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California Penal Code 995 Motion to Dismiss

Posted by Alan Eisner | Jul 30, 2018

California Penal Code 995 PC Motion to Dismiss
A Penal Code 995 motion gives you an opportunity, after preliminary hearing, to get charges reduced or dismissed based on insufficient evidence.

In felony cases in Los Angeles County criminal courthouses, there is sometimes a discussion by criminal defense lawyers of a “995 Motion.” What exactly is this type of motion and what is it for?

A California Penal Code Section § 995 motion gives you an opportunity, after your preliminary hearing, to have charges reduced or dismissed based on the insufficiency of the evidence.

Keep in mind that although the burden of proof is lower at the preliminary hearing than at a trial (probable cause vs. beyond a reasonable doubt), the prosecutor must still introduce some evidence to support each element of the charged crimes.

A PC 995 motion is filed after a preliminary hearing asking the judge to dismiss the criminal complaint based on the information from the preliminary hearing.

In other words, under PC 995, if a preliminary hearing judge incorrectly allowed the criminal case to move forward, your criminal defense lawyer has the option to file what is commonly known as a “PC 995 motion.” The motion is essentially asking the trail judge to partially or completely dismiss the criminal complaint.

This motion can be filed for felony charges and in cases where both misdemeanor and felony charges have been filed. However, a PC 995 motion can't be filed for a criminal complaint on only misdemeanor charges, due to the fact if there was no felony case, a preliminary hearing would not even occur.

It's basically an appeal of the judge's decision in the preliminary hearing who decided to set the felony case for trial. A stated above, your criminal lawyer would file 995 motion after the preliminary hearing, but before the trial. In legal terms, a PC 995 is a motion to set aside the information, which is the criminal complaint.

A PC 995 may also be used for weeding out felony cases to a misdemeanor, and criminal charges that were added by the Los Angeles County prosecutor after the preliminary hearing. In fact, a Penal Code 995 motion could also be used for charges added by a judge at the preliminary hearing.

It may also be used to challenge special circumstance allegations along with most penalty enhancements. In most cases, the lower burden of proof applicable at preliminary hearing will be satisfied, such that Penal Code Section 995 motions are rarely granted. However, these motions are valuable as an advocacy tool and can be useful in the right case.

If you or a family member is facing felony charges, you may want to consult one of our experienced criminal defense attorneys about the possibility of filing a California Penal Code Section 995 motion to dismiss in your case.

Real Case Example of a PC 995 Motion

Our Los Angeles criminal defense lawyers will file a California Penal Code 995 motion for any client with cases that warrant this action. We need to first closely examine all the facts and evidence in your case to determine the best defense strategy.

For example, in the San Fernando Superior Court, Eisner Gorin LLP secured a complete dismissal of charges in a felony evading case (Vehicle Code Section 2800.2), where the prosecutor failed to ask law enforcement witnesses enough questions relating to some of the very specific requirements of the crime of evading.

For instance, the prosecutor in that case failed to establish that the law enforcement vehicle chasing our client was properly marked, and had its emergency lights activated. Based on these failures of proof, our criminal attorneys were able to have the case dismissed by filing a Penal Code Section 995 motion. 

When is a PC 995 Motion Useful? 

At the Los Angeles criminal defense law firm of Eisner Gorin LLP, it has been our experience that filing a PC 995 motion serves a useful purpose in a couple of ways.

First, in cases where a Los Angles County criminal court judge who presided over the preliminary hearing makes an error in denying a motion to dismiss, a PC 995 motion is a legal option to correct the error.

Next, a PC 995 is an opportunity to show the new trial judge on the case facts and any weakness of the evidence.

However, a PC 995 needs to be used carefully and only with a good faith argument that one of more of the criminal charges should be dismissed. Otherwise, the judge might consider the motion as frivolous and a waste of time, damaging credibility. 

When Can You File a PC 995 Motion?

As discussed above, when you are charged with a felony crime, there will be a preliminary hearing where the judge will decide if these is sufficient evidence to move the case forward to trial. In the vast majority of cases in Los Angeles County, the judge will decide to move the case forward, meaning you will be “held to answer” for the crimes.

At this point, the Los Angeles County prosecutor will file a criminal complaint with the trial court.

After they file the complaint, our lawyers can then file a Penal Code 995 motion to set aside the information. This action is typically taken before pretrial hearings. As stated above, the PC 995 motion is a request for the trail judge assigned to your case to review the decision made by the judge at the preliminary hearing.

Let's take a closer look below on why, when, and how to use such as motion below.

How Can a 995 Motion Get Charges Dismissed? 

There are several situations when a PC 995 motion would be the appropriate action. Again, the main purpose is to weed out charges that are groundless and unsupported by the facts. It typically includes situations that involve the following:

  • You were illegally committed for a trial, known as an “illegal commitment,”
  • You were held over for trial without probable cause.

If either of these situations applies to your case, the trail court judge will typically grant our PC 995 motion and set aside the information. 

Illegal Commitment

An illegal commitment occurs when you were denied a substantial legal right during your preliminary hearing, including:

  • Your right to be advise of and to be representation by an attorney,
  • Your right to cross examine witnesses,
  • Your right to have the preliminary hearing in one session,
  • Your right to be mentally competent at the preliminary hearing.

