push the total sentence past 20 years. In that situation, the enhancement must be dismissed.
The current offense is connected to the defendant’s mental illness.
The current offense is connected to the defendant’s history of childhood trauma or prior victimization.
The current offense is not classified as a violent felony under Penal Code Section 667.5(c).
The defendant was a minor when they committed the current offense or a prior offense that triggers the enhancement.
The enhancement is based on a prior conviction that is more than five years old.
A firearm was involved in the offense, but it was inoperable or unloaded.

Two of these factors use “shall” and remove the judge’s discretion: multiple enhancements, and sentences that would exceed 20 years. If either applies, the enhancement must go, unless dismissal would endanger public safety.¹ The other seven create a strong presumption in favor of dismissal but leave the final call to the judge.

Mental Illness, Trauma, and Prior Victimization

Three of the nine factors deal with mental health or trauma, and the statute defines each one. A “mental illness” means a disorder in the current Diagnostic and Statistical Manual of Mental Disorders. The statute names bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD as examples, and explicitly excludes antisocial personality disorder, borderline personality disorder, and pedophilia.¹

“Childhood trauma” covers physical, emotional, or sexual abuse and physical or emotional neglect experienced as a minor. “Prior victimization” reaches further, covering intimate partner violence, sexual violence, human trafficking, and other psychological or physical trauma, including abuse, neglect, and exploitation.¹

For any of these three, the defendant has to show the condition “substantially contributed” to their involvement in the offense. The evidence can include police reports, preliminary hearing transcripts, witness statements, medical records, and statements from a mental health treatment provider. A formal diagnosis is not required — evidence that the defendant showed symptoms consistent with a covered disorder around the time of the offense can also satisfy the standard.¹

When a Judge Can Refuse to Dismiss

The main limit on the SB 81 framework is the public safety exception. A court can decline to dismiss an enhancement, even when mitigating factors are present, if it finds that dismissal would “endanger public safety.” The statute defines that phrase narrowly: there must be a likelihood that dismissal would result in physical injury or other serious danger to others.¹ A generalized concern about crime is not enough; the court has to identify a specific risk tied to the defendant.

The statute also carves out enhancements established by voter-approved initiatives. If the initiative prohibits dismissal of the enhancement, the court cannot dismiss it regardless of the mitigating factors.¹

The Three Strikes law is the most prominent boundary. Courts have held that the mandatory-dismissal framework in subdivision (c) does not control the decision to strike a prior strike conviction. A judge still has authority over strike priors under subdivision (a) and the Williams framework, but the SB 81 presumptions do not apply to that analysis.

Dismissing the Enhancement vs. Striking the Punishment

Subdivision (b) gives the judge two options when dealing with an enhancement. The court can dismiss the enhancement outright, or it can leave the enhancement on the record and strike only the additional punishment that comes with it.¹

The difference matters. When only the punishment is struck, the enhancement finding stays on the defendant’s record and can factor into future sentencing or parole decisions. When the enhancement itself is dismissed, the finding goes away. Full dismissal is the better outcome, but even striking just the added punishment can cut years off a sentence.

Can the Prosecution Refile After a 1385 Dismissal?

A dismissal under Section 1385 does not always end the case. Whether the prosecution can refile is governed by Penal Code Section 1387, and the rules depend on the type of offense.³

For a standalone misdemeanor that was not charged with a felony, a single dismissal bars refiling. The case is over. For a felony, or a misdemeanor charged together with a felony, the prosecution gets one refile. A second dismissal of the same charge bars further prosecution.³

Two narrow exceptions can allow another refile even past the two-dismissal bar for felonies: substantial new evidence that could not have been known through diligent effort before the dismissal, or a dismissal that resulted from direct intimidation of a material witness.³ These are hard to meet by design.

Enhancement dismissals work differently. When the court strikes or dismisses an enhancement, the underlying conviction stands and the added punishment is eliminated. There is no refiling mechanism for a dismissed enhancement.

Appealing a 1385 Ruling

A trial court’s decision to grant or deny a Section 1385 dismissal is reviewed for abuse of discretion. That is a high bar. The appellate court does not substitute its own judgment; it asks whether the ruling falls outside the bounds of reason given the facts and the law.²

A judge who dismisses without stating reasons, or who relies on improper factors like personal disagreement with a sentencing statute, risks reversal. A judge who refuses to dismiss an enhancement despite strong mitigating evidence, without adequately explaining why, can also be reversed. The requirement to document reasons is what makes appellate review meaningful, and it is where many contested 1385 rulings are won or lost.

1
California Legislative Information. California Penal Code 1385
2
Justia Law. People v Williams 1998
3
California Legislative Information. California Penal Code 1387