California Penal Code 995 PC

Motion to Dismiss per PC 995

Is it possible for a PC 995 motion to get rid of my case? Is it possible that a PC 995 motion to dismiss can get my case thrown out?

(Dedicated California criminal charges DISMISSAL-oriented Attorney explains)

In a California felony case, a motion to dismiss pursuant to penal code section 995 consists of the trial court judge to dismiss or throw out one or more of the criminal counts charged against you on the basis that the preliminary hearing judge improperly “bound you over” for trial (in other words, that the judge messed up because he or she didn’t dismiss the charges against you at the conclusion of your preliminary hearing).

Accordingly, a PC 995 motion (spoken as a “nine-nine-five”) is, in effect, an “appeal” of the judge’s ruling at your preliminary hearing when he or she decided that your case ought to be bound over for trial.

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In the lingua franca or technical phraseology of California criminal law, the domain-specific name for a PC 995 motion is “motion to set aside the information.”

If the pretrial judge determines that the prosecutor was actually unable to establish a sufficient showing of your guilt for purposes of the preliminary hearing, she will grant your motion to set aside the information pursuant to penal code section 995.

But if this does not happen, and your pre-trial judge does not grant your 995 motion, your case will proceed to trial (in the absence of your agreement to accept a plea deal, anyway).

Your attorney can file a 995 if your case involves only felony charges or if your case involves felonies and also misdemeanors. However, if you are exclusively charged with misdemeanors, you’re not entitled to a preliminary hearing anyway, so you would not be able to avail yourself of a PC 995 motion in the first place.

To assist you in better assimilating or comprehending how 995 motions work, our California criminal charges DISMISSAL-oriented attorneys will be discussing as follows in this article:

a. What exactly is a motion to set aside the information a.k.a. PC 995 motion?

b. When can I file this motion?

c. What are the legal grounds for me to file a PCC 995 motion?

d. What cases are eligible to be able to file a PC 995 motion?

e. What is the process of filing a PC 995 motion?

f. What if I win my PC 995 motion?

g. If my case is dismissed, what happens to my bail?

h. What happens if my lose a PC 995 motion?

a. What exactly is a PC 995 motion?

A PC 995 motion is a motion to dismiss the felony “information”, i.e., motion for the judge to throw out your criminal case in whole or in part after a preliminary hearing has been held in your case. The transcript of the preliminary hearing is generally made available to counsel at your felony arraignment that gets put on calendar for some future date at the conclusion of your preliminary hearing.

You can file a motion to dismiss per PC 995 if your case involves all felony charges or includes a mix of felony and misdemeanor charges. People v. Thiecke (1985) 167 Cal.App.3d 1015

Your PC 995 motion may also be used to challenge allegations of special circumstances and/or sentencing enhancements.

There must be a factual basis for all the charges against you, including special circumstances allegations and sentencing enhancements. The judge at your preliminary hearing must have decided whether the facts are sufficiently strong to justify binding you over for trial.

If you or your attorney believe that the judge at your preliminary hearing incorrectly decided to bind you over for trial, your attorney can bring forth a PC 995 motion wherein the trial judge is asked to review the decision of the preliminary hearing judge.

b. When can I file a PC 995 motion?

There will be a preliminary hearing if you are charged with a felony (although technically, you can waive a preliminary hearing but that is a separate discussion to here). At your preliminary hearing, a judge would determine whether there exists sufficient evidence to bind your case over for trial. California Penal Code section 872 PC.

If the judge doesn’t find sufficient evidence, he she will “hold you to answer” for the criminal charges against you. In other words, the judge will have decided that your case can move forward (rather than dismissing it). Thereafter, the prosecutor in your case will file against you an “information” (a post-preliminary hearing criminal complaint) with the trial court.

once the prosecution has filed the information with the court, your attorney motion the trial court to set aside the information against you. Generally this is done prior to any other pretrial hearings. In effect, the motion is a request to the trial judge to conduct a review of the decision made by the judge who presided over your preliminary hearing.

c. What would be the legal grounds for me to file a PCC 995 motion?

The objective of the preliminary hearing is to eliminate charges that are unsupported or groundless. People v. Superior Court (Mendella) 33 Cal.3d 754 (citing People v. Brice (1982) 130 Cal.App.3d 201).

Criminal charges are deemed unsupported or groundless when:

1. you were unlawfully bound over for trial and/or
2. you were bound over for trial when the judge lacked probable cause to do so.

If either of these grounds are applicable and can be established, the trial court will approve your PC 995 motion to set aside the information.

Let’s further examine the meaning of these two grounds.