If you were denied any of these legal rights listed above, then you are considered to be “illegally committed,” and will probably have your charges partially or completely dismissed. This is an example of a situation where our PC 995 motion would be successful. 

Lack of Probable Cause 

The judge must have sufficient probable cause to hold you over for a crime. This means the preliminary hearing judge can't send your case to a trial court unless the accusations contained in the criminal complaint are supported by actual facts.

However, it should be noted the facts don't need to be proven you are guilty beyond a reasonable doubt. However, they must be sufficient enough that there is a strong suspicion your guilty of the crime that you have been charged with. It's critical to stop and note here that if there is at least some evidence supporting probable cause, the judge won't grant a PC 995 motion.

Probable cause refers to a criminal charge supported by enough facts that it is “probable” you committed the crime. Additionally, other situations where a PC 995 motion could be successful include cases where there is insufficient evidence, illegal evidence, or when a Los Angeles County prosecutor failed to provide discovery. 

Options to Win a PC 995 Motion to Dismiss

There are a variety of situations where our Los Angeles criminal attorneys might get a successful PC 995 motion. Some of the most common include:

Lack of sufficient evidence – In cases where these is insufficient direct or circumstantial evidence that you committed the crime, our lawyers might be able to get your case dismissed if the preliminary hearing allowed your case to move forward. This is where a PC 995 motion could be useful.

For example, let's say police entered your home with a search warrant and discovered methamphetamine, but you were charged with drug possession with intent to sell. However, the evidence only supported drug possession, not drug sales. This means there insufficient evidence to support the sale of drugs charges.

Factual finding – In some cases, more information will become available during the preliminary hearing that tends to show your likely innocence and your charges should be dismissed.

For example, if you were facing charges of robbery and there was only a single eyewitness who later states there was poor lighting, they have bad vision, or you may have looked like the suspect, then your charges should be dismissed after the filing of a PC 995 motion. 

Illegal search or seizure – There have been cases where the only evidence used at the preliminary hearing that directly connects defendants to a crime was unlawfully taken, which is a violation of federal or California search and seizure laws.

In these situations, the criminal complaint will typically be dismissed after filing a PC 995 motion. For example, let's take a situation where police entered your residence without having a valid warrant and found cocaine on the kitchen table.

If this is their only evidence of illegal possession of drugs from unlawfully seized property, the judge at your preliminary should have dismissed your case. If they allowed the case to move forward to a trial court, then our criminal defense lawyers can file a PC 995 motion. 

Failure to provide discovery - The Due Process Clause of the 14th Amendment requires that the Los Angeles County prosecutor must disclose all evidence that might be favorable to the defendant.

If the prosecutor fails to reveal this information willfully, voluntarily, and in a timely manner, then the criminal charges should be dismissed. Typically, if the prosecutor fails to file a criminal complaint within 15 days after the preliminary hearing, the trail judge will grant the PC 995 motion.

For example, let's say you were arrested for burglary, but you tell the police your friend who lived there gave you permission to enter the house. A later police investigation confirms your story, but the prosecutor fails to disclose this information, which is a due process violation.

Other legal options for filing a California Penal Code Section 995 motion include a missed deadline. This is a procedural error, such as missing a deadline like the 15 day requirement to file charges that were discussed above. Finally, we could file a PC 995 if the preliminary hearing was more than one session. Once a preliminary hearing begins, it must be completed without interruption unless you agree to a delay.

The Penal Code 995 Motion Hearing

As stated above, our Los Angeles criminal defense lawyers would file a Penal Code 995 motion after your case was assigned to a trial court judge and before the pretrial proceedings.

During the pretrial hearing, we would be given the opportunity to make arguments on why your case should be dismissed, followed by arguments by the Los Angeles County prosecutor. Typically, the entire hearing itself will take less than an hour.

After all arguments have been heard, the judge will make a decision. Their decision in normally immediate, but there are situations where the judge will take more time before making a decision. If the Los Angeles County trial court judge grants the Penal Code 995 motion, your charges will be will be partially or entirely dismissed.

However, the prosecutor has the right to appeal the decision. If the trial court judge denies the PC 995 motion, you have the right to appeal the decision. It should be noted there are short and strict deadlines for an appeal on a PC 995 decision.

You need to closely review the case with your lawyer in order to determine if an appeal is the appropriate action. If you posted bail after your arrest and your case is dismissed after the filing of a PC 995 motion, the court has to refund your bail within 15 days. If the prosecutor decides to re-file your criminal charges, you can apply the bail to your new case.  See related: Brady Motion.

Contact our Los Angeles Criminal Lawyers

If you have been charged with a crime, you need to call the Los Angeles criminal defense attorneys at Eisner Gorin LLP. We will need to review all the specific details of your case in order to determine if your case warrants the filing of a California Penal Code Section 995 – Motion to Dismiss.

The timing of when to file a PC 995 is important. Don't lose the critical opportunity to challenge the evidence in your case. We offer a free immediate response. Contact us at 877-781-1570.

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About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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