Dismissals

Authority under PC1385

"The word “action” in the statute authorizing dismissal of an action in furtherance of justice means “individual charges and allegations in a criminal action”. People v. Fuentes (2016) 1 Cal. 5th 218

A dismissal goes to the pleading as a whole; the court may not dismiss as to one or more degrees included in the offense charged and retain jurisdiction as to the other degrees. People v. Superior Court in and for Alameda County, 202 Cal. 165, 259 P. 943 (1927) (disapproved of on other grounds by, People v. Superior Court of Marin County, 69 Cal. 2d 491, 72 Cal. Rptr. 330, 446 P.2d 138 (1968)).

However, a judge may dismiss a part of a case, including dismissing one or more counts, without dismissing the entire case. Brazell v. Superior Court, 187 Cal. App. 3d 795, 232 Cal. Rptr. 246 (5th Dist. 1986); Dunn v. Superior Court, 159 Cal. App. 3d 1110, 206 Cal. Rptr. 242 (1st Dist. 1984). A trial court's statutory power to dismiss an “action” in the interests of justice extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation or to select among the aggravated, middle, or mitigated terms. In re Varnell, 30 Cal. 4th 1132, 135 Cal. Rptr. 2d 619, 70 P.3d 1037 (2003).

A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency. In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to a dismissal. In particular, the striking of an enhancement implies that the enhancement is legally insupportable and must be dismissed in furtherance of justice. The difference between striking and staying is not a mere linguistic difference. The decision to stay is a sentencing method; that is, a sentence may be imposed or stayed. In contrast, a dismissal under Pen. Code, § 1385, subd. (a) ends an action or a part of an action against the defendant. People v. Carrillo, 87 Cal. App. 4th 1416, 105 Cal. Rptr. 2d 360 (6th Dist. 2001).

Wheeler v. Appellate Division (2024) 15 Cal.5th 1193

110K303.30(2)

The following list includes other situations where dismissals are improper: 1. Loss or destruction of evidence by the prosecution, if the prosecution did not act in bad faith, even if the evidence might have been exculpatory.4 2. Dismissal merely because it is in the defendant's or the victim's best interest, if the court had no reasonable doubt concerning the defendant's guilt.5 3. Continuing the case for six months, then dismissing it if the defendant's behavior is satisfactory.6 4. Dismissal when the prosecutor requests a continuance without good cause, if the continuance would not violate the defendant's speedy trial rights.7 5. Dismissal solely to obtain an appellate ruling on an issue.8 6. Dismissal because of court congestion or for judicial convenience, when there is no detriment to the defendant.9 7. Dismissal because defendant was forcibly abducted from out of state for trial in state.10

fn. 4 Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). fn. 5 People v. Superior Court (Long), 56 Cal. App. 3d 374, 378–380, 126 Cal. Rptr. 465 (1st Dist. 1976). fn. 6 People v. Municipal Court (Gelardi), 84 Cal. App. 3d 692, 700, 149 Cal. Rptr. 30 (1st Dist. 1978). fn. 7 People v. Ferguson, 218 Cal. App. 3d 1173, 1180, 267 Cal. Rptr. 528 (5th Dist. 1990), opinion modified, (Mar. 27, 1990). fn. 8 People v. Ritchie, 17 Cal. App. 3d 1098, 1105, 95 Cal. Rptr. 462 (2d Dist. 1971). fn. 9 People v. Kessel, 61 Cal. App. 3d 322, 326, 132 Cal. Rptr. 126 (1st Dist. 1976). fn. 10 See U.S. v. Alvarez-Machain, 504 U.S. 655, 112 S. Ct. 2188, 2191–2192, 119 L. Ed. 2d 441 (1992) (reversing dismissal of prosecution of Mexican citizen abducted from Mexico for federal trial in United States); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952) (upholding conviction of defendant who was kidnapped in Chicago by Michigan officers for trial in Michigan).

Number of dismissals

Felony

Whether to allow a third refile would be litigated under PC1387 and PC1387.1. Miller v. Superior Court (2002) discusses what's "excusable neglect" and that prosecutor has burden of proof that there was excusable neglect. by a preponderance of the evidence. People v. Rodriguez (2013) 217 Cal.App.4th 326, seems to "excusable neglect" is meant for clerical errors, not for legal errors, because the remedy for legal errors is an appeal.

"It is likely the failure of the People to afford sufficient time to account for complications resulting from COVID-19 exposure is excusable neglect." (Barron v. Superior Court (Apr. 13, 2023, F085382)

PC1387(c) allows for a third refile, if the first filing was dismissed under PC859b, 861, 871, or 995, and second dismissal was because of PX not within 60 days under PC859b, or a 995 for various reasons. In Barron v. Superior Court (Apr. 13, 2023, F085382), first dismissal was under PC1385, and second dismissal was under PC859b for 60-day violation, so a third filing didn't fall under PC1387(c).

Re-filing under same case number

Penal Code 1387.2: "Upon the express consent of both the people and the defendant, in lieu of issuing an order terminating an action the court may proceed on the existing accusatory pleading. For the purposes of Section 1387, the action shall be deemed as having been previously terminated. The defendant shall be rearraigned on the accusatory pleading and a new time period pursuant to Section 859b or 1382 shall commence."