Tooby's California Post-Conviction Relief for Immigrants

(A)

Stage of the Criminal Case at Which Dismissal Occurs.  The dismissal order may be granted prior to conviction, or after conviction, or even after sentence,[479] provided formal "judgment" has not been imposed.[480] 

Dismissals under section 1385 may be proper before, during and after trial. (People v. Superior Court (Howard), supra, 69 Cal.2d 491, 503, 72 Cal.Rptr. 330, 446 P.2d 138.)  Before trial, such dismissals have been upheld where designed to enable the prosecution ‘to obtain further witnesses, to add additional defendants, to plead new facts, or to plead new offenses . . . .’ (People v. Silva (1965) 236 Cal.App.2d 453, 457, 46 Cal.Rptr. 87, 90; see also, Arnold v. Williams (1963) 222 Cal.App.2d 193, 196, 35 Cal.Rptr. 35.)  Pretrial dismissals under section 1385 may also be used to effectuate plea bargains arranged between the People and the defense and approved by the court. (People v. Curtiss, supra, 4 Cal.App.3d 123, 127, 84 Cal.Rptr. 106.)  During trial, the court may properly upon the People's motion dismiss an action against one of several defendants where the prosecutor believes such defendants to be innocent. (People v. Polk (1964) 61 Cal.2d 217, 229, 47 Cal.Rptr. 753, 390 P.2d 641; People v. Alverson (1964) 60 Cal.2d 803, 807, 36 Cal.Rptr. 479, 388 P.2d 711.) We have already alluded to the use of section 1385 for a dismissal after the return of a verdict of guilty (People v. Superior Court (Howard), supra, 69 Cal.2d 491, 504, 72 Cal.Rptr. 330, 446 P.2d 138).  It is also settled that it is within the trial court's power under that section to strike or dismiss a proceeding as to a prior conviction for the purpose of sentencing.[481]

The Legislature did not provide any time limit in the statute within which the court's power to dismiss must be exercised.[482]  Many courts have held that this important judicial power, which has been enshrined in California law since 1850, extends wherever the Legislature has not specifically precluded its exercise.[483]

[479] People v. Orabuena (2004) 116 Cal.App.4th 84, 10 Cal.Rptr.3d 99 (court has power under Penal Code § 1385 to dismiss a charge as to which a plea has already been entered, and as to which imposition of sentence has been suspended, and the defendant had already been placed on probation).

[480] See People v. Villegas (2006) 2006 WL 122449 (unpublished decision). 

[481] People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993. People v. Orin (1975) 13 Cal.3d 937, 946, 120 Cal.Rptr. 65, 533 P.2d 193.

[482] Penal Code § 1385.  “There are no statutory provisions specifying the time for a motion to strike priors."  People v. Alvarez (1996) 49 Cal.App.4th 679, 691, quoting Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 710, n.2, 108 Cal.Rptr. 612.

[483] People v. Marsh (1984) 36 Cal.3d 134, 202 Cal.Rptr. 92; People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443.