CA Penal Code 1385: Dismissing Charges and Enhancements After SB 81

California Penal Code Section 1385 gives a judge the authority to dismiss a criminal charge, an entire criminal action, or a sentencing enhancement when dismissal is in the interests of justice.¹ It works as a safety valve against results that would be unfair or disproportionate, and since January 1, 2022, it has become the main tool for stripping years of added prison time off a sentence. The statute reaches every stage of a case: before trial, during trial, after a guilty plea, and at sentencing.

Who Can Ask the Judge to Dismiss

The power to dismiss belongs to the judge. A judge can act on their own initiative, or the prosecutor can file a motion asking for dismissal.¹ The defense is not on that list. A defendant or defense attorney can invite the court to use the statute, but the request is not a motion the court must formally rule on. In practice, defense lawyers raise PC 1385 in sentencing briefs and at hearings all the time, and judges do consider the arguments.

If the judge grants a dismissal, the reasons have to be stated out loud on the record. The reasons also go into the court’s minutes if either side asks or if the proceedings are not being transcribed.¹ A dismissal entered without stated reasons is vulnerable on appeal.

What “Furtherance of Justice” Means

A judge cannot dismiss a case out of personal preference or because the docket is crowded. The dismissal has to be “in furtherance of justice,” which the California Supreme Court in People v. Williams described as a balancing test. The court weighs the nature and circumstances of the current offense, the defendant’s background, character, and prospects, and whether applying the law strictly would push the case outside the spirit of the sentencing scheme.²

Judges look at factors like age, health, criminal history, and the likelihood of rehabilitation, set against the seriousness of the offense and the strength of the evidence. The decision has to be one “that would motivate a reasonable judge.” A court abuses its discretion if it dismisses purely for convenience, because the defendant pleaded guilty, or because the judge personally disagrees with the law.²

Dismissing Sentencing Enhancements After SB 81

Enhancements can add years, sometimes decades, to a California prison sentence based on things like firearm use, prior convictions, or serious injury to a victim. Senate Bill 81, signed in October 2021 and effective January 1, 2022, rewrote subdivision (c) of PC 1385 to make dismissal of enhancements presumptive in many cases. It applies to any sentencing or resentencing after that date.¹

The statute now says the court “shall dismiss an enhancement if it is in the furtherance of justice to do so.” That word “shall” is the shift. Dismissal is required, not optional, when the standard is met. The court must give “great weight” to evidence of nine specific mitigating circumstances, and proof of even one of them “weighs greatly in favor of dismissing the enhancement.”¹ The nine factors:

The enhancement would produce a racially discriminatory effect as described in Penal Code Section 745.
More than one enhancement is alleged in the same case. When this applies, all enhancements beyond a single one must be dismissed.
The enhancement could push the total sentence past 20 years. In that situation, the enhancement must be dismissed.
The current offense is connected to the defendant’s mental illness.
The current offense is connected to the defendant’s history of childhood trauma or prior victimization.
The current offense is not a violent felony as defined in Penal Code Section 667.5(c).
The defendant was a juvenile when they committed the current offense, or any prior offense that triggers the enhancement.
The enhancement is based on a prior conviction that is more than five years old.
A firearm was involved, but it was inoperable or unloaded.

Two of these, multiple enhancements and sentences over 20 years, use the word “shall.” The judge has no discretion to keep the enhancement when either applies, unless dismissal would endanger public safety.¹ The other seven create a strong presumption in favor of dismissal but leave the final call to the judge.

Proving Mental Illness, Trauma, or Prior Victimization

Three of the nine factors involve mental health or trauma, and the statute defines each with real specificity. A “mental illness” is a disorder listed in the current edition of the Diagnostic and Statistical Manual of Mental Disorders. The statute names bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD as examples, and it explicitly excludes antisocial personality disorder, borderline personality disorder, and pedophilia.¹

“Childhood trauma” covers physical, emotional, or sexual abuse and physical or emotional neglect experienced as a minor. “Prior victimization” reaches further, covering intimate partner violence, sexual violence, human trafficking, and other forms of psychological or physical trauma including abuse, neglect, and exploitation.¹

For any of these three factors, the defendant has to show the condition “substantially contributed” to involvement in the offense. The court can rely on a wide range of evidence to find that link: police reports, preliminary hearing transcripts, witness statements, medical records, and statements from a mental health treatment provider. A formal diagnosis is not the only route. Evidence that the defendant showed symptoms consistent with a qualifying disorder around the time of the offense can also be enough.¹

When the Judge Can Still Refuse

The strongest limit on PC 1385(c) is the public safety exception. A court can refuse to dismiss an enhancement, even when mitigating factors are present, if dismissal would “endanger public safety.” The statute defines that narrowly: there must be a likelihood that dismissal would result in physical injury or other serious danger to others.¹ A generalized worry about crime does not qualify. The court has to point to a specific risk tied to this defendant.

The statute also carves out enhancements established by voter-approved initiatives. If an initiative prohibits dismissing a particular enhancement, PC 1385 cannot override it.¹ The clearest example is the Three Strikes law. Courts have held that the SB 81 mandatory framework in subdivision (c) does not control the decision whether to strike a prior strike. The judge still has discretion over strike priors under subdivision (a) and the Williams balancing test, but the heavy presumptions do not apply there.

Dismissing the Enhancement vs. Striking Only the Punishment

PC 1385 gives the judge two different options when dealing with an enhancement. Under subdivision (b), the court can dismiss the enhancement entirely, or it can leave the enhancement on the record and strike only the additional punishment attached to it.¹

The difference matters. When only the punishment is struck, the enhancement finding or admission stays on the record and can show up in future sentencing or parole decisions. When the enhancement itself is dismissed, that finding is removed. Full dismissal is the better outcome for a defendant, but even striking just the added punishment eliminates prison years that would otherwise be stacked on.

Can the Prosecution Refile After a Dismissal

A 1385 dismissal is not always the end. Penal Code Section 1387 controls refiling, and the rules depend on the type of charge.³

For a standalone misdemeanor that is not charged alongside a felony, a single dismissal bars refiling. The case is over. For a felony, or a misdemeanor charged with a felony, the prosecution can refile once. A second dismissal of the same charge bars further prosecution.³

Two narrow exceptions can override the two-dismissal bar for felonies: substantial new evidence that could not have been found earlier through diligent effort, or a dismissal that resulted from direct intimidation of a material witness.³ Both are hard to meet by design.

Enhancement dismissals are different. The underlying conviction stands, the added punishment is gone, and there is no refiling mechanism for a dismissed enhancement.

Appealing a Ruling

Either side can challenge a PC 1385 ruling on appeal, but the standard is abuse of discretion. The appellate court does not substitute its own view for the trial judge’s. It asks whether the ruling falls outside the bounds of reason on the facts and the law.²

A judge who dismisses without stating reasons on the record, or who leans on improper factors like personal disagreement with a statute, risks reversal. A judge who refuses to dismiss an enhancement in the face of strong mitigating evidence without adequately explaining why can be reversed too. The requirement to document reasons is what makes meaningful review possible, and it is where many contested rulings turn.

1
California Legislative Information. California Penal Code 1385
2
Justia Law. People v Williams 1998
3
California Legislative Information. California Penal Code 1387