Motion to dismiss a felony – Penal Code section 995

What is a “995 motion”?

In felony cases, there are several procedural safeguards in place before your case goes to trial.  In California, there are two ways for your felony to move forward – either by an indictment by the grand jury or based on the filing of charges and after a preliminary hearing.

The District Attorney can choose to take your felony case to the Grand Jury.  If so, there are certain procedures they must follow, but if the Grand Jury hears the evidence and decides to indict you, they issue a “true bill”.  The District Attorney then files a charging document in court called an indictment.  That indictment lists the charges the prosecutor believes they have proven to the Grand Jury and unless something happens, those are the charges you will face at trial.

The other way for the prosecutor to go forward to trial is to file an initial charging document (a “complaint”) and then conduct a preliminary hearing.  At the preliminary hearing, they must prove each and every charge (both felonies and misdemeanors) as well as any conduct enhancements such as firearm use, great bodily injury allegations, etc.  They must prove the charges to a judge by a probable cause (or “reasonable cause”) standard.  It’s a fairly low burden of proof, but it still has to be met.  If the prosecution is able to put on sufficient evidence at the preliminary hearing and the judge holds you for trial, the prosecutor then files a new charging document called an “information”.

Challenging the charges

If we feel that the judge’s ruling or the Grand Jury’s findings were incorrect, the law provides a way for us to challenge the charges.  Under Penal Code section 995, the indictment or information shall be set aside in either of the following cases:

1.  If it is an indictment:

Where it is not found, endorsed and presented as prescribed in this code.

That the defendant has been indicted without reasonable or probable cause.

2.  If it is an information:

That before the filing thereof the defendant had not been legally committed by a magistrate.

That the defendant had been committed without reasonable or probable cause.

What does that actually mean?  Since most felony cases proceed by way of a preliminary hearing, let’s look at the two ways an information can be dismissed under Penal Code section 995.

“Not legally committed by a magistrate”

This deals with the procedural aspects of the preliminary hearing and can include constitutional violations as well.  First, there is a right to have a continuous preliminary hearing.  Some preliminary hearings only take 30 minutes, but others can take hours or even days or weeks.  You have a right to have the judge hearing your preliminary hearing devote the majority of their time to your case without interruption.  The judge can handle minor matters and take breaks, but in general, your case must take priority.  Unless you waive your right to a continuous preliminary hearing, if there is a violation, your case could be dismissed with a 995 motion.  If there are other errors (a judge denying cross-examination on the evidence or severely limiting it, etc.), those too can be reasons for a 995 motion to be granted and your case dismissed.

“Committed without reasonable or probable cause”

In every criminal charge, there are elements of the crime.  In the most basic example, a DUI, there are two elements:  1) Driving and 2) under the influence.  The prosecution must put on sufficient proof of both of those elements AND sufficient proof of you identification as the person who committed the offense before you should be held to answer.  This standard applies to all felonies and misdemeanors you’re charged with in your case.  Although the burden of proof  is relatively low, there must still be sufficient evidence.  When we file a 995 motion, we are asking a different judge to review the evidence and decide whether or not there was sufficient evidence, even at this low burden of proof.  The DA can file whatever they want in the original complaint, but they must prove it at preliminary hearing.  They can only file charges in the information that were proven at the preliminary hearing.  It boils down to this:  If it’s not in the transcript of the preliminary hearing, it didn’t happen.  The judge that will hear and decide the 995 motion is restricted to the evidence actually presented and written down in the transcript.  Not what is in the police reports, not speculation and not anything else.  Just words on the pages of the transcript.  If the elements of the crimes charged against you haven’t been proven, then the case must be dismissed.

For example, in a case I handled, the DA filed multiple counts of insurance fraud against my client.  Their allegation was that my client was claiming to have been injured and was receiving worker’s compensation, but they were not as injured as they claimed to have been.  The preliminary hearing was conducted and I argued that there was not sufficient proof of any fraudulent intent in the statements my client was alleged to have made to their doctor.  The judge at the preliminary hearing felt there was enough and ordered my client to stand trial.  When we filed the 995 motion, another judge reviewed the evidence in the transcript and agreed with me – there was not enough evidence and my client should not have been ordered to stand trial.  All charges were dismissed.

Other uses for a 995 motion

A motion under Penal Code section 995 can also be filed to dismiss a case if there were other procedural errors.  For example, after a preliminary hearing, the prosecution must file the information (that second charging document) within 15 days of the conclusion of the preliminary hearing.  If they miss that deadline, the case can be dismissed under a 995 motion.  Similarly, if you were held for trial based on illegally gathered evidence (such as an illegal search by the police or a violation of the Miranda rights), the case can potentially be dismissed with a 995 motion.

Timing of a 995 motion

Obviously, a 995 motion can only be filed after a Grand Jury indictment or after a preliminary hearing.  It also must be filed before trial.  If you (and your attorney) do not file a 995 motion, you’ve lost the ability to challenge the sufficiency of the evidence at the preliminary hearing on appeal.

Many times, a preliminary hearing is a great way to challenge the evidence and lock witnesses into their testimony under oath, but it can also be important to set the case up for a possible motion to dismiss so you get a second chance to have your case thrown out.

To discuss your case and situation further, give me a call so we can set up a confidential consultation.

Joe Dane


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