Possibly. Penal Code § 1385(c) directs a California court to consider proven mitigating circumstances when deciding whether dismissing a sentencing enhancement furthers justice, unless an initiative statute prohibits dismissal. It does not erase an enhancement automatically because a factor appears on a list. For a person facing a nonfirearm enhancement, the next step is to identify the exact statute and sentencing record, then present specific evidence rather than rely on a generic request for leniency.
Start with the enhancement actually alleged
For example, § 667(a)(1) provides a five-year enhancement when there is a present serious-felony conviction and a qualifying prior serious-felony conviction on charges brought and tried separately, subject to the statute’s other conditions. The quoted phrase “charges brought and tried separately” is an exact excerpt from § 667(a)(1), not its full eligibility rule. A pleaded prior, a strike-prior allegation under a different part of § 667, and a § 667(a) enhancement should not be treated as the same sentencing component. Compare the charging allegation, prior conviction record, plea or verdict, and proposed sentence before deciding which issue is proof of the enhancement and which is a request to dismiss a supported enhancement. (§ 667)
Section 1385(c)(1) says the court shall dismiss an enhancement if doing so is in the furtherance of justice, except where an initiative statute prohibits it. Under subdivision (b), a court with dismissal authority may instead strike only the additional punishment; that alternative is not authority to change an enhancement the court cannot dismiss. The court must state its reasons for a § 1385 dismissal on the record under subdivision (a). Each enhancement’s own law and the actual disposition must be checked before promising either form of relief.
What mitigation should counsel substantiate?
The statute’s exact short excerpt directs the court to “consider and afford great weight to evidence offered by the defendant” of its listed mitigating circumstances. This is an excerpt of § 1385(c)(2), not the complete nine-factor list. Examples that can matter in a nonfirearm case include:
| Possible circumstance | Evidence or limit to check |
|---|---|
| Multiple enhancements alleged | Identify each separate enhancement in the charging paper and proposed sentence. Subdivision (c)(2)(B) has special wording, but do not assume it removes every enhancement after the first without an individualized legal assessment. |
| Sentence potentially over 20 years | Compare the actual term calculation with subdivision (c)(2)(C); an allegation alone does not establish the court’s final sentence or an automatic reduction. |
| Prior conviction over five years old | For an enhancement based on a prior, confirm the conviction date and record under subdivision (c)(2)(H). Its age does not by itself resolve the court’s furtherance-of-justice decision. |
| Mental illness, prior victimization or childhood trauma connected to the current offense | Subdivisions (c)(2)(D)–(E) and (c)(5)–(6) require a supported connection; the statute identifies records and other credible evidence the court may consider and a substantial-contribution finding. A diagnosis or difficult history alone is not that finding. |
The complete § 1385(c)(2) also lists discriminatory racial impact, a nonviolent current offense, juvenile age in specified circumstances, and an unloaded or inoperable firearm; the list is not exclusive under subdivision (c)(4). The firearm circumstance does not turn this nonfirearm task into a separate firearm-enhancement analysis. Subdivision (c)(7) applies the rule to sentencings after January 1, 2022.
In People v. Walker (2024), the California Supreme Court rejected a rule that a listed circumstance creates a rebuttable presumption requiring dismissal unless public safety is endangered. Proven listed mitigation receives significant weight and will generally support dismissal absent substantial credible countervailing factors, but the court still makes an individualized furtherance-of-justice decision. Walker involved nonfirearm enhancements, including a prior-serious-felony enhancement; it did not decide whether § 1385(c) applies to Three Strikes prior allegations or resolve every possible reading of subdivision (c)(2)(B). Do not turn a § 667(a) enhancement request into a promise about dismissing a strike prior. (Walker; § 1385)
What is the useful next step before sentencing?
Have counsel compare the information or indictment, enhancement statute and subdivision, prior record if relevant, verdict or plea terms, sentencing memorandum, and proposed sentence. If mitigation is asserted, gather records that actually address the statutory fact and its connection to the present offense where required. Counsel can distinguish an allegation that is unsupported or inapplicable from a true enhancement the court may consider dismissing. Plea terms, timing, an initiative-law limit, and prosecution evidence may affect the available route; § 1385(c)(3) preserves discretion before, during or after trial or entry of plea, but does not guarantee a result. (§ 1385)
The firm’s sentencing advocacy guide offers background for preparing the mitigation and sentencing discussion.
If a nonfirearm enhancement is part of your current California criminal case, the Law Offices of David S. Chesley can review the actual allegations and discuss the sentencing issue. Contact the firm or call (800) 755-5174.