Nazir v. Super. Ct.

Filed 6/2/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
REHAN NAZIR, B310806
Petitioner, (Los Angeles County
Super. Ct. No. VA151320)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Superior Court
of Los Angeles County, Lee W. Tsao, Judge. Petition granted.
Okabe & Haushalter, Mark Haushalter and Joe Weimortz;
Kravis, Graham & Zucker, Bruce Zucker and Thomas Ian
Graham for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Blythe J. Leszkay, Deputy
Attorney General as Amicus Curiae on behalf of Petitioner and
Real Party in Interest.
Claudia Y. Bautista, Public Defender (Ventura), and
Michael C. McMahon, Senior Deputy Public Defender for
California Public Defenders Association and Claudia Y. Bautista,
Public Defender, as Amicus Curiae on behalf of Petitioner.
Michael Romano, Erwin Chemerinsky, and Miriam Krinsky
for 76 Current and Former Elected Prosecutors and Attorneys
General as Amicus Curiae on behalf of Petitioner.
Frederick R. Bennett for Respondent.
Browne George Ross O’Brien Annaguey & Ellis, Eric M.
George, Thomas P. O’Brien, Nathan J. Hochman, David J.
Carroll, and Matthew O. Kussman for Association of Deputy
District Attorneys for Los Angeles County as Amicus Curiae on
behalf of Respondent.
Greg D. Totten and Robert P. Brown, Chief Deputy District
Attorney (San Bernardino) for California District Attorneys
Association as Amicus Curiae on behalf of Respondent.
Kent S. Scheidegger and Kymberlee C. Stapleton for
Criminal Justice Legal Foundation as Amicus Curiae on behalf of
Respondent.
George Gascón, District Attorney, Diana M. Teran, Deputy
District Attorney; Hogan Lovells, Stephanie Yonekura, Neal
Kumar Katyal, Jo-Ann Tamila Sagar, and Danielle Desaulniers
Stempel for Real Party in Interest.
_____________________________
2
INTRODUCTION
“[T]here is a long history of dispute among the various
branches of state government over the application of [Penal Code]
section 1385 to sentencing allegations.”1 (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 521-522 (Romero).) In this
latest chapter of that history, Rehan Nazir argues the trial court
abused its discretion in refusing to dismiss under section 1385
certain firearm enhancements the People alleged against him.
Nazir and the People argue the trial court should have dismissed
the sentence enhancements “in furtherance of justice” under
section 1385 in accordance with a policy issued by the district
attorney for Los Angeles County, George Gascón, upon his
election. That policy directs all deputy district attorneys “to
orally amend the charging document to dismiss or withdraw any
[sentence] enhancement” alleged in a pending case.
Based on the district attorney’s new policy, the prosecutor
moved under section 1385 to dismiss firearm enhancements
alleged under sections 12022.5 and 12022.53. The trial court
denied the motion and refused to consider the new policy in
determining whether to dismiss the enhancements under
section 1385.
We agree with Nazir and the People that the trial court
misunderstood the scope of its discretion under section 1385
when it refused to consider the district attorney’s new policy, but
we disagree with the People that the trial court lacked discretion
to deny a motion by the People to dismiss enhancements
pursuant to that policy. Under the relevant statutory scheme,
1 Undesignated statutory references are to the Penal Code.
3
long-standing case authority, and the rules of court governing
sentencing, a trial court deciding whether to dismiss a sentence
enhancement in furtherance of justice under section 12022.5 or
12022.53 must consider case-specific factors as well as general
sentencing objectives. Therefore, we grant Nazir’s petition for a
writ of mandate and direct the trial court to vacate its
December 18, 2020 order denying the People’s motion to dismiss
and to conduct a new hearing to reconsider the People’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People Charge Nazir with 35 Counts and Allege
Certain Firearm Enhancements
Nazir was a former Torrance police officer who became a
bail agent. In July 2019 he was arrested for crimes allegedly
committed in the course of his work, including kidnapping, false
imprisonment, and grand theft of an automobile. Nazir was
arraigned on July 26, 2019.
The People filed a fourth amended complaint on May 4,
2020, alleging 35 counts against Nazir. In connection with 22 of
those counts, the People alleged Nazir personally used a firearm,
within the meaning of section 12022.5, subdivision (a), an
enhancement that could enhance Nazir’s sentence by three, four,
or 10 years; committed an assault with a deadly weapon or by
means likely to produce great bodily injury by personally
shooting a firearm from an automobile, within the meaning of
section 12022.5, subdivision (d), an enhancement that could
enhance Nazir’s sentence by three, four, or 10 years; or
personally used a firearm in the commission of a felony, within
4
the meaning of section 12022.53, subdivision (b), an enhancement
that could enhance Nazir’s sentence by 10 years.
B. The New District Attorney Adopts a Policy Regarding
Sentence Enhancements
On November 3, 2020 the voters of Los Angeles County
elected George Gascón to replace Jackie Lacey as district
attorney. On December 8, 2020 the new district attorney issued
Special Directive 20-08, which made changes to the Legal Policies
Manual. Special Directive 20-08 stated that “sentence
enhancements or other sentencing allegations . . . shall not be
filed in any cases and shall be withdrawn in pending matters.”
The Special Directive explained that “the current statutory
ranges for criminal offenses alone, without enhancements, are
sufficient to both hold people accountable and also to protect
public safety” and that “studies show that each additional
sentence year causes a 4 to 7 percent increase in recidivism that
eventually outweighs the incapacitation benefit.” An appendix to
Special Directive 20-08 stated that there was no compelling
evidence California’s 100-plus sentence enhancements improved
public safety, that such enhancements contributed to prison
overcrowding, and that they “exacerbate[d] racial disparities in
the justice system.” The appendix also stated “long sentences do
little” to deter crime.
