IN THE SUPREME COURT OF 

CALIFORNIA

EMILY WHEELER,

Petitioner,

v.

APPELLATE DIVISION OF THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

S272850

Second Appellate District, Division Three

B310024

Los Angeles County Superior Court

9CJ00315, BR054851

May 30, 2024

Justice Jenkins authored the opinion of the Court, in which 

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, 

Groban, and Evans concurred.
1

WHEELER v. APPELLATE DIVISION OF SUPERIOR 

COURT

S272850

Opinion of the Court by Jenkins, J.

Dismissals of criminal actions are permitted “in 

furtherance of justice.” (Pen. Code, § 1385, subd. (a).)1 We have 

held that trial courts evaluating an “in furtherance of justice” 

dismissal may consider a charged crime’s characteristics. Here, 

we conclude the trial court did not err in considering, amongst 

other circumstances, defendant and petitioner Emily Wheeler’s 

innocent state of mind when it dismissed misdemeanor charges 

the parties agree would impose strict liability and which were 

premised on municipal law that permitted noncriminal 

sanctions for the least culpable violators. We therefore reverse 

the judgment of the Court of Appeal, which concluded otherwise, 

and direct that the dismissal should stand.

1 Subsequent statutory references are to the Penal Code 

unless otherwise noted. 
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

2

I. BACKGROUND

A. Charges Against Defendant

In 2019, the City of Los Angeles, acting for the People of 

the State of California, issued a misdemeanor criminal 

complaint alleging unlicensed cannabis activity on property 

within city limits. The complaint charged defendant and 

petitioner Wheeler, the property owner, and her son, Aaron 

Wheeler, with various Los Angeles Municipal Code (Municipal 

Code) violations.

Counts 6 and 8 charged the Wheelers with violating two 

subdivisions of Municipal Code section 104.15,

2

one targeting 

“unlicensed Commercial Cannabis Activity”3 and the other 

targeting “Unlawful Establishments,” meaning individuals or 

entities engaged in such unlicensed activity.4 (Mun. Code, § 

104.15(a) & (b).) Count 6 charged a violation of subdivision 

(a)(1), which makes it unlawful “to establish, operate, or 

participate as an Employee, contractor, agent or volunteer, in 

any unlicensed Commercial Cannabis Activity in the City.” 

(Mun. Code, § 104.15(a)(1).) This prohibition “include[s] 

2 Municipal Code section 104.15 was enacted by City of Los 

Angeles Ordinance No. 185,343 in 2017.

3

“ ‘Commercial Cannabis Activity’ includes the cultivation, 

possession, manufacture, distribution, processing, storing, 

laboratory testing, packaging, labeling, transportation, delivery or 

sale of Cannabis or Cannabis products in the City as provided for 

in Division 10 of the California Business and Professions Code and 

the California Code of Regulations, as currently defined or as may 

be amended.” (Mun. Code, § 104.01(10).)

4

“ ‘Unlawful Establishment’ means any Person engaged in 

Commercial Cannabis Activity if the Person does not have a Cityissued Temporary Approval or License.” (Mun. Code,

§ 104.01(41).)
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Opinion of the Court by Jenkins, J.

3

renting, leasing to or otherwise allowing any unlicensed 

Commercial Cannabis Activity . . . to occupy or use any building 

or land.” (Mun. Code, § 104.15(a)(3).) Count 8, in turn, charged 

a violation of subdivision (b), which makes it “unlawful to: [ ¶] 

1. Own or operate an Unlawful Establishment; [¶] 2. Participate 

as an Employee, contractor, agent or volunteer or in any other 

capacity in an Unlawful Establishment; [¶] 3. Use any portion 

of any parcel of land as an Unlawful Establishment; or [¶] 4. 

Lease, rent to, or otherwise allow an Unlawful Establishment to 

occupy any portion of parcel of land.” (Mun. Code, § 104.15(b).)

In addition to the counts under section 104.15, count 9 

charged the Wheelers with violating Municipal Code section 

12.21(A)(1)(a). This provision more generally prohibits, among 

other things, erecting, reconstructing, maintaining, or using or 

designing for use a structure or land without “applying for and 

securing all permits and licenses required by all laws and 

ordinances.” (Ibid.)

Violators of Municipal Code section 104.15, whether 

breaching subdivision (a) or (b), “shall be guilty of a 

misdemeanor punishable by a fine of not more than $1,000 or by 

imprisonment in the County Jail for a period of not more than 

six months, or by both a fine and imprisonment.” (Mun. Code, §

104.15(d).) However, violations “of this section by an Employee, 

contractor, agent or volunteer, who has no financial interest in 

the Unlawful Establishment, may be punishable by means of a 

citation issued under the City’s Administrative Citation 

Enforcement Program.” (Ibid.)

5

 The citation system addresses

the “need for an alternative method of enforcement for violations 

5 This citation-authorizing provision was added by Los 

Angeles Ordinance No. 185,850, effective November 28, 2018.
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

4

of this Code,” aside from criminal and civil penalties. (Mun. 

Code, § 11.2.01(a).)

Municipal Code section 12.21, in contrast to section 

104.15, does not expressly assign criminality to its violation; 

however, a more general provision with broad sweep states 

“[e]very violation of this Code is punishable as a misdemeanor 

unless provision is otherwise made, and shall be punishable by 

a fine of not more than $1,000.00 or by imprisonment in the 

County Jail for a period of not more than six months, or by both 

a fine and imprisonment.” (Mun. Code, § 11.00(m).) This 

general provision also allows violations to be “charged as an 

infraction” or “addressed through the use of an Administrative 

Citation.” (Ibid.) 

The criminal complaint in this action charged another 

defendant, Omar Quartez Brown, with the same offenses under 

Municipal Code sections 104.15 and 12.21 as the Wheelers. It 

also charged Brown, in count 5, with selling cannabis in 

violation of Health and Safety Code section 11360, subd. (a)(2), 

and, in count 7, with violating Municipal Code section 

104.15(b)(2), which, like section 104.15(a)(1), prohibits 

participation in unlicensed or unapproved cannabis activities.6

B. Dismissal Proceedings

After pleading not guilty to the charges against her,

Wheeler filed a motion to dismiss them. The motion asserted 

the Municipal Code provisions underlying the charges were 

vague and overbroad. It also, as relevant here, referenced a 

court’s authority under Penal Code section 1385, subdivision (a), 

6 Counts 1 through 4 of the complaint, which the People later 

characterized as a clerical error, were dismissed without objection. 
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5

“to dismiss an action on its own motion” in furtherance of justice.

It “respectfully invite[d]” the trial court to dismiss the charges 

on that basis. Wheeler’s papers stated facts favoring dismissal, 

including that, at age 85 and with a blemish-free record, she 

merely owned the premises at issue and lacked a “direct or even 

indirect connection” to or knowledge of the cannabis enterprise 

allegedly occurring there, which was “covert.” Wheeler’s 

attorney provided a statement in which he “declare[d] under 

penalty of perjury that” these facts favoring dismissal were “true 

and correct.”

The People opposed dismissal. Regarding section 1385, 

the People argued the statute did not allow defense-originated 

motions to dismiss and that dismissal would not further justice. 

