Tooby's California Post-Conviction Relief for Immigrants

(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.