A California Penal Code 995 motion is essentially a request for the judge to dismiss one or more counts of the complaint.
Criminal defense attorneys raise this motion when they believe that a judge or grand jury incorrectly "held their client to answer for charges" following a California preliminary hearing or grand jury indictment.
Because preliminary hearings are more commonplace than grand juries in this state, this article will focus on 995 motions that follow preliminary hearings--that is, 995 motions to "set aside the information".
Below, our California criminal defense attorneys1 provide a comprehensive guide to understanding these motions by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
At the conclusion of a preliminary hearing, the judge must decide whether he/she believes that there is sufficient evidence to "hold you to answer for the charge(s)". If the judge rules that there is, you are "committed", and your case proceeds to the trial court for further California pretrial proceedings.2
Fortunately, California criminal law provides relief if you believe that the judge's ruling was incorrect. This relief is available through what's known as a California Penal Code 995 "motion to set aside the information".
Your criminal defense attorney makes a Penal Code 995 motion when you were
- illegally committed, and/or
- committed without probable cause.3
Let's take a closer look at these two grounds to gain a better understanding of their legal meanings.
That you were illegally committed
If you were "illegally committed" following the preliminary hearing, it means that the court denied you of a substantial right during those proceedings. Some of these rights include (but are not limited to):
- the right to be represented by an attorney4 (and even the right to be advised that you are entitled to be represented by an attorney),5
- the right to have your preliminary hearing conducted in "one session",6 and
- the right to present, confront, and cross-examine witnesses.7
That you were committed without probable cause
In order to establish probable cause sufficient to withstand a Penal Code 995 motion, the state must make some showing as to the existence of each fact of the allegation.8
"Probable cause" is "a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime."9 And as long as there is "some rational ground" for assuming the possibility that
- an offense has been committed, and
- you are the person guilty of committing that offense,
the information will not be set aside.10 The trial court is not determining your guilt or innocence, but is simply evaluating whether the preliminary hearing judge -- acting as a person of ordinary caution or prudence -- could conscientiously entertain reasonable suspicion that you participated in a crime.11
And as Palm Springs criminal defense attorney Michael Scafiddi12 explains, "As long as there is some evidence that supports probable cause, a judge cannot grant a 995 motion simply because it is equally as likely that there was not probable cause."13
However, if the trial court judge believes that the preliminary hearing judge was incorrect in finding reasonable or probable cause, the trial judge will grant the 995 motion and will set the pertinent count(s) aside.
Example: Defendant placed a bag of marijuana outside of the jail grounds where her husband was an inmate. Because the sheriff had been recording the defendant's conversations, he knew that the two made a plan to have someone else access the drugs to bring them into the facility.
The sheriff confiscated the drugs before the other inmate could collect them and bring them into the facility. As a result, the defendant didn't actually "bring or send the drugs into the facility itself" which was the alleged offense.
Given these circumstances, the 995 motion was properly granted because there was no probable cause to believe that the alleged crime had actually been committed.14
A California 995 motion may challenge one or more counts in the information or indictment.15 It may also challenge
- any misdemeanors that were alleged in connection with the felony complaint16 (California preliminary hearings specifically apply to felony complaints),
- penalty enhancements,17 and/or
- special circumstance allegations.18
These motions generally last less than one hour. The defense attorney makes his/her argument which is followed by the prosecutor's argument. Typically, the defense attorney then makes a final argument.
And while a judge may occasionally continue the case to make a ruling, most decisions are made immediately upon the conclusion of the motion.
If you make a 995 motion on the grounds that you were committed without probable cause.and the judge denies your motion.you have 15 days to appeal that decision.19 If you make the motion on the ground that you were illegally committed -- and the judge denies the motion -- you have 60 days from the date of your California arraignment to appeal the decision.20
And when the motion is granted.
If the court grants your motion, the prosecution has several options. If only certain counts were set aside, the prosecutor could appeal those counts and either
- still proceed with a California jury trial on the remaining counts, or
- request a continuance of the trial until the appeal is resolved.21
Alternatively, the prosecutor could elect to bypass an appeal and simply re-file the charge(s) in a new felony complaint.