The People argued a section 1385 dismissal based on lack of 

knowledge would be “contrary” to the strict liability nature of 

the charged Municipal Code offenses and would impair the city’s 

efforts to “mitigate the negative impacts” arising from the 

unregulated commercialization of cannabis. The People’s 

opposition proffered factual allegations about the charged 

offenses derived from their investigation. In particular, the 

People explained that city police, responding to complaints 

about cannabis sales on Wheeler’s property, had an informant 

purchase drugs from codefendant Brown. After confirming the 

absence of a cannabis license, the police returned to Wheeler’s 

property and arrested Brown. The People did not set forth any 

facts disputing Wheeler’s claimed lack of knowledge. Instead, 

the People argued that Wheeler had only offered mere 

“unsupported assertions,” and “no evidence,” of her claimed 

innocent mental state and good standing in the community.

At the motion hearing, Wheeler appeared in a wheelchair. 

In exploring the People’s opposition to dismissal, the trial court 
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

6

directed the following question to the People: “now, your 

position is that all Ms. Wheeler has done is be the owner of the 

property?” The People answered, “your honor, Ms. Wheeler is 

the owner of the property.” The trial court then asked, “you’re 

not suggesting that she has any contact with or any business 

position in running this illegal dispensary?” The People 

answered, “right.”

The trial court denied Wheeler’s motion for dismissal, 

agreeing with the People that she could not move for dismissal 

“in furtherance of justice” under section 1385. However, the 

trial court granted dismissal “on its own motion.” (See ibid.) In 

doing so, it repeated it was acting “on the court’s motion” and it 

“want[ed] to make that clear.” The trial court articulated 

several reasons for the dismissal, mentioning not only matters 

such as Wheeler’s age and exemplary record, but also the 

absence of anything “to suggest that she knows anything about 

this, other than the fact that she owns the property.”

The People appealed to the appellate division of the 

superior court, asserting the trial court erred by favorably 

considering Wheeler’s lack of knowledge, failing to consider the 

city’s interests in enforcing its cannabis laws, and relying on 

claims about Wheeler’s background and the alleged offense that 

were insufficiently supported by the evidence. The People also 

asserted that the trial court, though permitted to act on its own 

motion under section 1385 had improperly granted a defense 

motion to dismiss under the section. Wheeler, requesting 
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Opinion of the Court by Jenkins, J.

7

affirmance, argued the trial court’s section 1385 dismissal was

appropriate.7 

The appellate division reversed the section 1385 

dismissal. It first determined that the trial court had 

adequately considered the People’s law enforcement interests 

and that the People’s evidentiary concerns were unwarranted. 

Nevertheless, it concluded that the trial court erroneously 

viewed Wheeler’s lack of knowledge as mitigating her 

culpability because the charged offenses imposed strict liability. 

The appellate division explained, “It would be reasonable to 

conclude that a person having knowledge that criminal activity 

is afoot in committing a strict liability crime is aggravating. 

But, since the legislative scheme requires no proof of knowledge 

for a conviction, the lack of knowledge of a person engaged in 

committing such an offense is not mitigating.” According to the 

appellate division, the trial court’s consideration of lack of 

knowledge under these circumstances amounted to an 

impermissible “disagreement with the law” or a “disapproval of 

the impact” of the law on defendant. Despite viewing the trial 

court’s other reasons for dismissal as “proper,” the appellate 

division reversed the dismissal and remanded given the seeming 

7

In addition, Wheeler argued for the first time that a state 

law prohibiting the knowing rental of premises for the purpose of 

unlawful drug activities (Health & Saf. Code, § 11366.5, subd. (a)) 

preempted the municipal criminal prohibitions the city had 

invoked against her. The appellate division, and the Court of 

Appeal after it, rejected this argument. Although our grant of 

review included this preemption issue, we express no opinion on it 

given our disposition, in which we remand for dismissal under 

section 1385, and in light of our prerogative to “not decide every 

issue the parties raise or the court specifies.” (Cal. Rules of Court, 

rule 8.516(b)(3).)
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

8

centrality of Wheeler’s lack of knowledge to the trial court. It 

“express[ed] no opinion whether, on remand, the court should 

again consider using its Penal Code section 1385 discretion, and 

taking into account only appropriate considerations, the court 

should dismiss the action.” It also stated it had, in light of the

contemplated remand, no need to address whether the court 

adequately acted on its own motion.

Wheeler petitioned the appellate division for rehearing or, 

in the alternative, to certify the case for discretionary transfer 

to the Court of Appeal “to secure uniformity of decision or to 

settle an important question of law.” (Cal. Rules of Court, rule 

8.1005(a)(1); see generally Snukal v. Flightways 

Manufacturing, Inc. (2000) 23 Cal.4th 754, 762–764 & fn. 2 

[discussing this process in the context of rules and statutes

applicable prior to unification of the municipal and superior 

courts].) She asserted that the appellate division erroneously 

embraced the “novel” legal theory that lack of knowledge could 

not be a dismissal factor under section 1385. Her requests were 

denied. Wheeler then asked the Court of Appeal to directly 

accept discretionary transfer pursuant to California Rules of 

Court, rule 8.1006. This request, too, was denied. 

Thereafter, Wheeler, petitioned the Court of Appeal for a 

writ of mandate that would direct the appellate division to “set 

aside its opinion” and affirm the trial court’s dismissal. After a 

summary denial, we granted review. (See generally Randone v. 

Appellate Department (1971) 5 Cal.3d 536, 542–543.) We 

transferred the case back to the Court of Appeal, instructing it 

to vacate its summary denial and issue an order to show cause, 

facilitating a written opinion on the scope of section 1385. The 

Court of Appeal ultimately affirmed the appellate division, 

agreeing that dismissal could not be premised on Wheeler’s lack 
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

9

of knowledge. (Wheeler v. Appellate Division of Superior Court

(2021) 72 Cal.App.5th 824.) The Court of Appeal also agreed 

with the appellate division that remand to the trial court was 

appropriate for consideration of dismissal under appropriate 

factors. (Id. at p. 843.) We then granted review outright.

II. DISCUSSION

A. Penal Code Section 1385 and its Origins

The trial court’s power to dismiss a criminal action “in 

furtherance of justice” has been “recognized by statute since the 

first session of the Legislature in 1850.” (People v. Williams

(1981) 30 Cal.3d 470, 478 (Williams I); see Stats. 1850, ch. 119, 

§ 629, p. 323; see also Stats. 1851, ch. 29, § 597, p. 279.) 

Legislators at that first session borrowed dismissal provisions 

from a draft of the Field Code of Criminal Procedure prepared 

for the State of New York. (Kleps, The Revision and Codification 

of California Statutes 1849–1953 (1954) 42 Cal. L.Rev. 766, 766,

fn. 4; Commissioners on Practice and Pleadings, The Code of 

Criminal Procedure of the State of New York (1850) pp. 344–345 

(Commissioners’ Report); People v. Douglass (1983) 60 N.Y.2d 

194, 202–204.) The Field Code’s proposed dismissal provisions, 

sections 739 and 740, sought to abolish the practice of nolle 

prosequi, inherited from England, under which prosecutors had 

the prerogative to abandon a prosecution.8 Instead, the code 

8 See 16 The American and English Encyclopedia of Law 

(1891) page 713, for one definition of nolle prosequi in criminal 

prosecutions: “A nolle prosequi in criminal proceedings is the 

voluntary withdrawal by the prosecuting authority of present

proceedings on a particular bill or information. Many reasons may 

arise which make it desirable to enter it before trial, and the 

practice is usual after verdict to enter it upon objectionable counts 
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10

would authorize courts to dismiss in the furtherance of justice, 

either on the motion of a prosecutor or on their own motion. 