Special Directive 20-08 instructed deputy district attorneys
in pending cases to move to dismiss or withdraw sentence
enhancement allegations. On December 15, 2020 the district
attorney issued a clarification to Special Directive 20-08 for
pending cases where the People had alleged prior serious or
violent felony convictions under the three strikes law (§§ 667,
5
subds. (b)-(i), 1170.12, subds. (a)-(d)) or sentence enhancements.
In such cases, Special Directive 20-08.1 directed deputy district
attorneys to “make the following record”:
“‘The People move to dismiss and withdraw any strike prior
(or other enhancement) in this case. We submit that punishment
provided within the sentencing triad of the substantive charge(s)
in this case are [sic] sufficient to protect public safety and serve
justice. Penal Code section 1385 authorizes the People to seek
dismissal of all strike prior(s) (or other enhancements) when in
the interests of justice. Supreme Court authority directs this
Court to determine those interests by balancing the rights of the
defendant and those of society “as represented by the People.”
The California Constitution and State Supreme Court precedent
further vest the District Attorney with sole authority to
determine whom to charge, what charges to file and pursue, and
what punishment to seek. That power cannot be stripped from
the District Attorney by the Legislature, Judiciary, or voter
initiative without amending the California Constitution. . . .
Additional punishment provided by sentencing enhancements or
special allegations provide[s] no deterrent effect or public safety
benefit of incapacitation—in fact, the opposite may be true,
wasting critical financial state and local resources.’”2 If a trial
court refused to dismiss allegations of prior serious or violent
2 We take judicial notice under Evidence Code sections 452,
subdivision (c), and 459 of Special Directive 20-08.1. The
prosecutor cited Special Directive 20-08.1 in the trial court, but
Nazir did not include it in the record. (See Western States
Petroleum Assn. v. State Dept. of Health Services (2002)
99 Cal.App.4th 999, 1002, fn. 1 [taking judicial notice of a policy
of an executive agency].)
6
felony convictions under the three strikes law or refused to
dismiss sentencing allegations under section 1385, Special
Directive 20-08.1 instructed deputy district attorneys to “seek
leave of the court to file an amended charging document
pursuant to Penal Code section 1009.”
C. The Trial Court Denies the People’s Motion To
Dismiss the Firearm Enhancements
On December 11, 2020 the People orally moved under
section 1385 to dismiss the firearm enhancements alleged in the
fourth amended complaint. The trial court, stating it understood
the motion was “based solely on District Attorney Gascón’s
Special Directive,” denied the motion. The court stated that “the
People may file an amended information omitting the
enhancements that are at issue here, and if they do that, we can
proceed, but insofar as the motion to dismiss the existing
information under . . . section 1385, it is without legal
justification.” The court said the cases “are clear that the
exercise of discretion under [section] 1385 must be based on an
individualized consideration of the offense and the offender and
not on any antipathy or disagreement with the statutory
scheme.”
On December 18, 2020 the People filed a written motion
under section 1385 to dismiss the firearm enhancements,
restating verbatim the arguments recited in Special Directive
20-08.1. In the alternative the People sought leave to file an
amended complaint omitting the firearm allegations. At the
hearing, the prosecutor did not present any argument in support
of the motions, other than parroting the language of Special
Directive 20-08.1.
7
Counsel for Nazir argued the court erred in denying the
People’s previous motion to dismiss by applying case law that
involved a trial court dismissing prior convictions on its own
motion, rather than a motion by the People. Counsel for Nazir
also argued denying the People’s motion would violate Nazir’s
equal protection rights because Nazir would be subject to greater
punishment for the same crimes committed by someone charged
(originally) by the new district attorney under Special Directive
20-08. Counsel for Nazir further argued that, because a
defendant charged before the change in policy was treated
differently from a similarly situated defendant charged after the
change, granting the People’s motion was in furtherance of
justice under section 1385.
The trial court again denied the People’s motion to dismiss
the firearm allegations. The court stated that, because the
“exclusive basis” for the motion was the Special Directive, in
order to grant the motion the court “would have to adopt [the
district attorney’s] rationale,” which the court concluded was “not
a permissible basis” on which to grant the motion. The court,
after considering “the preliminary hearing transcript,
information, the probation report,” and “the nature of the offense
and the background and character of Mr. Nazir,” ruled “the
motion to dismiss the enhancements is not in the interest of
justice.”
The court, stating it had “rethought” its position since the
December 11, 2020 hearing, also denied the People’s motion for
leave under section 1009 to file an amended information that
omitted the enhancement allegations. The court ruled it was not
“proper” for the People to proceed on an amended information
that omitted “the very enhancements” that were the subject of
8
the motion to dismiss under section 1385. The court stated that,
if the People were “displeased” with the court’s ruling, they could
appeal or dismiss the information and refile charges against
Nazir that did not include the firearm allegations.
D. Nazir Files a Petition for Writ of Mandate or
Prohibition
The People did not appeal, but on March 8, 2021 Nazir filed
a petition for writ of mandate or prohibition. Nazir argued the
trial court abused its discretion in denying the People’s motion to
dismiss the firearm enhancements and by denying, after initially
indicating it would grant, the People’s motion for leave to file an
amended information without the firearm enhancements. Nazir
also argued the trial court’s rulings violated Nazir’s equal
protection rights. Nazir sought a peremptory writ of mandate
directing the trial court to vacate its decision denying the
People’s motion to dismiss or in the alternative to vacate its order
denying the People’s motion for leave to amend the information,
and to grant Nazir “whatever alternative or further relief as may
be appropriate in the interests of justice.”
