Penal Code “995 Motions” in California

In California felony cases, a Penal Code 995 motion is where you ask the trial court judge to dismiss one or more counts because your preliminary hearing judge improperly let your case move forward. You file a PC 995 motion with the trial court after the D.A. files the criminal complaint – called an “information” – but before trial.

Therefore, a PC 995 motion (pronounced “nine-nine-five”) is essentially an appeal of the preliminary hearing judge’s decision to bind your case over for trial. Technically it is known as a “motion to set aside the information.”

If the trial judge finds there are insufficient legal grounds to bind you over to trial, they will grant your PC 995 motion. Otherwise, your case will proceed to trial (unless you take a plea).

You can bring 995 motions in cases involving only felonies or in cases involving both felonies and misdemeanors. If you are charged with only misdemeanors, you cannot have a preliminary hearing and consequently cannot bring a 995 motion.

 

To help you better understand 995 motions, our California criminal defense lawyers discuss the following:

• 1. What is a PC 995 motion?
• 2. When can I file?
• 3. Legal Grounds
• 4. Eligible Cases
• 5. Filing Process
• 6. If You Win
• 7. If You Lose
• Additional Reading

1. What is a PC 995 motion?

A motion under California Penal Code 995 asks a trial judge to dismiss all or part of your criminal case. It applies in cases in which:

• All the charges are for felonies, or
• The charges include both felony and misdemeanor charges.¹

The motion may also apply to a prosecutor’s request for sentencing enhancements and/or allegations of special circumstances.

All the charges – including enhancements and special circumstances – must be supported by facts. The preliminary hearing judge must decide if those facts are strong enough to merit a trial.

If you believe the preliminary hearing judge decided incorrectly, you can bring a 995 motion. This asks the trial judge to review the preliminary hearing judge’s decision.

2. When can I file?

When you are charged with a felony, there will be a preliminary hearing. At this hearing, a judge determines whether there is enough evidence to send your case to trial.²

If so, the judge will “hold you to answer” for the crimes. This means the case can move forward. The prosecutor will then file an “information” (complaint) with the trial court.

Once the prosecutor files the information with the trial court, you can make a Penal Code 995 “motion to set aside the information.” This is usually done before any other pretrial hearings.

In essence, the motion asks the trial judge to review your preliminary hearing judge’s decision.

3. Legal Grounds

The purpose of the preliminary hearing is to “weed out groundless or unsupported charges.”³ Charges are considered groundless or unsupported when:

1. You were illegally committed for trial, and/or
2. You were committed for trial without probable cause.

If either of these applies, the trial court will grant the motion to set aside the information.

Let’s take a closer look at what these two things mean.

You Were Illegally Committed for Trial

You are “illegally committed” when you are denied a substantial right during the preliminary hearing. Such rights include (but are not limited to):

• The right to be mentally competent during your preliminary hearing;
• The right to be represented by a lawyer;⁴
• The right to be advised that you can be represented by a lawyer;⁵
• The right to have the preliminary hearing conducted in “one session”;⁶ and
• The right to present and cross-examine witnesses at the hearing.⁷

You Were Committed Without Probable Cause

The Due Process Clause of the Fourteenth Amendment requires that a judge have probable cause in California to try you for a crime. This means that a judge can only send a case to trial if the allegations in the complaint are supported by facts.⁸

The facts do not need to prove that you are guilty beyond a reasonable doubt. That determination is for the jury (or, in a bench trial, the judge).

The facts must be sufficient enough that a reasonable person could have “an honest and strong suspicion” that you are guilty of the crime(s) charged.⁹ As Palm Springs criminal defense attorney Michael Scafiddi¹⁰ explains:

“As long as there is some evidence that supports probable cause, a judge cannot grant a 995 motion.¹¹ Still it is often worth bringing the motion anyway. A 995 motion is an opportunity to highlight weaknesses in the prosecution’s case at an early stage.”

Examples of Specific Defects

Lack of probable cause and illegal commitment can arise in a number of situations. Some of the most common include (but are not limited to) the following.

Illegal Evidence

Evidence of a crime may not be obtained by violating federal or California search and seizure laws. If the only evidence in your case came from an unlawful search, the judge should grant the 995 motion.¹²

Example: The police pull Bill over for a broken brake light. He does not seem intoxicated, but the police tell Bill to open his trunk. Inside they find a bag of cocaine and arrest him for possession with intent to sell.

Here, the police had no probable cause to suspect Bill of a crime. So ordering him to open his trunk was unlawful. The preliminary hearing judge should not set the case for trial. If they do, however, Bill should be prevail on a 995 motion.¹³

Insufficient Evidence

The prosecution must introduce facts to support every element of your charges, including:

• All elements of each felony charge,
• All elements of any misdemeanor charges,
• Any basis for a sentencing enhancement, and
• Grounds for a finding of special circumstances.