(Commissioners’ Rep., at p. 343.) The code’s authors believed 

that without these innovations, courts would be “unable, no 

matter how unjust may be the continuance of the indictment 

against the defendant, to relieve him from that injustice.” (Ibid.) 

California was the first state to adopt an “in furtherance of 

justice” dismissal statute. New York itself followed in 1881, and, 

today, just shy of one-third of the states have such statutes. 

(People v. Douglass, supra, 60 N.Y.2d at pp. 202–204; Roberts,

Dismissals as Justice, 69 Ala. L.Rev. 327, 332 & fn. 21 (2017) 

[collecting state statutes]; Wirenius, Legal Developments: A 

Model of Discretion: New York’s “Interests Of Justice” Dismissal 

Statute (1984) 58 Alb. L.Rev. 175, 178.)

Penal Code section 1385, subdivision (a),9in language 

essentially unchanged since 1850, authorizes a trial judge, 

“either on motion of the court or upon the application of the 

prosecuting attorney, and in furtherance of justice, [to] order an 

action to be dismissed.” (§ 1385, subd. (a); see Williams I, supra, 

30 Cal.3d at p. 478 & fn. 5.) The statute allows a court, 

postindictment, to “take[] charge of the prosecution, and act[] for 

the people,” bestowing on the court “power to dismiss, as the 

or parts of counts, so as to disencumber the record and confine the 

verdict to those which are good. Nolle prosequi after verdict is 

sometimes used as a method for recording executive clemency.”

9 The provision governing dismissals “in furtherance of 

justice” now resides in subdivision (a) of section 1385. It was 

placed into a subdivision in 1986 (Stats. 1986, ch. 85, § 2, p. 211) 

and other provisions not at issue here were added later (People v. 

Bonnetta (2009) 46 Cal.4th 143, 151, fn. 4). When we refer to 

section 1385 or quote cases that refer to section 1385, this indicates 

a reference to the provision now found in subdivision (a).
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attorney-general in England holds the power to enter a nolle 

prosequi, by virtue of the office and the law.” (People v. More

(1887) 71 Cal. 546, 547; see People v. Bonnetta, supra, 46 Cal.4th 

143, 149; see also § 1386 [abolishing nolle prosequi and stating 

prosecutors may not discontinue prosecution except pursuant to 

§ 1385].) To prevent abuse of the dismissal power, the 

Legislature requires courts to specify the reasons for any 

dismissal in court minutes for public scrutiny. (Bonnetta, at pp. 

149–150.) A dismissal without reasons is invalid. (Ibid.)

“[I]t is well established that a court may exercise its power 

to strike under section 1385 ‘before, during or after trial,’ up to 

the time judgment is pronounced.” (People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, 524, fn. 11 (Romero).) Although 

“the power to dismiss an action includes the lesser power to 

strike factual allegations relevant to sentencing, such as the 

allegation that a defendant has prior felony convictions” (Id. at 

p. 504), this case concerns the power to dismiss “an action” in 

full. A trial court has broad, though not absolute, discretion to 

dismiss under section 1385. (Romero, at p. 530.) On appeal, a 

reviewing court typically asks whether dismissal was an abuse 

of discretion. (People v. Memro (1995) 11 Cal.4th 786, 835–836, 

citing People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 

502 (Howard).) But the interpretation of a statute remains a 

question of law subject to de novo review. (People v. Lewis (2021) 

11 Cal.5th 952, 961.)

B. “In Furtherance of Justice” and Consideration of 

Culpability

Section 1385 broadly “ ‘permits dismissals in the interest 

of justice in any situation where the Legislature has not clearly 

evidenced a contrary intent.’ ” (People v. Tirado (2022) 12 
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Cal.5th 688, 696.) Yet the statutory requirement that a 

dismissal be “in furtherance of justice” still cabins a trial court’s 

authority. (People v. Orin (1975) 13 Cal.3d 937, 945 (Orin).) “As 

the Legislature has provided no statutory definition of this 

[requirement], appellate courts have been faced with the task of 

establishing the boundaries of the judicial power conferred by 

the statute as cases have arisen challenging its exercise.”10 

(Orin, at p. 945.) We have held that section 1385’s reference to 

“in furtherance of justice” requires “ ‘consideration both of the 

constitutional rights of the defendant and the interests of society 

represented by the People.’ ” (Orin, at p. 945.) “At the very 

least, the reason for dismissal must be ‘that which would 

motivate a reasonable judge.” (Ibid.) “The basic ground 

involved, furtherance of justice, is the same whether the court 

10 In comparison, New York amended its “in furtherance of 

justice” dismissal statutes in the latter part of the 20th century to 

list a variety of pertinent factors. These are “(a) the seriousness 

and circumstances of the offense; [¶] (b) the extent of harm caused 

by the offense; [¶] (c) the evidence of guilt, whether admissible or 

inadmissible at trial; [¶] (d) the history, character and condition of 

the defendant; [¶] (e) any exceptionally serious misconduct of law 

enforcement personnel in the investigation, arrest and prosecution 

of the defendant; [¶] (f) the purpose and effect of imposing upon 

the defendant a sentence authorized for the offense; [¶] (g) the 

impact of a dismissal on the safety or welfare of the community; 

[¶] (h) the impact of a dismissal upon the confidence of the public 

in the criminal justice system; [¶] (i) where the court deems it 

appropriate, the attitude of the complainant or victim with respect 

to the motion; [¶] (j) any other relevant fact indicating that a 

judgment of conviction would serve no useful purpose.” (N.Y. 

Crim. Proc. Law § 170.40 [governing misdemeanors and 

infractions]; accord, id., § 210.40 [governing felonies]; see generally 

People v. Rickert (1983) 58 N.Y.2d 122, 127 [discussing the 

development of these laws and the then-recent amendments].)
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acts on motion of the prosecution or its own motion . . . .” 

(Howard, supra, 69 Cal.2d at p. 503.) 

In our attempt to render section 1385’s in-furtherance-ofjustice requirement “more determinate,” we have interpreted 

the term “justice” to refer to the justice “within” or “intrinsic” to 

the legal “scheme to which the defendant is subject.” (People v. 

Williams (1998) 17 Cal.4th 148, 160–161 (Williams II).) To look 

outside the scheme would more greatly risk elevating 

idiosyncratic views of justice above the duly enacted laws of our 

chosen representatives. (Ibid.; see People v. Wallace (2004) 33 

Cal.4th 738, 747 (Wallace).) “The scheme itself constitutes the 

‘letter’ of the law. More than perhaps any other source it may 

also suggest its ‘spirit.’ For even when it does not declare its 

purpose in ipsissimis verbis, it indicates its objective through its 

scope and operative terms.” (Williams II, at p. 160.) 