The Court Illegally Bound You Over you for Trial

A judge would illegally have committed you to trial if during your preliminary hearing, you were deprived of a substantial right. The following are deemed substantial rights (though not an exhaustive list):

• The right, during your preliminary hearing, to be mentally competent (People v. Napthaly (1895) 105 Cal. 641);
• The right to legal representation at your preliminary hearing; (People v. Miller (1932) 123 Cal.App. 499);
• The right you have that the court must advise you that you can be represented by a lawyer (People v. Miller (1932) 123 Cal.App. 499);
• The right you have that the court conduct your preliminary hearing in “one session” (People v. Bucher(1959) 175 Cal.App.2d 343)
• The right to present your own witnesses and the right to and confront and cross-examine witnesses the witnesses against you (Jennings v. Superior Court of Contra Costa County (1967) 66 Cal.2d 867).

The Preliminary Hearing Judge Bound You Over Without Probable Cause

In order for a judge to allow your case to move forward to trial, he or she must have probable cause pursuant to the Due Process Clause of the 14th Amendment. (People v. Chapple (2006) 138 Cal.App.4th 540.)

Having said that, the court is not required to ascertain your guilt beyond a reasonable doubt, which is a determination made to be by the fact-finder (which would be the jury in a jury trial, unless it’s a bench trial).

The facts need only rise to a level of sufficiency wherein a reasonable person could have “an honest and strong suspicion” of your guilt for the crime or crimes charged. People v. Ingle (1960) 53 Cal.3d 407; see also Malleck v. Superior Court (1956) 142 Cal.App.2d 396.

“So long as there exists some evidence foundational to probable cause, a California criminal court judge will not grant your motion to dismiss the information per PC 995. A motion to dismiss the information for Penal Code 995 presents the chance to bring into high relief the frailties, deficiencies and debilities in the government’s case against you and the ability to do so at a comparatively-early juncture of your criminal case,” says California felony charges dismissal-oriented Attorney Joseph L. Coimbra.

Examples of Particular Flaws in the Prosecutor’s Case Against You

The absence of probable cause and the unlawful nature of committing you to trial can occur in various scenarios.

Common examples, though not limited to the following, include:

Illegally-obtained evidence

Law enforcement cannot procure evidence of a crime in a manner that violates California search and seizure laws or federal search and seizure laws. If you only evidence against you that the prosecutor comes from an illegal search, then motion is referred to as “dispositive” and to the degree the judge grants your motion, your case would be dismissed.

Example: The police pull Steve over for a busted tail light. Steve does not show any objective symptoms of intoxication, yet the police tell Steve to pop open his trunk, where they find a bag of heroin and subsequently arrest Steve for possessing the heroin with the intention of selling it.

In this case, the police lacked probable cause to suspect Steve of any crime. Therefore, ordering Steve to open the trunk of his car unlawful. To the degree the preliminary hearing judge finds a sufficient showing that a crime was committed resulting in Steve being bound over for trial, Steve’s attorneys can file a PC 995 motion, which the court ought to grant.

Lack of Sufficient Evidence

The prosecutor is required to meet each and every element of the charges against you by introducing facts to support each of those elements, including the following:

• Every element of each felony count,
• Every element of any misdemeanor count,
• Grounds for any sentencing enhancement, and
• Bases for “special circumstances” finding.

Example: suppose in the aforementioned example that Steve gave the cops probable cause to search the trunk of his car. Despite this, the prosecution does not present evidence of Steve’s intent to sell the contraband found in his car. Due the lack of factual support for the “intent to sell” change, the court ought to grant Steve’s PC 995 motion.

Factual innocence

In certain cases, the judge presiding over the preliminary hearing makes a finding of fact that has a tendency to show factual innocence of the crime. One common illustration of this is a ruling that an eyewitness vital to the prosecution’s case lacks credibility. (Rodas-Gramajo v. Superior Court (2023) 92 Cal.App.5th 656)(case in which trial court reopened the preliminary hearing to address amended gang enhancement elements. The appellate court noted that under Penal Code Section 995, a court must dismiss an information if a defendant has been committed without reasonable or probable cause. This case highlights the importance of sufficient evidence and the credibility of witnesses in determining probable cause).

For example, a percipient witness might have identified you as the culprit, but the accuracy of the eyewitness identification may have been compromised by poor visibility, dim lighting, flawed vision, inordinately long distance from where he or she stood in relation to the scene of the crime, etc.

or

The prosecution’s eyewitness may have identified you as the culprit but only to the degree you resembled the perpetrator.

If the preliminary hearing judge bound you over for trial, and he or she did so virtually entirely upon evidence that lacked the requisite level of credibility as in the aforementioned examples, you attorney has a good chance at having your PC 995 motion granted.

