Courts have held a number of grounds of dismissal are not in the interests of justice, and reversed dismissals as abuses of discretion.[448]  If the trial court dismisses upon one or more of these grounds, the prosecution can prevail on appeal.[449] 

 

            The list of disapproved grounds[450] should also be examined, and the dismissal should explicitly not be based on any of the disapproved grounds.  Grounds disapproved by the courts include:

           

(1) Grounds of Demurrer. “No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”[451]

 

(2)  To Obtain Continuance.  A dismissal under Penal Code § 1385 may not be granted because the prosecutor needs additional time to obtain witnesses.[452]

 

(3)  Evidence Illegally Obtained. The claim that the only substantial evidence was obtained by illegal search and seizure may be raised by motion to set aside the information or indictment or by motion to suppress, but is not a ground for dismissal.[453]

 

(4)  Improbability of Conviction at Trial.  (See People v. Borousk (1972) 24 Cal.App.3d 147, 160, 100 Cal.Rptr. 867 [trial would probably not result in conviction].)

 

(5)  Court's Subjective Belief Defendant Had Been Rehabilitated.  People v. Superior Court (Montano) (1972) 26 Cal.App.3d 668, 670, 102 Cal.Rptr. 925 (court's subjective beliefs regarding defendant's rehabilitation); People v. McAlonan (1972) 22 Cal.App.3d 982, 987, 99 Cal.Rptr. 733 (court was convinced defendant guilty of marijuana possession, but dismissed to enable defendant to enter United States Navy, which would not accept him if he were convicted: “Under the circumstances of this case, we are convinced the dismissal provisions of Penal Code section 1385 cannot be used for rehabilitative purposes.”).

 

(6)  Improper Quashing of Prosecution Subpoena.  People v. Superior Court (Long) (1976) 56 Cal.App.3d 374, 378, 126 Cal.Rptr. 465 (improper quashing of subpena for prosecution witness was tantamount to dismissal of criminal proceeding and was abuse of discretion).

 

(7)  Lack of Due Process Violation by Prosecution Suppression of Evidence.  Prosecutorial suppression of evidence cannot justify dismissal, unless the trial court finds that it substantially hampered defense trial preparation or was done in bad faith.[454]  Instead of dismissal, the court will adopt any lesser remedy that will assure the defendant of a fair trial.[455]  Since these cases were decided, the Supreme Court has announced a new standard governing sanctions for loss or destruction of evidence.[456]  California cases are now governed by the federal standards.[457] 

 

(8)  Plea to Another Charge.  People v. Andrade (1978) 86 Cal.App.3d 963, 968, 150 Cal.Rptr. 662 (defendant's plea of guilty to gun possession offense did not require dismissal of manslaughter charge).

 

(9)  Prosecution Refiling of Charges After Lenient Sentence on Another Offense.  People v. Bracey (1994) 21 Cal.App.4th 1532, 1546, 26 Cal.Rptr. 730 (no presumption of prosecutorial vindictiveness in refiling charges after court ordered probation without imposing prison sentence on another offense; prosecution testimony as to legitimate reasons for refiling was not contradicted).

 

(10)  Judge's Opinion that Civil Remedy Was Adequate.  People v. Curtiss (1970) 4 Cal.App.3d 123, 127, 84 Cal.Rptr. 106 (court dismissed grand theft auto case, saying “[i]f it's a car rental deal, we are running a collection agency.”; court of appeal reversed dismissal order, finding abuse of discretion, because court's reason would apply “for every criminal act where the victim of the crime has a civil remedy”: “In the light of the importance to the administration of criminal justice of not having a case brought by the People of the State of California thrown out of court except for a reason which can be said to be that which would motivate a reasonable judge, we conclude that a judge does not have absolute discretion to dismiss a criminal case.”).

 

            (11)  Prosecution's Failure to Handle Case As Judge Wanted.  People v. Superior Court (Schomer) (1970) 13 Cal.App.3d 672, 680, 91 Cal.Rptr. 651 (court estimated that hearing defendant's grand jury challenge would take five days, while a preliminary examination would take only half a day, and dismissed the case to prevent further prosecution by indictment, while requiring the district attorney to proceed by information: “[T]he dismissal in this case was made solely in the interests of saving the time which would be required to hear and determine defendant's motion in respondent court. The ends of justice do not require the dismissal of an indictment simply because a challenge is made to the grand jury.”[458]

 

            (12)  To Invite an Appeal.  People v. Ritchie (1971) 17 Cal.App.3d 1098, 1106, 95 Cal.Rptr. 462 (court dismissed charge with improper intent to "invite an appeal as to whether or not we have to have the evidence physically in court in order to conduct these [1538.5] hearings”: “We do not interpret the judge's academic interest in obtaining an advisory appellate ruling as the ‘furtherance of justice’ objective sought by the statute which includes justice to society (the ‘People’) as well as to the defendant.”).