To illustrate this limiting principle, courts asked to 

dismiss a prior conviction at sentencing that would significantly 

enhance punishment under California’s three strikes law may 

not rely on factors extrinsic to that sentencing scheme, “such as 

the mere desire to ease court congestion” or “bare antipathy” for 

the three strikes law or the sentences it prescribes. (Williams

II, supra, 17 Cal.4th at p. 161; see Wallace, supra, 33 Cal.4th at 

p. 747; see also People v. Curtiss (1970) 4 Cal.App.3d 123, 126.) 

Instead, sentencing courts consider factors intrinsic to that 

scheme, “as informed by generally applicable sentencing

principles,” such as the nature of the charged and prior offenses 

and the defendant’s “background, character, and prospects.” 

(Williams II, at p. 160.)

Here, we address not a sentencing scheme but “the 

statutory scheme which has been established for the prosecution 
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of crimes.” (Orin, supra, 13 Cal.3d at p. 947.) In this context, 

we have noted the People’s “legitimate interest in ‘the fair 

prosecution of crimes properly alleged.’ ” (Ibid.) “ ‘ “[A] 

dismissal which arbitrarily cuts those rights without a showing 

of detriment to the defendant is an abuse of discretion.” ’ ” 

(Ibid.) Put another way, “[p]ermitting trial judges to make 

liberal use of section 1385 to avoid criminal prosecutions where 

probable cause exists to believe conviction is warranted would 

be contrary to the adversary nature of our criminal procedure as 

prescribed by the Legislature.” (Ibid.) “Under ordinary 

circumstances, it would frustrate the orderly and effective 

operation of our criminal procedure as envisioned by the 

Legislature if without proper and adequate reason section 1385 

were used to terminate the prosecution of defendants for crimes 

properly charged in accordance with legal procedure.” (Ibid.) 

And yet, we have also recognized that discretionary dismissal 

under section 1385 operates independently of a “prosecutor’s 

charging decisions,” for “[a]ny decision to dismiss is necessarily 

made after the prosecutor has invoked the court’s jurisdiction by 

filing criminal charges. ‘[O]nce the state is ready to present its 

case in a judicial setting, “the prosecutorial die has long since 

been cast.” ’ ” (Romero, supra, 13 Cal.4th at p. 514, italics 

omitted.) 

Moreover, evidence that a defendant is guilty of a charge, 

or even the rendering of a guilty verdict on that charge, does not 

preclude dismissal under section 1385. A “proper and adequate 

reason,” as noted above, could make such dismissals 

appropriate, taking the case out of the “ordinary circumstances”

applicable to properly charged crimes. (Orin, supra, 13 Cal.3d 

at p. 947.) “[A] section 1385 dismissal may not even ‘involve a 

consideration of the merits of the cause’ ” and “often [is] not 
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based on the insufficiency of the evidence as a matter of law.” 

(People v. Hatch (2000) 22 Cal.4th 260, 273.)11 “Many cases 

might arise when in furtherance of justice we would be called 

upon to dismiss a good indictment.” (People v. March (1856) 6 

Cal. 543, 546.)12

Indeed, in Howard, supra, 69 Cal.2d 491, we addressed a 

court’s power to dismiss a charge following a guilty verdict 

where the trial evidence, though in conflict, supported 

conviction. We said, “[i]f a trial judge is convinced that the only 

purpose to be served by a trial or a retrial is harassment of the 

defendant,” that judge “should be permitted to dismiss 

notwithstanding the fact that there is sufficient evidence of 

guilt, however weak, to sustain a conviction on appeal.” (Id. at 

p. 504.) We continued, “[t]he Legislature has given the trial 

court the power to dismiss under the broad standard of justice, 

and in view of the high caliber of our trial judges and their 

responsibility to the electorate we believe that recognition of 

such power in cases of conflicting evidence will not result in 

abuse but to the contrary believe that the due exercise of the 

power to dismiss in proper cases of conflicting evidence will 

further justice.” (Ibid.) We then offered case-specific and 

11 Thus, it is well established that section 1385 dismissals are 

not generally construed as “an acquittal for legal insufficiency” of 

the evidence. (People v. Hatch, supra, 22 Cal.4th at p. 273.)

12 Other Penal Code provisions allow dismissal for an 

indictment’s failure to state an offense or for the absence of 

probable cause to believe a defendant has committed an offense. 

(See §§ 1004, subd. (4), 991, subd. (d).) Since the 1951 amendments 

to section 1385, it has provided that “[a] dismissal shall not be 

made for any cause that would be ground of demurrer to the 

accusatory pleading.” (§ 1385, subd. (a); Stats. 1951, ch. 1674, § 

141, p. 3857.)
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defendant-specific factors for trial courts to consider when 

contemplating dismissal in these circumstances. (Id. at p. 505.) 

These factors include “the evidence indicative of guilt or 

innocence, the nature of the crime involved, the fact that the 

defendant has or has not been incarcerated in prison awaiting 

trial and the length of such incarceration, the possible 

harassment and burdens imposed upon the defendant by a 

retrial, and the likelihood, if any, that additional evidence will 

be presented upon a retrial. When the balance falls clearly in 

favor of the defendant, a trial court not only may but should 

exercise the powers granted . . . by the Legislature and grant a 

dismissal in the interests of justice.” (Ibid.) Later, in Orin, we 

noted “[i]t has been said that some of these factors apply as well 

to dismissals before trial.” (Orin, supra, 13 Cal.3d at p. 946, 

citing People v. Ritchie (1971) 17 Cal.App.3d 1098, 1105.) In 

Orin, we rejected a trial court’s unexplained use of section 1385 

to dismiss two properly charged criminal counts where there 

was probable cause of guilt “simply because defendant entered 

a plea of guilty to” another count. (Orin, at pp. 947–948.) 

However, in reaching our conclusion we nonetheless noted that 

dismissals in that context could be appropriate if a trial court’s 

discretion were “reasonably exercised” and “in the furtherance 

of justice.” (Id. at p. 949.)

In evaluating evidence of guilt and the nature of a 

defendant’s criminal activity in the context of a section 1385 

dismissal, a defendant’s level of culpability is relevant. Indeed, 

“ ‘[m]odern penal law is founded on moral culpability” and 

“ ‘[o]ur collective conscience does not allow punishment where it 

cannot impose blame.’ ” (People v. Roberts (1992) 2 Cal.4th 271, 

316.) We have remarked that many of the Howard factors are 

“mirror[ed]” by the mitigating circumstances set forth in the 
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Opinion of the Court by Jenkins, J.

17

California Rules of Court, rule 4.423, that might appropriately 

permit a trial court, at sentencing after a finding of guilt, to 

select and impose a lesser term of confinement. (People v. 

Thomas (1992) 4 Cal.4th 206, 212; see id. at pp. 211–212 

[referring to the previous rule on this topic, Cal. Rules of Court, 

former rule 423].) These rule-based mitigating circumstances 

included matters tied to culpability, including “facts relating to 

the crime (such as defendant’s minor role or laudable motive in 

the offense, the small likelihood of its recurrence, the presence 

of duress or coercion by others, or a mistaken claim of right by 

the defendant), and facts relating to the defendant (including 

[an] insignificant prior record, mental or physical condition 

reducing . . . culpability, or restitution or satisfactory 

performance on probation or parole).” (Thomas, at pp. 211–212; 

cf. Cal. Rules of Court, rule 4.423(a)(1) [a mitigating 

circumstance includes when “[t]he defendant was a passive 

participant or played a minor role in the crime”].) 