On that note, it is important to understand that California law grants the prosecution quite a bit of authority to re-file charges following a dismissal. However, once charges have been dismissed twice, the "two dismissal" rule applies and generally prevents further prosecution.22
That said, there are a number of exceptions to this rule.exceptions that your criminal defense attorney will be able to explain further.23
And as far as your bail is concerned.California bail law requires that once a 995 motion is granted as to all counts, the court must exonerate your bail within 15 days.24 If you are re-charged within that 15-day period (based on the same underlying conduct) your bail must be reapplied to the new offense(s).25
While lack of probable cause and illegal commitment are the two reasons to raise a California 995 "motion to set aside the information", there are underlying issues that support these claims. Some of the most common include (but are not limited to):
If the only evidence that connects you to the crime was obtained in violation of California search and seizure law, then probable cause wasn't legally established. When this is the case, the judge should grant your 995 motion.26
If, during the preliminary hearing, the prosecution doesn't
- address every single charge,27 and/or
- doesn't offer sufficient evidence as to each and every element of an alleged crime or enhancement allegation, such as
- proof of your intent to steal at the time of the taking in a Penal Code 211 PC California robbery case,28 or
- proof of your intent to sell in a Health and Safety Code 11351 HS California "possession of drugs for sale" case,29
the trial court should grant the California Penal Code 995 PC motion with respect to the deficient charge(s). Similarly, if the prosecution doesn't sufficiently connect you with the crime but merely alleges that, for example, you were
- simply present at the scene, or30
- looked like the suspect,31
the motion should be granted based on insufficient evidence.
If the preliminary hearing judge makes a factual finding that is fatal to the prosecution's case, the prosecution may not re-file the compliant. If he/she does, the trial court should grant your 995 motion.32
A "factual finding" is one that is based on facts as opposed to law.
The most common example of a factual finding is a ruling on the credibility of a witness. For example, "Mr. Smith's testimony that he saw the defendant stab the victim is unbelievable because of the lighting, distance, and crowd of people standing between them."
In order for the preliminary hearing judge's factual finding to support the motion, it must have been expressly -- rather than implicitly -- stated.33
Failure to provide discovery
The Due Process Clause of the Fourteenth Amendment requires that the prosecutor automatically disclose any and all evidence that is favorable to you.34 If he/she fails to do so before the preliminary hearing -- and was aware of such evidence -- that failure deprives you of your due process rights.
As a result, the trial court should grant your 995 motion based on the fact you were illegally committed.
Failure to meet deadlines
If the prosecutor fails to file the "information" (that is, the official "complaint" against you) within 15 days of the preliminary judge's order "holding you to answer", the trial judge should grant your 995 motion to dismiss the case.35
This relief is not automatic. In order to obtain it, your California criminal defense lawyer must move for dismissal.36
Call us for help.
If you or loved one is in need of help with 995 motion and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to law and motion in Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.37
You may also find helpful information in our related articles on California's Arraignment Process; California Pretrial Proceedings; Preliminary Hearings; California Bail Laws; and California Jury Trials.
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Please contact us at Shouse Law Group with any questions.
2California Penal Code 872 PC -- California preliminary hearings; order holding defendant to answer; probable cause; basis of finding. ("(a) If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her, to the following effect: "It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A.B. is guilty, I order that he or she be held to answer to the same."")
3California Penal Code 995 PC -- Grounds; motion to set aside; delay in final ruling. ("(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: (1) If it is an indictment: (A) Where it is not found, endorsed, and presented as prescribed in this code. (B) That the defendant has been indicted without reasonable or probable cause. (2) If it is an information: (A) That before the filing thereof the defendant had not been legally committed by a magistrate. (B) That the defendant had been committed without reasonable or probable cause. (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.")
4People v. Napthaly (1895) 105 Cal. 641, 644-645.
5People v. Miller (1932) 123 Cal.App. 499, 501-502.
6People v. Bucher (1959) 175 Cal.App.2d 343.
7Jennings v. Superior Court of Contra Costa County (1967) 66 Cal.2d 867.
8People v. Chapple (2006) 138 Cal.App.4th 540, 545.
9People v. Ingle (1960) 53 Cal.2d 407, 412.
10D'Amato v. Superior Court (2008) 167 Cal.App.4th 861, 880.
11People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740.