This court denied the petition, and Nazir filed a petition for
review in the Supreme Court. The Supreme Court granted the
petition for review and transferred the matter to this court with
directions to issue an order to show cause why the relief sought in
the petition should not be granted. (Nazir v. Superior Court
(May 26, 2021, S267713).)3
3 We summarily denied the petition because we concluded
Nazir, who was seeking writ review of the trial court’s order
9
DISCUSSION
Nazir and the People argue the trial court’s ruling violates
the separation of powers guaranteed under article III, section 3 of
the California Constitution by denying the district attorney
prosecutorial discretion over charging decisions.4 They also
argue the court abused its discretion in failing to include Special
Directive 20-08 among “the interests of society represented by the
People” a court must consider in ruling on a motion to dismiss
under section 1385. (See People v. Clancey (2013) 56 Cal.4th 562,
580.) We need not address whether the trial court’s ruling
violated article III, section 3 of the California Constitution
because we conclude section 1385 does not preclude a trial court
from considering a district attorney’s policy in ruling on a motion
to dismiss a firearm enhancement under section 12022.5 or
12022.53 in furtherance of justice. (See Facebook, Inc. v.
Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31 [“we
are guided by the familiar principle that we should address and
resolve statutory issues prior to, and if possible, instead of,
constitutional questions”]; In re White (2019) 34 Cal.App.5th 933,
959 [same]; see also People v. Williams (1976) 16 Cal.3d 663, 667
[“we do not reach constitutional questions unless absolutely
denying the People’s motion (i.e., not his motion), lacked
standing. The Supreme Court apparently thought otherwise.
4 Article III, section 3 of the California Constitution states:
“The powers of state government are legislative, executive, and
judicial. Persons charged with the exercise of one power may not
exercise either of the others except as permitted by this
Constitution.”
10
required to do so to dispose of the matter before us”]; Newsom v.
Superior Court (2021) 63 Cal.App.5th 1099, 1112, fn. 2 [“‘it is
often deemed prudent to address a statutory or other ground to
avoid reaching a constitutional ground’”].)
A. Standard of Review
We review a trial court’s order denying a motion to dismiss
a sentence enhancement under section 1385 for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374;
People v. Flores (2021) 63 Cal.App.5th 368, 376; People v. Pearson
(2019) 38 Cal.App.5th 112, 116.) A trial court may abuse its
discretion where “its decision is so irrational or arbitrary that no
reasonable person could agree with it,” “where the trial court was
not ‘aware of its discretion’” to dismiss a sentencing allegation
under section 1385, or “where the court considered impermissible
factors in declining to dismiss.” (Carmony, at pp. 377-378; see
People v. Tirado (2022) 12 Cal.5th 688, 694 (Tirado) [a “court
acting while unaware of the scope of its discretion is understood
to have abused it”]; People v. Pearson (2013) 56 Cal.4th 393, 419
[a court abuses its discretion when it misunderstands the scope of
that discretion].)
“Because ‘all discretionary authority is contextual’
[citation], we cannot determine whether a trial court has acted
irrationally or arbitrarily in refusing to strike a [sentencing]
allegation without considering the legal principles and policies
that should have guided the court’s actions.” (People v. Carmony,
supra, 33 Cal.4th at p. 377.) Thus, whether the trial court in this
case abused its discretion depends on the scope of that discretion
under sections 1385, 12022.5, and 12022.53. We review this
11
question of statutory interpretation de novo. (Tirado, supra,
12 Cal.5th at p. 694.)
B. The Statutory Scheme
1. Section 1385
Section 1385, subdivision (a), provides that a “judge or
magistrate may, either on motion of the court or upon the
application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed.” Section 1385 applies to
a motion to dismiss “the entire action or, as here, only an
enhancement allegation.” (People v. Bonnetta (2009) 46 Cal.4th
143, 145-146; see Tirado, supra, 12 Cal.5th at p. 696 [“Though
section 1385 literally authorizes the dismissal of ‘an action,’ it
has been construed to permit the dismissal of parts of an action
[citation], including a weapon or firearm use enhancement.”];
Romero, supra, 13 Cal.4th at p. 508 [“we have construed section
1385[, subdivision] (a) as permitting a judge to dismiss not only
an entire case, but also a part thereof, including the allegation
that a defendant has previously been convicted of a felony”];
People v. Hernandez (2000) 22 Cal.4th 512, 522 [“‘The authority
to dismiss the whole includes, of course, the power to dismiss or
“strike out” a part.’”]; see also § 1385, subd. (b) [referring to a
court’s authority to strike or dismiss an enhancement].)
“[S]ections 1385 and 1386, enacted in 1872, codify
California’s rejection of the English rule of nolle prosequi, under
which the prosecutor alone had authority to discontinue a
prosecution, in favor of granting sole authority to the courts to
12
dismiss actions in furtherance of justice.”5 (People v. Bonnetta,
supra, 46 Cal.4th at pp. 148-149, fn. omitted.) “Because nolle
prosequi is abolished in California, the prosecutor may not
unilaterally abandon a prosecution (Pen. Code, § 1386); only the
court may dismiss a criminal charge (id., § 1385, subd. (a)).”
(Steen v. Appellate Division of Superior Court (2014) 59 Cal.4th
1045, 1055; see Romero, supra, 13 Cal.4th at p. 512 [“when the
Legislature does permit a charge to be dismissed the ultimate
decision whether to dismiss is a judicial, rather than a
prosecutorial or executive, function”].) Thus, a “‘district attorney
can only recommend dismissal to the court. Dismissal is within
the latter’s exclusive discretion.’” (People v. Roman (2001)
92 Cal.App.4th 141, 145; see People v. Levins (1978) 22 Cal.3d
620, 623-624 [section 1385 “does not require that a court dismiss
a criminal action upon application of the district attorney; rather,
the statutory language clearly indicates the creation of a
discretionary power in the court”]; People v. Ward (1890) 85 Cal.
585, 590 [“we find no authority for the proposition that ‘it is the
duty of a justice . . . to enter a dismissal upon the motion of the
district attorney’”].)
In general, a court may dismiss an action or sentence
enhancement in furtherance of justice in any situation where the
Legislature has not clearly evidenced a contrary intent. (See
5 Section 1386 provides: “The entry of a nolle prosequi is
abolished, and neither the Attorney General nor the district
attorney can discontinue or abandon a prosecution for a public
offense, except as provided in Section 1385.” Nolle prosequi is
“Latin for ‘not to wish to prosecute.’” (Zike v. Advance America,
Cash Advance Centers of Missouri, Inc. (8th Cir. 2011) 646 F.3d
504, 508, fn. 4.)
