Tooby's California Post-Conviction Relief for Immigrants

(B)

Failure to Exercise Discretion.  “A failure to exercise discretion is an abuse of discretion.”[464]  “When a trial court’s failure to exercise its section 1385 discretion to dismiss or strike is based on a mistaken belief regarding its authority to do so, the appropriate relief on appeal is to remand so that the trial court may exercise its discretion or to permit the defendant to petition by writ of habeas corpus.  (People v. Benevides (1998) 64 Cal.App.4th 738, 735 [ 75 Cal.Rptr.2d 388].)”[465]  Remand is appropriate because “[a]ppellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss.”[466] 

            So long as the court does not “clearly indicate an unwillingness to order dismissal” of the allegations in furtherance of justice, it should be possible to obtain an order from the court of appeal directing it to exercise its discretion under this statute one way or the other.[467]   

[464] Ibid. [quoting Dickson, Carlson & Campillo v. Pole (200) 83 Cal.App.4th 436, 449 [99 Cal.Rptr.2d 678].

[465] People v. Orabuena, supra, 83 Cal. App.4th at 99; People v. Konow (2004) 32 Cal.4th 995, 1027 [88 P.3d 36 ] [“[T]he erroneous failure by a magistrate to consider whether to dismiss a complaint in furtherance of justice under section 1385 is prejudicial when the magistrate does not clearly indicate an unwillingness to order dismissal on that basis.”]; People v. Superior Court (Romero) [power to strike]; People v. Manriquez (1991) 235 Cal.App.3d 1614 [1 Cal.Rptr.2d 600][power to grant probation]; People v. Leigh (1985) 168 Cal.App.3d 217, 223 [214 Cal.Rptr. 61] [power to reduce conviction on cruel and unusual punishment grounds].)

[466] People v. Benevides, supra, 64 Cal.App.4th at p. 735.

[467] People v. Konow, supra, 32 Cal.4th at 1027.