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Penal Code “995 Motions” in California

By Spodek Law Group | July 8, 2021

In a felony case, a California Penal Code 995 motion requests the trial judge to dismiss one or more counts. The defense files the motion after a preliminary hearing in California but before the trial.

The 995 motion (pronounced “nine-nine-five”) is an appeal of the preliminary hearing judge’s decision to proceed to trial. It’s called a “move to set aside the information” in technical terms. In a California felony trial, the complaint is referred to as “information.”

A 995 motion, for example, requests that the trial court “put aside” (dismiss) all or portion of the complaint. If there were inadequate legal grounds to bind the defendant over for trial, the judge will approve the motion.

To give you a better understanding of 995 motions, our the California criminal defense attorneys of Spodek Law Group present the following, below:

1. What kind of motion is a Penal Code 995 motion?

2. Under what circumstances can you make a 995 motion?

3. What legal are there grounds for a 995 motion?

4. What charges would a motion to set aside the information apply to?

5. What procedures need to be followed for a proper Penal Code 995 motion?

6. What results if I win a 995 motion?

7. What happens if I don’t win my 995 motion?

1. What kind of motion is a Penal Code 995 motion?

Under California Penal Code 995, a motion to dismiss all or part of a criminal case is filed.

It applies when all of the charges are felonies or when the charges comprise both felonies and misdemeanors.

A district attorney’s  request for sentencing enhancements and/or claims of extraordinary circumstances may also be covered by the motion.

All allegations, including enhancements and unusual circumstances, must be backed up by evidence. The preliminary hearing judge must assess if the evidence is sufficient to warrant a trial.

The defense can file a 995 motion if they believe the preliminary hearing judge made an error. This petition requests that the trial judge reconsider the preliminary hearing judge’s ruling.

2. Under what circumstances can you make a 995 motion?

A preliminary hearing is held when a defendant is charged with a felony. A judge decides whether there is enough evidence to put the matter to trial at this hearing.

If this is the case, the court will “hold the defendant to answer” for his or her actions. This indicates that the case can proceed. After that, the prosecutor will file a “information” (complaint) with the trial court.

The defense can file a “motion to set aside the information” under Penal Code 995 after the prosecutor files the material with the trial court. This is normally done before any other pre-trial hearings in California.

The motion basically asks the trial judge to reconsider the preliminary judge’s ruling.

3. What legal are there grounds for a 995 motion?

The preliminary hearing is used to sift out charges that are unfounded or unjustified.   

Such a situation arises when the defendant was improperly committed for trial and/or  when the defendant was committed for trial without probable cause, the charges are called groundless or unsupported.

If either of these conditions is met, the trial court will allow the motion to suppress the evidence.

Let’s look at what these two terms signify in more detail.

The accused was illegally committed for trial

When a defendant is denied a substantial right during the preliminary hearing, he or she is considered “illegally committed” for trial. These rights include (but are not limited to) the following:

  • The right to have a lawyer represent you.
  • The right to be told that he or she can be represented by a lawyer.
  • The right to have the preliminary hearing done in “one session” and the right to have the preliminary hearing conducted in “one session”
  • At the hearing, you have the right to present and cross-examine witnesses.

The accused was committed for trail without probable cause

 In California, the Due Process Clause of the Fourteenth Amendment of the United States Constitution mandates that a court have reasonable cause to try someone for a crime.

This means that a judge can only send a case to trial if the facts back up the allegations in the complaint.

The facts do not have to establish guilt beyond a reasonable doubt for the defendant. The jury will make that decision (or, in a bench trial, the judge).

However, the facts must be sufficient to give a reasonable person “an honest and strong suspicion” that the defendant is guilty of the charged crime(s)

Some examples of specific defects

A variety of circumstances can lead to a lack of probable cause and illegal commitment. The following are a few of the most common (but not all):

The “Illegal evidence” defect

It is illegal to gather evidence of a crime by breaking federal or California search and seizure laws. The judge should allow the 995 motion if the only evidence in the case came from an illegal search.