13
People v. Fuentes (2016) 1 Cal.5th 218, 230 [“in light of section
1385’s ‘prominent and contentious history’ [citation], it is critical
and even ‘demanded,’ that the legislative intent to divest a court
of its section 1385 discretion be abundantly clear”]; People v.
Clancey, supra, 56 Cal.4th at p. 580 [there is “no statutory or
constitutional basis” preventing a court from dismissing a prior
conviction under section 1385 in the context of an indicated
sentence]; see also People v. Hatch (2000) 22 Cal.4th 260, 269
[“Because the trial court’s power to dismiss ‘in furtherance of
justice’ is statutory, the Legislature may eliminate it.”].) None of
the parties cites, nor have we found, any evidence of a clear
intent by the Legislature to preclude a court from dismissing a
sentence enhancement under section 1385 where a district
attorney has legitimate concerns that applying the sentencing
scheme in question was not in furtherance of justice, and instead
created injustice.
But that does not end the inquiry; a court does not have
absolute power to dismiss an action in furtherance of justice.
(See People v. Williams (1998) 17 Cal.4th 148, 158 (Williams)
[“‘“The trial court’s power to dismiss an action under [section
1385], while broad, is by no means absolute.”’”]; see also Romero,
supra, 13 Cal.4th at p. 530; People v. Orin (1975) 13 Cal.3d 937,
945; Wheeler v. Appellate Division of Superior Court (2021)
72 Cal.App.5th 824, 842.) Although section 1385 does not define
“in furtherance of justice,” a large body of precedent has created
boundaries on the judicial power conferred by the statute.
(Williams, at p. 159; see People v. Hatch, supra, 22 Cal.4th at
p. 268 [“the concept of ‘furtherance of justice’ [citation] is
amorphous”].) Under section 1385 trial courts must balance
“‘“‘the constitutional rights of the defendant, and the interests of
14
society represented by the People, in determining whether there
should be a dismissal.’”’” (Williams, at p. 159; see Hatch, at
p. 268; Orin, at p. 945.)
Almost all of that precedent arose in the context of a trial
court dismissing an action, charge, or enhancement on its own
motion, followed by an appeal by the People. (See Williams,
supra, 17 Cal.4th at p. 159 [addressing whether the trial court
abused its discretion in dismissing on its own motion one of two
prior serious or violent felony convictions under the three strikes
law]; People v. Hatch, supra, 22 Cal.4th at p. 268 [addressing the
consequences of a trial court order dismissing on its own motion
certain charges for lack of evidence]; Romero, supra, 13 Cal.4th at
p. 530 [addressing whether a trial court may dismiss on its own
motion a prior serious or violent felony conviction under the three
strikes law in furtherance of justice]; People v. Orin, supra,
13 Cal.3d at p. 945 [addressing whether the trial court could
dismiss on its own motion two of three counts against the
defendant].) In that context, the “‘“interests of society
represented by the People”’” refers to the “‘legitimate interest in
“the fair prosecution of crimes properly alleged,”’” and a
“‘“‘dismissal which arbitrarily cuts those rights without a
showing of detriment to the defendant is an abuse of
discretion.’”’” (Romero, at p. 531, italics omitted; accord,
Williams, at p. 159; see Orin, at pp. 946-947 [“appellate courts
have shown considerable opposition to the granting of dismissals
under section 1385 in instances where the People are thereby
prevented from prosecuting defendants for offenses of which
there is probable cause to believe they are guilty as charged”].)
When the trial court, on its own motion or at the request of the
defendant, considers whether to dismiss an action under section
15
1385, the court must keep the “scales of justice . . . in balance”
(People v. Winters (1959) 171 Cal.App.2d Supp. 876, 887) by not
having a case brought by the People “thrown out of court except
for a reason which can be said to be that which would motivate a
reasonable judge” (People v. Curtiss (1970) 4 Cal.App.3d 123, 126;
see People v. Clancey, supra, 56 Cal.4th at pp. 580-581; People v.
Vasquez (2021) 72 Cal.App.5th 374, 381). Thus, for example, a
court may not on its own motion dismiss a charge or allegation
“‘“to accommodate judicial convenience or because of court
congestion”’” (Clancey, at p. 581), “‘because a defendant pleads
guilty’” (ibid.), or based on “bare antipathy to the consequences
for any given defendant” (Williams, at p. 161; see Romero, at
p. 531 [“[n]or would a court act properly if ‘guided solely by a
personal antipathy for the effect that the three strikes law would
have on [a] defendant,’ while ignoring ‘defendant’s background,’
‘the nature of his present offenses,’ and other ‘individualized
considerations’”]).
But “the interests of society represented by the People” do
not begin or end with the mechanical prosecution of charges
properly alleged. “The public prosecutor ‘“is the representative
not of any ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done.”’” (People v. Eubanks (1996) 14 Cal.4th 580,
589; accord, People v. Dehle (2008) 166 Cal.App.4th 1380, 1387.)
“‘The nature of the impartiality required of the public prosecutor
follows from the prosecutor’s role as representative of the People
as a body, rather than as individuals. “The prosecutor speaks not
solely for the victim, or the police, or those who support them, but
16
for all the People. That body of ‘The People’ includes the
defendant and his family and those who care about him. It also
includes the vast majority of citizens who know nothing about a
particular case, but who give over to the prosecutor the authority
to seek a just result in their name.”’” (Dehle, at p. 1388, quoting
Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const.L.Q.
