Sometimes, the existence of certain words in a criminal charge can bring a conviction within a ground of removal.  For example, if a person is threatened with deportation proceedings, in which the government has the burden of proving deportability, a plea to a state controlled substances offense would be deportable if the charge specifies the particular controlled substance that was involved, and that drug is in fact on the federal controlled substances list.[383]  Counsel can suggest that the court dismiss certain words from a criminal charge, so long as the validity of a plea is not affected, then counsel can suggest the court do so.  If the court agrees, and strikes the necessary language from a charge, prior to entry of a plea of guilty or no contest, the resulting conviction may not bring the  conviction within a ground of removal.  This tactic may work, as well, where an offense is committed with a dangerous weapon, but the particular weapon is not identified as a firearm.  E.g., Penal Code § 12020(a) (possession of a dangerous weapon).  The resulting conviction would then not be considered to be a deportable firearms conviction.[384]

                

The court has authority, under section 1385, to dismiss entire charges and portions of a charge, including minor factual allegations comprising a small part of a charge.[385]  Dismissing the term “methamphetamine” from each count thus fell squarely within the court’s section 1385 powers.  Nothing in the statute precludes this, and “[a] court should not interpret a statute as eliminating the court’s power under section 1385 absent a clear legislative direction to that effect.”[386]  If there is any ambiguity as to whether a court has the power to dismiss a portion of a charge in the interests of justice pursuant to Penal Code section 1385, the rule of lenity resolves it in favor of the defendant.[387]  The California Supreme Court has squarely rejected the argument that to dismiss or strike portions of a charge pursuant to section 1385 would infringe on the prosecutor’s charging discretion:

 

To describe the statute as subjecting the prosecutor’s charging discretion to judicial oversight is sophistic.  The statute does not purport to require the court to oversee the prosecutor’s charging decisions.  Any decision to dismiss is necessarily made after the prosecutor has invoked the court’s jurisdiction by filing criminal charges.  Once the state is ready to present its case in a judicial setting, the prosecutorial die has long since been cast. (People v. Superior Court (Romero), supra, 13 Cal.4th at 514 [quoting People v. Superior Court (Greer)(1977) 19 Cal.3d 255, 263 [561 P.2d 1164]].)

 

Once the prosecution makes its charging decision, the authority shifts to the court to oversee the disposition of the case.  To do that, the court may dismiss counts or allegations or parts thereof.  As the Court has explained, “When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.”[388] 

[383] See Ruiz-Vidal v. Gonzalez (9th Cir. 2007) 473 F.3d 1072.

[384] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[385] People v. Orin, supra, 13 Cal.3d at p. 945.

[386] People v. Orabuena, supra, 116 Cal.App.4th at p. 95.

[387] See People v. Jones (1988) 46 Cal.3d 585, 599 [758 P.2d 1165]; 1 B. Witkin & N. Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 24, p. 53.

[388] People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249 [holding that a statute which purported to restrict the trial court’s power to dismiss portions of a charge was unconstitutional]; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 517 [holding that once the prosecution has filed a criminal charge, “the disposition of that charge becomes a judicial responsibility”].

Ninth Circuit

CAL POST CON " 1385 BEYOND PROBATION
People v. Espinoza, 232 Cal App 4th Supp 1 (Fresno Superior Court 2015) (depublication request denied by California Supreme Court on Mar. 25, 2015).