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[480] See People v. Villegas (2006) 2006 WL 122449 (unpublished decision).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

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " PENAL CODE 1385 " TRIAL COURT HAS NO AUTHORITY TO DISMISS AFTER PROBATION HAS EXPIRED
People v. Espinoza, 232 Cal.App.4th Supp. 1 (Dec. 2, 2014) (trial court lacks authority to dismiss an action under Penal Code 1385 after probation has expired). Note: This decision was rendered by the Appellate Division of the Fresno County Superior Court, and arguably has no statewide application. The decision is arguably incorrect, since it violates the California Supreme Courts holding in other cases that courts cannot construct limitations on the scope of Penal Code 1385 that were not expressly enacted by the Legislature. Here, the Legislature never provided that the trial courts power to grant a 1385 dismissal ends when probation is terminated. In People v. Williams (1981) 30 Cal.3d 470, 482, the Supreme Court stated: Section 1385 permits dismissals in the interests of justice in any situation where the Legislature has not clearly evidenced a contrary intent. A request for depublication is contemplated. Cal Crim Def 20.35

Other

CAL POST CON " VEHICLES " 1385 DISMISSAL IN THE INTERESTS OF JUSTICE " COURTS JURISDICTION CONTINUES AFTER THE END OF PROBATION
Because it is possible to pursue several different forms of post-conviction relief even after probation has ended, and an expungement under Penal Code 1203.4(a), has been obtained, the superior courts jurisdiction over any case in which probation was granted continues under those circumstances. California convictions still exist for some purposes even after an expungement under Penal Code 1203.4(a) has been obtained. (3 B. Witkin & J. Epstein, CALIFORNIA CRIMINAL LAW (2d ed. 1989), 1718, p. 2031 ff.) Because expunged convictions continue to exist for some purposes, it is still possible, even after an expungement under this section has been obtained, to attack the conviction through a petition for a writ of coram nobis. (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 118 Cal.Rptr. 755.) Even after expungement has been granted, the court still has jurisdiction to reduce an alternative felony misdemeanor to a misdemeanor under Penal Code 17. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 55 Cal.Rptr. 350.) The same should logically hold true for other forms of post-conviction relief, such as habeas corpus and the like. In Meyer v. Superior Court (1966) 247 Cal.App.2d 133, a Penal Code 17(b) motion to reduce a conviction from a felony to a misdemeanor was granted after relief under Penal Code 1203.4 had already been granted. The defendant had been convicted of an alternative felony/misdemeanor (a wobbler) as a felony in 1960, and his conviction had subsequently been expunged pursuant to Penal Code 1203.4. He then tried to have his felony reduced to a misdemeanor pursuant to Penal Code 17(b), which had been modified in 1963 to include the reduction language and probation language that Penal Code 17(b)(3) contains today. The trial court refused, stating it had no jurisdiction. The appellate court ruled that the statute, while arguably not retroactive, was merely restating the power that a judge in California already possessed, and that a conviction may be reduced even well after a granting of a Penal Code 1203.4 expungement. Penal Code 17(b) states that a felony may be reduced to a misdemeanor "at any time." Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter. The statutes themselves contemplate that such fundamental jurisdiction continues, for they provide for the court's determination of certain matters after the end of the probationary term. (In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1.) Penal Code section 17 provides, Where a court grants probation to a defendant without imposition of sentence upon conviction of a crime punishable in the discretion of the court by imprisonment in the state prison or imprisonment in the county jail, the court may at the time of granting probation, or, on application of defendant or probation officer thereafter, declare the offense to be a misdemeanor. The court's power and duty to pass on such an application for reduction of the offense to a misdemeanor continues after the end of the probationary term. [Citation]. (In re Griffin (1966) 67 Cal.2d 343, 347.) The court is empowered to change a crime from a felony to a misdemeanor, and it may do so after the probationary period has expired, and after the probationer has had his record expunged under Penal Code 1203.4. (Meyer v Superior Court (1966) 247 Cal.App.2d 133.) The expungement of the record under section 1203.4 is also a reward for good conduct and has never been treated as obliterating the fact that the defendant has been convicted of a felony. [Citation.] . . . The power of the court to reward a convicted defendant who satisfactorily completes his period of probation by setting aside the verdict and dismissing the action operates to mitigate his punishment by restoring certain rights and removing certain disabilities. But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. . . . (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.) Although a conviction has been expunged, a person should not be barred from later pursuing a more suitable remedy, particularly where the final decision as to whether he is worthy rests within the sound discretion of the superior court. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139-140.) Similarly, the court of appeal held that the expungement of a conviction under Penal Code 1210, after successful completion of Prop. 36 drug treatment, did not render her appeal from the judgment of conviction to be moot, holding she is entitled to an opportunity to clear her name and rid herself of the stigma of criminality. (People v. Delong (2002) 101 Cal.App.4th 482, 124 Cal.Rptr.2d 293.) Finally, the Legislature has provided that superior courts continue to have jurisdiction over criminal convictions even after probation has been completed, for purposes of making a motion to vacate the conviction for violation of Penal Code 1016.5, and where the government has suppressed exculpatory evidence. See Penal Code 1473.6 (Ramparts no-custody habeas corpus).