537, 538-539.) Thus, “the district attorney is expected to exercise
his or her discretionary functions in the interests of the People at
large . . . .” (Eubanks, at p. 589; accord, People v. Martin (2018)
26 Cal.App.5th 825, 838; Dehle, at p. 1388.)
In conducting a trial the “prosecutor has the responsibility
to decide in the public interest whether to seek, oppose, accept, or
challenge judicial actions and rulings. These decisions . . . go
beyond safety and redress for an individual victim; they involve
‘the complex considerations necessary for the effective and
efficient administration of law enforcement.’” (Dix v. Superior
Court (1991) 53 Cal.3d 442, 452; see People v. Birks (1998)
19 Cal.4th 108, 134 [a prosecutor’s discretion to choose “the
actual charges from among those potentially available arises
from ‘“the complex considerations necessary for the effective and
efficient administration of law enforcement”’”]; see also People v.
Dehle, supra, 166 Cal.App.4th at p. 1387 [“[s]ubject to supervision
by the Attorney General [citations], . . . the district attorney of
each county independently exercises all the executive branch’s
discretionary powers in the initiation and conduct of criminal
proceedings”].)
For example, after charges have been filed, a prosecutor
may seek a dismissal under section 1385 for many reasons,
including to effectuate a plea agreement. (See People v. Bonnetta,
supra, 46 Cal.4th at p. 153, fn. 5; People v. Orin, supra, 13 Cal.3d
17at p. 946.) By definition, plea “bargaining” trades a defendant’s
maximum exposure for expediency and finality (see People v.
Segura (2008) 44 Cal.4th 921, 929 [plea agreements benefit the
criminal justice system by “promoting speed, economy, and the
finality of judgments”]), factors a court may not consider in
dismissing a charge under section 1385 on its own motion
(see People v. Clancey, supra, 56 Cal.4th at p. 581; Romero, supra,13 Cal.4th at p. 531). Thus, under section 1385 the “interests of
society” promoted by a prosecutor’s motion to dismiss under
section 1385 are broader than those a court may seek to advance
on its own motion. (See People v. Superior Court (1967)
249 Cal.App.2d 714, 718 (King) [“Under the adversary nature of
our criminal procedure, the prosecuting attorney, as the People’s
representative, is often in a position to make application for a
dismissal ‘in furtherance of justice’ when the record then before
the trial judge would not justify a dismissal by the judge on his
own motion.” (Italics omitted.)].)6
6 In People v. Superior Court (Howard) (1968) 69 Cal.2d 491the Supreme Court appeared to question whether a trial judge’s
“discretion to dismiss on his own motion is not as great as his
discretion to dismiss on the motion of the prosecutor.” (Id. at
pp. 503-504, citing King, supra, 249 Cal.App.2d at p. 718.) In
Howard, however, the Supreme Court considered whether a trial
court had discretion under section 1385 to dismiss an action on
its own motion after a jury returned a guilty verdict. In
responding to the People’s argument that a trial court could only
do so with the prosecutor’s approval, the Supreme Court made
clear that, contrary to the suggestion in King, a trial court has
discretion to dismiss an action under section 1385 before or
during trial, “notwithstanding the fact that there is sufficient
evidence of guilt,” so long as the court “is convinced that the only
18
Moreover, in the context of sentencing, the Legislature has
stated that the “interests of justice” under section 1385 include
ensuring defendants receive proportionate punishment. (See
People v. Stamps (2020) 9 Cal.5th 685, 701-702 [citing legislative
history stating that “‘“punishments that are disproportionate to
the offense [do] not serve the interests of justice, public safety, or
communities”’”]; People v. Flores, supra, 63 Cal.App.5th at p. 384
[same].) Because this case involves the denial of a motion to
dismiss sentence enhancements, we consider the sentencing
scheme in question “to give content to the concept of ‘furtherance
of justice.’” (Williams, supra, 17 Cal.4th at p. 160; see ibid.[considering “the ‘letter’” and the “‘spirit’” of the three strikes law
in determining whether a court abused its discretion in
dismissing on its own motion a prior serious or violent felony
conviction]; Wheeler v. Appellate Division of Superior Court,
supra, 72 Cal.App.5th at p. 843 [identifying “the ‘interests of
society’ as expressed in the ordinances at issue” in the case];
People v. Orabuena (2004) 116 Cal.App.4th 84, 96 [considering
“the goals of Proposition 36,” the Substance Abuse and Crime
Prevention Act of 2000, in concluding the trial court had
discretion under section 1385 to dismiss a defendant’s conviction
for a non-drug crime so that the defendant, who was otherwise
disqualified from Proposition 36 treatment, would be eligible for
the program]; People v. Jordan (1978) 86 Cal.App.3d 529, 537
purpose to be served by a trial or a retrial is harassment of the
defendant.” (Howard, at p. 504.) The Supreme Court did not
address whether there were other circumstances in which a
prosecutor’s legitimate motives for seeking a dismissal under
section 1385 were broader than a court’s motives.
19
[“dismissal for the purpose of effectuating the legislative design
may properly be designated in ‘furtherance of justice’”].)
2. Sections 12022.5 and 12022.53
As discussed, the People alleged sentence enhancements
against Nazir under sections 12022.5, subdivisions (a) and (d),
and 12022.53, subdivision (b). Section 12022.5, subdivision (a),
imposes an additional prison term of three, four, or 10 years for
any person who personally uses a firearm in the commission of a
felony or attempted felony. (See People v. Le (2015) 61 Cal.4th
416, 420.) Section 12022.5, subdivision (d), imposes the term
proscribed under section 12022.5, subdivision (a) (i.e., three, four,
or 10 years), for any violation of section 245 (assault with a
deadly weapon or by means of force likely to produce great bodily
injury) “if a firearm is used.” “The intent of [section 12022.5] is to
‘“deter persons from creating a potential for death or injury
resulting from the very presence of a firearm at the scene of a
crime”’ [citation], and to ‘“deter the use of firearms in the
commission of violent crimes by prescribing additional
punishment for each use.”’” (In re Tameka C. (2000) 22 Cal.4th
190, 196; see People v. Ahmed (2011) 53 Cal.4th 156, 161-162.)
