Penal Code §1385: Dismissals in Furtherance of Justice

How §1385 Works Today

Penal Code §1385 allows a judge to dismiss a case, a count, or a sentencing enhancement if doing so is in the furtherance of justice. The statute was strengthened by recent reforms so that courts must give great weight to specific mitigating circumstances when deciding whether to dismiss an enhancement. The court must still consider public safety and place its reasons on the record.

Two threshold points:

Who can move under §1385: The court may act on its own motion or on motion of the prosecutor. While the defense cannot formally move under §1385, the defense can invite the court to exercise its power by presenting supporting law and facts.
What can be dismissed: Judges may dismiss charges, allegations, or enhancements in the interests of justice, including striking prior “strike” convictions in an appropriate case (known as a Romero dismissal). However, limits apply where a voter initiative forbids dismissal or where specific statutes restrict the court’s discretion.

§1385(c) and Enhancements: The Modern Framework

For enhancements, §1385 now directs courts to consider and give great weight to evidence of mitigating circumstances. Proof of one or more of these factors weighs strongly in favor of dismissal unless the court finds dismissal would endanger public safety. Examples include multiple enhancements in a single case, prior convictions that are remote, youth or trauma contributing to the offense, and non-violent current offenses.

In practical terms, defense counsel can ask the court to strike one or more enhancements while leaving the base offense intact. The court must explain its reasoning on the record and balance public safety concerns against the presence of these mitigating factors.

Romero Motions: Striking a Prior Strike

In People v. Superior Court (Romero), the California Supreme Court confirmed that §1385 gives courts authority to strike a prior strike in furtherance of justice. Courts consider the nature of the current offense, the defendant’s prior record, and their character, background, and prospects to determine whether the case falls outside the spirit of the Three Strikes law.

How §1170 Shapes Today’s Sentencing Decisions

§1170(b): Selecting the Term of Imprisonment

Under §1170(b), a court cannot impose an upper term unless aggravating factors are admitted by the defendant or found true beyond a reasonable doubt by a judge or jury. The middle term is the presumptive sentence unless those aggravating facts are proven. The law also creates a presumption for the lower term when certain factors contributed to the offense, including youth and psychological, physical, or childhood trauma.

In practice:

If aggravating factors were not proven, the maximum the court may impose is the middle term.
If youth or trauma contributed to the offense, the defense can invoke the lower term presumption, which the court must address directly.

§1170(h): Local-Term Sentencing and Split Sentences

For many non-serious, non-violent, non-registerable felonies, §1170(h) authorizes serving the term in county jail rather than state prison. Judges can impose either a straight local term or a split sentence that includes a period of mandatory supervision. This often works hand-in-hand with §1385 dismissals of enhancements to keep clients out of state prison.

Using §1385 With §1170: Coordinating Sentencing Strategy

Effective sentencing advocacy often combines these two statutes:

First, reduce or strike enhancements under §1385(c). This can transform a case from a mandatory prison term to local custody eligibility.
Next, apply §1170(b) to ensure that only properly proven aggravating facts can raise the sentence.
Then, press any lower-term presumptions that apply for youth, trauma, or other mitigating circumstances.
Finally, structure the term under §1170(h) to seek a split sentence emphasizing treatment, employment, or rehabilitation in lieu of extended custody.

What Judges Consider Under §1385

Judges must balance several factors and make a clear record of their reasoning. These include:

The nature and circumstances of the current offense and any resulting harm.
The defendant’s history, background, and efforts at rehabilitation.
The mitigating circumstances enumerated in §1385(c).
Whether dismissal would compromise public safety.
Compliance with §1170(b)’s limits on aggravating factors and the lower-term presumption.

Common Client Questions

Can a judge dismiss an enhancement after sentencing has begun?
Yes. Courts maintain authority to strike enhancements in the furtherance of justice, particularly during resentencing or recall proceedings.

Does §1385 apply to all charges?
No. Certain voter initiatives or statutes may prohibit dismissal of specific enhancements, such as firearm or serious felony priors.

Do aggravating facts always require a jury finding?
For the upper term, yes. Aggravating facts must be admitted by the defendant or found true beyond a reasonable doubt; otherwise, the middle term is the maximum.

Bottom Line

Today’s sentencing framework requires strategic coordination between §1385 and §1170. In many cases, the best path to a fair and proportionate result involves dismissing unnecessary enhancements, enforcing the proof requirements for aggravation, and invoking statutory presumptions for mitigation. When used correctly, these statutes allow courts to impose sentences that balance accountability with rehabilitation—giving defendants the opportunity to move forward under terms that truly reflect justice.

If you or a loved one is facing felony charges or sentencing in California, the difference between years in prison and a fair resolution can come down to how well your attorney understands motions under Penal Code §§1385 and 1170. At Radford & Rome, LLP, our attorneys are former prosecutors who know exactly how judges and DAs approach sentencing, enhancements, and dismissals. We use that insight to protect your record, your freedom, and your future.

Call us today or contact us online for a free, confidential consultation. We’ll review your case, explain your options, and build the strongest possible strategy for your defense.