Tooby's California Post-Conviction Relief for Immigrants

 

Various factors approved in the judicial decisions include:[426]

 

            (1)  weighing the evidence of guilt or innocence;[427]

 

            (2)  the fact that the defendant has already served time in custody or been incarcerated awaiting trial;

 

            (3)  the length of such incarceration;

 

            (4)  possible harassment and the burdens on the defendant of retrial;

 

            (5)  likelihood that additional evidence will be presented on retrial.[428]

 

            (6)  the defendant has paid restitution in full in a welfare fraud case.[429]

 

            (7)  the defendant has been sentenced to prison on another case and the current case would result only in an additional concurrent sentence, if the defendant is convicted.[430] 

 

            (8)  Dismissal of a misdemeanor would make the defendant eligible for Prop. 36 treatment.[431]

 

            (9)  Dismissal of a non-divertible offense would allow diversion.[432] 

 

            (10) If retrial is sought to harass the defendant, dismissal is proper even though the evidence is sufficient to sustain a conviction.[433]

 

            (11)  The court will usually dismiss criminal charges at the end of a commitment for mental incompetency.[434]

 

            (12)  The court must consider any prosecution objection as part of the balancing of all interests.[435]

 

    (13)  A court may properly base a decision to dismiss prior convictions on mitigating factors.[436]

 

            (14)  Legislative policy.  The court may consider a dismissal in furtherance of legislative policy to be in the interests of justice.[437] 

 

            (15)  The court may consider the likely effect of imprisonment on the defendant and his or her dependents.[438]

 

            (16)  The court may consider the adverse collateral consequences on the defendant's life resulting from the felony conviction.[439]

 

            (17)  The court may consider the likelihood that if not imprisoned, the defendant will be a danger to others.[440]

 

            (18)  The court may consider whether the defendant is remorseful.[441]

 

            (19)  The prior record of criminal conduct, including recency and frequency of prior crimes, and whether record indicates a pattern of regular or increasingly serious criminal conduct.[442]

 

            (20)  The court may consider the defendant's prior performance on probation or parole.[443]

 

            (21)  The court may consider the nature and circumstances of the crime.[444]

 

            (22)  The court may consider whether the defendant was armed with a weapon.[445]

 

            (23)  The court may consider the degree of monetary loss (if any).[446]

 

            (24)  The court may consider judicial economy, but this alone is insufficient to justify dismissal.

 

            (25)  Improper police conduct damaging defendant's ability to defend the case.[447] 

[426] See generally, B. Witkin, California Criminal Law § 409 (2008).

[427] People v. Polk (1964) 61 Cal.2d 217, 226, 37 Cal.Rptr. 753 (dismissal proper based on reasonable doubt as to guilt of the defendant); ; People v. Hatch (2000) 22 Cal.4th 260, 268, 92 Cal.Rptr.2d 80 (insufficiency of evidence after the case has been submitted to the jury, but court should say that it is what it is doing in clear terms).

[428] People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505. 

[429] People v. Jordan (1978) 86 Cal.App.3d 529, 534.

[430] People v. Superior Court (Mowry) (1971) 20 Cal.App.3d 684, 687 (trial court concluded that based on its own sentencing practices, the only possible result of conviction would be a concurrent sentence, which would increase defendant's minimum sentence, and his maximum sentence, by 6 weeks plus the time involved in the proposed trial; dismissal affirmed: “We cannot say that the trial court was necessarily in error in concluding that such a nominal increase in penalty had no purpose other than to harass defendant and that it contributed nothing to the over-all enforcement of the criminal law.”).

[431] People v. Orabuena (2004) 116 Cal.App.4th 84, 96.

[432] People v. Cina (1974) 41 Cal.App.3d 136, 140.

[433] People v. Superior Court (Howard) (1968) 69 Cal.2d 491. 

[434] In re Banks (1979) 88 Cal.App.3d 864, 869 n.2.

[435] People v. Orin (1975) 13 Cal.3d 937, 949.

[436] People v. Bishop (1997) 56 Cal.App.4th 1245, 1250, 66 Cal.Rptr.2d 347.

[437] 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).  The same reasoning applies to the California Rules of Court.  If a given factor supports a grant of probation or a mitigated sentence, that factor should be seen as being a factor in the interests of justice.

[438] California Rules of Court, rule 4.414(b)(5)(criteria affecting grant of probation).

[439] California Rules of Court, rule 4.414(b)(6)(criteria affecting grant of probation).

[440] California Rules of Court, rule 4.414(b)(8)(criteria affecting grant of probation).

[441] California Rules of Court, rule 4.414(b)(7)(criteria affecting grant of probation).

[442] California Rules of Court, rule 4.414(b)(1)(criteria affecting grant of probation).

[443] California Rules of Court, rule 4.414(b)(2)(criteria affecting grant of probation).

[444] California Rules of Court, rule 4.414(a)(1)(criteria affecting grant of probation).

[445] California Rules of Court, rule 4.414(a)(2)(criteria affecting grant of probation).

[446] California Rules of Court, rule 4.414(a)(5)(criteria affecting grant of probation).

[447] People v. Johnson (1976) 62 Cal.App.3d Supp. 1, 10, 11, 133 Cal.Rptr. 123 (police policy of misinforming those arrested for being under the influence of an opiate that they were being charged with felony possession of heroin, which had a tendency to dissuade them from seeking to establish a defense by securing a laboratory report of a urine sample to show absence of any controlled substance in the blood at the time of arrest).