“Section 12022.53 was first enacted in 1997 as part of the
state’s ‘Use a Gun and You’re Done’ law. [Citation.] The statute
sets out ‘sentence enhancements for personal use or discharge of
a firearm in the commission’ of specified felonies.” (Tirado,
supra, 12 Cal.5th at pp. 694-695, fn. omitted; see People v.
Anderson (2020) 9 Cal.5th 946, 950-951.) Under section
12022.53, subdivision (b), a person who “personally uses a
firearm” in the commission of one of the enumerated felonies
20
“shall be punished by an additional and consecutive term of
imprisonment in the state prison for 10 years.”
Before 2018, sections 12022.5 and 12022.53 prohibited a
trial court from striking a firearm enhancement in the interest of
justice under section 1385. (See Tirado, supra, 12 Cal.5th at
p. 695; People v. Humphrey (2020) 44 Cal.App.5th 371, 377.)
“[T]he Legislature’s goal” was “to protect Californians and deter
violent crime by imposing . . . the harshest applicable
punishment” in each case. (Tirado, at p. 701.) But eventually
“the enhancement scheme ‘caus[ed] several problems,’” including
a significant increase in the prison population and its
corresponding impact on the state’s budget. (Ibid.) The
Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) to
amend sections 12022.5 and 12022.53, effective January 2018, to
give a trial court discretion to dismiss a firearm enhancement in
the interest of justice under section 1385. (Stats. 2017, ch. 682,
§ 1; see Tirado, at pp. 695-696; Humphrey, at p. 377.) Sections
12022.5, subdivision (c), and 12022.53, subdivision (h), now
provide that a “court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.”7
7 None of the parties, nor any of the amicus curiae, argues
section 12022.5, subdivision (c), or section 12022.53,
subdivision (h), precludes a trial court from dismissing a firearm
enhancement at a time other than “at the time of sentencing.”
Although we do not reach this issue, we observe that the
statutory language does not bar a trial court from dismissing a
firearm enhancement before or during trial. (See Romero, supra,13 Cal.4th at p. 518 [“we will not interpret a statute as
21
The legislative history of Senate Bill No. 620 indicates the
Legislature was also motivated to amend sections 12022.5 and
12022.53 by research showing that mandatory sentence
enhancements “[d]isproportionately increase[d] racial disparities
in imprisonments,” had “no material deterrent effect,” and
“[g]reatly increase[d] the population of incarcerated persons.”
(Sen. Com. on Public Safety, Rep. on Sen. Bill No. 620 (2017-2018
Reg. Sess.) Apr. 25, 2017, p. 3.) Thus, the Legislature authorized
a trial court to dismiss a sentencing allegation or an
enhancement under section 1385 for a “deserving defendant,” but
allowed a trial court to impose the enhancement on “a defendant
who merited additional punishment for the use of a firearm in
the commission of a felony . . . .” (Sen. Com. on Public Safety,
Rep. on Sen. Bill No. 620 (2017-2018 Reg. Sess.) Apr. 25, 2017 at
p. 7.) The Supreme Court recently said of Senate Bill No. 620:
“This history reflects a legislative intent to retain the core
characteristics of the sentencing scheme. More severe terms of
imprisonment with the harshest applicable sentence remained
the default punishment. However, courts were granted the
flexibility to impose lighter sentences in appropriate
circumstances.” (Tirado, supra, 12 Cal.5th at pp. 701-702.)
In determining whether to dismiss a firearm enhancement
under section 12022.5 or 12022.53, a court considers the same
factors considered “‘when handing down a sentence in the first
instance.’” (People v. Flores, supra, 63 Cal.App.5th at p. 377; see
People v. Yanaga (2020) 58 Cal.App.5th 619, 626-627; People v.
Pearson, supra, 38 Cal.App.5th at p. 117.) These factors include
eliminating courts’ power under section 1385 ‘absent a clear
legislative direction to the contrary’”].)
22
those listed in California Rules of Court, rule 4.410 (general
objectives in sentencing), rules 4.421 and 4.423 (circumstances in
aggravation and mitigation), and rule 4.428(b) (discretion in
striking an enhancement and punishment for an enhancement
under section 1385). These rules refer to circumstances specific
to the crime and the defendant’s criminal history, as well as to
broader societal objectives, such as “[d]eterring others from
criminal conduct by demonstrating its consequences” and
“[i]ncreasing public safety by reducing recidivism through
community-based corrections programs and evidence-based
practices.” (Cal. Rules of Court, rule 4.410(a)(4) & (8).) The rules
state the trial court “should be guided by statutory statements of
policy, the criteria in [the Rules of Court], and any other facts
and circumstances relevant to the case.” (Id., rule 4.410(b).)
C. The Trial Court Erred in Refusing To Consider the
District Attorney’s Special Directive in Denying the
People’s Motion To Dismiss Under Section 1385
The trial court misunderstood the scope of its discretion
when it refused to consider Special Directive 20-08 in
determining whether to grant the motion to dismiss the firearm
enhancements alleged against Nazir. Special Directive 20-08
states that the district attorney’s new policy was based on
research showing that existing sentence enhancements do not
deter crime or reduce recidivism, which are objectives of the
criminal justice system a court may consider in determining
whether to impose a firearm enhancement under section 12022.5
or 12022.53, and thus are relevant to determining whether to
dismiss an enhancement. (See People v. Pearson, supra,
38 Cal.App.5th at p. 117; Cal. Rules of Court, rule 4.410(a)(4)
23
& (8).) The court’s statement on December 11, 2020 that it could
not base a ruling under section 1385 on “any antipathy or
disagreement with the statutory scheme,” and the court’s
statement a week later that to grant the motion it “would have to
adopt [the district attorney’s] rationale,” misapplied the Supreme
Court’s guidance in Williams.
