California

California Penal Code 995: Motion to Dismiss

January 20, 2023 by Mikel Rastegar in California  Criminal Defense  
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California Penal Code 995: Motion to Dismiss

Under California law, a Penal Code 995 Motion asks the court to dismiss one or more felony counts. The motion is based on the grounds that the felony was improperly sustained during a preliminary hearing. Essentially, a so-called “nine-nine-five,” otherwise known as a “motion to set aside the information,” is an appeal of the preliminary hearing judge’s decision to bring the case to trial. In this case, information refers to the criminal complaint in a California felony case.

Here is how the California legislature defines 995 motion:

“(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.”

When Can I File a 995 Motion?

You can file a 995 if you have been charged with all felonies or a mix of felonies and misdemeanors. As we mentioned above, you can file a 995 to appeal a judge’s decision to bring your case to trial. You can also file it against a prosecutor’s request for sentencing enhancements and other special enhancements.

When you file a 995 motion, you are asking the trial judge to review the preliminary hearing judge’s decision that the facts in the case against you are strong enough to merit a trial.

As soon as the preliminary judge determines there is enough evidence to send your case to trial and the prosecutor files a complaint with the trial court, you can file a Penal Code 995 motion.

Under What Circumstances Can I File a 995 Motion?

When you file a 995, you are essentially arguing that the charges against you are “groundless and/or unsupported.” This can happen under two primary circumstances:

  1. You were illegally committed for trial: If you were denied a substantial right during your preliminary hearing, such as the right to an attorney, the court will rule that you were “illegally committed.”
  2. You were committed for trial without probable cause: Under the constitution, a judge must have probable cause to try you for a crime. If the judge decides to commit your case to trial without any supported and sufficient facts, you will be considered committed to trial without probable cause.

There are a number of circumstances that can cause the above to happen, such as:

  • Illegal evidence: There are strict search and seizure laws that must be followed when obtaining evidence in California. If these laws are broken, a judge should grant the 995 motion.
  • Insufficient evidence: Every element of the charge must have facts to support it, including all elements of each felony and misdemeanor charge, as well as any basis for sentencing enhancements and special circumstances.
  • Fatal findings of fact: The preliminary judge may make a factual finding that establishes the defendant’s innocence. For example, if they find that a key witness was actually not present during the alleged crime or is otherwise not credible. When this happens, and if these findings were the only evidence supporting the charges, the judge should grant the 995 motion.
  • Failure to provide discovery: Prosecutors are required by law to disclose all evidence — even evidence that’s favorable to the defendant. If they fail to do so, the judge should dismiss the charges against the defendant.
  • Failure to file the information by the deadline: After the preliminary hearing, the prosecutor has 15 days to file the complaint against the defendant. If they fail to do so within the timeline, the judge should grant the 955 motion.

What Happens if I Win my 995 Motion?

If the trial judge approves your 995 motion, your impacted charges will be dismissed. However, it’s important to note the prosecutor has the right to appeal the judge’s approval of the 995. That means that while the appeal is pending, the prosecutor has the right to:

  • Proceed with a jury trial or bench trial for the remaining charges (if applicable).
  • Request a continuance of the trial until the appeal is approved or denied.

What Happens if I Lose my 995 Motion?

If the trial judge denies your 995 motion, you also have the right to appeal that decision. If you filed the appeal on the grounds of an illegal commitment, you have 60 days from the date of your arraignment to file the appeal.

If the grounds were commitment without probable cause, you must file your appeal within 15 days of the judge’s denial of your 995.

If you choose not to appeal, your case will proceed to trial.

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