See also Rideout v. Superior Court of Santa Clara County (1967) 67 Cal.2d 471, 474. ([With respect to a California 995 PC motion to set aside the information] "A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the court will not inquire into its sufficiency. ( Perry v. Superior Court, 57 Cal.2d 276, 283 [19 Cal.Rptr. 1, 368 P.2d 529]; People v. Jablon, 153 Cal.App.2d 456, 459 [314 P.2d 824]; cf. Jackson v. Superior Court, supra, at p. 525.) Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. ( People v. Cron, 207 Cal.App.2d 452, 457 [24 Cal.Rptr. 586]; cf. Jackson v. Superior Court, supra, at p. 530.)")
12Palm Springs criminal defense attorney Michael Scafiddi uses his insider knowledge as a former police officer to represent clients throughout the Inland Empire, in San Bernardino and Riverside County courthouses, including the Murrieta Southwest Justice Center, Banning, Fontana, Joshua Tree, Barstow and Victorville.
13People v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109.
14Facts taken from People v. Hernandez (1978) 90 Cal.App.3d 309.
15See People v. Sherwin (2000) 82 Cal.App.4th 1404.
16People v. Thiecke (1985) 167 Cal.App.3d 1015.
17Huynh v. Superior Court (1996) 45 Cal.App.4th 891.
18People v. Ghent (1987) 43 Cal.3d 739.
19California Penal Code 999a PC -- Writ of prohibition; time for filing petition; grounds; service; time for issuance of alternative writ. ("A petition for a writ of prohibition, predicated upon the ground that the indictment was found without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, or that the court abused its discretion in utilizing the procedure set out in subdivision (b) of Section 995a, must be filed in the appellate court within 15 days after a motion made under California Penal Code Section 995 to set aside the indictment on the ground that the defendant has been indicted without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, has been denied by the trial court. A copy of such petition shall be served upon the district attorney of the county in which the indictment is returned or the information is filed. The alternative writ shall not issue until five days after the service of notice upon the district attorney and until he has had an opportunity to appear before the appellate court and to indicate to the court the particulars in which the evidence is sufficient to sustain the indictment or commitment.")
20California Penal Code 1510 PC -- Motion; time; exception. ("The denial of a motion made pursuant to Section 995 or 1538.5 may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than 45 days following defendant's arraignment on the complaint if a misdemeanor, or 60 days following defendant's arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.")
21People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190.
See also California Rules of Court 8.112 -- Petition for writ of supersedeas. ("(a) Petition. (1) A party seeking a stay of the enforcement of a judgment or order pending appeal may serve and file a petition for writ of supersedeas in the reviewing court.")
See also California Rules of Court 8.116 -- Request for writ of supersedeas or temporary stay. ("(a) Information on cover. If a petition for original writ, petition for review, or any other document requests a writ of supersedeas or temporary stay from a reviewing court, the cover of the document must: (1) Prominently display the notice "STAY REQUESTED"; and (2) Identify the nature and date of the proceeding or act sought to be stayed. (b) Additional information. The following information must appear either on the cover or at the beginning of the text: (1) The trial court and department involved; and (2) The name and telephone number of the trial judge whose order the request seeks to stay. (c) Sanction. If the document does not comply with (a) and (b), the reviewing court may decline to consider the request for writ of supersedeas or temporary stay.")
22California Penal Code 1387 PC -- Dismissal as bar to prosecution; exceptions. ("(a) An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or [Penal Code] 995 [that is, a California motion to set aside the information], is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following: (1) That substantial new evidence has been discovered by the prosecution which would not have been known through the exercise of due diligence at, or prior to, the time of termination of the action. (2) That the termination of the action was the result of the direct intimidation of a material witness, as shown by a preponderance of the evidence. (3) That the termination of the action was the result of the failure to appear by the complaining witness, who had been personally subpoenaed in a prosecution arising under subdivision (e) of Section 243 or Section 262, 273.5, or 273.6. This paragraph shall apply only within six months of the original dismissal of the action, and may be invoked only once in each action. Nothing in this section shall preclude a defendant from being eligible for diversion. (b) Notwithstanding subdivision (a), an order terminating an action pursuant to this chapter is not a bar to another prosecution for the same offense if it is a misdemeanor charging an offense based on an act of domestic violence, as defined in subdivisions (a) and (b) of Section 13700, and the termination of the action was the result of the failure to appear by the complaining witness, who had been personally subpoenaed. This subdivision shall apply only within six months of the original dismissal of the action, and may be invoked only once in each action. Nothing in this subdivision shall preclude a defendant from being eligible for diversion. (c) An order terminating an action is not a bar to prosecution if a complaint is dismissed before the commencement of a preliminary hearing in favor of an indictment filed pursuant to Section 944 and the indictment is based upon the same subject matter as charged in the dismissed complaint, information, or indictment. However, if the previous termination was pursuant to Section 859b, 861, 871, or California Penal Code 995, the subsequent order terminating an action is not a bar to prosecution if: (1) Good cause is shown why the preliminary examination was not held within 60 days from the date of arraignment or plea. (2) The motion pursuant to Section 995 was granted because of any of the following reasons: (A) Present insanity of the defendant. (B) A lack of counsel after the defendant elected to represent himself or herself rather than being represented by appointed counsel. (C) Ineffective assistance of counsel. (D) Conflict of interest of defense counsel. (E) Violation of time deadlines based upon unavailability of defense counsel. (F) Defendant's motion to withdraw a waiver of the preliminary examination. (3) The motion pursuant to Section 995 was granted after dismissal by the magistrate of the action pursuant to Section 871 and was recharged pursuant to Section 739.")