In Williams the trial court, on its own motion, dismissed
one of two 13-year-old prior convictions for serious or violent
felonies, observing that, although the defendant had “‘run afoul
[of] the law many times,’” he had not in the interim committed
“‘crimes involving actual violence.’” (Williams, supra, 17 Cal.4th
at pp. 156-157.) In considering whether the trial court abused its
discretion, the Supreme Court stated trial courts must “look for
‘justice’ in the [sentencing] scheme’s interstices, informed by
generally applicable sentencing principles relating to matters
such as the defendant’s background, character, and prospects,”
and the Court cited the California Rules of Court as the source of
such “sentencing principles.” (Id. at p. 160 & fn. 5.) The
Supreme Court held the three strikes law, which was the
sentencing scheme at issue, precluded a trial court from giving
weight to “factors extrinsic to the scheme” when balancing a
defendant’s constitutional rights against “society’s legitimate
interests” in “the fair prosecution of properly charged crimes.”
(Id. at pp. 160-161.) Thus, as discussed, a trial court may not
consider antipathy toward the law or its consequences in a
particular case; instead, in determining whether dismissing a
prior serious or violent felony under the three strikes law would
be in furtherance of justice, a court must consider only whether a
defendant falls “outside the scheme’s spirit” by reference to
“factors intrinsic to the scheme, such as the nature and
24
circumstances of the defendant’s present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects.” (Ibid.)
The Supreme Court’s decision in Williams did not constrain
the trial court in this case for two reasons. First, as stated, the
“interests of society represented by the People” are broader than
fairly prosecuting properly charged crimes. (See Williams, supra,17 Cal.4th at p. 161.) But when a court considers on its own
motion whether to dismiss a charge or an enhancement, the scope
of those interests narrow to reflect the separation of powers
between the prosecution, which has sole discretion to “‘determine
whom to charge, what charges to file and pursue, and what
punishment to seek’” from among those potentially available
(Steen v. Appellate Division of Superior Court, supra, 59 Cal.4th
at pp. 1053-1054; see People v. Birks, supra, 19 Cal.4th at p. 134),
and the court, which has sole discretion to “dismiss a criminal
charge” (id. at p. 1055). A court may not “frustrate the orderly
and effective operation of our criminal procedure as envisioned by
the Legislature,” or “preclude the prosecution” of offenses for
which there is probable cause, by dismissing an action, offense, or
enhancement under section 1385 “without proper and adequate
reason.” (People v. Orin, supra, 13 Cal.3d at pp. 947-948.) Those
reasons cannot include the court’s “‘“personal antipathy”’”
(Williams, at p. 159) for the effect of the sentencing scheme
without materially impairing the inherent functions of the
prosecutor. (See Steen, at p. 1053 [separation of powers doctrine
“does not prohibit one branch from taking action that might
affect another,” but “the doctrine is violated when the actions of
one branch defeat or materially impair the inherent functions of
another”]; Department of Fair Employment & Housing v.
25
Superior Court (2020) 54 Cal.App.5th 356, 400 [same].) In
contrast, where a prosecutor, in his or her discretion, asks the
court to dismiss an enhancement because the prosecutor, as a
representative of the People, legitimately questions the deterrent
effect or value to public safety of imposing a sentence
enhancement, a court may consider that position in determining
whether granting the motion furthers justice. Such consideration
does not “frustrate the legitimate prosecution of a defendant” or
“‘“arbitrarily cut[ ]”’” the rights of the People to prosecute
properly alleged crimes because it is the People, rather than the
court, requesting dismissal. (Orin, at p. 947; see Romero, supra,13 Cal.4th at p. 531.)
Second, the Legislature amended sections 12022.5 and
12022.53 to give courts the ability to dismiss an enhancement in
the interest of justice precisely because a growing body of
research (that did not exist in 1998 when the Supreme Court
decided Williams) indicated firearm enhancements had “no
material deterrent effect.” (Sen. Com. on Public Safety, Rep. on
Sen. Bill No. 620, supra, at p. 3.) The district attorney cited some
of that research in the appendix to Special Directive 20-08. The
district attorney’s concerns the firearm enhancements alleged
against Nazir would not produce their desired deterrent effect
falls within the “spirit” of sections 12022.5 and 12022.53. (See
Williams, supra, 17 Cal.4th at p. 160.)8
8 The respondent superior court and amici curiae in support
of the court argue that the party seeking a dismissal has the
burden of offering evidence in support of a motion under section
1385 and that neither the People nor Nazir offered any evidence
concerning Nazir’s background, character, prospects, or other
circumstances relevant to the individualized analysis required by
26
Contrary to the position of the district attorney, however, a
prosecutor’s motion to dismiss an enhancement under section
1385 is not “a constitutionally protected exercise of prosecutorial
discretion,” and the trial court may deny such a motion. As
discussed, once a district attorney files charges and invokes the
court’s jurisdiction, only the court, not the district attorney, can
dismiss an action or enhancement under section 1385. (People v.
Bonnetta, supra, 46 Cal.4th at pp. 148-149; see Romero, supra,13 Cal.4th at pp. 515-516 [“the prosecutor may ask the court to
dismiss pursuant to section 1385, but ‘neither the Attorney
General nor the district attorney can discontinue or abandon a
prosecution for a public offense, except as provided in Section
1385’”]; People v. Tenorio (1970) 3 Cal.3d 89, 94 [the “prosecutor
has never been able to ‘exercise’ the power to dismiss a charged
prior—he has only been able to invite the judicial exercise of that
power”].) The district attorney’s argument the trial court “lack[s]
the power to deny” a prosecutor’s motion under section 1385 is
contrary to the Legislature’s decision in 1872 to abolish nolle
prosequi.
Williams. They argue the People instead relied solely on the
Special Directive, which without more is not a sufficient basis to
show that dismissing the enhancements was in furtherance of
justice. The trial court, however, made clear it would not
consider the Special Directive at all, whether in conjunction with
the Williams factors or otherwise. Thus, the court misunderstood
the scope of its discretion by failing to apply the factors relevant
to considering whether to dismiss a sentence enhancement (see
Cal. Rules of Court, rule 4.428(b)) and by refusing to consider the
Special Directive.
