Penal Code section 995 motion

Jay Leiderman
By: Jay Leiderman
September 05 2016


California Penal Code § 995 provides, in relevant part, that an indictment “shall be set aside” where (1) “it is not found, endorsed, and presented as prescribed in this code,” or (2) “the defendant has been indicted without reasonable or probable cause.”  “Preliminary hearings and Penal Code section 995 motions operate as a judicial check on the exercise of prosecutorial discretion and help ensure that the defendant is not charged excessively.”  (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835 [internal quotation marks and citations omitted].)  Courts ruling on a Penal Code section 995 motion look to whether the preliminary hearing or grand jury contained “sufficient competent evidence” to conclude there exists “probable cause to believe that a crime had been committed and that the defendant had committed it.”  (People v. Lopez (1975) 52 Cal.App.3d 263, 265-266.)  While the evidentiary showing required is low, the complete failure to present evidence on an essential element of a crime requires dismissal of the allegation.  (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148 [“to withstand a section 871 or Penal Code section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense”].)  As ever, probable cause is evaluated by looking to the totality of the circumstances.  (See Illinois v. Gates (1983) 462 U.S. 213, 238.)


Penal Code 995 Motion
Ventura County, California Defense Lawyer and Certified Criminal Law Specialist Jay Leiderman on his way to court.


18 thoughts on “Penal Code section 995 motion

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  8. 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”.

  9. 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.

  10. Your lawyer need not bring a 995 motion. Your lawyer will file a 955 motion when he wants to ask the judge to dismiss the case against you. This will only happen if the lawyer thinks that one or more of your constitutional rights were violated at the preliminary hearing or if the lawyer thinks that there was not sufficient evidence to hold you to answer to the charges the prosecution alleges. If the judge agrees with your lawyer, the judge will dismiss the felony case against you.

  11. What Is a Penal Code 995 Motion Under California Law?

    In any felony case, there is often a discussion by defense counsel of a “995 Motion.” What is this motion? What is it for? Why do most attorneys believe it is an important motion to file? When is it filed?

    A motion under Penal Code § 995 is known as a “995 Motion.” It asks a judge to dismiss the whole or just parts of an information (the criminal complaint after a preliminary hearing) when the judge at the preliminary hearing in the matter failed to do so. People v. Hudson (1917) 35 Cal.App. 234, 237.

  12. Penal Code section 995:

    (a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:
    (1) If it is an indictment:
    (A) Where it is not found, endorsed, and presented as prescribed in this code.
    (B) That the defendant has been indicted without reasonable or probable cause.
    (2) If it is an information:
    (A) That before the filing thereof the defendant had not been legally committed by a magistrate.
    (B) That the defendant had been committed without reasonable or probable cause.
    (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

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