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 Part y 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. Johns en , Supervising Deputy Attorney General, and Blythe J. Leszkay , Deputy2

Attorney General as Amicus Curiae on behalf of Petitioner and Real Party in Interest.
Claudia Y. Bautista , Public Defender (Ventura)

, and
M i chael C. McMahon , Senior Deputy Public Defender for
California Publi c 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 Ro ss 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 Co unty 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 De saulniers Stemp el 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 enhanc ements the People alleged against him

. Nazir and the People argue the trial court should have dismiss ed
the sentenc e enhancements “in furtherance of justice” under section 1385 in accordance with a policy issued by the d istrict

a ttorney for Los Angeles County, George Gasc ó n, upon his
election

. Th at p olicy directs all deputy district attorneys “to orally amend the charg ing document to dismiss or withdraw any [sentenc e ] enhancement” alleged in a pending case. Based on the district attorney’s new policy, t he 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 d istrict a ttorney’s new policy, but

we disagree with the People that the trial court lack ed discretion to deny a motion by the People to dismiss enhancements pursuant to that policy. Under the relevant statutory scheme

,

1 Undesignated s tatutory 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 2 019 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 o n 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 c ould enhance Nazir’s sentence by three, four,

o r 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 c ould
enhance Nazir’s s entence by three, four

, or 10 years ; or personally used a firearm in the commission of a felony, within5

the meaning of section 12022.53, subdivision (b)

, an enhancement
that c ould 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 d istrict

a ttorney. On December 8
, 2020 the new d istrict a ttorney issued Special Directive 20

- 08 , which made changes to the Legal Policies
Manual. Special Directive 20

- 08 state d that “sentence
enhancement s or other sentencing allegations

. . . shall not be filed in any cases and shall be withdrawn in pending matters.” The Special Directive explain ed that “t he 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 additiona l sentence year causes a 4 to 7 percent increase in reci divism that eventually outweighs the incapacitation benefit

. ” An appendix to Special Directive 20

- 08 state d that there was no compelling evidence California’s 100

- plus sentenc e 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 state d “long sentences do
little” to deter crime

. Special Directive 20

- 08 instruct ed deputy district attorneys in pending cases to move to dismiss or withdraw sentenc e enhancement allegation s. On December 15, 2020 the d istrict

a ttorney 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 s uch cases, Special Directive 20

- 08.1 direct ed 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 t he 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 p unishment 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 allega tions 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 refuse d 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

. T he prosecutor cited Special Directive 20

- 08.1 in the trial court, but Nazir did not include it in the record. (See Western States Petroleum Ass n. 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
enhan cements 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 discr etion 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 d ismiss the firearm enhancement s ,

r estating verbatim the ar guments 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 l anguage of Special
Directive 20

- 08.1.8 C ounsel for Nazir argued the court erred in denying the People’s previous motion to dismiss by applying case law that
i nvolved a trial court dismiss ing 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

pun ishment for the same crimes committed by someone charged (originally) by the new d istrict a ttorney 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 co urt 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
d istrict a ttorney’s] rationale, ” which the court concluded was “ not a permissible basis” on which to g rant 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 “ t h e motion to dismiss the enhancements is not in t he 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 co urt ruled it was not “proper” for the People to proceed on an amended information
that omitted “the very enhancements” that were the subject of9

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 o n March 8, 2021 Nazir filed a petition for writ of mandate or prohibition . Nazir argu ed 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 manda te directing the trial court to vacate its decision denyin g 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 order10 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 d istrict a ttorney prosecutorial discretion over charging decisions. 4 They also

arg ue 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 a rticle III, section 3 of the California Constitution because we conclude section 1385 does not preclude a trial court from considering a d istrict a ttorney’s policy in ruling on a m otion
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 absolutel y

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
W e 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, 37 6; 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 sente nc ing allegation
under section 1385

, or “ where the court considered impermissible factors in declining to dismiss .” ( Carmony , at p p. 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 dete rmine whether a trial court has acted irrationally or arbitrarily in refusing to strike a [sentenc ing ] 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, w hether 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 this12

question of statutory interpretation de novo . ( Tirado

, supra , 12 Cal.5th at p. 694 .)