27
The district attorney also argues that he has the
prerogative to determine “‘whether to continue a prosecution’”
(People ex rel. Kottmeier v. Municipal Court (1990)
220 Cal.App.3d 602, 609) and that, “[a]s a practical matter, it
would be impossible for the court to compel a district attorney to
proceed with a prosecution that a district attorney no longer
wished to pursue.” The district attorney points to the plea
bargaining process and cites the Supreme Court’s statement in
People v. Orin, supra, 13 Cal.3d 937 that a prosecutor may secure
a plea agreement through the “dismissal of one or more counts of
a multi-count indictment or information.” (Id. at p. 942.) But the
Supreme Court’s statements in Orin did not mean a prosecutor
can on his or her own authority dismiss a count. The Supreme
Court merely identified dismissal of one or more counts as one of
several possible consequences of a plea agreement, with “the
People’s acceptance of a plea to a lesser offense than that
charged” as another possibility. (Ibid.) Moreover, in the very
next sentence of its opinion in Orin the Supreme Court made
clear that “[j]udicial approval is an essential condition precedent”
to any plea agreement. (Id. at pp. 942-943; see §§ 1192.1, 1192.3,
1192.4, 1192.5.) While the prosecutor has sole authority to
negotiate on behalf of the People, a plea agreement is not self-
executing; the court must approve it. (People v. Clancey, supra,
56 Cal.4th at p. 570; Orin, at p. 943). Thus, if a court rejects a
plea agreement, the prosecutor must continue to prosecute the
case or request dismissal for another reason. (See, e.g., People v.
Stringham (1988) 206 Cal.App.3d 184, 190-191 [trial court
rejected a plea agreement after the victim’s family opposed it,
and the case proceeded to trial]; People v. Cobb (1983)
139 Cal.App.3d 578, 581 [trial court refused to consider a plea
28
agreement proposed after the deadline established by local
rules].) Similarly, if the court denies a prosecutor’s request for
dismissal under section 1385, the prosecutor must continue the
prosecution, appeal the ruling, or seek dismissal on another
ground, for example, by announcing the prosecution is unable to
proceed. (See People v. Chacon (2007) 40 Cal.4th 558, 561 [after
the trial court ruled for the defendant on a motion in limine, the
People announced they were unable to proceed, and the trial
court dismissed the action under section 1385]; People v. Nguyen
(2017) 12 Cal.App.5th 574, 581 [same].) Section 1387 “generally
permits the prosecution to refile felony charges following
dismissal” at least once. (Jackson v. Superior Court (2017)
4 Cal.5th 96, 103.)
Nor is there merit to the district attorney’s argument there
is “no need for the [trial] court to consider whether, on the facts of
a particular case, dismissal furthers the interests of justice”
because, “as the People’s representative,” the prosecutor “has
already determined that it is not within the People’s interest to
prosecute the defendant for a violation of [the applicable]
legislative scheme.” As discussed, if a prosecutor moves to
dismiss an enhancement before proving it, the abolition of nolle
prosequi requires the court to exercise its discretion in
determining whether dismissal furthers the interests of justice.
If a prosecutor moves to dismiss an enhancement that has been
proven, the court must exercise its sentencing discretion in
determining whether to grant the motion. (See People v. Clancey,
supra, 56 Cal.4th at p. 580 [“‘The imposition of sentence and the
exercise of sentencing discretion are fundamentally and
inherently judicial functions.’”]; People v. Sandoval (2007)
41 Cal.4th 825, 847 [“The trial court’s sentencing discretion must
29
be exercised in a manner that is not arbitrary and capricious,
that is consistent with the letter and spirit of the law, and that is
based upon an ‘individualized consideration of the offense, the
offender, and the public interest.’”].) In the context of sections
12022.5 and 12022.53, the Supreme Court in Tirado, supra,
12 Cal.5th 688 stated the Legislature intended for judges “‘to
impose sentences that fit the severity of the offense’” by giving
judges “the flexibility to impose lighter sentences in appropriate
circumstances.” (Id. at pp. 701-702.) A judge cannot exercise
that flexibility without making case-by-case assessments whether
dismissal of a firearm enhancement is in furtherance of justice
under section 1385. Case-by-case assessments also conform with
California Rules of Court, rules 4.410, 4.421, and 4.423, which
list individualized factors a court may consider in determining
whether to dismiss a firearm enhancement under section 1385.
(See People v. Flores, supra, 63 Cal.App.5th at p. 377; People v.
Yanaga, supra, 58 Cal.App.5th at pp. 626-627; People v. Pearson,
supra, 38 Cal.App.5th at p. 117; Cal. Rules of Court,
rule 4.428(b).)
On remand the trial court must consider Special Directive
20-08 in determining whether to dismiss the firearm allegations
against Nazir. Pursuant to the amendments to section 1385 that
went into effect on January 1, 2022, the court must also “consider
and afford great weight to evidence offered by the defendant” to
prove that any of the enumerated mitigating circumstances
apply. (§ 1385, subd. (c)(2).) Those circumstances include
whether multiple enhancements are alleged in a single case, in
which case “all enhancements beyond a single enhancement shall
be dismissed,” and whether the application of an enhancement
30
could result in a sentence of over 20 years, in which case the
enhancement “shall be dismissed.” (Id., subd. (c)(3)(B) & (C).)
DISPOSITION
Let a peremptory writ of mandate issue directing the
superior court to vacate its December 18, 2020 order denying the
People’s motion to dismiss the sentence enhancements alleged
against Nazir and to enter a new order scheduling a hearing to
determine whether this is an appropriate case in which to
dismiss the sentence enhancements under sections 1385, as
amended, 12022.5, subdivision (c), and 12022.53, subdivision (h).
In so doing, the court must consider Special Directive 20-08,
among other factors, in determining whether dismissing the
firearm enhancements is in furtherance of justice.
SEGAL, J.
We concur:
PERLUSS, P. J. WISE, J. *
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31