Culpability has, in practice, played a role in our section 

1385 cases considering evidence of guilt or the nature of an 

offense. In Williams I, supra, 30 Cal.3d 470, we held a trial court 

could dismiss, after trial in a murder case, an evidencesupported special circumstance finding that would have 

subjected a defendant to a mandatory life sentence without the 

possibility of parole. The trial court could consider the “facts of 

the offense,” such as the defendant’s reduced culpability and 

criminal intent as compared to codefendants, so that “the 

punishment [could] fit the crime as well as the perpetrator.” (Id.
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Opinion of the Court by Jenkins, J.

18

at p. 489; see id. at pp. 485, 489–490.)13 Likewise, in cases 

involving the previously mentioned three strikes law, “generally 

applicable sentencing principles,” including culpability, may 

inform the trial court’s discretion to dismiss prior strike 

convictions that would otherwise enhance a sentence. (Williams

II, supra, 17 Cal.4th at pp. 160–161.) Thus, in Williams II, 

declining to dismiss a prior strike conviction was appropriate 

when the record “was devoid of mitigation.” (Id. at p. 163.) In 

Romero, we noted that “evidence relevant to the defendant’s 

culpability” would aid courts’ decisionmaking regarding 

dismissal of a prior strike conviction. (Romero, supra, 13 

Cal.4th 497, 524, fn. 11.) And in People v. Vargas (2014) 59 

Cal.4th 635, 648, we explained courts sentencing under the 

three strikes law could employ section 1385 dismissals to align 

punishment under that law with the “relative moral 

blameworthiness” of prior offenses. 

Williams I, Williams II, Romero, and Vargas considered 

culpability in the context of striking special circumstance or 

enhancements at sentencing, while Howard involved dismissal 

of an entire criminal charge after an initial trial with a guilty 

verdict but conflicting evidence. Additionally, our Courts of 

Appeal have long envisioned dismissals of entire charges, 

including dismissals before trial as Orin permits, that account 

for individualized considerations including reduced culpability, 

despite indications of guilt. (See Orin, supra, 13 Cal.3d at p. 946 

[noting application of the Howard factors pretrial, before any 

13 Almost a decade after Williams I, the electorate enacted 

section 1385.1, which states, “[n]otwithstanding Section 1385 or 

any other provision of law, a judge shall not strike or dismiss 

any special circumstance . . . .” (§ 1385.1; People v. Fuentes

(2016) 1 Cal.5th 218, 230, fn. 9.)
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Opinion of the Court by Jenkins, J.

19

determination of guilt].) For example, in People v. Cina (1974) 

41 Cal.App.3d 136, the court suggested a trial court could 

consider, either before or after trial, dismissal of a marijuana 

cultivation charge when the defendant grew only three plants in 

a backyard garden, which the appellate court deemed “petty 

when viewed in the total context of drug trafficking.” (Id. at p. 

140.) In Bosco v. Justice Court (1978) 77 Cal.App.3d 179, the 

court stated that although a dental patient’s spouse who ingests 

one of the patient’s prescribed codeine tablets might violate a 

misdemeanor state drug law, “a judge would probably choose to 

dismiss the complaint in the interests of justice as being de 

minimis.” (Id. at p. 184.) In People v. Orabuena (2004) 116 

Cal.App.4th 84, the court asked a lower court, on remand, to 

look at individualized considerations and decide whether to 

dismiss a Vehicle Code misdemeanor conviction when dismissal 

would allow the defendant to access a diversion program to 

address convictions in the same proceeding for nonserious, 

nonviolent drug charges. (Id. at pp. 88, 99.) And more recently, 

in People v. S.M. (2017) 9 Cal.App.5th 210, the court affirmed 

dismissal of felony and misdemeanor fraud charges “allegedly 

arising out of the submission of a single false insurance claim to 

[an] automobile insurer in the amount of $360.” (Id. at p. 213.) 

The dismissal was seen as permissible given the small amount 

at issue; the lack of actual loss to the insurer; defendant’s age, 

lack of criminal history, and good behavior during the pendency 

of the case; and the impact a conviction would have on the 

defendant’s professional career. (Id. at pp. 218–219.)

In contrast with these decisions, two decisions from the 

Fourth District Court of Appeal, Division One — both from 

1972 — reversed section 1385 dismissals of charges when guilt 

was uncontested and the trial court acted on concerns about the 
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Opinion of the Court by Jenkins, J.

20

law’s impact on the particular defendant without due concern 

for the legal scheme at issue. The Court of Appeal expressed 

misgivings about the practice, fearing it could elevate “the rule 

of men above the rule of law” or “stultify [a] statutory scheme.” 

(People v. McAlonan (1972) 22 Cal.App.3d 982, 987 (McAlonan); 

see People v. Superior Court (1972) 26 Cal.App.3d 668, 671 

(Montano).) In Orin, we characterized decisions such as these 

as reflecting the appellate courts’ “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.” (Orin, supra, 13 Cal.3d at pp. 946–947.) 

But these Fourth District decisions stopped short of 

forbidding consideration of matters such as a defendant’s 

culpability. McAlonan, supra, 22 Cal.App.3d at page 987, held 

that dismissal could not “be used for rehabilitative purposes” 

divorced from a consideration of the circumstances of the case, 

the law at issue, and the interests of both society and the 

defendant. The appellate court held it was error to dismiss a 

charge solely to obtain a preferred rehabilitative outcome,

defendant’s enlistment in the Navy, which the trial court 

believed a conviction would prevent. (Id. at pp. 984–985, 987.) 

Likewise, in Montano, supra, 26 Cal.App.3d at page 671, the 

appellate court rejected a dismissal made for “purely subjective” 

reasons to avoid the “heavy processes of the law” when there was 

no question as to the fairness of trial proceedings or defendant’s 

guilt. The resolution reached in McAlonan and Montano turned 

on each appellate court’s inability to identify a “proper and 

adequate reason” that might have weighed in favor of dismissal 

on the records presented. (See Orin, supra, 13 Cal.3d at p. 947.) 

Critically missing from the trial courts’ brief statements of 
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Opinion of the Court by Jenkins, J.

21

reasons for dismissal in these cases, and thus escaping appellate 

review, was consideration of the charged conduct’s relationship 

to the “scheme to which the defendant [was] subject” (Williams

II, supra, 17 Cal.4th at p. 160), and, for instance, defendant’s 

culpability in relation to that scheme.

Keeping with our decisions and the general approach of 

the appellate courts, we do not foreclose trial courts from 

considering among the dismissal considerations the nature of a 

charged offense, and specifically a defendant’s minimal 

culpability, despite indications of guilt. Instead, we clarify that 

trial courts may, as appropriate, consider the nature of a 

charged offense and a defendant’s minimal culpability in 

weighing all the considerations for and against dismissal in 

furtherance of justice under section 1385, subdivision (a),

whether before or after trial.

