Tooby's California Post-Conviction Relief for Immigrants

The statute provides: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."[471]  The court must consider any prosecution objection as part of the balancing of all interests,[472] but the statute grants the court the power to dismiss on its own motion, even over objection of the prosecution.[473]

            The defendant may not make a motion to dismiss under this statute,[474] and any court purporting to grant such a motion has issued an invalid order.  On the other hand, the law is clear that the defendant may informally suggest that the court grant a sua sponte dismissal in the interests of justice under Penal Code § 1385, and the court may do so.[475]  Counsel should ensure the record is clear that the court is dismissing the charge or enhancement on its own motion, and not on motion of the defendant.

            If the court's order is unclear whether it is acting sua sponte or on a motion by the defendant, the order will be affirmed if the statement of reasons shows that the court acted in the interests of justice.[476]  The court's jurisdiction to dismiss is not defeated by the fact that defendant notices a motion and presents evidence and argument; the statute “merely denies appellate relief to a defendant whose motion to dismiss has been denied by the trial court because of lack of standing.”[477]  After dismissing, the court must cause a disposition report of the dismissal to be filed with the California Department of Justice.[478]

[471] Penal Code § 1385(a)(emphasis supplied).

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

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

[474] People v. Ellis (1928) 204 Cal. 39, 42, 266 P. 518; People v. Shaffer (1960) 182 Cal.App.2d 39, 44, 5 Cal.Rptr. 844; People v. Smith (1975) 53 Cal.App.3d 655, 657, 126 Cal.Rptr. 195; People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136, 262 Cal.Rptr. 576.

[475] People v. Konow (2004) 32 Cal.4th 995, 1022, 12 Cal.Rptr.3d 301, 88 P.3d 36 (defendant may make informal suggestion that court dismiss sua sponte); People v. Ritchie (1971) 17 Cal.App.3d 1098, 1104, 95 Cal.Rptr. 462; People v. Smith (1975) 53 Cal.App.3d 655, 657, 126 Cal.Rptr. 195. 

[476] People v. Benson (1976) 64 Cal.App.3d Supp. 10, 13, 134 Cal.Rptr. 766. 

[477] Id. at 13.

[478] Penal Code § 13151.1(a).