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Court Misunderstood Its Discretion under PC 1385 in Refusing to Consider LADA New Policy

Nazir v. Super. Ct. Docket: B310806 (Second Appellate District), Opinion Date: June 2, 2022. Petitioner argued 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 argued 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 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. The trial court denied the motion and refused to consider the new policy in determining whether to dismiss the enhancements under section 1385. The Second Appellate District agreed with Petitioner 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. The court reasoned that under the relevant statutory scheme, 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.


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