(C)

Limitations on the Power to Dismiss.  The California Legislature, from time to time, has specified that certain charges or allegations may not be dismissed pursuant to Penal Code § 1385, and these prohibitions must of course be respected.  (The Legislature has precluded courts from dismissing certain listed enhancements.)[364]  The courts cannot dismiss a number of allegations whose function is to bar or restrict grants of probation[365] or disregard mandatory sentence limits flowing from charges and allegations that have not been stricken.[366]  The court cannot use this statutory power to dismiss a defense, such as an insanity defense, since dismissal lies only in favor of the defendant.[367]

[364] See, e.g., Penal Code § 1385(b)("This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.").  See generally, B. Witkin, California Criminal Law § 411(2) (2008)(special circumstances allegations may not be dismissed under Penal Code § 1385).

[365] E.g., People v. Tanner (1979) 24 Cal.3d 514, 518, 156 Cal.Rptr. 450, 596 P.2d 328 (order dismissing Penal Code § 12022.5(a) firearm-use sentence enhancement under Penal Code § 1385 could not eliminate probation bar contained in Penal Code § 1203.06(a)); People v. Ibarra (1980) 114 Cal.App.3d 60, 65 (same for Penal Code § 1203.07); People v. McGuire (1993) 14 Cal.App.4th 687, 692 (same).  Other cases reached similar conclusions with respect to probation preclusions or limitations under Penal Code § § 1203.066, 1203.055, 1203.075(a).

[366] People v. Thomas (2005) 35 Cal.4th 635, 644, 27 Cal.Rptr.3d 2.  The court's power to dismiss under Penal Code § 1385 extends only to charges or allegations in the charging paper, and not to sentencing factors, such as those relevant to grant or denial of probation or to selection among aggravated, middle, or mitigated terms. “In the absence of a charge or allegation, there is nothing to order dismissed under section 1385.” In re Varnell (2003) 30 C.4th 1132, 1139, 135 C.R.2d 619, 70 P.3d 1037 (court's discretion to dismiss enhancements did not extend to prior conviction rendering defendant ineligible for Proposition 36 treatment).

[367] People v. Ceja (2003) 106 Cal.App.4th 1071, 1081, 131 Cal.Rptr.2d 601.

ARTICLE " CAL POST CON
In People v. Kim, 212 Cal.App.4th 117, 151 Cal.Rptr.3d 154, (6th Dist. Dec. 19, 2012), the Sixth District held that judgment had been imposed and defendant had served his prison sentence in this case. The trial court therefore had no authority to dismiss the action pursuant to section 1385. This decision therefore does not apply unless [1] a state prison judgment has been imposed, and [2] the defendant has completed serving it. The court quoted a prior decision stating that section 1385 has never been held to authorize dismissal of an action after the imposition of sentence and rendition of judgment. (Id. at ___, quoting People v. Barraza (1994) 30 Cal.App.4th 114, 121, n.8.) The court pointed out that Defendant does not dispute the principle that section 1385 does not authorize a dismissal after imposition of sentence and rendition of judgment. Instead, he counterintuitively urges that there has not yet been a judgment in this case. (Id. at ___.) Mr. Kim argued that his prison judgment, already served, had been vacated in 2003, at which time imposition of sentence had been suspended, and probation granted. The court of appeal, however, concluded that the 2003 vacatur was void, and the previously imposed state prison judgment remained in effect, barring use of section 1385 to dismiss the action. (Id. at ___.) Where, however, no prison judgment has been imposed, but instead imposition of sentence was suspended, and the defendant was placed on probation, there is no bar to use of section 1385 to dismiss an action. (See People v. Howard (1997) 16 Cal.4th 1081, 1087 [When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation.]; quoted with approval in People v. Kim, supra, 212 Cal.App.4th 117, ___.) In People v. Orabuena, 116 Cal.App.4th 84 (2004), the court of appeal reaffirmed the post-sentence use of section 1385 to dismiss an action where probation, rather than a judgment, had been imposed. In California, a judgment of conviction is not deemed to have been entered where imposition of sentence is suspended and probation granted, even though a conviction may exist for purposes of finality and appeal. In Orabuena, the court dismissed an action, under 1385, after imposition of sentence was suspended, and the defendant had been placed on probation, in order to eliminate the conviction as a bar to diversion for a later offense. After careful analysis, it concluded that a grant of probation, as opposed to imposition of judgment, did not bar use of section 1385 to dismiss an action after sentence in the interests of justice. The court in Kim ruled out the possibility of using Penal Code 1385 dismissals to vacate convictions after a prison sentence or judgment has been imposed. It did not, however, alter the well-established precedent that 1385 may be used to dismiss convictions in which imposition of sentence had been suspended and probation ordered. See Orabuena, supra.

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " DISMISSAL UNDER PENAL CODE 1385 " COURT HAS NO AUTHORITY TO DISMISS AN ACTION AFTER FORMAL JUDGMENT HAS BEEN IMPOSED AND THE DEFENDANT HAS SERVED THE PRISON SENTENCE
People v. Kim, 212 Cal.App.4th 117, ___, 151 Cal.Rptr.3d 154, 2012 WL 6761652 (6th Dist. Dec. 19, 2012) (In short, judgment had been imposed and defendant had served his prison sentence in this case. The trial court therefore had no authority to dismiss the action pursuant to section 1385.).