Still, we hasten to reiterate the proper concern expressed 

in the Fourth District decisions, McAlonan and Montano, for the 

evenhanded rule of law in criminal prosecutions. Section 1385 

dismissals must avoid subjective judgments, a “formless” 

justice, or the retooling of disfavored statutes based on 

antipathy for legislative choices. (Williams II, supra, 17 Cal.4th 

at p. 160; see id. at pp. 160–161.) We have abjured “liberal use” 

of the dismissal power to halt prosecutions where probable 

cause exists to proceed, and stated such prosecutions should, 

“[u]nder ordinary circumstances,” proceed. (Orin, supra, 13 

Cal.3d at p. 947.) We have also said the circumstances must be 

“ ‘extraordinary’ ” that would take a defendant “ ‘outside the 
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Opinion of the Court by Jenkins, J.

22

spirit of the very [statutory] scheme within which he squarely 

falls.’ ” (People v. Carmony (2004) 33 Cal.4th 367, 378.)14 

Before concluding this discussion, we note New York 

courts have viewed that state’s former15 “in furtherance of 

justice” dismissal statute, New York Criminal Procedure Law 

section 671, as allowing culpability considerations. That 

section, as discussed, derived from the same proposed Field 

Code as section 1385. It permitted a New York court to, “ ‘either 

of its own motion, or upon the application of the district 

attorney, and in furtherance of justice, order an action, after 

indictment, to be dismissed.’ ” (People v. Douglass, supra, 60 

N.Y.2d at p. 204; see id. at pp. 202–204.) When California 

statutes have shared text and origins with New York statutes in 

this way, we have previously found New York decisional law 

interpreting its statutes to be “persuasive” (Estate of Howell

(1958) 50 Cal.2d 211, 215; Estate of Willis (1950) 34 Cal.2d 782, 

787) and worthy of “great weight” (Harrison v. Sutter S. R. Co.

(1897) 116 Cal. 156, 168), even if not controlling (Milgate v. 

Wraith (1942) 19 Cal.2d 297, 300).

14 Prosecutors, in exercising their discretion, may also keep, as 

appropriate, some potential defendants with minimal culpability 

from facing criminal processes that would not further justice.

“[N]umerous factors properly may enter into a prosecutor’s 

[charging] decision[s] . . , such as a defendant’s background and 

the severity of the crime, . . . so long as there is no showing that a 

defendant ‘has been singled out deliberately for prosecution on the 

basis of some invidious criterion.’ ” (People v. Wilkinson (2004) 33 

Cal.4th 821, 838–839.)

15 As noted (fn. 10, ante), New York amended its “in 

furtherance of justice” dismissal statutes, which now articulate a 

variety of factors for courts to consider when weighing dismissal, 

including the circumstances of the offense. 
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Opinion of the Court by Jenkins, J.

23

New York’s highest court stated that the power to dismiss 

an action in furtherance of justice under former section 671 

“ ‘allow[ed] the letter of the law gracefully and charitably to 

succumb to the spirit of justice,’ ” “even to the disregard of legal 

or factual merit” of the prosecution. (People v. Rickert, supra, 58 

N.Y.2d at p. 126.) It noted trial court decisions under that 

statute in which reduced culpability played a part. (Id. at p. 132, 

citing People v. Davis (Super.Ct. 1967) 286 N.Y.S.2d 396, 397 

[college student charged with a felony for possessing one ounce 

of marijuana]; People v. Campbell (Super.Ct. 1966) 267 N.Y.S.2d 

5, 6 [then-husband charged with abducting a woman two 

months before her 18th birthday when the two of them decided 

to drive out of state to wed].)

It might be possible, as have some courts in other states, 

to read the “furtherance of justice” statutes more narrowly as 

allowing dismissals only in the face of arbitrary or nefarious acts 

by the government. (See State v. Brumage (Iowa 1989) 435 

N.W.2d 337, 340 [comparing more restrictive jurisprudence on 

the topic to New York’s and California’s].) But such a narrow 

reading would be inconsistent with the origins of section 1385, 

and, importantly, with our long-standing interpretation of that 

statute as permitting a range of considerations to be part of the 

dismissal calculus. In sum, and as explained above, we conclude 

that a defendant’s reduced culpability may be a proper section 

1385 dismissal consideration.

C. Culpability and the City’s Ordinances

To resolve this case, we need not address the full extent of 

a trial court’s discretion to dismiss a charge under section 1385 

based in part on a defendant’s reduced culpability. Nor need we

evaluate the correctness of each Court of Appeal decision 
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Opinion of the Court by Jenkins, J.

24

permitting a 1385 dismissal discussed in the previous section or 

fully align ourselves with the New York dismissal regime. This 

is in large part because the municipal enactments at issue here 

at most authorize misdemeanor prosecutions and are clear in 

contemplating noncriminal treatment for the least culpable 

violators such as Wheeler. As explained below, this affects how

we view the consideration of Wheeler’s mental state as part of 

the section 1385 dismissal inquiry.

Here, the People charged Wheeler with violating three 

Municipal Code provisions. Each provision reaches a wide 

range of conduct, some significantly more culpable than others. 

First, Municipal Code section 104.15(a) reaches those who 

“establish” or “operate” (id., § 104.15(a)(1)) unlicensed 

commercial cannabis activity, but it also reaches, without 

regard to mental state, those who “participate” in that activity 

and those “renting, leasing to or otherwise allowing” (id., § 

104.15(a)(3)) that activity. Second, Municipal Code section 

104.15(b) reaches at least as broad a swath of behavior, 

including, again without regard to mental state, those who own, 

operate, participate in, and lease to, or allow land use by, an 

unlicensed cannabis establishment. The third provision, 

Municipal Code section 12.21, falls under the city’s 

comprehensive zoning plan (see id., § 12.00) and prohibits 

essentially any building, and land development, or use that has 

been undertaken without “all permits and licenses required by 

all laws and ordinances.”16

16 The parties, before us, agree the ordinances create strict 

liability offenses with no mens rea requirements. We assume for 

purposes of our analysis that the parties are correct. 
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Opinion of the Court by Jenkins, J.

25

Each of these municipal code provisions subjects violators 

to the same maximum misdemeanor penalty of up to six months 

in county jail and up to a $1,000 fine. And, just as these 

provisions contemplate a wide range of culpability, they 

contemplate a correspondingly wide range of potential 

consequences, including, as noted, noncriminal sanctions. 

Though the municipal provisions authorize treatment of 

violators as misdemeanants, violators lacking a “financial 

interest” in the unlicensed cannabis establishment may face 

only “a citation issued under the City’s Administrative Citation 

Enforcement Program.” (Mun. Code, § 104.15(d); cf. id., 

§ 11.00(m) [allowing, more broadly, municipal code violations to 

be addressed as infractions or with noncriminal administrative 

citations]; id., § 11.2.01 [noting the alternative, noncriminal 

nature of the citation process].) Thus the text of the municipal 

code itself contemplates that some violations pertaining to 

unlicensed cannabis activity would not merit invoking the 

criminal justice system and its sanctions.

17

17 Sometime after dismissal of Wheeler’s charges, the 

Legislature conferred on trial courts discretion to offer defendants 

charged with misdemeanors a diversion program, which, if 

successfully completed, would result in dismissal. (See § 1001.95, 

subds. (a)–(c); Stats. 2020, ch. 334, § 1; Islas v. Appellate Division

of Superior Court (2022) 78 Cal.App.5th 1104, 1110, fn. 1.) No 

party here argues the new diversion statute applies at this time; 

although the People state that, should we affirm and remand the 

case, the trial court would “have the opportunity to apply the 

judicial diversion statute.” The diversion statute plainly offers a 

path to dismissal that is more roundabout than the path available 

under section 1385, subdivision (a). But it suggests the 

Legislature’s ultimate comfort with not imposing criminal 

sanctions for some class of misdemeanor defendants. The People 
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Opinion of the Court by Jenkins, J.

