Winning a Penal Code 995 Motion to Dismiss

Learn from a former prosecutor about Penal Code 995 motions to dismiss.

  1. What is a PC 995 Motion to Dismiss?
  2. How A PC 995 Motion Leads to a Dismissal
  3. How to Win a PC 995 Motion to Dismiss
  4. The Results of 995 Motions

What is a P.C. 995 Motion to Dismiss?

A PC 995 motion to dismiss is a legal motion seeking the dismissal of a criminal case based on section 995 of the Penal Code.  It is filed after a “preliminary hearing” in a felony case.

Under section 995 of the Penal Code, if the judge at the preliminary hearing incorrectly allowed the case to move forward, the defendant’s attorney can file a PC 995 motion, which asks the trial judge to entirely or partially dismiss the criminal complaint.

A PC 995 motion can apply to felony charges, as well as charges including both felony and misdemeanor charges. A 995 motion cannot be used in response to a criminal complaint which only includes misdemeanor offenses, because without a felony charge, there will be no preliminary hearing.

How A PC 995 Motion to Dismiss Can Lead to a Dismissal

There are several situations where it would be appropriate to file a PC 995 motion. They typically involve:

  • Illegal Commitment, or
  • Lack of Probable Cause.

Both bases are described in more detail below:

  • Illegal Commitment
    • Illegal commitment occurs when the defendant is denied a substantial right during the preliminary hearing. These rights include:
      • The right to be represented by an attorney
      • The right to cross-examine and to offer witnesses
      • The right to have a hearing in one session
      • The right to be mentally competent at the time of the preliminary hearing

If the defendant has been denied any of these rights it is likely that he or she was illegally committed, and deserves to have the charges wholly or partially dismissed.  Thus, a PC 995 motion would be successful.

  • Lack of Probable Cause / Insufficient Evidence
    • If the preliminary hearing judge allows a case with insufficient evidence to move forward, then there is a lack of probable case, making a PC 995 motion appropriate. A successful PC 995 motion will result in the dismissal of all charges for which there was insufficient evidence.
    • The sufficiency of the evidence is measured by the probable cause standard. Probable cause refers to a charge being supported by enough facts such that it is probable that the defendant committed the crime. The facts don’t have to prove guilt beyond a reasonable doubt – that’s for a jury or trial judge to decide. There just needs to be some basic evidence at the preliminary hearing.

How to Win a PC 995 Motion to Dismiss

There are many different circumstances which could lead to a successful PC 995 motion. These are some of the most common/likely options, followed by helpful examples:

  • Lack of sufficient evidence
    • If there is insufficient direct or circumstantial evidence of the defendant committing the crime(s) for which he is charged, then the complaint must be dismissed. If the judge at the preliminary hearing allows a case which relies only on insufficient evidence to move forward, a 995 motion can be used to dismiss the case or charges.
    • For example, imagine a defendant has been charged with drug sale. The police entered the defendant’s house with a search warrant, and found heroin. If the only evidence presented at the preliminary hearing is the defendant’s possession of heroin, there would be insufficient evidence to support the sale of drugs.
  • Factual Finding
    • If additional information surfaces during the preliminary hearing which proves the defendant’s likely innocence, then the charges should be dismissed.
    • For example, let’s say that a defendant is being charged for allegedly robbing a liquor store and there was only one eyewitness. The witness later testifies that he has very poor vision and is actually unsure if the defendant is the person he saw. If the witness’s original identification was the main leg on which the case stood, the charges against the defendant likely should be dropped or dismissed following a PC 995 motion.
  • Illegal search or seizure
    • If the only evidence presented at the preliminary hearing which connects the defendant to the crimes charged was illegally taken (AKA in violation of search and seizure laws), then the complaint can be dismissed under a 995 motion.
    • For example, imagine the police entering a defendant’s home without a proper warrant and finding drugs. If the only evidence of the defendant possessing illegal narcotics is from the illegally seized property, the preliminary hearing judge must dismiss the case. If the preliminary judge incorrectly allows it to move forward to trial, then the defendant’s attorney can file a 995 motion.
  • Failure to provide discovery
    • The Due Process Clause of the 14th Amendment requires the prosecution to disclose any and all information which may be relevant or favorable to the defendant. The defense does not have to request this information – the prosecution must reveal the information voluntarily. Additionally, the prosecution, must provide this discovery within a timely manner – typically within 15 days.
    • For example, let’s say that the police arrest a defendant for breaking and entering into a victim’s house. The defendant claims that his friend, who also lives there, gave him permission to enter in order to house-sit the friend’s cat. During the investigation, police discover that multiple people confirm the defendant’s story, including the friend.  The failure of the prosecution to disclose this information to the defense may constitute a “due process” violation.
  • Missed deadline
    • Aside from illegal commitment and a lack or probable cause, there can also be a procedural error, such as a missed deadline, that triggers the need for a 995 motion.
    • For example, let’s say that the judge at the preliminary hearing allows the case to proceed and sets the next court date two months in advance. The prosecution typically has 15 days to file its complaint in the trial court. If the prosecution misses that deadline, a PC 995 motion to dismiss may be successful.
  • Preliminary hearing was more than one session
    • Once begun, a preliminary hearing must be completed without interruption unless the defendant agrees to the delay. Generally speaking, if the preliminary hearing is set outside the normal time constraints, and the defendant was not released, the resulting commitment is considered unlawful and the case has to be dismissed.

How a PC 995 Motion to Dismiss is Argued

Below is the way a PC 995 motion to dismiss may be litigated:

  • The judge at the preliminary hearing decides to allow the case to move forward.
  • The case then has to be assigned to a trial judge or a pre-trial calendar court.
  • At this point, if the preliminary hearing judge decided incorrectly, based on one of the above-described situations, your attorney can file a PC 995 motion. The PC 995 motion is typically a written motion filed with the court that articulates the factual and legal basis for the requested dismissal.
  • During the pretrial proceedings, the defense can orally present its reasons for why the case should be dismissed or why certain charges should be dismissed, as articulated in the motion.
  • The prosecution will then be allowed to respond. This back-and-forth process will typically take no longer than an hour. If the prosecutor filed a written response to the 995 motion, he or she may refer to arguments contained in it.
  • At this point, the judge will make a decision. Usually this happens immediately after arguments, but sometimes the judge take some time to make the decision.

The Result of a Successful PC 995 Motion to Dismiss

If the trial court decides to grant your 995 motion, then the charges will be entirely or partially dismissed (depending on which charges were actually related to your motion).

If the trial court denies the 995 motion, you have the right to appeal the decision.  There are strict and short deadlines for appealing 995 decisions, so you should consult with your attorney regarding whether an appeal would be appropriate.

An Experienced Attorney Can Make All the Difference

Spolin Law files PC 995 motions for all clients whose cases warrant such a motion.  The PC 995 motion is just one of the many steps Spolin Law can take for its clients.  The firm is led by former Assistant District Attorney Aaron Spolin, an award-winning criminal defense lawyer, who now defends people accused of major crimes in the Los Angeles area.

To learn more about defense options available to you, call us at (310) 424-5816.

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