 

            (13)  To Enable Defendant to Enter Navy.  In People v. McAlonan (1972) 22 Cal.App.3d 982, 987, 99 Cal.Rptr. 733 (court was convinced defendant guilty of marijuana possession, but dismissed to enable defendant to enter United States Navy, which would not accept him if he were convicted: “Under the circumstances of this case, we are convinced the dismissal provisions of Penal Code section 1385 cannot be used for rehabilitative purposes.”).

 

(14)  Court Congestion.  The court may not dismiss in the interests of justice to alleviate the court calender.[459] 

 

(15)  Lack of Good Cause for Continuance.  A dismissal may not be based on a ground that would support a continuance.  If the defendant cannot show a continuance would irreparably prejudice the defense, such as by causing unavailability of witnesses or destruction of evidence, the court may not properly dismiss the action on that ground.[460] 

 

(16)  To Force a Plea Bargain on the Prosecution.  The court may not dismiss under this statute as a method of imposing a plea bargain on the prosecution.[461] 

[448] See California Criminal Defense Practice § 51.20[3] (Erwin, Millman, Monroe, Sevilla, & Tarlow, eds. 2009).

[449] Cf. People v. Hunt (1977) 19 Cal.3d 888, 897, n.10, 140 Cal.Rptr. 651 (prosecution right of appeal is limited where prosecution requested dismissal).

[450] See generally, B. Witkin, California Criminal Law § 410 (2008).

[451] Penal Code § 1385(a); see Casey v. Superior Court (1989) 207 Cal.App.3d 837, 841, 255 Cal.Rptr. 81 (lack of territorial jurisdiction is ground for demurrer, and so cannot be a basis for dismissal under Penal Code § 1385); People v. Curtiss (1970) 4 Cal.App.3d 123, 125, 84 Cal.Rptr. 106; People v. Rawlings (1974) 42 Cal.App.3d 952, 957-958, 117 Cal.Rptr. 651, disaproved on other grounds in People v. Chacon (2007) 40 Cal.4th 558, 53 Cal.Rptr.3d 876; People v. McAlonan (1972) 22 Cal.App.3d 982, 985, 99 Cal.Rptr. 733; People v. Smith (1955) 133 Cal.App.2d Supp. 777, 779 (grounds of unconstitutionality of statute or that charge does not state a public offense are grounds of demurrer under Penal Code § 1004, and so not for dismissal under Penal Code § 1385).

[452] People v. Disperati (1909) 11 Cal.App. 469, 476, disapproved on other grounds, People v. Romero (1936) 13 Cal.App.2d 667, 670; People v. Arnold (1980) 105 Cal.App.3d 456, 459, 164 Cal.Rptr. 367 (holding  insufficient a minute order referring to Penal Code § 1382 and the unavailability of state witnesses).

[453] People v. Valenti (1957) 49 Cal.2d 199, 203.

[454] Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363, 150 Cal.Rptr. 216; People v. Davis (1971) 20 Cal.App.3d 890, 898, 98 Cal.Rptr. 71; People v. Peinado (1976) 67 Cal.App.3d Supp. 1, 11, 136 Cal.Rptr. 845 (“Where the evidence fails to show that the suppression of evidence was in bad faith ‘due process does not require dismissal’ as the appropriate sanction”).

[455] Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363, 150 Cal.Rptr. 216; People v. Harris (1976) 62 Cal.App.3d 859, 863, 133 Cal.Rptr. 352.

[456] Arizona v. Youngblood (1988) 488 U.S. 51; California v. Trombetta (1984) 467 U.S. 479.

[457] See People v. Johnson (1989) 47 Cal.3d 1194, 1233-1234, 255 Cal.Rptr. 569.

 

[458] People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1090, 18 Cal.Rptr.3d 77 (court erroneously dismissed indictment in furtherance of justice after prosecution failed to submit newly discovered exculpatory evidence to grand jury, where less drastic remedies than dismissal could have been used, including permitting prosecution to amend indictment to eliminate related charges and resubmitting matter to grand jury).