B

. The Statutory Scheme

1. Section 1385
S ection 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, 14 5

- 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, 5 22 [“ ‘ The authority to dismiss the whole includes, of c ourse, 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 to13

dismiss actions in furtherance of justice .” 5 ( People v . Bonnetta

, supra , 46 Cal.4th at p p. 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 th an 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.4t h 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.
5 85, 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

. (S ee

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 publ ic 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 dismiss ing 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 furth erance of justice ’ is statutory, the Legislature may eliminate it. ”].) No ne of the parties cites, nor have we found, any evidence of a clear
intent by the Legislature to preclude a court from dismissing a

sentenc e enhancement under section 1385 where a d i strict

a ttorney has legitimate concerns that applying the sentencing scheme in question was not in furtherance of justice, and instead created injustice.
But t hat does not end the inquiry ; a court does not have
absolute power to dismiss an action in furth erance 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 Supe rior 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 th e 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 court s must balance

“ ‘“‘ the constitutional rig hts of the defendant, and the interests of15

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 it s own motion one of two prior serious or violent felon y 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, t he “ ‘“ 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 p p. 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 pro secuting 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 section16

1385
, the court must keep the “scales of justice

. . . in balance” ( People v. Winters (1959) 171 Cal.App.2d Sup p. 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 whic h would motivate a

r easonable judge ” ( People v. Curtiss (1970) 4 Cal.App.3d 123, 126 ;

see People v. Clancey

, supra , 56 Cal.4th at p p. 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 i gnoring ‘ 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, 138 7. )

“‘ The n ature 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 the m, but17

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 auth ority 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. 138 8

. ) In conducting a trial the “ prosecutor has the responsibility to decide in the public interest whether to seek, oppo se, 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. ’ ” ( D ix 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. 138 7 [“ [s] ubject to supervision by the Attorney General [citation s ]

, . . . the district attorney of each county independently exercises al l the executive branch ’ s discretionary powers in the initiation and conduct of criminal proceedings ”] .) For example, a fter 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.3d18

at p. 94 6

. ) By definition, plea “ bargain ing” tr ades a defendant’s maximum exposure for expediency and finality ( s ee People v. Segura (2008) 44 Cal.4th 921, 929 [plea agreements benefit the criminal justice system by “ promot ing speed, economy

, and the finality of judgments ”]) , factors a court may not consider in dismissing a charge under section 13 8 5 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 dismis s 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. ” (I tal ics 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
p p. 503

- 5 04 , 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 th e 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 only19 Moreover, i n 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 statin g 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 sentenc e 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 ‘l etter’” 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. Appellat e Division of Superior Court

, supra , 72 Cal.App.5th a t 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 wa s otherwise disqualified from Proposition 36 treatme nt
, 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 retr ial 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 discus sed , the People alleged sentence enhancements against Nazir under s ections 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 s ection 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 o r 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
19 0, 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 p p. 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
fire arm ” in the commission of one of the enumerated felonies21

“ shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. ” Before 2018, section s 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. 7 01 .) 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 section s 12022.5 and 12022.53

, effective January 2018

, to

g ive 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 p p. 695

- 696 ; Humphrey , at p. 377 .) S ection s 12022.5, subdiv ision (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 No ne of the parties , n or 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 dismiss ing a firearm enhancement before or during trial. (See Romero

, supra , 13 Cal .4th at p. 518 [“we will not interpret a statute as22 The legislative history of Senate Bill No. 620 indicates the Legislature was also motivated to amend sections 12022.5 and 12022.53 by r esearch 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, Re p. on Sen. Bill No. 620 (2017

- 2018 Reg. Sess.) Apr. 25, 2017, p. 3.) Thus, the Legislature authorized

a trial court to dismiss a sentenc ing allegation or an enhancement under section 1385 for a “deserving defendant,” but
allow ed 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 Safet y, Re p. on Sen. Bill No. 620 (2017

- 2018 Reg. Sess.) Apr. 25, 2017 at

p. 7.) The Supreme Court r ecently said of Senate Bill No. 620 :

“ This history reflects a legislative intent to retain the core characteristics of the sentencing scheme. More severe term s 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 p p

. 7 01

- 702 .) In determining wh ether 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

o bjectives in sentencing), rules 4.421 and 4.423 ( circumstances in aggravation a nd mitigation ) , and rule 4.428(b) (discretion in striking an enhancement and punishment for an enhancement under section 1385)