26

Wheeler’s alleged involvement in the crimes charged 

relates to her ownership of the property; she lacked “any contact 

with or any business position in running [the] illegal 

dispensary.” We can readily envision myriad ways in which a 

defendant landlord might be viewed as more culpable while still 

lacking knowledge of unlicensed cannabis activity occurring on 

its property. For instance, a defendant could be aware its tenant 

sells cannabis at other locations. Or a defendant could be aware 

of cannabis sales at the defendant’s property, perhaps within a 

storefront bearing signs advertising cannabis. Or a defendant 

might have some role in the business without being aware of its 

unlicensed status. The trial court could reasonably locate 

Wheeler’s place at the bottom end of the spectrum of unknowing 

but violative conduct when considering “the nature of the crime” 

and the “ ‘evidence indicative of guilt or innocence.’ ” (Orin, 

supra, 13 Cal.3d at p. 946.) Where, as here, the laws at issue 

permit noncriminal treatment of the least culpable violators, a 

dismissal under section 1385 that references a defendant’s

minimal, bottom-of-the-spectrum culpability as one of the 

dismissal considerations does not, simply by doing so, go beyond 

the justice internal to the laws or evince bare antipathy for 

them.

According to the appellate division, the trial court should 

not have considered Wheeler’s lack of knowledge at all because 

she was accused of a strict liability offense and her lack of 

knowledge, therefore, neither rendered her innocent nor was it 

“mitigating.” But any circumstance of a crime, whether or not 

do not argue the diversion statute in any way limits section 1385, 

subdivision (a)’s availability to dismiss misdemeanors, and in 

particular, Wheeler’s.
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Opinion of the Court by Jenkins, J.

27

necessary to prove an element of the crime, might render a 

defendant less culpable without rendering her innocent. And 

“mitigating” circumstances, to use the language of the appellate 

division, are ordinarily thought to include circumstances of the 

crime itself that, although not proving innocence, lessen 

culpability. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1232 

[“factor (a) of section 190.3 allows the sentencer to evaluate all 

aggravating and mitigating aspects of the capital crime itself”

(italics omitted)]; Cal. Rules of Court, rule 4.423 

[“Circumstances in mitigation include factors relating to the 

crime and factors relating to the defendant”]; People v. Thomas, 

supra, 4 Cal.4th at p. 212 [mitigation factors at sentencing 

mirror those at play in a section 1385 dismissal decision].) As 

noted in the previous section, dismissal despite indications of 

guilt does not inexorably equate with a bare antipathy for the 

law that would invalidate section 1385 relief. (See ante, pt.

II.B.) Further, innocence, or failure of evidence on a crime’s 

element, may be better addressed through nondiscretionary 

procedures. (See ante, fn. 12, noting statutes authorizing 

dismissal for failure to state an offense or for the absence of 

probable cause.)

Though Wheeler has not disputed her technical violations 

of the municipal laws, we hold that, given the nature of those 

laws, the trial court had discretion to consider the nature of the 

alleged violations and Wheeler’s lack of knowledge in weighing 

all the considerations for and against dismissal in furtherance 

of justice under section 1385.

D. Remaining Matters

The People advance additional arguments against 

dismissal. First, they argue that even if the trial court could
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

28

consider Wheeler’s lack of knowledge in the exercise of its 

discretion, the appellate division’s reversal of the dismissal 

should stand because “[t]here was no substantial evidence to 

support the assertion [Wheeler] lacked knowledge of the 

unlicensed commercial cannabis activity on her property, and 

the trial court’s subsequent dismissal on that basis was an abuse 

of discretion.” In particular, the People fault the trial court’s 

reliance on sworn representations from defense counsel, rather 

than from Wheeler herself, regarding her mental state. Wheeler 

responds that the People forfeited this argument by not 

objecting to the materials before the court and by conceding 

Wheeler’s lack of knowledge. 

Our view of the record better coincides with Wheeler’s. 

The People’s written opposition to Wheeler’s dismissal 

invitation did not alert the court to specific evidentiary concerns 

to her asserted lack of knowledge or offer contradictory facts to 

rebut Wheeler’s contention the dispensary’s operation was 

“covert.” Rather, the People argued Wheeler “has presented no 

evidence” and “simply makes a number of unsupported 

assertions.” The People continued, “there is no evidence that 

she had no connection to the illegal cannabis business; and no 

evidence that she did not know that the activity was occurring 

on her property.” Later, at the hearing where the trial court 

granted dismissal on its own motion, the court cited Wheeler’s 

lack of any knowledge as a factor favoring dismissal. 

Significantly, the People offered no challenge to that assertion 

nor any further contention regarding Wheeler’s mental state. 

Nor did the People request an opportunity to test Wheeler’s 

claims. Instead, despite lodging other objections to the court’s 

dismissal, the People conceded that Wheeler was nothing more 

than a property owner and the People were “not suggesting she 
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Opinion of the Court by Jenkins, J.

29

has any contact with or any business position in running [the] 

illegal dispensary.”

A “finding shall not be set aside, nor shall [a] judgment or 

decision based thereon be reversed, by reason of the erroneous 

admission of evidence unless . . . [¶] . . . [t]here appears of record 

an objection to or a motion to exclude or to strike the evidence 

that was timely made and so stated as to make clear the specific 

ground of the objection or motion.” (Evid. Code, § 353, subd. (a).) 

“ ‘ “ ‘Specificity is required both to enable the court to make an 

informed ruling on the . . . objection and to enable the party 

proffering the evidence to cure the defect in the evidence.’ ” ’ ” 

(People v. Jones (2013) 57 Cal.4th 899, 977.) “ ‘[T]he objection 

must be made in such a way as to alert the trial court to the 

nature of the anticipated evidence and the basis on which 

exclusion is sought, and to afford the [party offering evidence] 

an opportunity to establish its admissibility.’ ” (People v. 

Partida (2005) 37 Cal.4th 428, 435.) A generic objection that 

fails to specify particular grounds for exclusion is insufficient. 

(People v. Rundle (2008) 43 Cal.4th 76, 115, overruled on other 

grounds in People v. Doolin (2009) 45 Cal.4th 390.) Even a “bare 

reference” to a specific objection may fall short. (People v. 

Alvarez (1996) 14 Cal.4th 155, 186.) 

Although a party may challenge the sufficiency of the 

evidence supporting a trial court’s ruling for the first time on 

appeal (see People v. Butler (2003) 31 Cal.4th 1119, 1126), that 

party may not, under the guise of a substantial evidence

challenge, newly contest what materials the trial court should 

have considered. “[E]vidence which is admitted in the trial court 

without objection, although incompetent, should be considered 

in support of that court’s action [citations], and objection may 

not be first raised at the appellate level.” (Estate of Fraysher
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

30

(1956) 47 Cal.2d 131, 135.) “ ‘ “[I]ncompetent testimony . . . if 

received without objection takes on the attributes of competent 

proof when considered upon the question of sufficiency of the 

evidence to support a finding.” ’ ” (People v. Panah (2005) 35 

Cal.4th 395, 476; accord, People v. Pierce (1979) 24 Cal.3d 199, 

206, fn. 3.) We also keep in mind that, when a defendant invites 

dismissal under section 1385, the trial court “must consider 

evidence offered by the defendant in support of his assertion 

that the dismissal would be in furtherance of justice.” (Rockwell 

v. Superior Court (1976) 18 Cal.3d 420, 441–442.)

