Can a judge or magistrate dismiss a finding of special circumstances under section 1385?

Section 1385 provides: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, the defendant was convicted of first degree murder with the special circumstances that the murder was committed during commission of a robbery and burglary. The prosecutor did not seek the death penalty, and the defendant was sentenced to life imprisonment without possibility of parole. At the sentencing hearing, the trial court stated that because the defendant was substantially less culpable than her accomplice, it would prefer to dismiss the special circumstances, but that it believed it had no power to do so. This court held that the trial court did have such dismissal power under section 1385 and remanded the case "for exercise of the court's discretion to determine whether or not there is a basis for dismissing the finding of two special circumstances." (Id. at p. 492, 179 Cal.Rptr. 443, 637 P.2d 1029.) But the court added this limitation to its holding: "No view is expressed on whether the power to dismiss under section 1385 applies to a finding of special circumstances after the jury has returned a verdict of death." (Id. at p. 490, fn. 11, 179 Cal.Rptr. 443, 637 P.2d 1029.)

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