Certain Gun Enhancements Can Only Be Dismissed at Sentencing

Special Directive 20-08 requires deputy district attorneys to dismiss all enhancements, including those made pursuant to Penal Code §§ 12022.53 and 12022.5.

However, this order violates Penal Code §§ 12022.53(h) and 12022.5(c). Both of these sections read, “The 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.”

Accordingly, we must make a motion to dismiss, which the court must decide. This motion, like any motion under Penal Code section 1385, must be in the interests of justice, which is a case-specific analysis. There are other procedural requirements. The decision is not up to the prosecutor: it’s up to the court.

Gun enhancements can only be dismissed at sentencing. The Penal Code is clear, that a gun enhancement may be dismissed pursuant to section 1385 “at the time of sentencing.” That means after a plea is entered. At that point, it may be moot.

The new DA has directed his deputies to read a script when dismissing strikes pursuant to this section. But there is no script for gun enhancements yet. So remember your duty of candor and honestly tell the court whether dismissal is in the interests of justice. The reasons for dismissal must be put into the record.