. These rules refer to c ircumstances specific to the crime and the defendant’s criminal history, as well as to broader societal o bjectives , 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
determinin g whether to grant the motion to dismiss the firearm enhancements alleged again st Nazir. Special Directive 20

- 08
states that the d istrict a ttorney’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 a n 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 schem e , ” and the court’s
statement a week later that to grant the motion it “would have to adopt [the d istrict a ttorney’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 p p. 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

suc h 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 C ourt held the three strikes law, which w a s the sentencing s cheme 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
interest s” in “the fair prosecution of properly charged crimes

. ” ( Id. at p p. 16 0

- 161 .) Thus, as discussed, a trial court may not consider antipathy toward the law or its consequences in a particular case ; in stead , in determining whether dismissing a prior serious or violent felony under the three strikes law would
be in further ance 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 and25

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 represent ed by the People ” are broader than fairly prosecuting properly charged crimes. (See Williams

, supra , 17 Cal.4th at p. 161.) But w hen 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 ha s 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 p p. 1053

- 1054 ; see People v. Birks

, supra , 19 Cal.4th at p. 134 ), and the court, which has sole disc retion to “ dismiss a criminal charge ” ( id. at p. 1055). A court may not “frustrate the orderly and effective operatio n 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 p p. 947

- 948 .) Those

reasons can not include the court’s “ ‘“personal antipathy ”’” ( Williams , at p

. 159) for the effect of the sentencing scheme without materially impairing the inherent fun ctions 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 “ t he 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 a n enhancement because the prosecutor, as a representative of the People, legitimately questions the deterrent
effect or value to public safety of imposing a sentenc e enhancement , a co urt may consider that position in determining whether grant ing 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 allege d 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 a n 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 deterr ent effect.” (Sen. Com. on Public Safety, Re p. on Sen. Bill No. 62 0, supra , at p. 3.) The d istrict a ttorney cited some
of that research in the a ppendix to Special Directive 20

- 08. T he
d istrict a ttorn ey’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 13 8 5 and that neither the People nor Nazir offered any evidence concerning Nazir’s background, character, prospects, or other circumstances relevant to the individ ualized analysis required by27 Contrary to the position of the d istrict a ttorney, however, a prosecutor’s motion to dismiss a n enhancement under section
1385 is not “a constitutionally protected exercise of prosecutorial
discretion

, ” and the trial court may deny such a motion

. A s discu ssed , 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 p p. 148

- 149 ; s ee Romero

, supra , 13 Cal.4th at p p. 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 Sectio n 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 d istrict a ttorney’s argument the trial court “lac k[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

. T hey 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, ma de 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 dismis s a sentence enhancement (see Cal. Rules of Court, rule 4.428(b)) and by refusing to consider the Special Directive.28 The d istrict a ttorney 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 lo nger wished to pursue.” The d istrict a ttorney 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 C ourt ’s statements in Orin did not mean a prosecutor

can on his or her own authority dismiss a count. The Supreme
C ourt merely identified dismissal of one or more count s 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 mad e clear that “[j] udicial approval is an essential condition precedent ”

to any plea agreement. ( Id. at p p. 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 app r ove it

. ( People v. Clancey

, supra , 56 Cal.4th at p. 570; Orin , at p. 943 )

. Thus, i f a court reject s 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

- 1 91 [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 plea29

agreement proposed after the deadline established by local rules] .) Similarly, if the court denies a prosecutor’s request f or 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, 56 1 [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] .) S ection 1387 “ generall y 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 inter e st to prosecute the defendant for a violatio n of [the ap plicable] 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 interes ts 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 [ “ ‘ T he imposition of se ntence 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 must30

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, t he 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 “t he flexibility to impose lighter sentences in appropriate
circumstances .” ( Id. at p p. 701

- 702 .) A ju dge 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
C alifornia Rules of Court, rules 4.410, 4.4 21, 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 p p. 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).) T hose circumstances include
whether m ultiple enhancements are alleged in a single case , in which case “ all enhancements beyond a single enhancement shall
be dismissed

, ” and whether t he application of an enhancement31

could result in a sentence of over 20 year s , 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 sentenc e enhancements alleged against Nazir and to enter a new order scheduling a hearing t o determine whether this is an appropriate case in which to
dismiss the sentenc e enhancements under section s 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 Ch ief Justice pursuant to article VI, section 6 of the California Constitution.