In spite of the People’s repeated claim in their written 

opposition that there was “no evidence,” their pleading offered 

neither a specific objection to particular evidence nor an 

alternative version of facts for the trial court to consider. In 

addition, at the hearing when the trial court announced its 

intention to dismiss on its own motion, citing Wheeler’s lack of 

any knowledge as a factor, the People offered no evidentiary

objection. To the contrary, as noted above, the People agreed 

with the court’s statement regarding Wheeler’s lack of any 

knowledge regarding the dispensary. 

On this record, we doubt the People sufficiently objected

to the factual basis underlying the trial court’s own dismissal 

motion. But even assuming the trial court erred by considering 

counsel’s sworn representations about Wheeler’s mental state 

(see In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11) — a question 

we need not decide — the People’s concession regarding 

Wheeler’s asserted lack of any knowledge renders any error 

harmless (see People v. Morris (1991) 53 Cal.3d 152, 198, 

disapproved on other grounds by People v. Stansbury (1995) 9 

Cal.4th 824, 830). Given the People’s ultimate willingness to 

concede, without reservation or qualification, Wheeler’s lack of 
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

31

any contact whatsoever with the dispensary, we see no prejudice 

in the trial court’s assumptions regarding her mental state.

18

Finally, and for the sake of concluding this case, we 

consider an issue the People raised in the appellate division that 

the court expressly left unresolved: Whether the trial court 

failed to act sufficiently on its own motion in light of Wheeler’s 

initiating the request for dismissal through a written pleading 

styled as a “motion.” (§ 1385, subd. (a) [allowing dismissal “on 

motion of the court or upon the application of the prosecuting 

attorney”].) Wheeler did submit a dismissal request, but the 

request “invite[d]” court action. The trial court expressly denied 

Wheeler’s request and twice stated it was acting on its own 

motion and wanted “to make that clear.” We have previously 

deemed requests such as Wheeler’s as a means of inviting trial 

court action. (People v. Carmony, supra, 33 Cal.4th at p. 375 [“A 

defendant has no right to make a motion, and the trial court has 

no obligation to make a ruling, under section 1385. But [a 

defendant] does have the right to ‘invite the court to exercise its 

power by an application . . . and the court must consider 

evidence offered by the defendant . . . .’ ”]; People v. Brooks (1980) 

18 Our conclusions regarding the evidentiary record here 

should not be read as an endorsement of off-the-cuff pretrial 

dismissals based on information that subsequent evidence may 

prove incomplete or inaccurate. We caution, as we have before, 

that “prior to the conclusion of the trial there is always the 

possibility that in the absence of dismissal more evidence may be 

received.” (Howard, supra, 69 Cal.2d at p. 503.) After trial, the 

court “has heard the evidence relevant to the defendant’s 

culpability and, thus, is better prepared to decide whether the 

interests of justice” favor dismissal. (Romero, supra, 13 Cal.4th at 

p. 524, fn. 11; see People v. Fretwell (1970) 8 Cal.App.3d Supp. 37, 

41; People v. Gonzales (1965) 235 Cal.App.2d Supp. 887, 891.)
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

32

26 Cal.3d 471, 475, fn. 2 [deeming a defendant’s motion as a 

suggestion that the court take independent action]; Rockwell v. 

Superior Court, supra, 18 Cal.3d 420, 441 [“a defendant may 

invite the court to exercise its power by an application”].) Here, 

the record clearly shows the trial court sufficiently acted on its 

own accord in dismissing the action against Wheeler pursuant 

to section 1385.

III. DISPOSITION

Because the trial court had discretion to consider 

Wheeler’s lack of knowledge under section 1385, we reverse the 

Court of Appeal’s judgment denying the petition for writ of 

mandate. Also, given the appellate division’s thorough opinion, 

specifying which issues it was resolving, it is clear that court 

found fault solely with the trial court’s dismissal under section 

1385 insofar as it rested on Wheeler’s lack of knowledge. In the 

interests of judicial economy and for the sake of concluding this 

case, we have resolved the one outstanding issue related to 

section 1385 that the People brought before the appellate 

division and which that court identified in its opinion —

whether the trial court acted sufficiently of its own accord. In 

this instance, and given the posture of this case, we conclude, 

without opining on any other issues the lower court decisions 

might implicate, that the trial court’s dismissal order should 

stand. Accordingly, we remand to the Court of Appeal with 

instructions to issue a writ of mandate that directs the appellate 
WHEELER v. APPELLATE DIVISION OF SUPERIOR COURT

Opinion of the Court by Jenkins, J.

33

division to set aside its ruling and to instead issue a ruling 

affirming dismissal.

JENKINS, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Wheeler v. Appellate Division of Superior Court

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Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 72 Cal.App.5th 824

Review Granted (unpublished) 

Rehearing Granted

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Opinion No. S272850

Date Filed: May 30, 2024

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Court: Superior

County: Los Angeles

Commissioner: H. Elizabeth Harris

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Counsel:

Erika C. Anzoategui, Alternate Public Defender, Reid S. Honjiyo, 

Brock Hammond, Alvin Yu and Megan N. Gallow, Deputy Alternate 

Public Defenders, for Petitioner.

Ricardo D. Garcia, Public Defender (Los Angeles), Albert J. Menaster, 

Head Deputy Public Defender, and Nick Stewart-Oaten, Deputy Public 

Defender, for the California Public Defenders Association and Law 

Offices of the Public Defender as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Michael N. Feuer and Hydee Feldstein Soto, City Attorneys, Kent J. 

Bullard, Assistant City Attorney, Meredith A. McKittrick, Hannah M. 

Barker, Sydney M. Mehringer, John R. Prosser and Zachary T. 

Fanselow, Deputy City Attorneys, for Real Party in Interest.

Michael N. Feuer, City Attorney (Los Angeles), David J. Michaelson, 

Chief Assistant City Attorney, Taylor C. Wagniere and Kabir Chopra, 
Deputy City Attorneys, for the Los Angeles Department of Cannabis 

Regulation as Amicus Curiae on behalf of Real Party in Interest.

Susana Alcala Wood and David S. Kim, City Attorneys (Sacramento), 

for City of Sacramento as Amicus Curiae on behalf of Real Party in 

Interest.

Best Best & Krieger, Jeffrey V. Dunn and Carl C. Jones for League of 

California Cities and California State Association of Counties as Amici 

Curiae on behalf of Real Party in Interest. 
Counsel who argued in Supreme Court (not intended for 

publication with opinion): 

Megan N. Gallow

Deputy Alternate Public Defender

210 West Temple Street, 18th Floor

Los Angeles, CA 90012

(213) 893-1074

Zachary T. Fanselow

Deputy City Attorney

200 North Main Street, Suite 916

Los Angeles, CA 90012

(213) 473-6900