Tooby's California Post-Conviction Relief for Immigrants

(B)

Court's Discretion.  The statute confers discretion on the court to dismiss in the interests of justice.[392]  "Although the power granted to a judge or magistrate under Penal Code Section 1385(a) is broad, the exercise of discretion that is permitted is not absolute.”[393]  The court's reasons for dismissing an action, or part thereof, must be reasons that would motivate a reasonable judge.[394] 

            The statute confers discretion on the court to dismiss an action "in the furtherance of justice."[395]  This exercise of discretion requires balancing many factors, such as the weight of the evidence showing guilt or innocence, the type of offense involved, the fact that the defendant has or has not been incarcerated pending trial, the length of any custody, the possible harassment and burdens imposed on the defendant by retrial, and the likelihood that additional evidence will be presented on retrial.[396]  These are examples of the factors that may be taken into consideration, rather than an exclusive list.[397] 

            The interests of justice require consideration of both the constitutional rights of the defendant and the interests of society.[398] A reasonable justification for dismissal must be based on a showing of damage to the defendant unless the case is dismissed.[399] 

[392] People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 67, 113 Cal.Rptr. 21; People v. Parks (1964) 230 Cal.App.2d 805, 811, 41 Cal.Rptr. 329. 

[393] California Criminal Defense Practice § 51.21[4], p. 51-56.1; Erwin, Millman, Monroe, Sevilla, & Tarlow, eds. 2009)(footnotes omitted); citing People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65; People v. Peinado (1976) 67 Cal.App.3d Supp. 1, 10-11, 136 Cal.Rptr. 845; see People v. Arnold (1980) 105 Cal,.App.3d 456, 459-460, 164 Cal.Rptr. 367 (dismissal contrary to specific legislative policy cannot be in furtherance of justice).

[394] People v. Orin (1975) 13 Cal.3d 937, 947, 120 Cal.Rptr. 65; People v. Curtiss (1970) 4 Cal.App.3d 123, 126, 84 Cal.Rptr. 106.

[395] Penal Code § 1385(a). 

[396] People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505, 72 Cal.Rptr. 330; People v. Andrade (1978) 86 Cal.App.3d 963, 976-977, 150 Cal.Rptr. 662. 

[397] People v. Andrade (1978) 86 Cal.App.3d 963, 977, 150 Cal.Rptr. 662. 

[398] People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65; People v. Andrade (1978) 86 Cal.App.3d 963, 976, 150 Cal.Rptr. 662. 

[399] People v. Kessel (1976) 61 Cal.App.3d 322, 325-326, 132 Cal.Rptr. 126 (defendant made no showing of detriment to defendant if case was not dismissed).