Example: Let’s say in the above example that Bill gave the police probable cause to search his trunk. Still, the prosecutor presents no evidence of intent to sell. Since there are no facts to support the allegation, Bill’s 995 motion should be granted as to the possession for sale charge.¹⁴

“Fatal” Findings of Fact

Sometimes the preliminary hearing judge makes a factual finding that tends to establish your innocence. A common example is a ruling that a key eyewitness is not credible.¹⁵ For instance,

• a witness may not have been able to adequately identify you because of poor lighting and distance from the crime scene, or
• a witness may have testified only that you “looked like” the perpetrator.¹⁶

If this is the only evidence supporting your complaint, the preliminary hearing judge should not commit the charge to trial. If they do, it is an error. The trial judge should grant the 995 motion.

Failure to Provide Discovery

The Due Process Clause requires a prosecutor to disclose any and all evidence that is favorable to you, usually within 15 days of obtaining it.¹⁷ If they willfully fail to do so, the charges should be dismissed.

Example: When the police stop Bill in the example above, Bill tells them he borrowed the car from his neighbor. During their investigation, the police speak to several other people who tell them Bill asked to borrow a car from them earlier that evening. The prosecutor does not disclose this to Bill. Since their testimony could have helped prove that Bill was telling the truth, the failure to disclose it violates Bill’s due process rights.

Failure to File the Information Within the Deadline

The prosecutor has only 15 days after your preliminary hearing in which to file the “information” (trial complaint) against you.¹⁸

If the prosecutor does not file the complaint within 15 days of the preliminary judge’s order, the trial judge should grant your 995 motion to dismiss the case.¹⁹

Preliminary Hearing Spanned More than One Session

Preliminary hearings must occur within one session unless you agree to the delay. In general, if your preliminary hearing spans more than one session and you do not get released, your commitment is unlawful and should trigger a case dismissal.

4. Eligible Cases

We can a file a 995 motion only if the judge determines at your preliminary hearing that there is probable cause you committed at least one felony.

A criminal complaint often combines both felony and misdemeanor counts. It may also allege facts in support of:

• Sentencing / penalty enhancements (such as a gang enhancement), or
• Special circumstance allegations (such as lying in wait in a murder case).

As long as you are facing at least one felony after the preliminary hearing, we can use a 995 motion to challenge all of the counts, enhancements or circumstances, including any misdemeanors.²⁰

5. Filing Process

If your case gets “bound over” following your preliminary hearing, we typically file a 995 motion after the case is assigned to a trial judge and before any other pretrial proceedings.

995 motions are written documents that explain the factual and legal basis for our request to dismiss your case. Once the hearing is filed, the trial judge will set a hearing date.

The hearing on the motion does not take long – usually less than one hour. We argue first, then the prosecutor. We then have the opportunity to make a final argument.

The judge will usually issue a decision immediately after the arguments conclude. However, they may occasionally continue the case in order to consider the arguments further.

6. If You Win

The affected charges will be dismissed if the trial court grants your 995 motion, but the prosecutor can appeal the decision. While their appeal is pending, the prosecutor can:

• Proceed with a jury trial or bench trial on the remaining counts (if any), or
• Request a continuance of the trial until the appeal is resolved.²¹

Alternatively, the prosecutor can skip the appeal and simply re-file the charge(s) in a new complaint. However, California follows a “two dismissal” rule: Charges that have been dismissed twice can generally not be prosecuted again.²²

There are some exceptions to the two-dismissal rule. We can explain the exceptions to you if you are in this situation.

What happens to my bail if my case is dismissed?

If all the charges are dismissed after your 995 motion, the court must either:

• Refund your California bail within 15 days,²³ or
• If the prosecutor refiles the charges, apply the bail to the new offense(s).²⁴

7. If You Lose

If the judge denies your 995 motion, you can appeal the decision. The deadline to appeal depends on the original grounds cited in the motion.

If the grounds were an illegal commitment, you have until 60 days from the date of your arraignment to file an appeal.²⁵

If the grounds were commitment without probable cause, the appeal must be filed within 15 days of the judge’s denial of the 995 motion.²⁶

If you do not appeal or lose the appeal, your case will proceed toward trial.

Additional Reading

For more in-depth information on preliminary hearings, refer to the following scholarly articles:

• The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations – UCLA Law Review.
• The Availability of a First Appearance and Preliminary Hearing – Now You See Them, Now You Don’t – William & Mary Law School Scholarship Repository.
• Post-Indictment Preliminary Hearings – John Marshall Journal of Practice & Procedure.
• Preliminary Hearings in Homicide Cases: A Hearing Delayed Is a Hearing Denied – Journal of Criminal Law, Criminology and Police Science.
• The Right to Counsel at the Preliminary Hearing – Missouri Law Review.

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