The “Insufficient evidence” defect

Every element of the charges must be supported by facts, which include the following:

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

For Example: Assume Luke was acting suspiciously in the preceding scenario. This gave the cops reason to search his trunk. However, the prosecutor offers no evidence of a sale plan (such as scales or separate baggies). The sole claim in the complaint is that Luke intended to sell the cocaine. Luke’s 995 motions regarding the possession for sale charge should be granted because there are no facts to back up the claim.

The “Fatal findings of fact” defect

The preliminary judge may occasionally make a factual finding that tends to prove the defendant’s innocence.

A decision that a key eyewitness is not trustworthy is a common example. For example, inadequate illumination and distance from the crime site may have prevented a witness from properly identifying the defendant. Alternatively, the witness may have simply stated that the defendant “looked like” the offender.

The preliminary hearing judge should not commit the charge to trial if this is the only evidence supporting the complaint. It’s a mistake if he or she does. The 995 motion should be granted by the trial court.

The “Failure to provide discovery” defect

A prosecution is required by the Due Process Clause to reveal any and all evidence that is favorable to the defendant. The accusations should be dismissed if he/she wilfully fails to do so.

For Example: When the cops stop Luke in the above case, he tells them he borrowed the automobile from his neighbor. Several other persons inform the police that Luke had asked to borrow a car from them earlier that evening during their investigation. Luke is not informed of this by the prosecutor. The omission to reveal their testimony, which may have helped prove Luke was telling the truth, is a violation of Luke’s due process rights.

The “Failure to file the information within the deadline” defect

After the preliminary hearing, the prosecution has only 15 days to file the “information” (trial complaint) against the defendant.

The trial judge should rightfully allow the defendant’s 995 request to dismiss the case if the district attorney failed to file the complaint within 15 days following the preliminary judge’s ruling.

4. What charges would a motion to set aside the information apply to?

Preliminary hearings are held in California for felony charges. There is no preliminary hearing if there are no felony charges.

A criminal complaint, on the other hand, frequently includes both felony and misdemeanor counts. It may also allege facts in support of:

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

Any of these counts, enhancements, or circumstances, including the misdemeanors, might be challenged by the defense using a 995 motion.

5. What procedures need to be followed for a proper Penal Code 995 motion?

After the case is assigned to a trial judge and before any additional pre-trial procedures, the defense will usually file a 995 motion.

The hearing on the motion is usually under an hour long. The prosecution speaks first, followed by the defense attorney. After then, the defense attorney has the option to make one last argument.

After the arguments, the judge will usually make a ruling right away. However, he or she may occasionally prolong the case to analyze the issues in greater depth.

6. What results if I win a 995 motion?

The affected charges will be dropped if the trial judge grants a 995 application. The prosecutor, on the other hand, has the right to appeal the ruling.

While the appeal is pending, the prosecutor has the following options:

  • Proceed with the remaining counts (if any) in a California jury or bench trial, or
  • Request that the trial be postponed until the appeal is resolved.

Alternatively, the prosecutor can forego an appeal and re-file the charge(s) in a new complaint. California, on the other hand, has a “two dismissal” regulation. Charges that have been dismissed twice can normally not be prosecuted again under this rule.

The two-dismissal rule does have several exceptions. If you are in this circumstance, your California criminal attorney can explain the exceptions.

6.1. What happens to my bail if my case is dismissed?

If all charges are dismissed as a result of a 995 motion, the court must either refund the defendant’s California bond within 15 days or apply the bail to the new offense if the prosecution refiles the charge(s).

7. What happens if I don’t win my 995 motion?

The defendant has the right to appeal a judge’s judgment denying a 995 application. The deadline for filing an appeal is determined by the motion’s original grounds.

The defendant has 60 days from the date of his or her California arraignment to initiate an appeal if the grounds were an improper commitment.

The appeal must be filed within 15 days of the judge’s denial of the 995 request if the grounds were committed without probable cause.

The matter will continue to trial if the defendant does not appeal or loses his appeal.

Charged with a crime in California? Call us for help…

We urge you to contact us for a free consultation to discuss your situation if you or someone you know has been committed for trial.

The California criminal defense attorneys at Spodek Law Group have extensive experience with 995 motions and other pre-trial processes.

We serve clients in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Riverside, San Diego, Ventura, San Bernardino, Oakland, San Francisco Rancho Cucamonga, Sacramento, , and San Jose, among other places in California State.

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