[459] People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65; People v. Andrade (1978) 86 Cal.App.3d 963, 976, 150 Cal.Rptr. 662; People v. Yniquez (1974) 42 Cal.App.3d Supp. 13, 16-17, 116 Cal.Rptr. 626; see People v. Borousk (1972) 24 Cal.App.3d 147, 162, 100 Cal.Rptr. 867 (suggesting dismissal on this ground might be proper if defense presented overwhelming evidence); People v. Arnold (1980) 105 Cal,.App.3d 456, 459-460, 164 Cal.Rptr. 367 (reversing dismissal within 10-day speedy trial Penal Code § 1382 grace period against legislative policy and not in interests of justice); People v. Kessel (1976) 61 Cal.App.3d 322, 325-326, 132 Cal.Rptr. 126 (prosecution's heavy case load constituted good cause for delay); People v. Mack (1975) 52 Cal.App.3d 680, 125 Cal.Rptr. 188 (holding there were other remedies for congresion and no element of harassment of the defendant, and the defendant might be sentenced to prison if not amenable to treatment).

[460] People v. Flores (1978) 90 Cal.App.3d Supp. 1, 9, 152 Cal.Rptr. 896; People v. Kessel (1976) 61 Cal.App.3d 322, 325-326, 132 Cal.Rptr. 126;  People v. Henderson (2004) 115 Cal.App.4th 922, 940, 9 Cal.Rptr.3d 655 (absent deprivation of constitutional right to fair trial, court may not dismiss action under Penal Code § 1385 on finding no good cause to continue preliminary hearing).

[461] People v. Beasley (1970) 5 Cal.App.3d 617, 636, 85 Cal.Rptr. 501 (court negotiated “package disposition” of several charges against multiple defendants, despite the prosecutor's objection, and dismissed kidnaping and rape counts; court of appeals reversed, stating that trial court's premature decision to dismiss, made before defendants had pleaded guilty and before the required probation reports were filed, showed a lack of reasoned judgment, free from partiality and exercised in conformity with the spirit of the law); People v. Orin (1975) 13 Cal.3d 937, 949, 120 Cal.Rptr. 65 (court improperly disposed of a three-count information against defendant by accepting a guilty plea to one count over the prosecutor's objection, and dismissing the remaining two properly charged counts – each supported by sufficient evidence -- in the interests of justice.  People v. Smith (1975) 53 Cal.App.3d 655, 659-660, 126 Cal.Rptr. 195 (court improperly allowed defendant charged with felony ADW to plead guilty to misdemeanor battery, over the prosecutor's objection, encroaching on the prosecutor's function of charging offenses: “[T]he court took it upon itself to charge the respondent with an otherwise uncharged and nonincluded, although related, lesser offense than that which had been charged by the People. That action was unlawful; just as the executive may not exercise judicial power, so the judiciary is prohibited from entering upon executive functions. … The court acted beyond its authority in accepting a plea of guilty to a lesser nonincluded but related offense over the prosecutor's objection.”).

GROUNDS " PLEA TO FAILURE TO REGISTER INVALID, SINCE LEAST ADJUDICATED ELEMENTS OF OUT-OF-STATE SEX OFFENSE DID NOT MEET ALL REQUIREMENTS OF ANY CALIFORNIA REGISTRABLE OFFENSE
In re Rodden (June 29, 2010) 186 Cal.App.4th 24, 2010 WL 2584195 (habeas corpus granted, vacating guilty plea to California failure to register as a sex offender, because the least adjudicated elements of the predicate Kentucky sex offense do not meet all of the requirements for any registrable offense in California, so the defendant did not unlawfully fail to register as a sex offender in California).

Other

GROUNDS " PLEA TO FAILURE TO REGISTER INVALID, SINCE LEAST ADJUDICATED ELEMENTS OF OUT-OF-STATE SEX OFFENSE DID NOT MEET ALL REQUIREMENTS OF ANY CALIFORNIA REGISTRABLE OFFENSE
In re Rodden (June 29, 2010) 186 Cal.App.4th 24, 2010 WL 2584195 (habeas corpus granted, vacating guilty plea to California failure to register as a sex offender, because the least adjudicated elements of the predicate Kentucky sex offense do not meet all of the requirements for any registrable offense in California, so the defendant did not unlawfully fail to register as a sex offender in California).