Call Today! Free Immediate Response (818) 781-1570


Motions to Dismiss in California Criminal Cases

Posted by Alan Eisner | Aug 11, 2020

Motions to Dismiss in California Criminal Cases
Whether you are charged with a misdemeanor or felony offense, we might need to file legal motions related to specific arguments.

Unlike in civil court procedure, where a motion to dismiss, usually for failure to state a claim, is a commonly used mechanism, the opportunities to move to dismiss a California criminal case are generally much more limited.

Nevertheless, an experienced criminal defense attorney will look for both statutory and non-statutory grounds to try to have a criminal case against their client dismissed completely without the risk of a jury trial at which twelve members of the public will decide the client's guilt. 

When a defendant was charged with a misdemeanor or felony offense in Los Angeles, it might be necessary to file legal motions related to specific arguments by the defense.

A motion is a summary on the facts of a case and legal arguments submitted to the prosecutor and the court.

The court will often hold a hearing regarding the motion where the prosecutor and criminal defense lawyer will present witnesses and show evidence to support the merits of the motion.

After the hearing, the judge will make a ruling on the motion. If the defense motion is granted, the case if often dismissed by the prosecution.

These motions are case specific and apply only in specific circumstances based on the procedural posture and the facts of the case. 

This articles will review the following California motions:

  • Demurrer
  • Statute of limitations
  • 995 motion to dismiss

For more information about the applicability of these avenues to your case, or your loved one's case, contact our Los Angeles criminal defense attorneys for an initial consultation to review the details of your case.

Several of the mechanisms by which a defendant may move to dismiss their criminal case are discussed herein. 

Filing a Demurrer

Motion to dismiss cases based on jurisdictional or constitutional issues is known as a demurrer
The first chance for a criminal lawyer to move for a case dismissal in California is at the defendant's arraignment.

The first opportunity to move to dismiss a criminal case in California state court is at the arraignment. A motion to dismiss based on jurisdictional, constitutional, or a narrow set of procedural issues is known as a demurrer

The Penal Code requires the government to give adequate notice to a defendant of what they are being charged with. This notice requirement is relatively minimal. 

Simply using boilerplate language which alleges that a specified criminal offense in violation of a certain code section occurred on a given date and in a given place is usually enough. 

However, there are times when the charging document presented to a defendant is so vague and non-specific that the defendant can successfully demur to the complaint.

This is essentially telling the court that they should not be required to enter a guilty or not guilty plea at arraignment because it is impossible to tell what criminal conduct the government is alleging was committed.

Constitutional arguments at demurrer stage 

Other issues such as First Amendment free speech, Second Amendment right to bear arms, and other constitutional arguments can also be raised at the demurrer stage.

The government cannot criminalize the exercise of federal constitutional rights. For that reason, a defendant can demur to a complaint which attempts to cast the legitimate exercise of a constitutional right as a crime. 

This is relevant for instance in the criminal threats context if the speech at issue was actually constitutionally protected political speech.

Violation of the Statute of Limitations

Non-statutory motions to dismiss are also sometimes entertained by criminal courts. One common example in California state court is a motion to dismiss for violation of the statute of limitations. 

Because the statute of limitations is a public policy limitation on the government's ability to bring a charge, and also a jurisdictional limit contained in statutes, the motion can be brought at any time. 

A motion to dismiss for violation of the statute of limitations will often be adjudicated by a criminal court at the same time as the preliminary hearing in a felony matter.

The testimony which comes out at the preliminary hearing will provide the factual information the court needs to determine whether the offense date is outside of the given statute of limitations. 

Fraud cases in California

For example, in fraud cases, the statute of limitations often starts running when the victim or law enforcement becomes aware, or should have become aware, of the existence of the fraud. 

Preliminary hearing testimony will clarify for the court who knew about the fraud, and when, which is critical to determining the merits of the defendant's motion to dismiss based on the statute of limitations.

Penal Code 995 Motion to Dismiss

California Penal Code 995 - Motion to Dismiss
A motion to dismiss under California Penal Code 995 is presented at the preliminary hearing stage of the court process.

A further opportunity to move to dismiss a criminal case under California law exists following a preliminary hearing in a felony case where the defendant was held to answer and bound over to the trial court. 

A motion to dismiss for insufficient evidence presented at the preliminary hearing is known as a Penal Code 995 motion, which is discussed in more detail in a separate article. 

A 995 motion applies:

  • When all the criminal charges are felonies
  • When criminal charges include both misdemeanors and felonies

 As with a demurrer, this motion must be brought at a specific time. In this case, a Penal Code 995 motion is brought at the arraignment in the trial court within a specified time limit after the preliminary hearing.

The legal grounds for a PC 995 motion to dismiss include:

  • Defendant was illegally committed for trial
  • Defendant was committed to trail without probable cause

The term “illegally committed” means a defendant was denied a right at their preliminary hearing, such as a right to be advised they can be represented by an attorney.

Los Angeles Criminal Defense Lawyers

Motions to dismiss, as you can see, are situational. Not every case will be susceptible to being dismissed because the grounds are fact-specific and depend on the nature of the charges against the defendant. 

If you or a family member has been charged with a crime in California state court and is interested in exploring the viability of a motion to dismiss, contact our law firm to review the case.

We handle all types of motions, including a demurrer, a Penal Code 995 motion after a preliminary hearing, or a non-statutory motion to dismiss.

Contact our experienced team of Los Angeles criminal defense attorneys to closely review all the details.

We have successfully litigated all three types of motions to dismiss discussed in this article in multiple cases and can advise you on the viability of bringing a motion to dismiss in your case. Eisner Gorin LLP is a criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our office at (310) 328-3776.

Related Content:

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...

We speak English, Russian, Armenian, and Spanish.

If you have one phone call from jail, call us! If you are facing criminal charges, DON'T talk to the police first. TALK TO US!

Anytime 24/7