Special Directive 20-08 Does Not Mean You Can “Dismiss or Withdraw” Enhancements

Special Directive 20-08 directs deputy district attorneys to “dismiss and withdraw” sentencing enhancements. Specifically, it says, “sentence enhancements or other sentencing allegations, including under the Three Strikes Law, shall not be filed in any cases and shall be withdrawn in pending matters.”

This language is followed by several examples of enhancements that are banned. The phrase “dismissed or withdrawn” is used in four of these examples. For pending cases, deputies are directed “to dismiss or withdraw any enhancement or allegation outlined in this document.”

You Don’t Have The Power To Dismiss Or Withdraw Enhancements

Under Penal Code section 1386, a prosecutor cannot discontinue or abandon a prosecution for a public offense, except as provided in Penal Code section 1385. “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.” (Pen. Code, § 1386)

Under Penal Code § 1385, only the court is authorized to dismiss a criminal action, including any enhancement. This dismissal must also be in the interests of justice. Section 1385(a) reads:

“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading.”

“Section 1385 authorizes a trial court to dismiss a prior action to further justice where the Legislature has not clearly evidenced a contrary intent. That power includes dismissing or striking an enhancement.” (People v. Luckett (1996) 48 Cal.App.4th 1214, 1218 [internal citations omitted].) Formerly, the prosecutor alone had authority to dismiss a criminal action, but with the adoption of §1385 and §1386 of the Penal Code, this authority was transferred to the court. “[T]he legislature has gone so far as to guard against the likelihood of the court doing violence to the interest of justice by providing that such order can be made only ‘in the furtherance of justice.’” (People v. Romero (1996) 13 Cal.App.2d 667, 670.)

In People v. Roman, the court again wrote about the limitations of prosecutorial discretion.

“[T]he Three Strikes law limits that discretion and requires the prosecutor to plead and prove each prior serious felony conviction. PC §1170.12(d)(1). Nor can the prosecutor unilaterally strike a prior serious felony conviction allegation. The prosecutor has no independent authority to abandon a prosecution. (PC §1386.) ‘When the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.’ (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 517) The only discretion remaining in the prosecution is the ability to move to strike a prior serious felony conviction allegation in the furtherance of justice. (PC §1170.12(d)(2).) Such a motion is directed to the discretion of the trial court. (PC §1385; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) ‘[A] district attorney can only recommend dismissal to the court. Dismissal is within the latter’s exclusive discretion.’ (People v. Parks (1964) 230 Cal.App.2d 805, 812)”

(People v. Roman (2001) 92 Cal.App.4th 141, 145.)

What Should I Do?

You can, and should, make the motion to dismiss these enhancements. You are the deputy of the elected DA, and should follow his instructions even if you disagree with him.

Don’t say, “the People are dismissing the enhancements” or “withdrawing the enhancements” or something. You can’t do that. Make a motion to dismiss under section 1385.

A motion is just a motion, the court must decide whether to grant it. The court may ask you if dismissal is in the interests of justice. You can tell them why the elected DA thinks dismissal is in the interests of justice. But if you do not think dismissal is just, you must say so. Otherwise you will violate your ethical duty of candor.

If the court decides to grant the motion, it must make a finding that the grant is in the interests of justice, and enter the reasons why in the minute order.