Filed 6/2/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

REHAN NAZIR,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

B310806

(Los Angeles County

Super. Ct. No. VA151320)

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 
2

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.

_____________________________
3

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.
4

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 
5

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, 
6

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].)
7

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. 
8

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 
9

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 
10

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.”
11

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 
12

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 
13

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.)
14

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 
15

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 
16

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 
17

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 
18

at 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 491

the 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 
19

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.
20

[“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 
21

“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 
22

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’”].)
23

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) 
24

& (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 
25

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. 
26

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 
27

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. 
28

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 selfexecuting; 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 
29

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 
30

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 
31

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.