24California Penal Code 977 PC -- Motion to set aside. ("If the [Penal Code 995] motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be exonerated; or, if he has deposited money, or if money has been deposited by another or others instead of bail for his appearance, that the same be refunded to him or to the person or persons found by the court to have deposited said money on behalf of said defendant, unless it directs that the case be resubmitted to the same or another grand jury, or that an information be filed by the district attorney; provided, that after such order of resubmission the defendant may be examined before a magistrate, and discharged or committed by him, as in other cases, if before indictment or information filed he has not been examined and committed by a magistrate.")
25California Penal Code 1303 PC -- Dismissal of proceeding; time for exoneration; application of bail to public offense. ("If an action or proceeding against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. If, within such period, the defendant is arrested and charged with a public offense arising out of the same act or omission upon which the action or proceeding was based, the bail shall be applied to the public offense.")
26People v. Sherwin (2000) 82 Cal.App.4th 1404, 1408. ("On appeal, the reviewing court reversed the dismissal of the first two indictments, finding the searches were legal. ( Id. at pp. 299-302.) The court found, however, that the third search was illegal and all of the evidence obtained against defendants in the third indictment was the product of the illegal search. Since there was no competent evidence to support the indictment, it must be set aside under section 995.")
27People v. Pitts (1990) 223 Cal.App.3d 606, 902.
28Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 827. ("In order to sustain the superior court, we would have to find it reasonable to infer from the fact that petitioner raped the victim and the fact that she possessed a purse, the further facts that he knew she possessed the purse and that he intended before the rape to steal it from her. Clearly, there is no basis for such a cumulation of inferences. The superior court erred in failing to dismiss the [Penal Code 211 PC California] robbery count.")
29People v. Upton (1968) 257 Cal.App.2d 677, 686. ("With respect to the charge of [Health and Safety Code 11351 HS California "possession of drugs for sale"].we conclude that there is no evidence whatsoever to support that charge. There is no showing that the quantity of the drug was such that it could only have been possessed for sale. (Cf. People v. Jackson, 241 Cal.App.2d 189, 194 [50 Cal.Rptr. 437].) Moreover, at the argument of the motion to set aside the information in the court below the district attorney conceded that he did not present sufficient evidence in support of this charge.")
30Pinell v. Superior Court In and For City and County of San Francisco (1965) 232 Cal.App.2d 284.
31Vukman v. Superior Court (1981) 116 Cal.App.3d 341, 345. ("Here, the victim was asked (to use the district attorney's words) "to see if [he] could select a person that was the person or most clearly fit the person that robbed [him]"; or (in the victim's words), he was asked "which one looks like the person." He was not asked if he believed the photograph was of the robber, but if it resembled him. We conclude that the evidence was insufficient to support a holding order.")
32See, for example, Jones v. Superior Court (1971) 4 Cal.3d 660.
33People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551.
34Brady v. Maryland (1963) 373 U.S. 83. See also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.
35California Penal Code 1382 PC -- Failure to file information or bring case to trial within time limit; dismissal. ("(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: (1) When a person has been held to answer for a public offense and an information is not filed against that person within 15 days.")
36People v. Ganger (1950) 97 Cal.App.2d 11.
37Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.
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