Prosecutorial Failure to Provide Discovery

The prosecutor is required to divulge any and all exculpatory evidence (favorable to you) generally within generally (15) days of acquiring such evidence. (Penal Code Section 1054.5(b); see also United States v. Cloud, No. 22-30044 (9th Cir. May 21, 2024): The Ninth Circuit reaffirmed that suppression of evidence favorable to the accused, whether it has the to impeach prosecutorial witnesses or exculpate the defendant, violates due process if the evidence is material. The court emphasized that the duty to prosecution to disclose exists irrespective of the prosecution's intent). to the degree the prosecution willfully fails to make such a disclosure, the court to dismiss the charges against you.

For instance, let’s say the police pull Steve over (in the aforementioned example), Steve tells them that his friend had lent him the car to use for a couple of days. The police speak to several other people during their investigation who tell them that Steve had asked to borrow a vehicle from them earlier that day. The district attorney does not divulge this to Steve. Due to the fact that the testimony of these people could have substantiated that Steve was being truthful with the police, the failure of the prosecution to disclose this fact to Steve’s attorney is a due process violation.

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. (California Penal Code Section 1382(a)(1); also see People v. Standish (2006) 38 Cal.4th 858, which emphasizes the importance of adhering to statutory time limits in the filing of information following a preliminary hearing).

To the degree that the prosecution fails to file the complaint within fifteen (15) days of the order by the preliminary hearing court judge, the trial judge presiding over your penal code section 995 to dismiss the case against you.

Preliminary hearing ran longer than one session

Courts must conduct preliminary hearings in one session unless you agree to continue the remaining portion of the hearing, i.e., court obtains your agreement. Generally, if your preliminary hearing spans longer than one session, and you are not released from custody in the meantime, your confinement is unlawful and ought to trigger the dismissal of the case against you.

d. What cases are eligible to be able to file a 995 motion?

You can file a motion to dismiss the information for Penal Code Section 995 only if the judge made the determination at your preliminary hearing that you perpetrated at least one (1) felony. A criminal complaint will often consist of a combination of both felony and misdemeanor charges, and, further, may also allege facts substantiating a sentencing or penalty enhancement (for example, a gang enhancement) or an allegation of special circumstances (for example, evidence of premeditation in a murder prosecution).

So long as you’re being charged with at least one felony after the preliminary hearing, our Second Chances Law Group attorneys can prepare and file a PC 995 motion as a means of challenging all the counts or charges against you, including any misdemeanor charges.

e. What is the process of filing a PC 995 motion?

5. Filing Process

If your case gets “bound over” for trial in the aftermath of your preliminary hearing, we generally file a PC 995 motion after the case is designated to a trial judge but prior to other pretrial proceedings. Penal code section 995 motions are written pleadings that assert the factual and legal reasons for why the case against you ought to be dismissed. The trial judge will set a hearing after the motion is filed.

Generally, the motion hearing doesn’t take a long time and approximates a bit less than one hour. Your attorney argues first, followed by the prosecution. Your attorney then has the opportunity to make one final verbal argument.

The judge will generally render a decision immediately upon the conclusion of the arguments. In certain cases, however, the judge may continue the matter to give the arguments further consideration before handing down a ruling.

f. What if I win my PC 995 motion?

If the trial court grants your PC 995 motion, the charges impacted by said motion will be dismissed. However, you should know that the prosecutor can appeal the dismissal. While the prosecutor’s appeal is pending, the district attorney can proceed with a jury trial or bench trial on any remaining counts (if there are any) or request that the trial be continued until ruling on the appeal.

In the alternative, the prosecution can forgo the appeal and simply file a new criminal complaint, i.e., re-filing of the charges against you. Having said that, California adheres to a “two-dismissal” general rule (with exceptions) so that charges that have been dismissed two times can, generally speaking, not be the subject of further prosecution. (California Penal Code Section 1387 PC).

g. If my case is dismissed, what happens to my bail?

If the court dismisses your charges on account of your PC 995 motion being granted, the court must either issue a refund of your bail within fifteen (15) days. Alternatively, to the degree the prosecution re-files the charges against you, the court can apply your bail toward the new charges.

h. What happens if you lose a PC 995 motion?

You can appeal a denial of your PC 995 motion. The appellate deadline depends on the original grounds cited or argued in the motion. If your motion was predicated on the unlawful nature of your being bound over for trial, you have 60 days from the date of your felony arraignment to file an appeal.

If the grounds were an illegal commitment, you have until 60 days from the date of your arraignment to file an appeal. California Penal Code Section 1510.

If the court denied your motion, bound you over for trial and your motion was predicated on the lack of probable cause, then you have only fifteen (15) days within which to file your appeal.

California Penal Code Section 999a PC.

If you either lose your appeal or don’t appeal at all, your case will go forward into the trial phase.

If you’re facing a criminal charge involving a felony (in whole or in part) and you’re curious about filing a penal code section 995 motion to dismiss the information against you, all of this may feel overwhelming to you. Our Second Chances Law Firm attorneys will be happy to meet with you for a no cost consultation to discuss a strategy and pursuing the total dismissal of the criminal case against you.